                                                                                         01/30/2018
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                        Assigned on Briefs December 13, 2017

            STATE OF TENNESSEE v. JEFFERY CARL SHIELDS

                 Appeal from the Circuit Court for Bedford County
                      No. 18461 Franklin L. Russell, Judge
                     ___________________________________

                           No. M2017-00870-CCA-R3-CD
                       ___________________________________


Defendant, Jeffrey Carl Shields, pled guilty to one count of burglary and thirteen counts
of forgery in exchange for a total effective sentence of twelve years as a Range II,
multiple offender. After a sentencing hearing, the trial court denied alternative
sentencing and ordered Defendant to serve his sentence in incarceration. This appeal
followed. After a review, we determine that the trial court did not abuse its discretion in
denying an alternative sentence where Defendant was facing additional charges at the
time of sentence and previous attempts at alternative sentencing had failed.
Consequently, the judgments of the trial court are affirmed.

  Tenn. R. App. P. 2 Appeal as of Right; Judgments of the Circuit Court Affirmed

TIMOTHY L. EASTER, J., delivered the opinion of the court, in which NORMA MCGEE
OGLE and CAMILLE R. MCMULLEN, JJ., joined.

Donna Orr Hargrove, District Public Defender, and Michael J. Collins (on appeal) and
Jackson A. Dearing, III (at trial), Assistant District Public Defenders, for the appellant,
Jeffery Carl Shields.

Herbert H. Slatery III, Attorney General and Reporter; M. Todd Ridley, Assistant
Attorney General; Robert J. Carter, District Attorney General; and Michael D. Randles,
Assistant District Attorney General, for the appellee, State of Tennessee.


                                       OPINION

       In January of 2017, Defendant was indicted for one count of burglary, one count
of theft of property valued under $500, and twenty-six counts of forgery. At the guilty
plea hearing, the State recounted the factual basis for the pleas as follows:
             [B]ack in April of last year, a Mr. James Williams, who I think is a,
      on the board or in the leadership of the Church of the Redeemer here in
      Bedford County reported that he had been made aware that a number of
      checks had been written on their church bank account that they did not
      authorize, and they’d all been cashed at Advance Financial.

              An investigation was launched and it was determined that
      [Defendant] had been allowed to stay in the sanctuary. He was homeless,
      and they were allowing him to stay in the sanctuary. They also gave him a
      key that gave access to another portion of the church, so he could go to the
      restroom. [B]ut apparently he had gotten into a portion of the church he did
      not have permission to enter into and found the checkbook. And he took
      the checkbook or took checks from the checkbook and began cashing them
      at Advance Financial. I believe there’s a total of 13 checks, that [ac]counts
      for the even number counts of the indictment.

            [A]ll the checks were made payable to him. Of course, the church
      says they did not authorize those checks to be cashed. The police
      department investigated the matter, they interviewed [Defendant] and he
      admitted to taking the checks, filling them out, you know, making them
      payable to himself and cashing them at Advance Financial.

Pursuant to a negotiated plea agreement, Defendant agreed to plead guilty to one count of
burglary and thirteen counts of forgery in exchange for a sentence of eight years on the
burglary conviction and a sentence of four years on each of the forgery convictions. The
forgery sentences were ordered to be served concurrently with each other but
consecutively to the burglary sentence, for a total effective sentence of twelve years at
thirty-five percent. The trial court was to determine the manner of service of the sentence
at a sentencing hearing.

        At the sentencing hearing, the State introduced the presentence report, detailing
Defendant’s criminal history, which started in the early 1990s. Defendant had
convictions for theft of property, possession of prohibited weapons, accessory after the
fact, driving with a suspended license, evading arrest, casual exchange, violation of the
driver’s license law, as well as a pending charge for possession of marijuana. Defendant
admitted that he had received probation on two prior occasions and violated his
probation. Defendant expressed remorse for having committed the crimes at issue and
apologized to the trial court. At first, Defendant claimed that he stole the money from the
church to support his family but ultimately admitted that he committed the crimes as a
result of his addiction to drugs and alcohol. Defendant maintained that he was not a “bad

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person” and that he had “learned his lesson.” Defendant expressed his desire to enroll in
a rehabilitation facility but informed the trial court that the local facility was full.

       At the conclusion of the hearing, the trial court commented that there was “zero
possibility” that Defendant could be “rehabilitated without incarceration.” The trial court
pointed to the numerous “breaks” Defendant had been given in the past despite his
continued life of crime spanning a “very, very long period of time.” The trial court also
noted Defendant’s probation revocations on his record and pending charges for the sale
of marijuana at the time of the sentencing hearing. The trial court agreed that Defendant
was not a “bad person” but suffered from addiction, and a sentence of incarceration was
“absolutely essential” to get Defendant “on the right road.” As a result, the trial court
denied alternative sentencing, ordering Defendant to serve his twelve-year sentence in
incarceration.

       Defendant appeals the denial of alternative sentencing.

                                         Analysis

      On appeal, Defendant argues that he is a favorable candidate for alternative
sentence despite his relapse on drugs and alcohol and that the trial court should have
sentenced him to Community Corrections. Specifically, he argues that the crimes he
committed “were not of a violent nature, and he is in need of rehabilitation.” The State
counters that nothing in the record indicates that the trial court abused its discretion.

        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, 707 (Tenn. 2012). The same standard of review applies to a trial court’s decision
regarding “probation or any other alternative sentence.” State v. Caudle, 388 S.W.3d
273, 278-79 (Tenn. 2012); see also State v. King, 432 S.W.3d 316, 325 (Tenn. 2014)
(applying the same standard to judicial diversion). 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.” Bise, 380 S.W.3d 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). The party appealing the
sentence has the burden of demonstrating its impropriety. T.C.A. § 40-35-401, Sent’g
Comm’n Cmts.; see also State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).

       Tennessee Code Annotated section 40-35-102(3)(C) provides that “[p]unishment
shall be imposed to prevent crime and promote respect for the law by . . . [e]ncouraging
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effective rehabilitation of those defendants, where reasonably feasible, by promoting the
use of alternative sentencing and correctional programs that elicit voluntary cooperation
of defendants[.]” Tennessee Code Annotated section 40-35-104(c)(9) authorizes a
“sentence to a community based alternative to incarceration . . . .” Additionally, “[t]he
potential or lack of potential for the rehabilitation or treatment of the defendant should be
considered in determining the sentence alternative or length of a term to be imposed,”
and “[t]he length of a term of probation may reflect the length of a treatment or
rehabilitation program in which participation is a condition of the sentence[.]” T.C.A. §
40-35-103(5). On the other hand, sentences involving confinement should 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). Moreover, the sentence imposed “should be no greater than that
deserved for the offense committed” and also “should be the least severe measure
necessary to achieve the purposes for which the sentence is imposed.” T.C.A. § 40-35-
103(2), (4).

       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. 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.’” Carter, 254 S.W.3d at 347 (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
guidelines regarding favorable candidates are advisory. T.C.A. § 40-35-102(6)(D).

       Defendants who meet certain “minimum criteria” but would otherwise be subject
to incarceration may be eligible for Community Corrections. See T.C.A. § 40-36-106(a).
Even where a defendant does not meet the criteria under Tennessee Code Annotated
section 40-36-106(a), he may nevertheless “be considered eligible for punishment in the
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community under this chapter” if the defendant “would be usually considered unfit for
probation due to histories of chronic alcohol or drug abuse or mental health problems, but
whose special needs are treatable and could be served best in the community rather than
in a correctional institution.” T.C.A. § 40-36-106(c). In this case, Defendant was
convicted of one Class D felony and thirteen class E felonies, and was not convicted of
any of the offenses listed in the statute rendering him ineligible for an alternative
sentence. Defendant was considered a favorable candidate for alternative sentencing.

        Defendant argues that the trial court improperly denied probation by failing to
consider all the factors contained in Tennessee Code Annotated section 40-35-103. In
our view, the trial court determined that incarceration was in the best interest of
Defendant due to Defendant’s lengthy criminal history and failure to abide by the terms
of probationary sentences. The record supports this decision. The trial court did not
abuse its discretion in utilizing and considering Defendant’s criminal history in denying
an alternative sentence. Moreover, while Defendant testified that he was addicted to
drugs and alcohol, there was no evidence presented that treatment of Defendant’s issues
“could be served best in the community rather than in a correctional institution.” T.C.A.
§ 40-36-106(c). The fact that Defendant had prior probationary sentences revoked alone
would support the imposition of a sentence of confinement. See T.C.A. § 40-35-
103(1)(C).      Additionally, Defendant’s criminal record supports a sentence of
confinement. See id. § 40-35-103(1)(A). The trial court did not abuse its discretion in
ordering Defendant to serve his sentence of twelve years in confinement. Defendant has
failed to establish an abuse of discretion and is, therefore, not entitled to relief.

                                          Conclusion

      For the foregoing reasons, the judgment of the trial court is affirmed.


                                         ____________________________________
                                         TIMOTHY L. EASTER, JUDGE




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