                                                                                        09/13/2018
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE


           STATE OF TENNESSEE v. BRANDON GILLENWATER

                Appeal from the Criminal Court for Sullivan County
                    No. S61451 James F. Goodwin, Jr., Judge
                     ___________________________________

                           No. E2017-01387-CCA-R3-CD
                       ___________________________________


Defendant, Brandon Gillenwater, appeals from the Sullivan County Criminal Court’s
judgment denying him alternative sentencing. Defendant’s counsel has filed a motion to
withdraw from representation pursuant to Rule 22 of the Rules of the Tennessee Court of
Criminal Appeals. We conclude that counsel’s motion is well-taken and, in accordance
with Rule 22(F), affirm the trial court’s judgment pursuant to Rule 20 of the Rules of the
Tennessee Court of Criminal Appeals.


            Tenn. R. App. P. 3; Judgment of the Circuit Court Affirmed
            Pursuant to Rule 20, Rules of the Court of Criminal Appeals.

D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which JAMES CURWOOD
WITT, JR. and NORMA MCGEE OGLE, JJ., joined.

Ilya I. Berenshteyn, Bristol, Tennessee, for the appellant, Brandon Gillenwater.

Herbert H. Slatery III, Attorney General and Reporter; Nicholas White Spangler,
Assistant Attorney General; Barry P. Staubus, District Attorney General; and Emily M.
Smith, Assistant District Attorney General, for the appellee, State of Tennessee.


                                       OPINION

                                  Factual Background

       On May 2, 2013, Defendant entered guilty pleas in case number S61400 to nine
counts of attempted burglary of a building and one count of vandalism of property valued
at $500 or less. He also entered guilty pleas in case number S61451 to five counts of
burglary of a building, one count of theft of property valued at $500 or less, one count of
theft of property valued at more than $500 but less than $1,000, two counts of theft of
property valued at $1,000 or more but less than $10,000. Pursuant to the plea agreement,
Defendant agreed to serve eight years’ incarceration as a Range III, persistent offender
with no consideration of alternative sentencing by the trial court. The trial court reserved
entry of judgments on the guilty pleas until Defendant’s June 6, 2013 report date. On
June 6, 2013, Defendant failed to report.

       Four years later, on June 8, 2017, Defendant pleaded guilty to violating his
probation in a previously-imposed judgment in case number S60267. At that time, the
State modified the 2013 plea agreement to allow Defendant to seek alternative sentencing
in case numbers S61400 and S61451. At the sentencing hearing, Defendant testified that
following the entry of the guilty pleas but before he could report for entry of the
judgments, he was arrested in Virginia for burglary of a building and grand larceny.
Convicted of these offenses in Virginia, he was sentenced to serve “4 years at 85%.”
While incarcerated in Virginia, Defendant completed a substance abuse treatment
program, obtained his graduate equivalency diploma, and obtained “federal bonding” so
that he could be employed with his brother’s towing company upon release. Defendant
asked the trial court to grant him release on community corrections.

       In determining the manner of service of the agreed-length sentence, the trial court
noted Defendant’s previous supervision history which included absconding from
supervision in 2008 and testing positive for illegal drug use in 2012. The court also noted
Defendant’s extensive criminal history totaling forty-one felony and ten misdemeanor
convictions. As factors favoring alternative sentencing, the trial court noted Defendant’s
successful completion of treatment and educative programs while incarcerated. The trial
court nevertheless found that the negative factors outweighed the positive factors and
denied alternative sentencing, ordering Defendant to serve the effective eight-year
sentence in confinement.

                                         Analysis

       The trial court has broad discretion to impose a sentence anywhere within the
applicable range, regardless of the presence or absence of enhancement or mitigating
factors, and “sentences should be upheld so long as the statutory purposes and principles,
along with any enhancement and mitigating factors, have been properly addressed.”
State v. Bise, 380 S.W.3d 682, 706 (Tenn. 2012). Accordingly, we review a trial court’s
sentencing determinations under an abuse of discretion standard, “granting a presumption
of reasonableness to within-range sentencing decisions that reflect a proper application of
the purposes and principles of our Sentencing Act.” Id. at 707. In State v. Caudle, our
supreme court clarified that the “abuse of discretion standard, accompanied by a
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presumption of reasonableness, applies to 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.” 388 S.W.3d 273, 278-79 (Tenn. 2012).

       Under the 2005 amendments to the Sentencing Act, trial courts are to consider the
following factors when determining a defendant’s sentence and the appropriate
combination of sentencing alternatives:

       (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 the mitigating and
       enhancement factors set out in §§ 40-35-113 and 40-35-114;
       (6) Any statistical information provided by the administrative office of the
       courts as to sentencing practices for similar offenses in Tennessee; and
       (7) Any statement the defendant wishes to make in the defendant’s own
       behalf about sentencing.

Tenn. Code Ann. § 40-35-210(b).

        The trial court must state on the record the factors it considered and the reasons for
the ordered sentence. Id. § 40-35-210(e); Bise, 380 S.W.3d at 706. “Mere inadequacy in
the articulation of the reasons for imposing a particular sentence . . . should not negate the
presumption [of reasonableness].” Bise, 380 S.W.3d at 705-06. The party challenging
the sentence on appeal bears the burden of establishing that the sentence was improper.
Tenn. Code Ann. § 40-35-401, Sentencing Comm’n Cmts.

       Under the revised Tennessee sentencing statutes, a defendant is no longer
presumed to be a favorable candidate for alternative sentencing. State v. Carter, 254
S.W.3d 335, 347 (Tenn. 2008) (citing Tenn. Code Ann. § 40-35-102(6)). Instead, the
“advisory” sentencing guidelines provide that a defendant “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.” Tenn. Code Ann. § 40-35-102(6)(A). However, no criminal defendant is
automatically entitled to probation as a matter of law. State v. Davis, 940 S.W.2d 558,
559 (Tenn. 1997). Instead, the defendant bears the burden of proving his or her
suitability for alternative sentencing options. Carter, 254 S.W.3d at 347 (citing Tenn.
Code Ann. § 40-35-303(b)).

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      When imposing a sentence of full confinement, the 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 to commit similar offenses; or
       (C) Measures less restrictive than confinement have frequently or recently
       been applied unsuccessfully to the defendant[.]

Tenn. Code Ann. § 40-35-103(1)(A)-(C). In addition, the sentence imposed should be (1)
“no greater than that deserved for the offense committed,” and (2) “the least severe
measure necessary to achieve the purposes for which the sentence is imposed.” Id. § 40-
35-103(2), (4).

        As a Range III, persistent offender convicted of Class D felonies, Defendant was
eligible for alternative sentencing but was not considered a favorable candidate for
alternative sentencing. See id. § 40-35-102(6). The trial court considered the facts of this
case and the appropriate sentencing principles. Defendant has not demonstrated that the
trial court abused its discretion by denying him an alternative sentence.

       On appeal, Defendant’s counsel asserts that this appeal presents no legally non-
frivolous questions, Anders v. California, 386 U.S. 738 (1967), and that the trial court
committed no abuse of discretion in denying Defendant’s request for alternative
sentencing and ordering him to serve his sentence in confinement. Upon review, we
agree.

                                       Conclusion

      We affirm the judgment of the trial court pursuant to Rule 20 of the Rules of the
Tennessee Court of Criminal Appeals. By separate order accompanying this opinion,
counsel’s motion to withdraw from representation is granted.



                                             ____________________________________
                                                D. KELLY THOMAS, JR., JUDGE




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