        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                            Assigned on Briefs July 16, 2013

              STATE OF TENNESSEE v. SARAH LYNN HANNON

                 Appeal from the Criminal Court for Davidson County
                   No. 2012-I-660    Cheryl A. Blackburn, Judge


                No. M2012-02206-CCA-R3-CD - Filed August 28, 2013


Appellant, Sarah Lynn Hannon, pleaded guilty to possession with intent to sell or deliver 0.5
grams or more of cocaine in exchange for a sentence of ten years and dismissal of all
remaining charges. Per the terms of the plea agreement, the parties left determination of the
manner of service of her sentence to the trial court. Following a sentencing hearing, the trial
court ordered that appellant serve her ten-year sentence in the Tennessee Department of
Correction. It is from this judgment that appellant now appeals. Following our review, we
affirm the judgment of the trial court.

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

R OGER A. P AGE, J., delivered the opinion of the court, in which D. K ELLY T HOMAS, J R., and
C AMILLE R. M CM ULLEN, JJ, joined.

Ashley Preston, Nashville, Tennessee, for the appellant, Sarah Lynn Hannon.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Senior Counsel;
Victor S. Johnson, III, District Attorney General; and Bret Gunn, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                         OPINION

                                           I. Facts

        Appellant waived the right to be tried upon an indictment or presentment and entered
a guilty plea by criminal information on June 29, 2012, to possession with intent to sell or
deliver 0.5 grams or more of cocaine. Pursuant to the terms of the plea agreement, the State
dismissed the remaining charges of possession with intent to sell or deliver a Schedule II
controlled substance and unlawful use of drug paraphernalia. The factual basis for the plea
is set forth in the presentence report1 as follows:

               On [April 19, 2012], at about 9:30 p.m., Hermitage CSU conducted
        surveillance at the Jack in the Box located at Old Hickory Boulevard and
        Central Pike. This location is a common location for drug transactions.

                At about 9:40 p.m., surveillance detectives observed a female[,] white,
        later identified as Sarah Hannon [appellant], driving a light blue Mercury into
        the Jack in the Box parking lot and park away from the business. Surveillance
        detectives then observed [appellant] take a drink out of a large glass beer bottle
        and start to count some money. As soon as detectives approached to make
        contact with [appellant], a male[,] black, later identified as Damaris
        Somerville, sitting in the back seat behind [appellant], was observed frantically
        handing [appellant] two baggies with a white substance in them that was
        believed to be cocaine. [Appellant] took possession of the two baggies of
        white substance and attempted to shove them down her pants as if she was
        trying to hide something.

               Both subjects, [appellant] and Damaris Somerville, were taken into
        custody and read Miranda rights. A search of the vehicle yielded two baggies
        of white substance that field-tested positive for the presence of cocaine. The
        two baggies[’] total weight was 6.4 grams and was found on the driver’s seat.
        A digital scale was located in the vehicle’s glove box.

                Search incident to arrest of [appellant] found a pill bottle with yellow
        Opana pills inside. The pill bottle showed that it was filled two days ago
        ([April 17, 2012]). A cell phone was located [that] contained the text going
        out stating, “I got Opanas[;] do you want any?” [Appellant] had $132 in her
        right front pocket that was believed to be drug proceeds and was seized along
        with the vehicle.

       The parties agreed upon a ten-year sentence for the conviction, and appellant agreed
to submit to a sentencing hearing for determination of the manner of service of the sentence.




        1
         A copy of the guilty plea submission hearing is not included in the appellate record. However, we
conclude that the record before us is sufficient for meaningful appellate review. See State v. Caudle, 388
S.W.3d 273, 279 (Tenn. 2012).

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       The trial court held a joint sentencing hearing for appellant and her co-defendant,
Damarius Somerville, on September 14, 2012. The court first noted that appellant would
be sentenced as a Range I standard offender and that the ten-year sentence was to be served
concurrently with an eight-year sentence for violation of probation in a 2006 case. The
probation violation was based on committing the offenses in the instant case and on
appellant’s failure to obtain employment.

       Mr. Somerville was the first witness at the hearing. He testified that at the time he
garnered the instant conviction, he was on probation for selling cocaine. He stated that on
April 19, 2012, he and appellant were “strapped” for money. He received a telephone call
from a man with whom he was acquainted who said that “he needed something.” Mr.
Somerville made a call and located what the man needed. He intended to meet the man and
“make a little money off [of] the deal.”

        Mr. Somerville explained that he violated his probation and was incarcerated for a
time during January of 2012. As a result of the incarceration, he lost his job. Mr. Somerville
used the money that he and appellant had saved to hire a “good” lawyer because his “freedom
was important.” When he was released, they did not have a place to live, and he did not have
a job. Appellant was not able to work because she suffered from back problems. As a result
of their financial problems, Mr. Somerville stated, “I got [sic] that phone call, . . . [and] I
tried to make a move just to get rent money.” He was also financially responsible for their
three-year-old son.

        Mr. Somerville stated that their financial situation was “very[,] very desperate,” which
is why he contemplated selling drugs. He acknowledged that “[i]t was a very bad decision
at a very desperate time for money.” He assured the court that he and appellant would live
with appellant’s parents, who had custody of their child, and he would find employment if
he was released from custody.

       On cross-examination, Mr. Somerville admitted that he brought appellant and their
son with him to the meeting location, which was a fast food restaurant, but stated that it was
so they could get something to eat.

        Appellant testified next and stated that she, also, was on probation at the time of her
arrest in the instant case. She stated that she was with Mr. Somerville on April 19, 2012,
because “[s]ome guy wanted drugs, and we went to go bring them to him.” She stated that
they engaged in the drug transaction because they “didn’t want to be homeless.” She
expected that within ten days from that date, they would have been forced out of their home.




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        Appellant stated that she had been a student at Nashville State studying paralegal
studies and had attended classes “double full-time.” She had been taking seven classes, and
she and Mr. Somerville were using her student loans and grants to supplement their income.
She planned to resume her education when she was released from custody. Appellant
explained that she did not work because she suffered from a fractured vertebrae and a
herniated disc. Mr. Somerville was trying to find a second job so that they could save money
for her to have back surgery. She also suffered from degenerative disc disease, sciatica, bone
spurs in her vertebrae, and bulging discs. The surgery to which she referred was a spinal
fusion that was recommended by her neurosurgeon.

        Appellant presented the following documentary evidence at the hearing: a certificate
of completion from a parenting class; a certificate of completion from a substance abuse and
mental health treatment program; a certificate of completion from a parenting program that
focused on financial planning; certificates for participation in Bible studies; and sign-in
sheets from the chairperson of Narcotics Anonymous and Alcoholics Anonymous. Appellant
testified that her faith had grown and that she had learned more about her addiction as a
disease. She confirmed that she and Mr. Somerville would live with her parents, who had
custody of their son, if she was released from custody.

       Appellant’s father, Jeff Hannon, testified that appellant and Mr. Somerville could live
with him and his wife “on a temporary basis” if they were released from custody. He would
expect both of them to obtain employment. Appellant’s son lived with them at the time of
the hearing. It was sometimes difficult to arrange their schedules so someone could stay with
the child, and their finances were strained. Mr. Hannon indicated that additional income
would help the situation.

        Mr. Hannon stated that appellant had a good attitude about her situation and that she
tried to be positive. He confirmed that he and his wife were willing to support their daughter
and assist her in meeting any appointments that might be associated with probation or
community corrections.

        At the close of the evidence, the trial court ruled, with respect to appellant’s 2 sentence:

               [Appellant] pled guilty to a ten-year sentence. She’s eligible for either
        Community Corrections or . . . probation. She was also on probation at the
        time. She testified. She’s got one prior felony conviction. That’s all the
        record I see for her. She violated that a couple of times. So[,] there is a prior


        2
          The trial court first addressed Mr. Somerville’s sentence. However, because he is not a party to
this appeal, we will only review the trial court’s ruling with regard to appellant’s sentence.

                                                   -4-
       record. She was on probation[;] she violated it. So she does have some
       enhancing factors. But I have to also determine whether or not this is an
       appropriate sentence for her. I don’t see any mitigation other than neither
       threatened nor caused serious bodily injury. I do not find this excuse about
       needing to provide necessities as a very credible excuse. There are lots of
       people who are unemployed right now. I think the latest thing is eight point
       something percent. We know that’s not even accurate. There’s probably a
       whole lot more people, especially people who do have a felony conviction.
       That is very tough. But people make it, people do it. They do not have to go
       out and sell drugs in order to do that. She testifies that this was one time only.
       Now, I know the Metropolitan Police Department prides themselves on doing
       the best thing and doing it quickly, but I don’t think they always find – the very
       first time somebody does something, I don’t know that they’re johnny on the
       spot and able to do that. But I find her not credible with regard to that issue.
       So I’m going to place her sentences into effect, the prior sentence. I’m going
       to deny any alternative sentence. I’m sentencing her to ten years as a Range
       I standard offender. They’ll run concurrent with each other. She will also be
       getting her jail credit . . . She’s also going on to the Department of
       Correction[]. There is really no basis for which I find that either one of these
       individuals is going to do anything that I want them to do . . . , and it would be
       unfair to the other people who come through this court who try and make an
       effort[,] and they don’t go out and start selling drugs.

Appellant now challenges the trial court’s ordering her sentence to be served in confinement.


                                         II. Analysis

                                   A. Standard of Review

        In determining an appropriate sentence, a trial court must consider 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 mitigating and enhancement 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 the defendant makes on his
own behalf as to sentencing; and (8) the potential for rehabilitation. Tenn. Code Ann. §§ 40-
35-103(5), -113, -210(b) (2010); Tenn. Code Ann. § 40-35-114 (2010 & Supp. 2012). In
addition, “[t]he sentence imposed should be the least severe measure necessary to achieve

                                              -5-
the purposes for which the sentence is imposed.” Tenn. Code Ann. § 40-35-103(4) (2010 &
Supp. 2012).

        Pursuant to the 2005 amendments, the Sentencing Act abandoned the statutory
presumptive minimum sentence and rendered enhancement factors advisory only. See Tenn.
Code Ann. § 40-35-114 (2010 & Supp. 2012); Tenn. Code Ann. § 40-35-210(c) (2010). The
2005 amendments set forth certain “advisory sentencing guidelines” that are not binding on
the trial court; however, the trial court must nonetheless consider them. See id. § 40-35-
210(c). Although the application of the factors is advisory, a court shall consider “[e]vidence
and information offered by the parties on the mitigating and enhancement factors in §§ 40-
35-113 and 40-35-114.” Id. § 40-35-210(b)(5). The trial court must also place on the record
“what enhancement or mitigating factors were considered, if any, as well as the reasons for
the sentence, to ensure fair and consistent sentencing.” Id. § 40-35-210(e). The weighing of
mitigating and enhancing factors is left to the sound discretion of the trial court. State v.
Carter, 254 S.W.3d 335, 345 (Tenn. 2008). The burden of proving applicable mitigating
factors rests upon appellant. State v. Mark Moore, No. 03C01-9403-CR-00098, 1995 WL
548786, at *6 (Tenn. Crim. App. Sept. 18, 1995). The trial court’s weighing of the various
enhancement and mitigating factors is not grounds for reversal under the revised Sentencing
Act. Carter, 254 S.W.3d at 345 (citing State v. Devin Banks, No. W2005-02213-CCA-R3-
DD, 2007 WL 1966039, at *48 (Tenn. Crim. App. July 6, 2007), aff’d as corrected, 271
S.W.3d 90 (Tenn. 2008)).

      A trial court should base its decision regarding alternative sentencing 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;

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

Tenn. Code Ann. § 40-35-103(1) (2010).

      When an accused challenges the length and manner of service of a sentence, this court
reviews the trial court’s sentencing determination under an abuse of discretion standard
accompanied by a presumption of reasonableness. State v. Bise, 380 S.W.3d 682, 707 (Tenn.

                                              -6-
2012). This standard of review also applies to “the questions related to probation or any
other alternative sentence.” State v. Caudle, 388 S.W.3d 273, 278-79 (Tenn. 2012). If a trial
court misapplies an enhancing or mitigating factor in passing sentence, said error will not
remove the presumption of reasonableness from its sentencing determination. Bise, 380
S.W.3d at 709. 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 such circumstances, appellate courts may not disturb the sentence even if we had
preferred a different result. See Carter, 254 S.W.3d at 346. The party challenging the
sentence imposed by the trial court has the burden of establishing that the sentence is
erroneous. Tenn. Code Ann. § 40-35-401 (2010), Sentencing Comm’n Cmts.; State v. Ashby,
823 S.W.2d 166, 169 (Tenn. 1991).

       With regard to the trial court’s discretion to order a suspended sentence, our supreme
court has stated:

               Pursuant to the 2005 revisions, the Sentencing Act now provides that
       “[a] defendant shall be eligible for probation under the provisions of this
       chapter, if the sentence actually imposed upon the defendant is ten (10) years
       or less.” Tenn. Code Ann. § 40-35-303(a) (2006). No longer is any defendant
       entitled to a presumption that he or she is a favorable candidate for probation,
       however. The 2005 amendments revised section -102(6) such that it now
       provides: “A defendant who does not fall within the parameters of subdivision
       (5), and 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. A
       court shall consider, but is not bound by, this advisory sentencing guideline.”
       Id. § 40-35-102(6).

Carter, 245 S.W.3d at 347 (footnote omitted). Because appellant’s sentence was ten years,
she is eligible for probation; however, she does not qualify for “favorable candidate” status
because she stands convicted of a Class B felony. “‘[T]he burden of establishing suitability
for probation rests with the defendant.’” Id. (quoting Tenn. Code Ann. § 40-35-303(b)
(2006)). Appellant shoulders the burden of demonstrating that the suspended sentence will
“‘subserve the ends of justice and the best interest of both the public and the defendant.’” Id.
(quoting State v. Housewright, 982 S.W.2d 354, 357 (Tenn. Crim. App. 1997)).




                                              -7-
       Our supreme court has held that

       [m]ere inadequacy in the articulation of the reasons for imposing a particular
       sentence . . . should not negate the presumption [of reasonableness]. . . .
       [W]hile “[t]he sentencing judge should set forth enough to satisfy the appellate
       court that he has considered the parties’ arguments and has a reasoned basis
       for exercising his own legal decisionmaking authority,” there is no requirement
       that such reasoning be particularly lengthy or detailed.” Rita v. United States,
       551 U.S. 338, 356-57 (2007). Accordingly, . . . sentences should be upheld so
       long as the statutory purposes and principles, along with any applicable
       enhancement and mitigating factors, have been properly addressed.

Bise, 380 S.W.3d at 705-06 (emphasis added).

        In denying appellant’s request for a suspended sentence, the trial court considered the
testimony of appellant and her co-defendant as to their selling drugs to provide for basic
living expenses but rejected it. It reviewed the presentence report and noted appellant’s prior
felony conviction. It also discussed the circumstances of the offense. The trial court further
found that appellant’s being on probation at the time of the offense was an enhancing factor
and that the offense neither threatened nor caused serious bodily injury was a mitigating
factor. It also relied on appellant’s failure to comply with the terms of probation on two
previous occasions. We note that the record on appeal does not contain a sentencing order.
Although the better practice is for the trial court to fully articulate that it has considered the
appropriate statutory factors and make specific findings, in the instant case, the trial court
made appropriate findings in support of the denial of probation.

        Appellant argues that the trial court failed to state whether measures less restrictive
than incarceration have been applied unsuccessfully. The record belies this argument, as the
trial court noted appellant’s two failed attempts to succeed at probation. Although appellant
submits that the trial court failed to state whether it considered factors such as appellant’s
mental condition, background, and social history, we find these “arguments . . . unavailing,
as accepting them would require this court to engage in the kind of micro-management of the
trial court’s sentencing decisions that is plainly no longer permissible under Bise and
Caudle—if indeed it ever was.” State v. Jerry Kirkpatrick, No. E2011-01091-CCA-R3-CD,
2013 WL 105896, at *11 (Tenn. Crim. App. Jan. 9, 2013). Appellant has failed to carry her
burden of demonstrating to the trial court or this court that granting her probation would
serve the ends of justice and serve the best interests of both the public and her.




                                               -8-
                                      CONCLUSION

       Based on our review of the record, the parties’ briefs, and the applicable case law, we
affirm the trial court’s denial of alternative sentencing.




                                                   _________________________________
                                                   ROGER A. PAGE, JUDGE




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