                                                                                          03/05/2020
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                        Assigned on Briefs February 25, 2020

      STATE OF TENNESSEE v. MICHAEL EUGENE RUTHERFORD

                  Appeal from the Criminal Court for Knox County
                   Nos. 112418, 112654   Steven W. Sword, Judge


                             No. E2019-01319-CCA-R3-CD


The defendant, Michael Eugene Rutherford, appeals his Knox County Criminal Court
guilty-pleaded convictions of aggravated assault, simple possession, driving under the
influence (“DUI”), vandalism, and violating the financial responsibility law, arguing that
the trial court erred by imposing a fully incarcerative sentence. Discerning no error, we
affirm.

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

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which D. KELLY
THOMAS, JR., and, ROBERT H. MONTGOMERY, JR., JJ., joined.

Michael Cabage, Knoxville, Tennessee, for the appellant, Michael Eugene Rutherford.

Herbert H. Slatery III, Attorney General and Reporter; Ronald L. Coleman, Assistant
Attorney General; Charme P. Allen, District Attorney General; and Philip Morton,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                        OPINION

              The Knox County Grand Jury charged the defendant with possession of .5
grams or more of cocaine with the intent to sell or deliver, aggravated assault, and simple
possession of marijuana in case number 112418 and with second offense DUI, vandalism
of property valued at $1,000 or less, and violating the financial responsibility law in case
number 112654. Pursuant to a plea agreement with the State, the defendant pleaded
guilty in case number 112418 to two counts of simple possession and one count of
aggravated assault and in case number 112654 to one count of DUI, one count of
vandalism, and one count of violating the financial responsibility law. The agreement
provided for a Range II, total effective sentence of 10 years, with the manner of service
of the sentence to be determined by the trial court following a sentencing hearing.1

              At the June 2019 sentencing hearing, the defendant acknowledged that he
knew “plain and clear” that he was guilty of the offenses to which he had pleaded guilty
but nevertheless stated, “What I don’t know is, I don’t know how I got there.” He said
that he was taking so much medication and consuming so much alcohol at the time of the
offenses “that I can’t tell the story of why I was there without feeling like I’m lying
because I don’t know I was there.” He added, “I did hit a guy. But that night I was so
incoherent that I can’t remember everything. . . . I can’t honestly remember, except for I
know that I felt threatened.” He admitted that he “did have pot in my pocket. I did get a
DUI.” He maintained, however, that he had not used cocaine “since I got out of prison,
which has been quite a while ago.”

               He observed that he “was a real bad guy for a long time” but that, since his
arrest for assault, he had “got real clean,” started a goat farm, and begun repairing cars
for fellow church members. The defendant insisted that he “had a good run” after
completing “parole the last time” and that the offenses in this case were essentially a
“one-night incident.” He claimed that it had “been a year and three months” since he had
consumed alcohol or drugs.

             The defendant’s father insisted that the defendant had finally changed his
ways and asked the court to place the defendant on probation. He said that he needed the
defendant’s assistance at home because he had been diagnosed with cancer.

              The defendant asked the court to place him on probation. The State
opposed a probationary placement, noting first that the defendant had given multiple
different versions of the events that led to his arrest and that in all of his versions he
perceived himself as a victim. The State also noted that, despite the defendant’s assertion
that he had not used cocaine in nearly 10 years, “this whole thing was over an attempt to
purchase cocaine.” The prosecutor observed that “the independent witnesses saw [the
defendant] drag the victim into a car, take off with him, bring him back, dump him out
[of] the car and kick him about the body and head.” The State pointed out that the
defendant had “a history of violent crimes” and that “the system has been dealing with
him since the age of 19.” The State detailed the defendant’s poor past performance of
sentences involving release into the community:




1
        The transcript of the guilty plea hearing was not included in the record on appeal. We glean the
terms of the agreement from the March 25, 2019 minute entry memorializing the defendant’s pleas.
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              He started out on diversion. Of course, got that revoked. He
              committed [a] felony. He’s got probation, probation revoked.
              He absconded, probation again revoked, boot camp. Went to
              TDOC, got boot camp, failed to report after he got put on
              boot camp, probation, absconded from boot camp, probation,
              probation revoked, absconded again on a different set of new
              charges in 2009. He absconded in 2010, violation, probation
              revoked. Finally paroled out.

The State also highlighted “the record of his disciplinary history while in TDOC,” which
the prosecutor characterized as “alarming” evidence of “his dangerousness.”

              An assessment from the Knox County Sheriff’s Office Community
Alternatives to Prison Program (“CAPP”) reflected that the defendant was not eligible for
placement in the program “due to the violent nature of his offense and a criminal history
that includes multiple assault charges.” The report also noted the agency’s concern that
the defendant was “a multistate offender with a poor history of . . . serving sentences in
the community” and that the defendant had incurred “at least 10 disciplinary infractions”
in the Department of Correction (“TDOC”) and “an additional disciplinary [infraction]
while in the Knox County Detention Facility.” Finally, the agency noted that the
defendant “failed to contact CAPP as ordered for the assessment.”

              An assessment from TDOC indicated that the agency had determined that
the defendant was not an appropriate candidate for placement on enhanced probation.
The assessing officer observed that the defendant “has been committing criminal offenses
his entire adult life” and had previous unsuccessful placements on probation, enhanced
probation, parole, and boot camp. The officer noted that despite these placements, stints
in TDOC, and participation in alcohol and drug addiction treatment programs, the
defendant continued “to engage in criminal behavior.” Additionally, when questioned
about the assault offense in case number 112418, “the defendant denied any memory of
assaulting his victim; he stated that he remembers drinking and waking up while someone
was robbing him.”

               The presentence report established that the 41-year-old defendant’s
criminal history began at the age of 19, included more than a dozen convictions, and
spanned his entire adult life. The report indicated that the defendant’s previous sentences
to probation, community corrections, and boot camp had all been revoked at some point
and that he had absconded on more than one occasion. The defendant also incurred
disciplinary infractions while incarcerated.



                                            -3-
              The trial court found that the defendant had a clear history of alcohol abuse
that was “not inconsistent with” the defendant’s assertion that “he really didn’t remember
what all happened because he’d been consuming alcohol.” The trial court stated that it
had reviewed the reports issued by “Enhanced and CAPP,” both of which indicated that
“they do not believe he is appropriate for supervision in the community under their
programs.” Regarding the defendant’s history of community supervision, the court
found:

                     He’s been on regular probation. He’s been on
              Enhanced, been revoked from both of those. He’s been on
              parole, was revoked from that. He was released on boot
              camp, revoked from that. There’s been treatment efforts
              through Centerpoint and Jellinek. And Jellinek is probably
              the best one that we have in Knox County.

The court found that confinement was necessary to protect the public from the defendant
given his long criminal history and the violent nature of his conviction offense. The court
also concluded that confinement was necessary in light of the defendant’s frequent
unsuccessful attempts at sentences involving release into the community. Finally, the
court determined that the defendant’s history militated against a finding that he was
amenable to correction. Based upon these findings, the trial court ordered the defendant
to serve his entire 10-year effective sentence in confinement.

               In this timely appeal, the defendant contends that the trial court erred by
imposing a fully incarcerative sentence. The State asserts that the record supports the
denial of alternative sentencing.

              Our supreme court has adopted an abuse of discretion standard of review
for sentencing and has prescribed “a presumption of reasonableness to within-range
sentencing decisions that reflect a proper application of the purposes and principles of our
Sentencing Act.” State v. Bise, 380 S.W.3d 682, 707 (Tenn. 2012). The application of
the purposes and principles of sentencing involves a consideration of “[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.” T.C.A. § 40-35-103(5). Trial
courts are “required under the 2005 amendments to ‘place on the record, either orally or
in writing, what enhancement or mitigating factors were considered, if any, as well as the
reasons for the sentence, in order to ensure fair and consistent sentencing.’” Bise 380
S.W.3d at 698-99 (quoting T.C.A. § 40-35-210(e)). The abuse-of-discretion standard of
review and the presumption of reasonableness also applies to “questions related to
probation or any other alternative sentence.” State v. Caudle, 388 S.W.3d 273, 278-79
(Tenn. 2012).
                                              -4-
               Although the trial court must consider the defendant’s potential for
rehabilitation in determining whether to impose an alternative sentence, see T.C.A. § 40-
35-103(5), “[c]onvicted felons committing the most severe offenses, possessing criminal
histories evincing a clear disregard for the laws and morals of society and evincing failure
of past efforts at rehabilitation” are not considered favorable candidates for alternative
sentencing, id. § 40-35-102(5)-(6)(A).

              That being said, the imposition of an effective 10-year sentence in this case
mandated the trial court’s considering probation as a sentencing option. See T.C.A. § 40-
35-303(a) (“A defendant shall be eligible for probation under this chapter if the sentence
actually imposed upon the defendant is ten (10) years or less . . . .”). Traditionally, the
defendant has borne the burden of establishing his “suitability for full probation.” State
v. Mounger, 7 S.W.3d 70, 78 (Tenn. Crim. App. 1999); see T.C.A. § 40-35-303(b). Such
a showing required the defendant to demonstrate that full probation would “subserve the
ends of justice and the best interest[s] of both the public and the defendant.” State v.
Dykes, 803 S.W.2d 250, 259 (Tenn. Crim. App. 1990) (quoting Hooper v. State, 297
S.W.2d 78, 81 (1956), overruled on other grounds by State v. Hooper, 29 S.W.3d 1, 9-10
(Tenn. 2000)).

              When a trial court orders confinement and therefore rejects any form of
alternative sentencing such as probation, split confinement, or periodic confinement, it
must base the decision to confine the defendant upon the considerations set forth in Code
section 40-35-103(1), which provides:

              (1) 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; . . . .

                                            -5-
T.C.A. § 40-35-103(1).

               In our view, the trial court did not abuse its discretion by ordering a
sentence of full confinement in this case. The record establishes that the defendant’s
criminal history spanned more than 20 years and included numerous revocations of
community-based sentences. He was rejected by two supervision programs on the basis
of his lengthy criminal history and failure to successfully complete a variety of sentences
involving release into the community. Under these circumstances, the record supports
the trial court’s finding that measures less restrictive than confinement had frequently and
recently been applied unsuccessfully to the defendant.

              Accordingly, we affirm the judgments of the trial court.


                                                   _________________________________
                                                  JAMES CURWOOD WITT, JR., JUDGE




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