        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                            Assigned on Briefs July 23, 2013

         STATE OF TENNESSEE v. STEPHEN MARK ADDLEBURG

                 Appeal from the Criminal Court for Sullivan County
                         No. S56585   R. Jerry Beck, Judge


               No. E2012-02211-CCA-R3-CD - Filed September 9, 2013


Stephen Mark Addleburg (“the Defendant”) was convicted by a jury of failure to provide
proof of financial responsibility; possession of less than one-half ounce of marijuana;
possession of a weapon by a convicted felon; and possession of a handgun while under the
influence. Following a sentencing hearing, the trial court sentenced the Defendant to four
years’ incarceration. In this appeal, the Defendant contends that the trial court erred in
denying his request for alternative sentencing. After a thorough review of the record and the
applicable law, we affirm the judgment of the trial court. We remand the case solely for
correction of clerical errors contained in the two misdemeanor judgments.

                   Tenn. R. App. P. 3 Appeal as of Right; Judgment
                   of the Criminal Court Affirmed; Case Remanded

J EFFREY S. B IVINS, J., delivered the opinion of the Court, in which J OHN E VERETT W ILLIAMS
and N ORMA M CG EE O GLE, JJ., joined.

Andrew J. Gibbons, Blountville, Tennessee, for the appellant, Stephen Mark Addleburg.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Senior Counsel;
Barry Staubus, District Attorney General; and Josh Parsons, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                         OPINION

                          Factual and Procedural Background

      A Sullivan County Grand Jury indicted the Defendant in July 2009 for a violation of
a habitual traffic offender order, failure to provide proof of financial responsibility,
possession of less than one-half ounce of marijuana, possession of a weapon by a convicted
felon, possession of a handgun while under the influence, two counts of driving under the
influence (“DUI”), and one count of driving under the influence eighth offense (“DUI 8th”).
These charges arose out of an incident which occurred on March 6, 2009. The Defendant
proceeded to a jury trial on the indicted offenses on July 25, 2012, at which the following
proof was adduced:

        On the evening of March 6, 2009, David Creasy was working at the Zoomerz gas
station in Kingsport, Sullivan County, Tennessee. He observed an individual, whom he
identified as the Defendant, attempting to stand up a motorcycle that was laying on its side
in the roadway at one of the entrances to the station. He did not see the motorcycle involved
in a wreck, and he did not see the Defendant “drop it or turn over with it or anything like
that.” He also never saw the Defendant drive the motorcycle and only saw him push the
motorcycle into the parking lot. A customer at the station assisted the Defendant in pushing
the motorcycle to a gas pump. Someone came into the station and paid for five dollars worth
of gas for the motorcycle, but Creasy could not recall whether the Defendant was the
individual who paid for it or whether it was the customer who helped him.

       Creasy believed that the Defendant was intoxicated by “the way [he was] walking”
and because he had slurred speech. Thus, Creasy called the police. Creasy did not turn on
the gas pump for the Defendant to get gas for the motorcycle because the 911 dispatcher
asked him to “stall” the individual until the police arrived. While Creasy was on the phone
with the 911 dispatcher, the Defendant came inside the station to ask why the gas pump
would not work. Creasy told the Defendant that “the gas pumps were messed up” and that
Creasy would have to fix the pump. He further instructed the Defendant to move his
motorcycle to a different pump and that he would try to get that one working. The Defendant
told Creasy that he “better not be on the phone with the cops.” Creasy never turned on the
second pump.

       Officer Matthew McGuire and Officer Matthew Aaron Pendleton, with the Kingsport
Police Department (“KPD”), both responded to the scene. Officer McGuire arrived first and
observed the Defendant standing next to a black motorcycle which was parked at a gas pump.
The gas nozzle was already in the tank of the motorcycle. Officer McGuire pulled his patrol
car behind the motorcycle, and the Defendant immediately walked toward the station. He
followed the Defendant into the station and stopped him to “see why [he] was called there
to investigate a possible intoxicated person.”

       Officer Pendleton arrived at the scene when Officer McGuire was following the
Defendant into the station. When Officer Pendleton entered the station, Officer McGuire
was attempting to speak with the Defendant. Both officers testified that they smelled alcohol
on the Defendant’s person and that he was “unsteady” on his feet. Officer Pendleton added


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that he had slurred speech, appeared nervous and “fidgety,” kept trying to reach into his
pockets, and was “kind of aggressive.” Officer McGuire described his demeanor as
argumentative.

       The Defendant admitted to Officer McGuire that he had consumed two to three beers.
He told Officer McGuire that he had been at his house, which was less than one-half mile
away. He did not say that anyone else had been with him.

        Officer McGuire then patted the Defendant down for “officer safety.” Although the
Defendant denied having a weapon, Officer McGuire found a .22 caliber two-shot Derringer
on the Defendant’s person. Officer McGuire also found a small bag of green leafy substance
on the Defendant’s person. After placing the Defendant in his patrol car, Officer McGuire
requested that he submit to a blood alcohol test, to which the Defendant agreed. The
Defendant then signed an Implied Consent Advisement, agreeing to a blood alcohol test.
Officer McGuire also ran the status of the Defendant’s driver’s license, and the results
indicated that his license had been revoked because he was a habitual traffic offender.
Officer McGuire took the Defendant into custody, and Officer Pendleton stayed at the scene
to get the motorcycle towed. Neither officer observed the Defendant drive the motorcycle
or attempt to put gas in it, and they did not attempt to start the motorcycle to determine
whether it was operable.

       The blood alcohol kit and the green leafy substance were sent to the Tennessee Bureau
of Investigation (“TBI”) to be tested. The TBI report reflected that the Defendant tested
positive for .15% ethyl alcohol and that the green leafy substance was 1.4 grams of
marijuana. A surveillance video filmed outside the station was played for the jury.

        According to Johnnie Grills, a friend of the Defendant’s family, Grills was the person
driving the motorcycle that evening. Prior to the Defendant’s arrest, Grills had been at the
Defendant’s residence and test drove the motorcycle earlier that day because the Defendant
wanted to sell it. When Grills returned after the test drive, the Defendant wanted to go to
Woodstone Deli. Grills drove the motorcycle, and the Defendant rode as a passenger.
During the drive, the motorcycle started “pettering and puttering.” The two of them began
arguing over why the motorcycle was operating that way. At the intersection of Lebanon
Road and Fort Henry Drive, the motorcycle “petered out and died.” Grills tried to “crank”
it several times to get it running again but could not. Grills and the Defendant began arguing
again over why the motorcycle stopped running, and the Defendant continued to blame
Grills, saying that he “popped the clutch.” Grills “got very mad and [he] just walked off”
because he knew that “it was coming down probably [to] a fight.” The Defendant screamed
at Grills that he needed to come back and help the Defendant, and the Defendant was “raising
Cain” that he did not have a license and would get in trouble.


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       After deliberations, the jury found the Defendant guilty of failure to provide proof of
financial responsibility, possession of less than one-half ounce of marijuana, possession of
a weapon by a convicted felon, and possession of a handgun while under the influence. The
jury set a $100 fine for the failure to provide proof of financial responsibility conviction; a
$2,500 fine for the possession of less than one-half ounce of marijuana conviction; a $3,000
fine for the possession of a weapon by a convicted felon conviction; and a $2,500 fine for
the possession of a handgun while under the influence conviction. The jury acquitted the
Defendant of both counts of DUI. As a result, the State dismissed the DUI 8th charge.

       At the sentencing hearing held later, the presentence report was admitted as an exhibit
without objection.1 The Defendant testified that he had been diagnosed with stage one lung
cancer after he was convicted of the offenses in this case, and he introduced his medical
records as an exhibit. The Defendant testified that, according to images taken of his chest,
he had “a very large tumor in [his] chest cavity” that would require extensive surgery to
remove. The Defendant testified about future scheduled appointments he had with a thoracic
surgeon and other doctors regarding his recent diagnosis and treatment. The Defendant
asked the trial court to consider his health issues, treatment, and doctor’s appointments in
determining his sentence. Specifically, he requested that the court grant him some type of
house arrest or “ankle monitoring” so that he could continue his treatment. According to the
Defendant, after the tumor was removed, he would most likely have to continue treatment
with radiation or chemotherapy.

        On cross-examination, the Defendant acknowledged that he was arrested on a new
charge after his convictions in this case. The State introduced a certified copy of the new
charge – false imprisonment, a misdemeanor. The Defendant agreed that he had at least three
prior felony convictions. The State also asked the Defendant whether he could pay court
costs and the monthly fee associated with an ankle bracelet or house arrest, as he had
requested. He responded, “I’ll pay as much as I can. I’m just surviving myself.” Lastly, the
State asked the Defendant whether his medical records indicated that the biopsy of the tumor
revealed that is was “not malignant.” The Defendant responded that the doctor “wasn’t
satisfied with the . . . biopsy” so he performed a “PET scan” after the biopsy. According to
the Defendant, the PET scan showed “the first stages of cancer.”

      The trial court determined that the Defendant was a range II multiple offender, and
defense counsel agreed. The court found one enhancement factor applicable, that the
Defendant had a “prior record of criminal activity outside those necessary to establish the


        1
         The Defendant, during his testimony, argued that the assault charge in the presentence report was
dismissed and that it was not a conviction. Accordingly, the trial court stated that it would not consider that
offense.

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range.” The trial court also specifically noted that the Defendant had a “terrible” record. The
trial court sentenced the Defendant to four years on his possession of a weapon by a
convicted felon conviction; to eleven months, twenty-nine days on his possession of less than
one-half ounce of marijuana conviction; and to eleven months, twenty-nine days on his
possession of a handgun while under the influence conviction.2 The court ordered these
sentences to run concurrently, for an effective sentence of four years. The trial court also
affirmed the fines set by the jury, as outlined above.

        The court next determined that the Defendant would serve his four-year sentence in
confinement, denying any alternative sentence. With regard to the Defendant’s health
situation, the trial court stated that it would make a strong recommendation that he be housed
at the Tennessee Department of Correction’s Lois DeBerry Special Needs Facility. It also
stated that it would contact the jail nurse to inform her of the situation and that a copy of the
Defendant’s medical records should be provided to the jail to assist in transporting the
Defendant to the Special Needs Facility.

       The Defendant filed a motion for a new trial, which the trial court denied. On appeal,
the Defendant contends that the trial court abused its discretion in denying the Defendant any
form of alternative sentencing.

                                                 Analysis

       The Defendant challenges the trial court’s denial of any form of alternative
sentencing. Specifically, the Defendant contends that the trial court only considered the
Defendant’s prior record in making this determination and failed to consider the Defendant’s
“current serious health problems,” prison overcrowding, or statistical information regarding
similar convictions. The Defendant also argues that his sentence is not the “[l]east severe
measure necessary to achieve the purposes for which the sentence [was] imposed.” The
Defendant raises no issues with respect to the length of his sentence.

       When the record establishes that the trial court imposed a sentence within the
appropriate range that reflects a “proper application of the purposes and principles of our
Sentencing Act,” this Court reviews the trial court’s sentencing decision under an abuse of
discretion standard with a presumption of reasonableness. State v. Bise, 380 S.W.3d 682,

        2
         The trial court specifically noted at the sentencing hearing that the percentage of the sentences to
be served by the Defendant for both misdemeanors prior to eligibility for rehabilitation programs should be
“zero on the judgment orders.” However, the judgment order for each misdemeanor reflects “75%.”
Accordingly, the judgment orders for the Defendant’s convictions for possession of less than one-half ounce
of marijuana and possession of a handgun while under the influence should be amended to correct the clerical
error. Those judgment orders should reflect 0% instead of 75%.

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707 (Tenn. 2012). Thus, this Court will uphold the trial court’s sentencing decision “so long
as it is within the appropriate range and the record demonstrates that the sentence is
otherwise in compliance with the purposes and principles listed by statute.” Id. at 709-10.
Moreover, under those circumstances, we may not disturb the sentence even if we had
preferred a different result. See State v. Carter, 254 S.W.3d 335, 346 (Tenn. 2008).

        Our supreme court also has expressly held that the Bise standard of review is
applicable to “ questions related to probation or any other alternative sentence.” State v.
Caudle, 388 S.W.3d 273, 279-80 (Tenn. 2012). Thus, in reviewing a trial court’s denial of
full probation, the applicable standard of review is abuse of discretion with a presumption
of reasonableness so long as the sentence “reflect[s] a decision based upon the purposes and
principles of sentencing.” Id. The party appealing the sentence has the burden of
demonstrating its impropriety. Tenn. Code Ann. § 40-35-401, Sent’g Comm’n Cmts.; see
also State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).

       In making its sentencing determination, a trial court must consider:

       (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 the mitigating and
       enhancement factors set out in [Tennessee Code Annotated sections] 40-35-
       113 and 40-35-114;

       (6) Any statistical information provided by the administrative office of the
       courts as to sentencing practices for similar offenses in Tennessee; and

       (7) Any statement the defendant wishes to make in the defendant’s own behalf
       about sentencing.

Tenn. Code Ann. § 40-35-210(b) (2006). The trial judge also should consider “[t]he
potential or lack of potential for the rehabilitation or treatment of the defendant . . . in
determining the sentence alternative or length of a term to be imposed.” Id. § 40-35-103(5)
(2006).



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        When a court determines the manner of service of a sentence, a defendant who “is an
especially mitigated or standard offender convicted of a Class C, D or E felony, should be
considered as a favorable candidate for alternative sentencing options in the absence of
evidence to the contrary[.]” Tenn. Code Ann § 40-35-102(6)(A) (Supp. 2007). However,
the trial court is not bound by this advisory sentencing guideline; rather, it “shall consider”
it. Id. § 40-35-102(6)(D). The defendant bears the burden of establishing his or her
suitability for full probation. See Carter, 254 S.W.3d at 347 (citing Tenn. Code Ann. § 40-
35-303(b)); State v. Mounger, 7 S.W.3d 70, 78 (Tenn. Crim. App. 1999). “This burden
includes demonstrating that probation will ‘subserve the ends of justice and the best interest
of both the public and the defendant.’” Carter, 254 S.W.3d at 347 (citations omitted).

      As stated above, the Defendant challenges the trial court’s denial of alternative
sentencing. In determining whether to deny an alternative sentence, the trial court should
consider the following:

       (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.

Tenn. Code Ann. § 40-35-103(1) (2006); see also Carter, 254 S.W.3d at 347. Additionally,
the principles of sentencing reflect that the sentence should be no greater than that deserved
for the offense committed and should be the least severe measure necessary to achieve the
purposes for which the sentence is imposed. Tenn. Code Ann. § 40-35-103(2), (4). A trial
court also should consider a defendant’s potential for rehabilitation or lack thereof when
determining the manner or length of the sentence. Id. § 40-35-103(5).

       In this case, we discern no error regarding the trial court’s denial of alternative
sentencing. First, as acknowledged by the Defendant, he is a range II multiple offender.
Therefore, he does not meet the criteria for a favorable candidate for alternative sentencing
pursuant to Tennessee Code Annotated section 40-35-102(6)(A). Second, the trial court
discussed the Defendant’s extensive prior criminal record, which is supported by the
presentence report, in denying an alternative sentence. As noted by the trial court, the
Defendant’s prior record includes: seven DUI convictions; numerous traffic-related
convictions; numerous drug possession convictions; numerous public intoxication


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convictions; three driving on a revoked license or driving with license suspended
convictions; two habitual traffic offender convictions; two cocaine trafficking convictions;
two unlawful drug paraphernalia convictions; two possession of marijuana convictions; and
one driving while impaired conviction. Thus, “[c]onfinement is necessary to protect society
by restraining a defendant who has a long history of criminal conduct.” Tenn. Code Ann. §
40-35-103(1). Third, the trial court clearly concluded that the Defendant was a poor
candidate for rehabilitation. In reviewing the presentence report, the trial court noted that
the Defendant previously had failed to comply with the conditions of a sentence involving
release into the community and also had been arrested on a new charge after being convicted
of the offenses in this case.

       Lastly, contrary to the Defendant’s argument, the trial court clearly also took into
consideration the Defendant’s current health situation. It specifically noted that it would
make a strong recommendation that the Defendant be housed at the Tennessee Department
of Correction’s Lois DeBerry Special Needs Facility. The court also stated that it would
contact the jail nurse to inform her of the situation and that a copy of the Defendant’s medical
records would be provided to the jail to assist in transporting the Defendant to the Special
Needs Facility.

       Accordingly, the trial court denied any form of alternative sentencing in a manner
consistent with the purposes, principles, and goals of the Sentencing Act. Thus, the trial
court did not err in ordering the Defendant to serve his four-year sentence in confinement.

                                       CONCLUSION

        For the reasons set forth above, we affirm the judgment of the trial court. We,
however, remand this matter for the correction of clerical errors contained in the judgments
for the possession of less than one-half ounce of marijuana conviction and the possession of
a handgun while under the influence conviction. The judgments for those convictions should
be amended to reflect that the percentage of the misdemeanor sentences to be served in actual
confinement by the Defendant is 0% instead of 75% .


                                                    ______________________________
                                                    JEFFREY S. BIVINS, JUDGE




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