         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                              Assigned on Briefs April 22, 2009

            STATE OF TENNESSEE v. JAMES EARL PINCHON, JR.

                    Direct Appeal from the Circuit Court for Coffee County
                              No. 36,298F    Charles Lee, Judge



                      No. M2008-01513-CCA-R3-CD - Filed May 19, 2009


In 2008, the Defendant pled guilty to introduction of contraband into a penal institution, and the trial
court sentenced him to serve four years and nine months in the Tennessee Department of Correction.
The Defendant now appeals his sentence claiming that the trial court erroneously denied his request
for alternative sentencing. After a thorough review of the record and the applicable law, we
conclude that the trial court properly sentenced the Defendant.

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

ROBERT W. WEDEMEYER , J., delivered the opinion of the court, in which DAVID H. WELLES and
JERRY L. SMITH , JJ., joined.

Kevin R. Askren, Tullahoma, Tennessee, for the Appellant, James Earl Pinchon, Jr.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; Sophia
S. Lee, Assistant Attorney General; C. Michael Layne, District Attorney General, Jason M. Ponder,
Assistant District Attorney General, for the Appellee, State of Tennessee.

                                              OPINION

                                               I. Facts
                                           A. Background

        According to the presentence report entered into evidence at the Defendant’s sentencing
hearing, on December 17, 2007, Officer Dustin Mansfield conducted a contraband search in the
Coffee County Jail, and he smelled marijuana when he entered a bathroom. He asked the three
inmates in the bathroom about the smell, and the Defendant handed Officer Mansfield a marijuana
cigarette. The Defendant was charged with introduction of contraband into a penal facility, and he
pled guilty to that offense on June 6, 2008.

                                      B. Sentencing Hearing
        At the Defendant’s sentencing hearing, the following evidence was presented: Tabitha
London, the Defendant’s fiancee, testified that she had been involved with the Defendant for six
years and that they had three children together. The children were ages four, three, and sixteen
months. London planned to marry the Defendant upon his release. The last time the Defendant was
released, he moved in with her, and he began working within five days of his release. London stated
that the Defendant worked regularly for Smith’s Janitorial service, which was owned by the pastor
of her church, and the Defendant also took care of their children. She also informed the court that
she had seen a “dramatic change” in the Defendant since he was last released, and she explained that
the Defendant gave his “life over to God” in that period. London testified that if the Defendant was
given an alternative sentence he could work and help support their children, which she needed him
to do because she did not receive any government assistance.

        The Defendant testified that he would like to be on probation so he could work to support
his three children with London and his six additional children with other women. He said he knew
he could return to his janitorial job at the church upon release, and he stated that he even would not
“mind” a second or third job as well. The Defendant then testified at some length about the various
errors in the presentence report about his prior criminal records. He did not dispute most of the
offenses listed, and he acknowledged that his probation had been revoked twice. Additionally, the
Defendant clarified that he had never been involved in gang activity. Speaking about the offense of
introducing contraband into a penal institution, the Defendant apologized for the offense, and he
explained that he was under a lot of stress because he found out that one of his daughters had a
tumor, so he was trying to relax himself.

       On cross-examination, the Defendant acknowledged that, because of his frequent
incarcerations, his family paid the child support he owed.

        After hearing the evidence presented, the trial court sentenced the Defendant to serve four
years and nine months in the Tennessee Department of Correction. It is from this judgment that the
Defendant now appeals.

                                            II. Analysis

        On appeal, the Petitioner claims that the trial court erroneously denied his request for
alternative sentencing.

       When a defendant challenges the length, range or manner of service of a sentence, this Court
must conduct a de novo review of the record with a presumption that “the determinations made by
the court from which the appeal is taken are correct.” T.C.A. § 40-35-401(d) (2006). As the
Sentencing Commission Comments to this section note, the burden is now on the appealing party
to show that the sentencing is improper. T.C.A. § 40-35-401, Sentencing Comm’n Cmts. This
means that if the trial court followed the statutory sentencing procedure, made findings of facts
which are adequately supported in the record, and gave due consideration and proper weight to the


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factors and principles relevant to sentencing under the 1989 Sentencing Act, T.C.A. § 40-35-103
(2006), we may not disturb the sentence even if we would have preferred a different result. State v.
Ross, 49 S.W.3d 833, 847 (Tenn. 2001). The presumption does not apply to the legal conclusions
reached by the trial court in sentencing a defendant or to the determinations made by the trial court
which are predicated upon uncontroverted facts. State v. Dean, 76 S.W.3d 352, 377 (Tenn. Crim.
App. 2001); State v. Butler, 900 S.W.2d 305, 311 (Tenn. Crim. App. 1994); State v. Smith, 891
S.W.2d 922, 929 (Tenn. Crim. App. 1994). Specific to the review of the trial court’s finding
enhancement and mitigating factors, “the 2005 amendments deleted as grounds for appeal a claim
that the trial court did not weigh properly the enhancement and mitigating factors.” State v. Carter,
254 S.W.3d 335, 344 (Tenn. 2008). The Tennessee Supreme Court continued, “An appellate court
is therefore bound by a trial court's decision as to the length of the sentence imposed so long as it is
imposed in a manner consistent with the purposes and principles set out in sections -102 and -103
of the Sentencing Act.” Id. at 346.

         In conducting a de novo review of a sentence, we must consider: (1) any evidence received
at the trial and sentencing hearing, (2) the presentence report, (3) the principles of sentencing, (4)
the nature and characteristics of the offense, (5) any mitigating or enhancement factors, (6) the
information provided by the administrative office of the courts as to sentencing practices for similar
offenses in Tennessee; and (7) any statements made by the defendant on his or her own behalf. See
T.C.A. § 40-35-210 (2006); State v. Taylor, 63 S.W.3d 400, 411 (Tenn. Crim. App. 2001).

        A defendant not within “the parameters of subdivision (5) [of T.C.A. § 40-35-102], 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.” State v. Carter, 254 S.W.3d 335, 347 (Tenn. 2008) (citing T.C.A.§ 40-35-102(6)
(2006)) (footnote omitted). To be sure, a “favorable status consideration” does not correlate to a
presumption of such a status. Id. As with other sentencing issues, whether a defendant receives
alternative sentencing will depend on the facts of the case. State v. Taylor, 744 S.W.2d 919, 922
(Tenn. Crim. App. 1987). Additionally, we note that a trial court is “not bound” by the advisory
sentencing guidelines; rather, it “shall consider” them. T.C.A.§ 40-35-102(6) (emphasis added).

        If a defendant seeks probation, then that defendant bears the burden of “establishing [his]
suitability.” T.C.A. § 40-35-303(b) (2006). As the Sentencing Commission points out, “even
though probation must be automatically considered as a sentencing option for eligible defendants,
the defendant is not automatically entitled to probation as a matter of law.” T.C.A. § 40-35-303
(2006), Sentencing Comm’n Cmts.

       When sentencing the defendant to confinement, a trial court should consider whether:

       (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


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        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 (2006).

       The Defendant was convicted of a Class C felony, and he is a Range I, standard offender.
A standard offender may be sentenced to between three and six years for a Class C felony. T.C.A.
§ 40-35-112 (2006).

       When sentencing the Defendant, the trial court, while stating which enhancement factors it
found applicable to the Defendant’s case, mentioned that the Defendant had two prior probation
revocations. The Court then explained why it denied the Defendant alternative sentencing:

        The Court does not consider alternative sentencing in this matter to be appropriate
        as the defendant has both frequently and on numerous occasions in the past had
        applied to him measures less restrictive than incarceration unsuccessfully, and for
        those reasons, the Court does not consider the defendant to be amenable to
        rehabilitation.

         We conclude that the trial court properly denied the Defendant alternative sentencing. The
Defendant was convicted of a Class C felony, which makes him a favorable candidate for alternative
sentence. See T.C.A. § 40-35-102(6); see also Carter, 254 S.W.3d at 347. However, as the trial
court found, measures less restrictive than confinement have frequently or recently been applied
unsuccessfully to the Defendant. See T.C.A. § 40-35-103(1). The Defendant has violated his
probation twice. That is sufficient to deny the Defendant alternative sentencing. We conclude the
trial court properly denied the Defendant alternative sentencing, and the Defendant is not entitled
to relief on this issue.

                                           III. Conclusion

         After a thorough review of the record and relevant authorities, we conclude that the trial court
properly sentenced the Defendant to a period of incarceration. Accordingly, we affirm the judgment
of the trial court.


                                                             ________________________________
                                                              ROBERT W. WEDEMEYER, JUDGE




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