                                                                                        02/20/2018
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                         Assigned on Briefs January 17, 2018

         STATE OF TENNESSEE v. ANTWUAN MATIAS GORDON

                 Appeal from the Circuit Court for Marshall County
                  No. 16-CR-184      Forest A. Durard, Jr., Judge
                     ___________________________________

                           No. M2017-01306-CCA-R3-CD
                       ___________________________________


Defendant, Antwuan Matias Gordon, entered an open guilty plea to one count of driving
a motor vehicle after having been declared a habitual motor vehicle offender, in violation
of Tennessee Code Annotated section 55-10-616. The trial court sentenced Defendant to
serve four years in incarceration. On appeal, Defendant argues that the trial court erred
by denying an alternative sentence. After a review, we affirm the judgment of the trial
court.

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

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

Donna Orr Hargrove, District Public Defender, and William J. Harold, Assistant District
Public Defender, for the appellant, Antwuan Matias Gordon.

Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Senior Counsel;
Robert James Carter, District Attorney General; and William A. Dement, Assistant
District Attorney General, for the appellee, State of Tennessee.


                                       OPINION

       Defendant was indicted by the Marshall County Grand Jury in December of 2016
for driving a motor vehicle after having been declared a habitual motor vehicle offender.
Defendant entered an open guilty plea, with the trial court to determine the length and
manner of service of the sentence at a sentencing hearing.
       At the guilty plea hearing, the State alleged that had the matter gone to trial, the
proof would have shown that Defendant was declared a habitual motor vehicle offender
on December 4, 2012. Subsequently, on June 6, 2016, Defendant was seen driving a
2001 Chevy Blazer on Highway 431. He passed another vehicle in a no passing zone. A
police officer initiated a traffic stop. When the officer ran a driver’s license check,
dispatch advised the officer that Defendant’s license was revoked. Defendant agreed to
the factual basis for the plea and the trial court accepted the plea of guilt.

       The trial court held a sentencing hearing. At the hearing, the State introduced the
presentence report. The report indicated that Defendant had four prior felony convictions
and a number of misdemeanor convictions and had been unsuccessful in past attempts at
probation. Specifically, the report indicated that Defendant was on community
corrections at the time of the current offense.

        The trial court determined that Defendant was a Range II, multiple offender. The
trial court applied enhancement factors (1), (8), and (13) along with mitigating factor (1).
See T.C.A. §§ 40-35-113, -114. The trial court noted that Defendant was “well-spoken,”
“polite,” and “neat” and was perplexed as to why Defendant kept coming back to court.
At the time of the sentencing hearing, Defendant was twenty-six years of age. The trial
court determined that a sentence of four years was appropriate based in part on the fact
that Defendant had an “extensive history of criminal activity.” The trial court considered
alternative sentencing and denied it on the basis that Defendant had potential to re-offend
and “at some point [Defendant’s criminal behavior] has to end.”

       Defendant has appealed the trial court’s denial of an alternative sentence.

                                         Analysis

      On appeal, Defendant argues that the trial court “should” have granted alternative
sentencing. The State disagrees.

       A trial court’s decision regarding the length and manner of service of a sentence is
reviewed for abuse of discretion, with a presumption of reasonableness granted to within-
range sentences reflecting a proper application of the purposes and principles of the
Sentencing Act. State v. Bise, 380 S.W.3d 682, 707 (Tenn. 2012). Under Bise,
“sentences should be upheld so long as the statutory purposes and principles, along with
any applicable enhancement and mitigating factors, have been properly addressed.” Id. at
706. A sentence within the appropriate range will be upheld so long as “there are other
reasons consistent with the purposes and principles of sentencing.” Id. The Tennessee
Supreme Court explicitly applied the abuse of discretion standard of review in Bise to
alternative sentencing in State v. Caudle. 388 S.W.3d 273, 278-79 (Tenn. 2012) (“[T]he
abuse of discretion standard, accompanied by a presumption of reasonableness, applies to
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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.”)

       Tennessee Code Annotated section 40-35-104 authorizes alternative sentences,
which may include a sentence of confinement that is suspended upon a term of probation
or a sentence of continuous or periodic confinement in conjunction with a term of
probation. T.C.A. § 40-35-104(c)(3), (4), (5). 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.’”
State v. Carter, 254 S.W.3d 335, 347 (Tenn. 2008) (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 guideline regarding favorable candidates is advisory. T.C.A. §
40-35-102(6)(D). In this case, Defendant was convicted of a Class E felony and was
sentenced to an effective sentence of ten years or less. However, Defendant was
determined to be a Range II, multiple offender. Therefore he was not a favorable
candidate for alternative sentencing.

      Tennessee Code Annotated section 40-35-103 requires that sentences involving
confinement 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).

      The trial court in this case relied on subsections (A) and (C) of Tennessee Code
Annotated section 40-35-103(1). In ordering Defendant to serve his sentence in
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incarceration, the trial court specifically noted Defendant’s criminal history in addition to
the case at issue, the fact that Defendant was previously sentenced to probation, and the
fact that Defendant was on community corrections at the time of the offense. The trial
court expressed doubt with regard to Defendant’s ability to be rehabilitated based on the
fact that he was on community corrections at the time of the offense. The record shows
that the trial court considered the relevant sentencing considerations, and Defendant has
not established that the trial court abused its discretion in denying alternative sentencing
or “otherwise overc[a]me the presumption of reasonableness afforded sentences [that]
reflect a proper application of the purposes and principles of our statutory scheme.” See
Caudle, 388 S.W.3d at 280. We conclude that the trial court did not abuse its discretion
in denying alternative sentencing.



                                              ____________________________________
                                              TIMOTHY L. EASTER, JUDGE




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