        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                         Assigned on Briefs August 19, 2015


             STATE OF TENNESSEE v. BRIAN ALLEN CATHEY

                Appeal from the Criminal Court for Sullivan County
                        No. S60637   R. Jerry Beck, Judge




               No. E2014-02320-CCA-R3-CD – Filed October 16, 2015
                        _____________________________

The defendant, Brian Allen Cathey, pled guilty to one count of aggravated burglary, a
Class C felony, and one count of theft of property of $1000.00 or more but less than
$10,000, a Class D felony, in exchange for concurrent sentences of three and two years.
After a sentencing hearing, the trial court denied an alternative sentence and ordered the
defendant to serve his sentences in confinement. The only issue on appeal is whether the
trial court erred by denying him an alternative sentence. Following our review of the
briefs of the parties, the record, and the applicable law, we affirm the judgments of the
trial court.

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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the Court, in which JAMES
CURWOOD WITT and TIMOTHY L. EASTER, JJ., joined.

Stephen M. Wallace, District Public Defender; and Joseph F. Harrison, Assistant District
Public Defender, for the Appellant, Brian Allen Cathey.

Herbert H. Slatery III, Attorney General and Reporter; Clarence E. Lutz, Assistant
Attorney General; Barry Staubus, District Attorney General; and James F. Goodwin,
Assistant District Attorney General, for the Appellee, State of Tennessee.


                                       OPINION

      At the defendant‟s guilty plea hearing, an affidavit of complaint set forth the facts
underlying the defendant‟s guilty plea. The victims, Mr. and Ms. Harless, were away
from their home during Labor Day Weekend of 2011. On September 5, 2011, the victims
returned to their home and noticed that a rear window of the home was broken. The
victims contacted police, and Ms. Harless informed officers that “her bedroom had been
ransacked.” She reported that several pieces of her jewelry had been stolen and that the
value of the jewelry exceeded $1000.00. The defendant lived next door to the victims,
and during the investigation officers learned that he was a wanted fugitive. Officers were
able to locate the defendant with the assistance of the United States Marshall‟s Office. A
detective examined the records from a local Gold Rush business and learned that the
defendant had sold three rings to the store on September 5, 2011. Ms. Harless identified
the rings as the ones that had been stolen from her. The defendant acknowledged that
facts contained in the affidavit were true, and he entered a knowing and voluntary plea of
guilty.

        At the alternative sentencing hearing, the trial court considered the presentence
report. The court read excerpts from the victim impact statements that detailed the
extensive mental anguish that the crime caused the victims. The court noted that the
report detailed a prolonged history of drug usage by the defendant. The defendant began
using drugs at the age of nine, when he started smoking marijuana. After the marijuana
caused him to suffer nose bleeds, the defendant progressed to “mollies,” which was a
form of Ecstasy. The defendant used hydrocodone and oxycodone, but when those drugs
became too expensive, he began using Suboxone. The report also indicated that the
defendant had several prior convictions for misdemeanors in New York. The trial court
observed that the defendant had a pending charge for possession of marijuana with the
intent to resell that occurred after the offenses at bar.

       The defendant testified that he was not married and did not have any children. He
did not graduate from high school, but he received his GED in 2010. The defendant
participated in a course titled “Alliance for Business and Training” through
“YouthBuild,” and he completed the course “[w]ith merit certificates.” He was a
“National Honors Graduate of YouthBuild” and received a leadership training certificate.
The defendant studied carpentry at the Home Builders Institute, but his drug usage
interfered with his education.

       The defendant testified that he was currently employed as a roofer for a
construction company. He worked twenty-five to thirty hours per week and was paid
$8.50 per hour. He testified that he was addicted to “opioids, Oxycontin, roxies, Lortabs,
[and] Percocets,” in addition to hydrocodone and oxycodone. He admitted that he used
marijuana three weeks prior to the sentencing hearing. He stated that he had not used
“mollies” since he was seventeen years old. In an effort to combat his addiction, the
defendant recently began going to a Subutex clinic and had received a prescription for the
drug. He admitted that he began attending the Subutex clinic three weeks prior to the
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sentencing hearing.     The defendant maintained his innocence for his pending drug
charges.

        The defendant testified that his criminal convictions in New York stemmed from
problems that he had with his stepmother. He was convicted of criminal mischief and
placed on probation. He was later convicted of criminal contempt after violating a
restraining order against his stepmother.

       The defendant testified that he had not received any drug treatment but recognized
that he needed it. The defendant expressed remorse for his crimes and wanted to
apologize to the victims. He agreed that he committed the crime to obtain money to
purchase drugs. He asked the court to impose an alternative sentence and for the court to
allow him the opportunity to demonstrate that he could change. He requested that some
form of drug treatment be included in his sentence. He stated that he planned to live with
his mother if granted an alternative sentence. He explained that his mother was recently
evicted and that they would be moving to a new address.

        Ms. Harless testified that she had “never felt so violated in all of [her] life” as she
did when she saw that her home had been burglarized. She testified that “it has been
terrible ever since.” She explained that several pieces of the stolen jewelry were
heirlooms that were never returned to her. Ms. Harless testified that the defendant lived
next door to her and her husband and that they had not had any problems with the
defendant until the burglary and theft. Ms. Harless stated that she and her husband had
been “terrified that something like [the break-in] could happen and [the defendant] would
be right next door.”

       The trial court found that the defendant had a prior criminal record with
misdemeanor convictions and “a long-term addiction to drugs.” The court noted that the
defendant‟s reported salary from his various jobs was less than the amount of money that
he said he spent on drugs. The court also noted that the defendant had used marijuana
three weeks before his sentencing hearing. In determining whether to grant the defendant
probation, the court acknowledged the current overcrowding in state prisons and took
into account the defendant‟s prior record and amenability to correction. The court found
that the defendant had “gone years” with a drug problem that he did not attempt to
address. The court found that the defendant‟s offenses were “particularly bad because of
the victims he picked in this case, the destruction he did.” The court noted that both
victims were elderly and that the defendant could not return the stolen property because
he sold it and spent the money on drugs. The court stated that a denial of probation
would be based upon “the nature of the offense.” The court found that the defendant‟s
case differed from other cases of burglary and theft due to “the age of the victims; the
amount of the theft; the Defendant‟s continued addictions; his history of using drugs and
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spending great amounts . . . on drugs.” The court declined to impose a sentence of
probation.

       The trial court next considered whether Community Corrections was a valid
alternative to a sentence of incarceration. The court denied all forms of Community
Corrections based upon the nature of the offense and the vulnerability of the victims due
to their age, and it ordered the defendant to serve his effective three-year sentence in
confinement.

                                       ANALYSIS

      On appeal, the defendant argues that the trial court abused its discretion in denying
him an alternative sentence. He contends that the trial court failed to properly apply the
purposes and principles of the Sentencing Act.

       When determining a sentence, the trial court must consider the following: (1) the
evidence, if any, received at the trial and at 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) any 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; and (7) any
statement the defendant wishes to make on his own behalf about sentencing. T.C.A. §
40-35-210(b) (2010). This court reviews the denial of an alternative sentence or
probation under an “abuse of discretion standard, accompanied by a presumption of
reasonableness.” State v. Caudle, 388 S.W.3d 273, 278-79 (Tenn. 2012). This court
should uphold a sentence “so long as the statutory principles, along with any applicable
enhancement and mitigating factors, have been properly addressed.” State v. Bise, 380
S.W.3d 682, 706 (Tenn. 2012).

       A trial court has the authority to impose an alternative sentence, which may
include a sentence of probation or Community Corrections. A defendant who is either an
especially mitigated or standard offender and 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.” T.C.A. § 40-35-102(6)(A). Here, the defendant
was a standard offender who was convicted of Class C and D felonies, making him a
favorable candidate for an alternative sentence. However, the trial court may decline to
impose an alternative sentence because:

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

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             (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)(A)-(C).

       A defendant who receives a sentence of ten years or less may be eligible for
probation. T.C.A. § 40-35-303(a). The defendant bears the burden of establishing that
he or she is a suitable candidate for probation. 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)). In determining whether full probation is appropriate, the trial court “may
consider the circumstances of the offense, the defendant‟s potential or lack of potential
for rehabilitation, whether full probation will unduly depreciate the seriousness of the
offense, and whether a sentence other than full probation would provide an effective
deterrent to others likely to commit similar crimes.” State v. Boggs, 932 S.W.2d 467, 477
(Tenn. Crim. App. 1996). “The determination of whether the appellant is entitled to an
alternative sentence and whether the appellant is entitled to full probation are different
inquires.” Id.

        The defendant was eligible for probation, as he received sentences of ten years or
less. In considering whether to grant the defendant probation, the court acknowledged
the overcrowding of prisons in the State. The court also considered the defendant‟s prior
criminal record and amenability to correction. The trial court denied probation based
upon the nature of the offense, citing the age of the victims, the amount of the theft, the
defendant‟s continued drug addictions, and his history of using drugs and spending
copious amounts of money to acquire drugs as the reasons for denying probation. The
defendant has failed to meet his burden of establishing that he was a suitable candidate
for probation, and we conclude that the trial court did not err in denying the defendant
full probation.

       A defendant who is not entitled to probation may still be eligible for Community
Corrections. T.C.A. § 40-36-106(a)(1)(A) (stating that persons who, without this
provision, would be incarcerated in a correctional institution are eligible for Community
Corrections); State v. Kristopher Blake Kincer, No. E2013-01740-CCA-R3-CD, 2014
WL 2553429, at *5 (Tenn. Crim. App. June 2, 2014), no perm. app. filed.

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        Here, the trial court considered whether Community Corrections would be an
appropriate alternative to incarceration. The court denied Community Corrections, again
relying on the nature of the offense. Although the trial court did not explicitly state that
confinement was necessary to avoid depreciating the seriousness of the offense, “[m]ere
inadequacy in the articulation of the reasons for imposing a particular sentence” should
not negate the presumption of correctness afforded to the trial court‟s findings. Bise, 380
S.W.3d at 705-06. The trial court found that this offense was particularly serious due to
the age of the victims and the permanent loss of property that the victims suffered. The
record reflects that the trial court adequately considered the purposes and principles of
the Sentencing Act, and we conclude that the court did not abuse its discretion in denying
the defendant Community Corrections. Accordingly, the defendant is not entitled to any
relief.

                                     CONCLUSION

       Based upon the foregoing, the judgments of the trial court are affirmed.




                                                 _________________________________
                                                 JOHN EVERETT WILLIAMS, JUDGE




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