        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                           Assigned on Briefs June 18, 2013

           STATE OF TENNESSEE v. LATONYA DEON DALTON

                 Appeal from the Criminal Court for Davidson County
                     No. 2011-C-2084     Monte Watkins, Judge


                 No. M2012-01240-CCA-R3-CD - Filed July 22, 2013


Upon her indictment for six counts of aggravated child abuse and six counts of aggravated
child neglect, the defendant, Latonya Deon Dalton, pled guilty to two counts of attempted
aggravated child abuse, a Class B felony. In exchange for her pleas, the defendant received
concurrent, ten-year sentences as a Range III offender, with the manner of service to be
determined by the trial court. After a sentencing hearing, the court ordered that the
defendant serve one year in confinement, followed by probation for the remaining balance
of the agreed-upon sentence. On appeal, the defendant argues that the trial court failed to
“give due consideration” to the principles of sentencing and also failed to give her nearly
four months of jail credit. Following our review, we affirm the sentence imposed by the trial
court. However, we remand for the trial court to determine the amount of jail credit to
which the defendant is entitled and apply that toward the one-year portion of her sentence
to be served in confinement.

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

A LAN E. G LENN, J., delivered the opinion of the Court, in which N ORMA M CG EE O GLE and
D. K ELLY T HOMAS, J R., JJ., joined.

Michael A. Colavecchio, Nashville, Tennessee, for the appellant, Latonya Deon Dalton.

Robert E. Cooper, Jr., Attorney General and Reporter; Meredith Devault, Senior Counsel;
Victor S. Johnson, III, District Attorney General; and Brian Holmgren, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                        OPINION

                                          FACTS
        A transcript of the plea hearing is not included in the record on appeal from which
we can glean the underlying facts of the offenses. However, at the defendant’s sentencing
hearing, Pete Streiff, a child protective services investigator with the Department of
Children’s Services, testified that he began his investigation of the defendant after he
received a referral on January 4, 2011, concerning physical abuse of a child. The referral
stated that seven-year-old K.D.1 had a mark on his face below his right eye, and he had told
someone that his mother, the defendant, had hit him with a shoe. Streiff spoke to K.D. at
his school on January 6, and K.D. said that he received the injury while playing leapfrog
with his brother, M.D. However, Streiff spoke with school staff and learned that K.D. “had
given them multiple explanations for the injury.” K.D. denied having any marks or injuries
on other parts of his body.

       After he talked to K.D., Streiff attempted to contact the defendant. He attempted to
reach her by phone several times and sent her a letter, but he did not physically meet with
her until March 4 in her home. The defendant told Streiff that she disciplined her children
by “putting them in the room and by giving them extra chores and by spanking them on the
bottom.”

       Following his meeting with the defendant, Streiff returned to the elementary school
to do a follow-up with the defendant’s three children who attended school there. When he
asked the children about discipline in their home, K.D. said, “Mom spanks us on the bottom
with a belt.” His brother, M.D. blurted out, “And on the back.” Streiff asked M.D. if he
could see his back, and M.D. lifted his shirt. M.D. had scratches on his back and a
significant scabbed mark that looked like a “belt looped.” M.D. reported that the defendant
had spanked him on the back with a belt. Streiff asked K.D. if he had any marks like his
brother, and K.D. pulled up his shirt to reveal fairly new marks on his shoulder area.

       After speaking with the children, Streiff returned to the defendant’s home and spoke
with her briefly in the front yard. He told the defendant that he had just seen her children
and that they had marks on them. The defendant told him that her four-year-old nephew
liked to play with belts and swing belts around, and that was perhaps how her children got
the marks. Streiff told the defendant that the mark on M.D.’s back looked “pretty dated,”
which would have meant the nephew “would have been even younger when this most likely
happened.” He mentioned to the defendant that the marks on K.D.’s arm “looked pretty
fresh,” and the defendant said that she had not seen them but that they probably came from
their pet pit bull dog, her nephew, or K.D. himself. Streiff said to the defendant, “No child
is going to sit there and let a two- or three-year-old hit them with a belt like that . . . is it

       1
           It is the policy of this court to refer to minor victims by their initials.

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possible you did it?” The defendant replied, “It is possible.”

       The children were removed from the defendant’s home on March 5 and placed in a
safety placement. The juvenile court made an adjudication that the children were abused or
neglected. Three of the children were placed with a grandmother, and one child was placed
with a grandfather. The children never resided in the defendant’s home again. Streiff was
shown a series of photographs taken of the children on March 10 and determined that the
injuries shown in the photographs were consistent with his observations of the children on
March 4 and 5.

       Streiff testified that there had been five prior investigations of the defendant, four of
which involved allegations of physical abuse. None of the allegations were ever indicted
or adjudicated. Services were recommended in one of the prior investigations, one that
involved a significant mark on K.D.’s head. However, the investigator could not prove that
the defendant was responsible and the defendant did not admit responsibility. All of the
prior referrals would have been prompted because someone observed injuries on the
children. The defendant would have been interviewed as a result of the investigations and
would have been aware that she was being investigated concerning allegations of physical
abuse or neglect.

       Detective Jacob Pilarski, a detective for youth services, testified that K.D. was eight
years old and M.D. was six years old at the time of his investigation. He personally
interviewed both brothers on March 10 at the elementary school and later observed a
forensic interview that was conducted of the brothers at the child advocacy center. Detective
Pilarski identified two sets of photographs. One set of photographs was taken of K.D. on
March 5 when the children were removed from the home, and the other set of photographs
was taken of M.D. on March 10 at the school.

       When Detective Pilarski interviewed K.D. on March 10, K.D. told him that he had
sustained the injuries to his body by being “struck with objects by his mother,” and he
described the objects to the detective. One instrument was a sharp belt with “some kind of
teeth on it,” which K.D. said “hurt very bad.” During that interview, K.D. told Detective
Pilarski that the belt had gotten thrown into the dumpster. Later, during the forensic
interview, K.D. said that he threw the belt away because it hurt. In Detective Pilarski’s
personal interview with K.D. on March 10, K.D. described being hit with “a cord that plugs
into the TV.” In the forensic interview, K.D. again described a cord that plugged into the
TV and drew a picture of a long black cord with a red, yellow, and white end on it.
Detective Pilarski recognized it as an RCA jack, used to connect a VCR or other cable
equipment to a TV. During both interviews, K.D. talked about the cord being plugged into
the TV. Several RCA jacks were recovered from the defendant’s home.

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       Detective Pilarski testified that the photographs of K.D.’s injuries demonstrated
multiple injuries sustained over a period of time. Some scars overlapped and some injuries
were still scabbed, indicating that those injuries were newer. There were multiple different
scars all over his back and on his arms. Some scars corresponded with the instruments that
K.D. had described. For example, some of the scarring was consistent with a looped cord
instrument, and one specific scar resembled a belt buckle. During Detective Pilarski’s
interview with M.D. on March 10, M.D. described being struck by his mother with the same
belt and cords that K.D. had described. Both brothers reported that they had witnessed each
other being spanked or whipped.

       Detective Pilarski testified concerning his attempts to interview the defendant about
her sons’ injuries. On one occasion, he called her to arrange a time to speak with her, and
she said that “she [had] already g[iven] an interview to DCS, and that was all she was saying
and that she was retaining counsel.” During the execution of a search warrant of the
defendant’s home, the detective left his business card with the defendant, saying she could
contact him if she ever wanted to speak with him, but that was the extent of any of their
conversations.

       In an allocution to the court, the defendant apologized to her children and family for
anything she put them through. She reported that she was currently attending cosmetology
school and hoped to go into massage therapy and esthetics. She planned to own her own
business and “work full time to be a salon barber, master barber.” The defendant said that
she loved her children and cared for them, always ensuring that they had food, clothes, and
a house to live in. She planned to start visiting them as soon as possible and eventually
regain custody of them. She said that she had mental health issues and had been seeing
mental health professionals for ten or eleven years. Her medications had been changed on
and off due to various side effects. She claimed that interactions between Seroquel and
Depakote had caused her to gain weight, caused her blood pressure to rise, and made her
“unable to be stable with [her] children with stress and everything, like getting sick all the
time.”

       The defense submitted a synopsis of the defendant’s mental health records from
Mental Health Co-op into evidence. The defense also submitted a court order from the
juvenile court concerning the defendant’s visitation with her children, as well as copies of
the defendant’s school records. The State introduced the defendant’s presentence report into
evidence.

                                        ANALYSIS

       The State initially argues that the defendant has waived her claim because she failed

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to include a transcript of the guilty plea hearing or the presentence report in the record on
appeal. We will, however, review the defendant’s claim as we determine that the record is
sufficient for a meaningful appellate review of the defendant’s issue.

      Under the 2005 amendments to the sentencing act, a trial court is to consider the
following 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) (2010).

       The trial court is granted 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 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).

                                             -5-
        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 defendant shall be eligible for probation, subject to certain exceptions, if the
sentence imposed on the defendant is ten years or less. Id. § 40-35-303(a). A defendant is
not, however, automatically entitled to probation as a matter of law. The burden is upon the
defendant to show that he is a suitable candidate for probation. Id. § 40-35-303(b); State v.
Goode, 956 S.W.2d 521, 527 (Tenn. Crim. App. 1997); State v. Boggs, 932 S.W.2d 467,
477 (Tenn. Crim. App. 1996). In order to meet this burden, the defendant “must
demonstrate that probation will ‘subserve the ends of justice and the best interest of both the
public and the defendant.’” State v. Bingham, 910 S.W.2d 448, 456 (Tenn. Crim. App.
1995) (quoting State v. Dykes, 803 S.W.2d 250, 259 (Tenn. Crim. App. 1990)).

       There is no bright line rule for determining when a defendant should be granted
probation. Bingham, 910 S.W.2d at 456. Every sentencing decision necessarily requires a
case-by-case analysis. Id. Factors to be considered include the circumstances surrounding
the offense, the defendant’s criminal record, the defendant’s social history and present
condition, the need for deterrence, and the best interest of the defendant and the public.
Goode, 956 S.W.2d at 527. Also relevant is whether a sentence of probation would unduly
depreciate the seriousness of the offense. See State v. Davis, 940 S.W.2d 558, 559 (Tenn.
1997); Bingham, 910 S.W.2d at 456.

      In determining if incarceration is appropriate in a given case, 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 to commit similar offenses; or

       (C) Measures less restrictive than confinement have frequently or recently
       been applied unsuccessfully to the defendant.


                                              -6-
Tenn. Code Ann. § 40-35-103(1). Furthermore, the defendant’s potential for rehabilitation
or lack thereof should be examined when determining whether an alternative sentence is
appropriate. Id. § 40-35-103(5).

      Presumably disputing the trial court’s not granting a fully probated sentence, the
defendant asserts that the trial court failed to “give due consideration” to the principles of
sentencing.

       It is clear from the discussion at sentencing that the court was aware of the factors it
was to consider in determining the defendant’s sentence. The trial court was particularly
concerned with the circumstances of the offense – the extreme abuse the defendant inflicted
on her children. The record of the sentencing hearing includes photographs of the injuries
suffered by her children, as well as evidence concerning the defendant’s social history and
physical and mental condition. The court apparently found that the defendant had some
potential for rehabilitation, given it probated ninety percent of her sentence.

       In sentencing the defendant, the trial court stated:

       I have considered all matters in this particular case. And you know, the fact
       that a person has mental issues and is receiving mental treatment does not
       excuse abusive behavior in any respect, particularly when it comes to children.
       There is just no excuse for that. These children were abused extremely. And
       when you do that, you have to pay some price for it.

              The Court has considered all of these things.

               She pled to two counts of attempted aggravated child abuse. Ten years
       at forty-five percent. These sentences will run concurrently. But she will
       serve until May 31st of 2013, and then begin nine years of probation. And
       then we’ll see what she does from that point.

        After review, we conclude that the defendant has not shown that the trial court abused
its discretion in not granting her a fully probated sentence.

       With regard to the defendant’s jail credit, Tennessee Code Annotated section 40-23-
101(c) provides as follows:

             The trial court shall, at the time the sentence is imposed and the
       defendant is committed to jail, the workhouse or the state penitentiary for
       imprisonment, render the judgment of the court so as to allow the defendant

                                              -7-
       credit on the sentence for any period of time for which the defendant was
       committed and held in the city jail or juvenile court detention prior to waiver
       of juvenile court jurisdiction, or county jail or workhouse, pending
       arraignment and trial. The defendant shall also receive credit on the sentence
       for the time served in the jail, workhouse or penitentiary subsequent to any
       conviction arising out of the original offense for which the defendant was
       tried.

       When time spent in jail “arises out of” an offense, pretrial jail credit is “a matter of
right.” Trigg v. State, 523 S.W.2d 375, 376 (Tenn. Crim. App. 1975). The primary purpose
of awarding pretrial jail credit is to prevent discrimination against indigent defendants who
are unable to make bond prior and subsequently to conviction, unlike their counterparts with
the financial means to obtain a bond. See State v. Watkins, 972 S.W.2d 703, 705 (Tenn.
Crim. App. 1998); State v. Silva, 680 S.W.2d 485, 486 (Tenn. Crim. App. 1984); State v.
Abernathy, 649 S.W.2d 285, 286 (Tenn. Crim. App. 1983).

       During the argument of the parties at sentencing, defense counsel “remind[ed] the
Court that [the defendant] has already completed four and a half to five months of
incarceration[,]” to which the court responded, “Actually, it’s just under four months, eight
days short of four months.” However, from the judgment sheets, it appears that the trial
court did not give the defendant any credit for time served. We are unable to determine from
the record before us the amount of jail credit to which the defendant is entitled. Therefore,
we must remand for the trial court to determine how much jail credit the defendant is entitled
to and apply that toward the one-year portion of her sentence to be served in confinement.

                                      CONCLUSION

        Based on the foregoing authorities and reasoning, we affirm the sentence imposed by
the trial court, but we remand for the trial court to determine how much jail credit the
defendant is entitled to and apply that to her sentence, entering a new judgment to reflect
these credits.


                                                    _________________________________
                                                    ALAN E. GLENN, JUDGE




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