                                                                                         05/25/2018


        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                          Assigned on Briefs April 24, 2018

              STATE OF TENNESSEE v. MICHAEL C. CARTER

                Appeal from the Criminal Court for Sullivan County
                  No. S66911, S67168       R. Jerry Beck, Judge
                     ___________________________________

                           No. E2017-01292-CCA-R3-CD
                       ___________________________________


Defendant, Michael C. Carter, was charged via presentment with one count of failure to
appear, one count of being a habitual traffic offender, one count of failure to provide law
enforcement evidence of financial responsibility, one count of operating a motor vehicle
on a public road with a false registration, and one count of failure to dim headlights
within 500 feet of an oncoming vehicle. Defendant pled guilty and was sentenced to an
effective sentence of four years in incarceration. Defendant appeals to this Court,
arguing that the trial court improperly denied alternative sentencing. After a complete
review of the record, we affirm the judgments of the trial court.

 Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed

TIMOTHY L. EASTER, J., delivered the opinion of the court, in which ALAN E. GLENN and
ROBERT H. MONTGOMERY, JR., JJ., joined.

Stephen M. Wallace, District Public Defender; M. Tyler Harrison, Assistant District
Public Defender, for the appellant, Michael C. Carter.

Herbert H. Slatery III, Attorney General and Reporter; Ruth Anne Thompson, Senior
Counsel; Barry P. Staubus, District Attorney General; and Mitchell B. Watson, Assistant
District Attorney General, for the appellee, State of Tennessee.


                                       OPINION

      In September of 2016, Defendant was charged by the Sullivan County Grand Jury
with one count of felony failure to appear. In November of 2016, the Sullivan County
Grand Jury returned a four-count presentment charging Defendant with one count of
being a habitual traffic offender, one count of failure to provide law enforcement
evidence of financial responsibility, one count of operating a motor vehicle on a public
road with a false registration, and one count of failure to dim headlights within 500 feet
of an oncoming vehicle. On April 7, 2017, Defendant entered guilty pleas to all five
counts, leaving the manner of service and length of the sentence for the determination of
the trial court. The transcript of the guilty plea hearing does not appear in the record on
appeal.

        At a sentencing hearing, Defendant sought an alternative sentence. Defendant
testified that he was sixty-three years of age and that it had been six years since he had a
criminal conviction. Defendant admitted that he used to have a problem “drinking beer”
but that he quit drinking because it “tormented everybody [he] was associated with . . .
disrupted [his family], [and] cost [him] money” as well as “jail time.” Defendant
admitted that he had a significant criminal history and that he failed to complete a
probationary sentence in the past because his wife was having surgery and he missed a
weekend in jail.1 As a result of the violation, Defendant served 128 days in incarceration.
Defendant explained that he was plagued by a bevy of health problems, including one
herniated disc in his neck, two herniated discs in his lower back, a bad hip, restless leg
syndrome, high blood pressure, and heart problems. Defendant had open heart surgery
seven years prior to the sentencing hearing. Defendant admitted that he experimented
with marijuana in high school but that he did not like it so he discontinued using it.
Defendant asked the trial court for a “chance” to prove “that [he] can do right and [he’s]
been doing right.” Defendant admitted that he picked up a charge for failure to appear in
court while the charges were pending because he “wrote [the date] down on the calendar
wrong.”

       The trial court acknowledged that Defendant had a “long record” coupled with a
“long history of his own admission of beer use” and that Defendant continued to
accumulate more convictions as he aged. The trial court commented that Defendant was
definitely getting older but it did not appear he was getting “much wiser.” The trial court
noted Defendant had three prior felonies including a grand larceny, a failure to appear,
and a conviction for being a habitual traffic offender. However, the trial court noted that
the plea agreement called for Defendant to be sentenced as a Range I offender. The trial
court noted that the failure to appear and habitual traffic offender sentences were
mandatorily consecutive and ordered Defendant to serve his effective four-year sentence
in incarceration. The trial court commented it was difficult to “be confident that
[Defendant] would not be in further trouble” and that Defendant presented a “danger” to
the community.


       1
           Apparently, at the time of his wife’s surgery, Defendant was serving “30 weekends” in jail.
                                                     -2-
       Defendant filed a timely notice of appeal.

                                         Analysis

       On appeal, Defendant challenges the trial court’s denial of an alternative sentence.
Specifically, Defendant claims the trial court abused its discretion by failing to properly
apply the purposes and principles of the Sentencing Act. The State disagrees.

       A trial court’s decision regarding the length and manner of service of a sentence is
reviewed for abuse of discretion, with a presumption of reasonableness granted to within-
range sentences reflecting a proper application of the purposes and principles of the
Sentencing Act. State v. Bise, 380 S.W.3d 682, 707 (Tenn. 2012). Under Bise,
“sentences should be upheld so long as the statutory purposes and principles, along with
any applicable enhancement and mitigating factors, have been properly addressed.” Id. at
706. A sentence within the appropriate range will be upheld so long as “there are other
reasons consistent with the purposes and principles of sentencing.” Id. The Tennessee
Supreme Court explicitly applied the abuse of discretion standard of review in Bise to
alternative sentencing in Caudle. 388 S.W.3d at 278-79 (“[T]he abuse of discretion
standard, accompanied by a presumption of reasonableness, applies to within-range
sentences that reflect a decision based upon the purposes and principles of sentencing,
including the questions related to probation or any other alternative sentence.”).

        In conducting its review, this Court considers the following factors: (1) the
evidence, if any, received at the trial and the sentencing hearing; (2) the presentence
report; (3) the principles of sentencing and arguments as to sentencing alternatives; (4)
the nature and characteristics of the criminal conduct involved; (5) evidence and
information offered by the parties on enhancement and mitigating factors; (6) any
statistical information provided by the administrative office of the courts as to sentencing
practices for similar offenses in Tennessee; (7) any statement by the appellant in his own
behalf; and (8) the potential for rehabilitation or treatment. See T.C.A. '' 40-35-102, -
103, -210; see also Bise, 380 S.W.3d at 697-98. The burden is on the appellant to
demonstrate the impropriety of his sentence. See T.C.A. ' 40-35-401, Sentencing
Comm’n Cmts.

       Tennessee Code Annotated section 40-35-104 authorizes alternative sentences,
which may include a sentence of confinement that is suspended upon a term of probation
or a sentence of continuous or periodic confinement in conjunction with a term of
probation. T.C.A. ' 40-35-104(c)(3), (4), (5). A defendant is eligible for probation if the
sentence imposed is ten years or less. T.C.A. ' 40-35-303(a). Although “probation shall
be automatically considered by the court as a sentencing alternative for eligible
defendants,” the defendant bears the burden of “establishing suitability” for probation.
                                            -3-
T.C.A. ' 40-35-303(b). “This burden includes demonstrating that probation will
‘subserve the ends of justice and the best interest of both the public and the defendant.’”
State v. Carter, 254 S.W.3d 335, 347 (Tenn. 2008) (quoting State v. Housewright, 982
S.W.2d 354, 357 (Tenn. Crim. App. 1997)).

       A defendant who is sentenced as an especially mitigated or standard offender and
who has committed a Class C, D, or E felony should be “considered as a favorable
candidate for alternative sentencing options” if certain conditions are met. T.C.A. ' 40-
35-102(5), (6)(A). The guideline regarding favorable candidates is advisory. T.C.A. '
40-35-102(6)(D). In this case, Defendant was convicted of two Class E felonies and
three Class C misdemeanors and was sentenced to an effective sentence of ten years or
less. Therefore he was a favorable candidate for alternative sentencing.

      Tennessee Code Annotated section 40-35-103 requires that sentences involving
confinement be based on the following considerations:

       (A) Confinement is necessary to protect society by restraining a defendant
       who has a long history of criminal conduct;

       (B) Confinement is necessary to avoid depreciating the seriousness of the
       offense or confinement is particularly suited to provide an effective
       deterrence to others likely to commit similar offenses; or

       (C) Measures less restrictive than confinement have frequently or recently
       been applied unsuccessfully to the defendant;

T.C.A. ' 40-35-103(1).

       The trial court in this case relied on subsections (A) and (C) of Tennessee Code
Annotated section 40-35-103(1). In ordering Defendant to serve his sentence in
incarceration, the trial court specifically noted Defendant’s criminal history in addition to
the five offenses at issue and the fact that Defendant was previously granted “either
partial suspended sentences or totally suspended sentences,” and the potential for
Defendant to be a “danger.” The trial court herein acted consistently with the purposes
and principles of the Sentencing Act. We conclude that the trial court did not abuse its
discretion in denying alternative sentencing.


                                              ____________________________________
                                              TIMOTHY L. EASTER, JUDGE

                                            -4-
