                                                                                                                  03/08/2017




          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT NASHVILLE
                               Assigned on Briefs February 15, 2017

                STATE OF TENNESSEE v. JUSTIN DANIEL ADAMS
                        Appeal from the Circuit Court for Lawrence County
                             No. 33063      J. Russell Parkes, Judge



                                      No. M2016-00835-CCA-R3-CD
                               _____________________________

The Defendant, Justin Daniel Adams, pleaded guilty to aggravated assault, agreeing to an
out-of-range sentence of eight years. The parties agreed to allow the trial court to
determine the manner of service of his sentence. After a hearing, the trial court ordered
that the Defendant serve his sentence in confinement. On appeal, the Defendant contends
that the trial court erred when it denied him an alternative sentence and that his judgment
form should be amended to reflect applicable pretrial jail credit.1 We affirm the trial
court’s judgment. We remand the case to the trial court for the entry of an amended
judgment that reflects the Defendant’s applicable pretrial jail credit.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed and
                                    Remanded

ROBERT W. WEDEMEYER, J., delivered the opinion of the court, in which THOMAS T.
WOODALL, P.J., and TIMOTHY L. EASTER, J., joined.

Claudia S. Jack, District Public Defender; Brandon E. White, Columbia, Tennessee (on
appeal); and Robert H. Stovall, Jr., Assistant District Public Defender, Lawrenceburg,
Tennessee, for the appellant, Justin Daniel Adams.

Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Senior Counsel;
Brent A. Cooper, District Attorney General; and Gary M. Howell, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                                   OPINION
                                                    I. Facts


1 The Defendant presented a third issue regarding judicial diversion, but he filed a motion with this Court, which we
granted, to withdraw that issue.
       This case arises from the Defendant’s placing two guns to the rib and temple of
the victim on January 6, 2015. For his actions, a Lawrence County grand jury indicted
the Defendant for aggravated kidnapping and unlawful possession of a firearm during the
commission of a dangerous felony. On January 4, 2016, the Defendant pleaded guilty to
aggravated kidnapping, a Class B felony, in exchange for an eight-year, Range I,
sentence, agreeing to allow the trial court to determine the manner in which he would
serve that sentence. The State agreed to dismiss the firearm charge. On February 22,
2016, the Defendant filed a motion to withdraw his guilty plea, averring that his guilty
plea was unknowingly and involuntarily entered because he was not aware that the crime
to which he pleaded guilty required the service of his sentence at 100%. The trial court
granted the Defendant’s motion to withdraw his guilty plea.

        On March 14, 2016, the Defendant pleaded guilty to aggravated assault, a Class C
felony, agreeing to an out-of-range sentence of eight years. At the guilty plea hearing,
the trial court ensured that the Defendant understood that, in exchange for his guilty plea
to a lesser charge, he was agreeing to a Range II sentence of eight-years, even though he
was considered a Range I offender, which carried an applicable sentencing range of three
to six years. The trial court explained that the Defendant was so doing to avoid the
possibility of having to serve his sentence at 100%. The trial court then ensured that the
Defendant understood that the plea agreement contemplated that the trial court would
determine the manner of service of the Defendant’s sentence. The Defendant
acknowledged that he understood the plea agreement and the out-of-range sentence. He
then offered that he was pleading guilty because he had, in fact, committed the offense.

        The trial court held a sentencing hearing during which the parties presented the
following evidence: The victim testified that he worked as a self-employed hairdresser in
Loretto, Tennessee. The victim recalled that, on January 6, 2015, at around 2:00 or 3:00
p.m., he had finished with work and was cleaning out his car at a gas station located next
door to the salon. An employee from the hair salon came toward him and said that there
was a man who needed a haircut, and the victim saw the man to whom she was referring,
the Defendant. The victim told the woman and the Defendant that he would be happy to
do it. The Defendant asked the cost, and the victim told him $5.00. The Defendant said
he had to call his mother and then proceeded to appear to text someone on the cellular
phone in his possession. The Defendant then told him that he could not get a haircut at
that time. The victim said that he did not detect any anger in the Defendant’s demeanor
at that point.

       The victim said that he returned to vacuuming his car and that the Defendant
remained and struck up a conversation with him about a Loretto High School bumper
sticker on the victim’s car. He described this as casual conversation and said the two
talked for between twenty and forty minutes. The Defendant then said to the victim that
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his mother had asked if the victim could give the Defendant a ride home so that the
Defendant did not have to walk. The victim told the Defendant that he could give him a
ride after he finished cleaning his car.

        The victim testified that, when he began driving the Defendant home, they headed
north. The victim noticed the hilt of a “particular knife” that the Defendant had that
looked like a knife that was similar to one the victim owned. The victim said he told the
Defendant, “Hey, man, if I would have known you were armed like that, I don’t know if I
would have given you a ride.” The victim said that he was not afraid at that point and
was joking. The Defendant then pulled a gun and placed it to the right-side of the victim,
near his ribs, and said, “[A]rmed like what? . . . [D]o you mean armed like this, mother
f***er?” The victim said he was completely caught off guard by the change in the
Defendant’s demeanor. The Defendant then took a second gun out and placed it to the
victim’s temple and said, “[M]aybe like this, b**ch?” The victim said that he was afraid
for his life.

       The victim testified that he began begging and pleading with the Defendant,
asking him why he was doing this when the victim was giving him a ride home. The
victim said he slowed the car, and the Defendant said, “[D]on’t f***ing do it.” The
victim pulled over, stopped the car, pushed the gun away from his head, and jumped out
of the car. He ran across the street to a Mapco gas station and asked the attendant to call
911. The victim said he remained at the gas station until law enforcement arrived.

        During cross-examination, the victim testified that, before he agreed to give the
Defendant a ride, the Defendant told him that he lived on Commerce Street, which was
“[n]ot very far” from the car wash. He said that the Defendant pulled out the weapons
after the two had been in the car together for three or four minutes. The victim estimated
that the weapons were pointed at him for approximately one to one-and-a-half minutes
before he successfully stopped and exited his car. He agreed that the Defendant never
fired a weapon at him.

       Okie Littrell, Jr., testified for the Defendant, saying that he lived close to the
Mapco gas station located near these events. Mr. Littrell said that he had known the
Defendant for five years and that, shortly before these events, the Defendant moved into
an apartment near him. Mr. Littrell said that the Defendant was a “pretty timid boy,”
whom had never given Mr. Littrell any problem. He found it hard to believe the events
about which the victim testified. He found it unlikely that the Defendant would brandish
a weapon and implausible that the Defendant could hold two weapons in the manner
described by the victim.

       Mr. Littrell opined that the Defendant would not survive in jail. He said that the
                                            3
Defendant would not hurt anybody. He expressed no concern if the Defendant came
back to live next to him, saying that he was happy to offer the Defendant a room in his
home if necessary.

        During cross-examination, Mr. Littrell testified that he was unaware that the
Defendant had said that he sometimes thought about killing people but that this
information did not change his opinion. During redirect examination, Mr. Littrell said
that, in the five years that he had known the Defendant, the Defendant had never been
homicidal and never threatened him or anyone else. Mr. Littrell said he had seen the
Defendant upset and crying on occasion but that he did not believe that the Defendant
would ever hurt anyone intentionally.

       Teresa Anne Ray, the Defendant’s mother, testified that the Defendant was
twenty-five years old at the time of the sentencing hearing. She said that the Defendant
had never expressed any desire to kill anyone to her. Ms. Ray testified that the Defendant
lived with her and that if he received probation she would get a two bedroom so that he
could again live with her.

        During cross-examination, Ms. Ray testified that, after these events, the Defendant
called her and asked her to pick him up at a Sonic near where the crime occurred. She
said that, after she picked him up, rather than go back out onto the highway, she went
through a man’s yard to leave the area. She agreed that she saw a police cruiser with its
blue lights activated before she left through the man’s yard. She further agreed that, after
she got back onto the highway, another law enforcement officer began following her and
activated his blue lights. She did not stop immediately. She said that she intended to
stop, but another officer pulled in front of her vehicle forcing her to stop. Ms. Ray agreed
that, after officers got her out of her vehicle, they found two guns underneath her front
seat. Ms. Ray said she was unaware the guns were in her vehicle.

       Ms. Ray testified that the Defendant had “mental problems” since he was seven
years old. She had taken him to multiple doctors over the years to address his issues.

       During redirect examination, Ms. Ray testified that the doctors had told her that, in
terms of mental development, the Defendant was three or four years behind his actual
age. She said the doctors he had seen did not indicate that the Defendant was a threat to
himself or anyone else. She said that they informed her that the Defendant had learning
disabilities and a type of autism. She said that, a few years before, the Defendant had
been admitted to a mental hospital for six days.

      Glenda Gail Buie testified that she had known the Defendant for his entire life,
and she expressed surprise by the victim’s testimony. She said that Ms. Ray never
                                             4
allowed the Defendant to play with guns and that she was not scared of the Defendant
coming home to live near her. Ms. Buie said that the Defendant never told her that he
wanted to kill anyone, and in the more than twenty years she had known him, he had
never hurt anyone.

       Willie Flippo testified that he was the Defendant’s uncle by marriage and had
known him since he was an infant. He said that the events described by the victim did
not comport with his experience with the Defendant. The Defendant, he said, had never
hurt anyone, followed rules well, and accepted supervision. Mr. Flippo opined that the
Defendant would be successful on probation and that he did not pose a danger to anyone.
During cross-examination, Mr. Flippo testified that he was unaware whether the
Defendant had previously attempted suicide. He said that their interactions were limited
to family events, but he felt he knew the Defendant “well.”

       Edith Flippo, the Defendant’s aunt, testified that she had known the Defendant
since his birth and that the Defendant’s mother had not had “any trouble” with him. Mrs.
Flippo said that the Defendant had “always been slow,” sometimes behind his peers but
that he had never attacked anyone or broken anything. Mrs. Flippo said that the
Defendant had never fought with other kids or any authority figures. She opined that the
Defendant, who had no history of drug use, would be successful on probation. During
cross-examination, Mrs. Flippo said that she was unaware whether the Defendant had
attempted suicide.

       Donald Gene Ray, the Defendant’s uncle, said that he had known him since he
was a baby. He said that the Defendant had never hurt, or expressed a desire to hurt,
anyone. Mr. Ray testified that, while he was unaware whether the Defendant had
attempted suicide, he knew that the Defendant was not “normal,” in that he was a “little
slow.”

       The Defendant testified that he had pleaded guilty to aggravated assault in
exchange for an eight-year sentence. He said that he was a “little slow” and at the age of
twenty-five had only completed the eighth grade in school. The Defendant said that,
daily, he took Adderall, Xanax, a “pain pill,” a “breathing pill, two different blood
pressure pills, a stomach pill, [and] a sugar pill.” His medication precluded him from
driving, and he had never had a driver’s license. The Defendant walked most places,
which is why he sought a ride from the victim on the day of this offense.

       The Defendant recalled that, in 2009, he was hospitalized in a mental facility
following the death of his father. He said that he attempted to commit suicide by cutting
his throat because he was depressed. The Defendant said he was unable to work, so he
drew a disability check, which was managed by his mother.
                                            5
       The Defendant said that he had no criminal record, had never been in jail or in
trouble, and asked for probation so he could help take care of his mother. He said that
she did not have any weapons in her home. The Defendant said that he would have no
contact with the victim if he were released.

       During cross-examination, the Defendant testified that he and his mother both
owned a gun. The Defendant said he purchased the gun that belonged to him from a
pawn shop. The Defendant testified that he did not have either gun with him on the day
of the offense and that he only had his knife on his belt. He denied ever pointing a gun at
the victim. He said that his mother must have been driving around with the two guns
underneath her seat. The Defendant said he never threatened the victim and that the
victim pulled over and jumped out of his car for no reason. The Defendant denied telling
the officer that he may have pointed a gun at the victim, saying that he did not understand
the officer.

        The Defendant said he was unsure why he was allowed to quit school at fifteen
years old. He was unsure whether his mother had promised to homeschool him, making
it legal for him to leave school.

       The Defendant said he told the presentence investigator that he had “ADHD” and
“suicidal tendencies” but that he never acted upon those tendencies. The Defendant
agreed that he tried to cut his throat in 2009 and that he had also tried to shoot himself “a
couple of years ago.”

      During redirect examination, the Defendant said that, if given probation, he would
seek mental health treatment. He said that he did not point a gun at the victim but that he
pleaded guilty because he was “tired of dealing with it” and wanted to “go home to [his]
mama.” The Defendant said that, if released, he would stay out of trouble.

       During recross-examination the Defendant admitted hearing his mother say that
she was unaware that the guns were in her truck on the day of the Defendant’s arrest.
The Defendant maintained that he also did not know that the guns were in her truck. The
State reminded the Defendant that perjury was a felony offense and asked the Defendant
again if he had threatened the victim with a gun. The Defendant invoked his Fifth
Amendment right not to incriminate himself.

       During the Defendant’s allocution, he said:

       [The victim] offered me a ride. He s[aw] the knife on my belt. He made a
       comment about me lying about it. He threatened to hit me. And after we
                                             6
got up to the red light, he jumped out and he said, don’t hurt me, take the
car. And that’s when I ended up in handcuffs. I started having an asthma
attack.

Based upon this evidence, the trial court found:

        I’ve considered the nature and circumstances of the offense. As it
relates to the nature and the circumstances of this offense, the Court is
particularly troubled with and specifically finds now that [the victim] is a
credible individual. I find contrary to what [the Defendant] has testified to,
that [the Defendant] did possess the two guns that were used that day. It
simply makes no sense to this Court that the immediate report to the
authorities by [the victim] would indicate that there were two handguns
used, and lo and behold, what is found in [the Defendant’s] mother’s
vehicle but two handguns. I find that this is particularly egregious and
heinous, and not your quote, run-of-the-mill, assault case. Not just one
weapon was used, but two. It was not in the heat of the moment, so to
speak in the sense that it was not family members arguing or friends
arguing or even bitter enemies for years arguing.

        The Court is also particularly troubled with the fact that the family
members who have testified for [the Defendant] said that they have no
knowledge of prior suicidal ideations. And, in fact, [the Defendant] says
that not only has he attempted suicide once, but at least twice. Once
resulting in . . . him slitting his own throat or attempting to cut his own
throat for which he received hospitalization for one week. The second time
when he attempted to use a firearm and commit . . . suicide the gun did not
fire.

       I also find after having reviewed the presentence report, that the
Court can consider the physical and mental condition and societal history of
the [D]efendant, and the Court has done so. While the Court is not denying
probation based on his mental ability, mental capacity or lack thereof or
any form of impairment, the Court has considered that in denying
probation.

       I also find and have considered the facts and circumstances
surrounding the offense and the nature of the circumstances of the criminal
conduct involved. Specifically, I find that this . . . particular individual had
used weapons in the past. Those weapons had been used prior to the day of
this particular offense to inflict or attempt to inflict bodily injury to himself.
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      However, there was a change on this particular date when bodily injury was
      threatened to another individual with deadly weapons, to wit, two different
      firearms.

             The [D]efendant has no prior criminal record and the Court has
      considered that. The Court has also considered the previous actions and/or
      character of the [D]efendant. I’ve also considered whether or not the
      [D]efendant might reasonably be expected to be rehabilitated and the
      [D]efendant’s potential or lack of potential for rehabilitation, including the
      risk that during the period of probation the [D]efendant will commit
      another crime. He’s never been on probation. He’s never been on any type
      of supervision that is before this particular Court. But I have considered
      whether or not measures least restrictive and confinement have frequently
      or recently been applied . . . and I find that this is not applicable in this
      particular case.

             The question of whether or not the confinement is particularly suited
      to provide an effective deterrent to others likely to commit similar offenses
      has been considered by the Court. I’ve considered not only specific
      deterrence, but general deterrence in this particular case and I find that that
      would be an applicable factor.

             I now find that this offense was particular egregious, heinous. And I
      now find that the [D]efendant has failed to accept responsibility for this
      particular offense although he has now pled guilty to the amended charge of
      aggravated assault outside the range. I also find that the [D]efendant has
      not been truthful today in offering his testimony before the Court.

             For the foregoing reasons and all of the findings of fact which I have
      now made, I deny . . . the [D]efendant probation and I find that it would be .
      . . remiss in my duties and not abiding by my oath if I did not impose [a]
      sentence of eight years to be served in the Tennessee Department of
      Corrections [sic].

It is from this judgment that the Defendant now appeals.

                                       II. Analysis

       On appeal, the Defendant contends that the trial court erred when it sentenced him.
He asserts that the trial court improperly denied his request for an alternative sentence.
He further asserts that the judgment form also improperly omits the jail credit to which he
                                            8
is entitled for January 6, 2015 to March 31, 2016. The State counters that the Defendant
has not met his burden of showing that the trial court erred by ordering him to a sentence
of confinement. The State agrees that the judgment of conviction should be amended to
show the Defendant’s applicable pretrial jail credit. We agree with the State.

       Appellate review of the length, range, or manner of service of a sentence imposed
by the trial court are to be reviewed under an abuse of discretion standard with a
presumption of reasonableness. State v. Bise, 380 S.W.3d 682, 708 (Tenn. 2012); see
State v. Caudle, 388 S.W.3d 273, 278-79 (Tenn. 2012) (applying the standard to
alternative sentencing). In sentencing a defendant, the trial court shall 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 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; (7) any statement
by the appellant in his own behalf; and (8) the potential for rehabilitation or treatment.
See T.C.A. §§ 40-35-102, -103, -210 (2014); see also State v. Ashby, 823 S.W.2d 166,
168 (Tenn. 1991). The burden is on the appellant to demonstrate the impropriety of his
sentence. See T.C.A. § 40-35-401 (2014), Sentencing Comm’n Cmts.

        An appellant is eligible for alternative sentencing if the sentence actually imposed
is ten years or less. See T.C.A. § 40-35-303(a) (2014). The Defendant’s sentence meets
this requirement, as he was sentenced to eight years. Moreover, an appellant who is an
especially mitigated or standard offender convicted of a Class C, D, or E felony should be
considered a favorable candidate for alternative sentencing absent evidence to the
contrary. See T.C.A. § 40-35-102(6). The Defendant, convicted of a Class C felony, is
considered a favorable candidate for alternative sentencing. The following sentencing
considerations, set forth in Tennessee Code Annotated section 40-35-103(1), may
constitute “evidence to the contrary”:

       (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.

                                             9
See also State v. Zeolia, 928 S.W.2d 457, 461 (Tenn. Crim. App. 1996). 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.” T.C.A. § 40-35-103(5). Candor is a relevant factor in assessing a defendant's
potential for rehabilitation, see State v. Dowdy, 894 S.W.2d 301, 306 (Tenn. Crim. App.
1994), and the lack of candor militates against the grant of probation. See, e.g., State v.
Kendrick, 10 S.W.3d 650, 656 (Tenn. Crim. App. 2001). The burden of proving
suitability for probation rests with the defendant. See T.C.A. § 40-35-303(b).

        In the case under submission, we conclude that the trial court did not abuse its
discretion when it denied the Defendant an alternative sentence. The trial court
considered the nature and circumstances of the offense, noting that this offense was
committed with two weapons, that the victim and the Defendant did not know each other,
that they were not arguing, and that the victim was assisting the Defendant at the time of
the offense. The trial court further noted that the Defendant had used a handgun in an
attempt to kill himself previously and that this offense was particularly egregious and
heinous. The trial court also found that the Defendant’s testimony was not credible. It
noted that the Defendant, while entering a plea of guilty, denied ever pointing a weapon
at the victim. Instead, the Defendant said that the victim jumped out of the car for no
reason. The Defendant also said that he did not know why his mother had two guns
underneath her seat when she was stopped while driving him shortly after this offense.
He similarly said that, contrary to their testimony, he did not tell police officers that he
may have pointed a gun at the victim. The trial court found that the Defendant’s lack of
candor weighed against his grant of an alternative sentence because the Defendant failed
to accept responsibility for his offense. Under these circumstances, we conclude that the
trial court did not err when it denied the Defendant an alternative sentence.

      After a review of the record, we agree with the parties that the Defendant’s
judgment of conviction should reflect his pretrial jail credit from January 6, 2015, to
March 31, 2016. We remand this case for the entry of an amended judgment to so reflect.

                                     III. Conclusion

        In accordance with the foregoing reasoning and authorities, we affirm the trial
court’s judgment. We remand the case for the entry of a judgment of conviction
reflecting the Defendant’s applicable pretrial jail credit.

                                                 _________________________________
                                                 ROBERT W. WEDEMEYER, JUDGE


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