       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                        AT NASHVILLE
                         Assigned on Briefs April 22, 2015

                STATE OF TENNESSEE v. TERMEL DOWDY

                   Appeal from the Criminal Court for White County
                     No. CR-5905    David A. Patterson, Judge


                No. M2014-02147-CCA-R3-CD – Filed May 14, 2015


The defendant, Termel Dowdy, pled guilty to introduction of contraband into a penal
institution, a Class C felony, and DUI, a Class A misdemeanor, in exchange for a ten-
year sentence with the manner of service to be determined by the trial court. After a
sentencing hearing, the trial court ordered that the defendant serve his sentence in
confinement, which he now appeals. Following our review, we affirm the judgments of
the trial court.

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

ALAN E. GLENN, J., delivered the opinion of the court, in which JOHN EVERETT
WILLIAMS and ROGER A. PAGE, JJ., joined.

Michael J. Rocco, Sparta, Tennessee (on appeal); and Patrick Hayes, Cookeville,
Tennessee (at hearing), for the Appellant, Termel Dowdy.

Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Senior Counsel;
Bryant C. Dunaway, District Attorney General; and Philip Hatch, Assistant District
Attorney General, for the Appellee, State of Tennessee.

                                      OPINION

                                        FACTS

        In January 2013, the White County Grand Jury returned a seven-count indictment
against the defendant, charging him with introduction of contraband into a penal
institution; possession of a Schedule VI controlled substance, marijuana, with intent to
sell or deliver; possession of a Schedule II controlled substance, Oxycodone; possession
of a Schedule IV controlled substance, Alprazolam; DUI, first offense; driving on a
suspended driver‟s license; and violation of the implied consent law. On May 6, 2013,
the defendant pled guilty to the introduction of contraband into a penal institution and
DUI charges, and the remaining counts were dismissed. Pursuant to the plea agreement,
the defendant was sentenced as a Range III, persistent offender to ten years for the
introduction of contraband conviction and to a concurrent term of eleven months, twenty-
nine days for the misdemeanor DUI conviction, with the manner of service to be
determined by the trial court.

      The factual basis for the pleas was recited by the State at the guilty plea hearing as
follows:

       [O]n September 1st, 2012, a call received by White County dispatch, an
       EMS driver, a Christopher Dodd who was proceeeding north on Spring
       Street reported that a Dodge pickup moved into his lane of travel and
       approached the ambulance head-on, a possible impaired driver.

              Shortly thereafter Sergeant Daniel Trivette with the White County
       Sheriff‟s Department encountered that same truck, observed it straddling
       the fog line, followed it into a parking lot, initiated the traffic stop, came
       into contact with [the defendant], who was the driver. Sergeant Trivette
       would testify that he believed that [the defendant] had alcohol on his
       breath, he was somewhat sluggish in his movements and unsteady on his
       feet. He asked [the defendant] to exit his car and conducted a patdown,
       which he found a Schedule II and Schedule IV controlled substance.
       Further search of the vehicle found some open containers of alcohol, as
       well as several unopened bottles of alcohol.

              He placed [the defendant] into custody, asked him if he would
       consent to a blood alcohol [test], which [the defendant] denied. Ran [the
       defendant‟s] driver[‟]s license through dispatch and it was confirmed to be
       suspended. Then proceeded to the White County Jail. Prior to entering,
       Sergeant Trivette would testify that he asked [the defendant] if he had
       anything else on his person, such as contraband, and [the defendant]
       responded no, he had already searched him. Came into the jail, Correction
       Officer Rutherford would testify that upon searching [the defendant] prior
       to completing the booking in process, when they were in the in-take area,
       which is an area where inmates are under custodial supervision, [Officer]
       Rutherford saw a bag of what was believed to be marijuana fall out of the
       pants of [the defendant]. Officer Rutherford then gave it to Sergeant
       Trivette to get sent to the TBI [Tennessee Bureau of Investigation] for
       analysis.

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              Annell Carpenter, a TBI Agent, would testify that the Schedule II
       and IV substances that were believed to be found on [the defendant] at the
       scene were Oxycodone, which is a Schedule II, and Alpraz[o]lam, which is
       a Schedule IV. And the believed to be marijuana that fell out of [the
       defendant‟s] pants inside the jail was indeed a Schedule VI controlled
       substance which was marijuana.

       At the August 8, 2013 sentencing hearing, Teresa Autry, the defendant‟s
probation/parole officer, testified that the defendant was confirmed as a member of the
Vice Lords gang in 2003 and that he had dropped out of school in the eleventh grade but
had received his GED while incarcerated in 2010. She prepared the defendant‟s
presentence report, which included prior convictions for aggravated burglary (three
counts), robbery, driving on a suspended license, possession of a Schedule II controlled
substance, sale of cocaine, possession of marijuana, coercion of a witness, aggravated
assault, criminal impersonation, first degree burglary, failure to appear, theft of property
up to $500, and criminal trespass. Additionally, the defendant‟s probation had been
revoked on more than one occasion and he was on parole at the time he committed the
instant offenses.

       Testifying for the defendant, Glen Dale Leftwich, a minister, said he had known
the defendant for nearly three years and had baptized him two years ago. He said that the
defendant had “had a hard life down the way” but that he was “a good person.”

       The defendant testified that, at the time of his arrest, he forgot he had marijuana on
his person because he was “under the influence of alcohol and Xanax pills.” He said that
the twelve to thirteen grams of marijuana found on him was for his personal use. He
claimed that his gang affiliation was in the past when he was a juvenile. The defendant
said that, if he were released, he planned to attend a technical school, go to work, and
surround himself with “positive people.” As to his crimes, the defendant said, “It wasn‟t
like that I hurt somebody to get put in this situation or done anything. I know what I
done was wrong, I know that. But the extensive punishment that I‟m receiving on it is,
almost is ludicrous.”

       On cross-examination, the defendant admitted that his prior convictions dated
back to 1989 and that he had not successfully completed his probation on several prior
occasions, saying:

       Every time I catch one violation that‟s a simple anything, . . ., I‟m violated
       to the very maximum without another chance. It‟s not like these other guys
       get[] first, second, third, fourth, fifth chance, it‟s always on my first chance

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      that I violate they stick it to me. That‟s why you see on there that it‟s
      violations and violations and I go in and I serve my time for it.

The defendant also admitted that he was on parole at the time he committed the instant
offenses.

       At the conclusion of the hearing, the trial court denied any form of alternative
sentencing and ordered the defendant to serve his ten-year sentence in confinement. This
appeal followed.

                                      ANALYSIS

       The defendant argues that the trial court abused its discretion in denying
alternative sentencing.

       Under the 2005 amendments to the sentencing act, a trial court is to consider the
following when determining a defendant‟s sentence and the appropriate combination of
sentencing alternatives:

      (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 §§ 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) (2010).

       The trial court is granted broad discretion to impose a sentence anywhere within
the applicable range, regardless of the presence or absence of enhancement or mitigating
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factors, and “sentences should be upheld so long as the statutory purposes and principles,
along with any enhancement and mitigating factors, have been properly addressed.”
State v. Bise, 380 S.W.3d 682, 706 (Tenn. 2012). Accordingly, we review a trial court‟s
sentencing determinations under an abuse of discretion standard, “granting a presumption
of reasonableness to within-range sentencing decisions that reflect a proper application of
the purposes and principles of our Sentencing Act.” Id. at 707. In State v. Caudle, our
supreme court clarified that the “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.” 388 S.W.3d 273, 278-79 (Tenn. 2012).

       Under the revised Tennessee sentencing statutes, a defendant is no longer
presumed to be a favorable candidate for alternative sentencing. State v. Carter, 254
S.W.3d 335, 347 (Tenn. 2008) (citing Tenn. Code Ann. § 40-35-102(6)). Instead, the
“advisory” sentencing guidelines provide that 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 defendant shall be eligible for probation, subject to certain exceptions, if the
sentence imposed on the defendant is ten years or less. Id. § 40-35-303(a). A defendant
is not, however, automatically entitled to probation as a matter of law. The burden is
upon the defendant to show that he is a suitable candidate for probation. Id. § 40-35-
303(b); State v. Goode, 956 S.W.2d 521, 527 (Tenn. Crim. App. 1997); State v. Boggs,
932 S.W.2d 467, 477 (Tenn. Crim. App. 1996). In order to meet this burden, the
defendant “must demonstrate that probation will „subserve the ends of justice and the best
interest of both the public and the defendant.‟” State v. Bingham, 910 S.W.2d 448, 456
(Tenn. Crim. App. 1995) (quoting State v. Dykes, 803 S.W.2d 250, 259 (Tenn. Crim.
App. 1990)).

       There is no bright line rule for determining when a defendant should be granted
probation. Bingham, 910 S.W.2d at 456. Every sentencing decision necessarily requires
a case-by-case analysis. Id. Factors to be considered include the circumstances
surrounding the offense, the defendant‟s criminal record, the defendant‟s social history
and present condition, the need for deterrence, and the best interest of the defendant and
the public. Goode, 956 S.W.2d at 527. Also relevant is whether a sentence of probation
would unduly depreciate the seriousness of the offense. See State v. Davis, 940 S.W.2d
558, 559 (Tenn. 1997); Bingham, 910 S.W.2d at 456.

      In determining if incarceration is appropriate in a given case, a trial court should
consider whether:
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      (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).             Furthermore, the defendant‟s potential for
rehabilitation or lack thereof should be examined when determining whether an
alternative sentence is appropriate. Id. § 40-35-103(5).

      In ordering the defendant to serve his sentence in confinement, the trial court
concluded:

             The defendant is on parole at the time that these offenses are
      committed. The defendant is drunk and he‟s driving a vehicle and he‟s on
      parole. . . .

             This sentence is not being given because [the defendant] killed
      someone. It‟s not being given because he was drunk. It‟s being given
      because of these two exhibits that are before the court today [the
      defendant‟s presentence report and certified copies of judgments]. And
      what they show is a life that‟s been spent in contravention of the law and
      even while on parole and even after being baptized. [The defendant] cannot
      show to the court that he‟s able to [con]form himself to the dictates of this
      society here in White County.

             ....

              I hoped to find today some reason that it would be appropriate for
      [the defendant] to have a split confinement and have the remainder of the
      sentence probated, but I cannot find any. I have looked like a jury would to
      see some saving grace that would cause me to believe that while he is in
      this community he‟s likely to conform himself to a Community
      Correction[s] program, but I cannot find it. Because the court and everyone
      in this room is aware that future behavior is, the best way to know what the
      future is going to be is to see what the past was.
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              ....

              [The defendant] first of all is a multiple [sic] offender. The second
       thing is he‟s committed these offenses while he is on parole for other
       serious felony offenses. The third thing that the court takes into
       consideration is that [the defendant] has in his past driving related, property
       crimes, crimes against persons, drug related offenses. And they include
       robbery, theft, assault, burglary, vandalism, cocaine cases. The court has
       no confidence that [the defendant] is able to successfully complete any
       probation. And with no pleasure that the court has, it sentences [the
       defendant] to serve the ten year sentence confined. . . .

              Because the court finds that [Tennessee Code Annotated section] 40-
       35-103, sentencing consideration that the court is looking at today, part B
       says confinement is necessary to avoid depreciating the seriousness of the
       offense. And the court finds that it is a serious offense, a class C felony
       where there [are] people that are housed, bring drugs to them. And it‟s
       particularly suited to provide an effective deterrence to those that would be
       in the cell or would be going to jail. And that the other that is more of the
       court‟s consideration is part C of 40-35-103, measures less restrictive than
       confinement have frequently or recently been applied unsuccessfully to the
       defendant. I detail that.

        Our review of the record reveals nothing that rebuts the presumption of
reasonableness afforded to the trial court. The information contained in the presentence
report and presented at the sentencing hearing shows that the court acted properly within
its discretion in ordering that the defendant serve his sentence in confinement. Moreover,
among other things, the defendant‟s classification as a persistent offender, indicating that
he is not a favorable candidate for an alternative sentence, and the fact that measures less
restrictive than confinement had been applied unsuccessfully to the defendant support the
imposition of a sentence of confinement. The record supports the trial court‟s
determinations.

                                     CONCLUSION

        Based on the foregoing authorities and reasoning, the judgments of the trial court
are affirmed.

                                                  _________________________________
                                                  ALAN E. GLENN, JUDGE
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