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

                   STATE OF TENNESSEE v. BLAKE GREGG

               Appeal from the Criminal Court for Sullivan County
       Nos. S68435, S68680, S69303, S69502  James F. Goodwin, Jr., Judge


                             No. E2019-00843-CCA-R3-CD


The defendant, Blake Gregg, appeals from his Sullivan County Criminal Court guilty-
pleaded convictions in multiple case numbers of possession of methamphetamine, two
counts of possession with intent to sell .5 grams or more of methamphetamine,
possession of oxycodone, possession of buprenorphine, possession of clonazepam,
introduction of contraband into a penal institution, domestic assault, aggravated domestic
assault, evading arrest, driving under the influence (“DUI”), two counts of driving on a
suspended license, one count of second or subsequent offense of driving on a suspended
license, driving while in possession of methamphetamine, theft of property valued at
$1,000 or more but less than $2,500, four counts of possession of drug paraphernalia,
running a stop sign, violating the vehicle light law, and two counts of violating the
financial responsibility law. In this appeal, the defendant asserts that the trial court erred
by ordering that he serve the 10-year sentence imposed in case number S68680 in
confinement. 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.

Wesley A. Mink (on appeal) and Steve Bagby (at trial), Assistant District Public
Defenders, for the appellant, Blake Gregg.

Herbert H. Slatery III, Attorney General and Reporter; Ruth Anne Thompson, Assistant
Attorney General; Barry P. Staubus, District Attorney General; and Kristen Rose,
Assistant District Attorney General, for the appellee, State of Tennessee.
                                      OPINION

             The convictions in this case arose from a global plea agreement to dispose
of the charges in Sullivan County case numbers S68435, S68680, S69303, and S69502.
We outline the original charges and conviction offenses below:

 Case Number         Charged Offense                 Conviction Offense/Sentence
   S68435    Driving on a suspended license       Same, six months
   S68435    Violating financial                  Same, fine only
             responsibility law
   S68435    Possession of                        Same, 11 months and 29 days
             methamphetamine
   S68435    Introduction of contraband into      Same, three years
             a penal facility
   S68680    Possession with intent to sell or    Possession with intent to sell .5
             deliver .5 grams or more of          grams or more of
             methamphetamine in a drug-           methamphetamine, 10 years
             free zone
   S68680    Possession of oxycodone              Same, 11 months and 29 days
   S68680    Possession of buprenorphine          Same, 11 months and 29 days
   S68680    Possession of clonazepam             Same, 11 months and 29 days
   S68680    Running a stop sign                  Same, fine only
   S68680    Violating financial                  Same, fine only
             responsibility law
   S69303    Domestic Assault                     Same, merged with S69303 count 2
   S69303    Aggravated domestic assault          Same, three years
   S69303    Evading arrest                       Same, 11 months and 29 days
   S69502    Possession with intent to sell or    Same, eight years
             deliver .5 grams or more of
             methamphetamine
   S69502    Theft of property valued at          Same, two years
             $1,000 or more but less than
             $2,500
   S69502    DUI                                  Same, 11 months and 29 days
   S69502    Driving on a suspended license       Same, merged with S69502 count
                                                  11
    S69502      Driving while in possession of    Same, fine only
                methamphetamine
    S69502      Possession of drug                Same, 11 months and 29 days

                                          -2-
                    paraphernalia
     S69502         Possession of drug                       Same, 11 months and 29 days
                    paraphernalia
     S69502         Possession of drug                       Same, 11 months and 29 days
                    paraphernalia
     S69502         Possession of drug                       Same, 11 months and 29 days
                    paraphernalia
     S69502         Violation of vehicle light law           Same, fine only
     S69502         Second offense driving on a              Same, 11 months and 29 days
                    suspended license

Pursuant to the agreement, the sentences imposed for convictions within each case were
aligned concurrently to one another, and the total effective sentences for the four cases
were aligned consecutively to each other, for a total effective sentence of 24 years with
the manner of service of the sentence to be determined by the trial court.

              At the guilty plea submission hearing, the defendant stipulated to the
statement of facts contained within the affidavits of complaints in each of the cases.
Because the defendant does not challenge the factual basis supporting any of the
conviction offenses, we will not recite them here.1

               At the sentencing hearing, the defendant testified that, since being
incarcerated, he had completed a number of self-improvement classes. He noted that the
majority of his criminal history occurred following the death of his father and his best
friend within two weeks of one another in 2016. From that point, he said, “everything
just spiraled out of control,” and he “did resort to self-medicating.” He acknowledged
that he lost his driver’s license following a DUI conviction in 2007 and that he “was not
able due to financial reasons” to have his license reinstated. The defendant read into the
record a statement he had prepared for the hearing. In the statement, the defendant took
responsibility for his actions and asked the court to place him in “the TN ROCS
Program.”2 The defendant said that, following any such placement, he would live with
1
       The defendant entered a “best interests” plea of guilty in each of the counts in case number
S69303.
2

                Developed by Judge Duane Slone, the Tennessee Recovery Oriented
                Compliance Strategy (TN-ROCS) Program is a court diversion strategy
                that serves justice-involved adults who have serious mental illness
                (SMI), mental illness (MI), co-occurring disorders (COD) or substance
                abuse disorders and who have low to medium risk factors for re-
                offending and medium to high needs for substance abuse and mental
                health services. This model provides an option for judges to address the
                needs of defendants who do not meet criteria for recovery court or do not
                                                   -3-
his grandmother. He said that he had two daughters, one who lived with her mother’s
mother and one who lived with his mother. The defendant testified that a friend had
offered him a job as a roofer “as soon as I can get the available time.”

             The defendant said that, despite having been placed on probation before, he
had never been ordered to attend any drug or alcohol treatment. He stated that he had
taken a drug and alcohol assessment as part of a previous sentence of probation and that
he had taken “some kind of class” but that he had never participated in an inpatient drug
treatment program.

             During cross-examination, the defendant acknowledged that, even without
the myriad convictions at issue, his criminal history was extensive. He admitted that he
had violated the terms of probationary sentences imposed in the past. The defendant
conceded a long history of drug abuse but said that he could not recall from whom he had
purchased drugs in the past.

              The court observed that the defendant “started having a problem with the
truth” during his testimony, emphasizing the defendant’s statement “that he doesn’t know
who he bought his drugs from.” The court opined that the defendant was “trying to
protect somebody” and noted its concern that it would be unable to “fashion some sort of
an order or a remedy to keep him away from those people.” The court stated that it did
not believe the defendant’s testimony that he had never been offered drug treatment while
on probation in the past. Based upon the defendant’s lack of candor as well as “his
lengthy criminal history” and “his violations of attempts at release into the community,”
the trial court ordered the defendant to serve the 10-year sentence imposed in case
number S68680 in confinement and the remaining 14 years of his total effective sentence
on supervised probation. The court indicated that it would reevaluate the defendant’s
placement in the TN-ROCS Program following his completion of the term of
incarceration for case number S68680.

               The presentence report established that, in addition to the 24 conviction
offenses at issue in this appeal, the 31-year-old defendant had more than two dozen prior

                want to participate in recovery court.

                TN-ROCS service recipients are ordered by a judge to take part in the
                program. Service recipients must comply with their release plan and
                supervision requirements, as well as appear in court as requested by the
                judge. Service recipients can stay in the community as long as they
                follow the program. Review dockets are held to ensure the service
                recipients are following the program.

https://www.tn.gov/behavioral-health/substance-abuse-services/criminal-justice-services/tn-rocs.html
                                                    -4-
misdemeanor convictions. His criminal history spanned the entirety of his adult life.

               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).

               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).

              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;



                                              -5-
                    (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).

               In our view, the trial court did not abuse its discretion by ordering a
sentence of confinement in this case. The record indicates that the defendant had a long
history of criminal convictions and that he had frequently failed to comply with the terms
of his probation. Although the trial court relied heavily on the defendant’s lack of
candor, the court also specifically considered both the defendant’s criminal history and
his failure to comply with sentences involving release into the community. 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




                                           -6-
