                                                                                       10/31/2017
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                          Assigned on Briefs June 20, 2017

            STATE OF TENNESSEE v. JOEY TYRONE SIMPSON

                  Appeal from the Circuit Court for Lawrence County
                      No. 33591     J. Russell Parkes, Judge


                            No. M2016-01962-CCA-R3-CD



The Defendant, Joey Tyrone Simpson, entered an open guilty plea to aggravated assault,
a Class C felony, and was sentenced as a Range I, standard offender to three years in the
Department of Correction. Additionally, he was ordered to pay $2880 in restitution for
the victim’s medical expenses. On appeal, he argues that he should have been granted
alternative sentencing. Following our review, we affirm the judgment of the trial court
but remand for entry of a corrected judgment to reflect the amount of restitution as
$2880, rather than $2280.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed and
                  Remanded for Entry of a Corrected Judgment

ALAN E. GLENN, J., delivered the opinion of the court, in which ROBERT H.
MONTGOMERY, JR., and TIMOTHY L. EASTER, JJ., joined.

Brandon E. White, Columbia, Tennessee (on appeal); Claudia S. Jack, District Public
Defender; and Robert H. Stovall, Jr., Assistant Public Defender (at hearing), for the
appellant, Joey Tyrone Simpson.

Herbert H. Slatery III, Attorney General and Reporter; M. Todd Ridley, Assistant
Attorney General; Brent A. Cooper, District Attorney General; and Emily C. Hartman,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                       OPINION

                                        FACTS

      The victim and the Defendant presented widely divergent versions of the event
which resulted in the Defendant’s pleading guilty to aggravated assault.
       At the sentencing hearing, the victim, Piyushbai Patel, testified that he owned the
North End Texaco Market and, on October 10, 2015, had been working in the back of the
store with one of his employees. Around 3:00 p.m., the Defendant came in the back door
and asked the victim for money, causing the two to argue. The victim went to the front of
the store, followed by the Defendant, who was threatening him. The victim called the
police, showed them the video of the Defendant inside the store, and told them that the
Defendant had been threatening him and following him through the store.

       From 3:00 p.m. to 6:00 p.m., the Defendant kept “coming back and checking
everything.” When the Defendant returned to the store for the final time that day, the
Defendant hit the victim in the back of the head while the victim’s face was in the drive-
through window. The victim turned around and saw the Defendant with a golf club, as
the Defendant hit the victim in the mouth and the face “a couple [of] times.” The victim
was struck “[a]round six times” by the Defendant. While in the store, the Defendant
damaged the security system and batteries, as well as the gas pump monitor. The victim
was treated at a hospital emergency room for which he was billed $2880. The damage to
the victim’s store was between $5000 and $10,000, and he was unable to work for several
days afterwards.

       The Defendant testified that he worked for Perry Wayne, who was in the
refrigeration and air conditioning business. In the fall of 2014, Mr. Wayne instructed the
Defendant to go to the victim’s business to clean leaves from the air conditioning unit.
The Defendant said that the victim owed $100 for the cleaning job, and the sum was to be
paid to the Defendant. He said he had asked the victim for his money “for months and
months,” and, in the meantime, Mr. Wayne had died. The Defendant testified that, on the
day of the incident, he took a golf club to the victim’s business “[b]ecause [he] wanted
[his] money and wanted to let [the victim] know [he] was serious.” The Defendant said
that he “felt disrespected” when the victim did not pay him, that he “checked” the victim
with the golf club, and struck the victim with his fist.

        The Defendant acknowledged that he had a prior conviction for DUI in 2014, as
well as three convictions for domestic assault, all involving the same victim, and resisting
arrest in 2011. He served ninety days for one of the domestic assault convictions. The
Defendant said that his probation for the DUI conviction had been revoked after he tested
positive for marijuana. The Defendant’s presentence report, which was admitted as an
exhibit to the hearing, reflected convictions in 2001 for casual exchange of marijuana,
attempted tampering with evidence, and reckless driving. The forty-seven-year-old
Defendant also reported that he had used marijuana daily since the age of fifteen to
seventeen and as recently as twenty to thirty days prior to the hearing. The Defendant
said he had been receiving disability benefits since 2011 because of his “diminished
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capacity.” He explained that he was “severely bipolar, schizophrenic, depression” and, in
the past, had “heard voices and s[een] things.”

       Shirley Dennis, the Defendant’s mother, testified that the Defendant never had
been violent around her. She said the Defendant was a “chronic diabetic” and had asthma
and high blood pressure. She said that the Defendant was unable to hold a steady job.

       Murry Green testified that he had been a friend of the Defendant for about ten
years. He said that he believed the Defendant would be successful if granted probation.

       In sentencing the Defendant, the court explained that, based upon the evidence
presented at the sentencing hearing, the presentence report, the victim impact statement,
as well as the principles of sentencing and the nature and characteristics of the current
offense, there were no additional enhancement factors. As mitigating factors, the court
found that the Defendant was suffering from a mental or physical condition that reduced
his culpability. The court did not find that the Defendant acted under strong provocation
or that substantial grounds existed to excuse or justify his conduct. Accordingly, the
court sentenced the Defendant to three years.

       As for alternative sentencing, the trial court noted that the Defendant’s criminal
history included three prior convictions for domestic assault. Further, the court took
judicial notice of the fact that the Defendant had been arrested for another offense after
his guilty plea in the case then before the court. The court noted that the Defendant’s
probation once had been revoked in Giles County and that he had smoked marijuana,
which would have been an additional ground for revocation.

                                      ANALYSIS

      For reasons which we will explain, we affirm the trial court’s sentencing of the
Defendant.

       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;



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             (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) (2014).

       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.”
State v. Bise, 380 S.W.3d 682, 707 (Tenn. 2012). The same standard applies when a
defendant challenges the denial of alternative sentencing. State v. Caudle, 388 S.W.3d
273, 278-79 (Tenn. 2012).

       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)).



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      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.

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).

       In this matter, it is clear that the trial court carefully considered the applicable law,
as well as all relevant factors in sentencing the Defendant as a Range I, standard offender
to a minimum three-year sentence for the Class C felony. The specific offense then
before the trial court resulted from an assault committed by the Defendant, who had three
prior convictions for domestic assault, one of which required that the Defendant serve
ninety days in confinement before the remainder of his sentence would be suspended.
Accordingly, the trial court cited the Defendant’s prior criminal history as weighing
against alternative sentencing. Taking together the appropriate considerations, the trial
court concluded that the Defendant should serve his sentence in confinement. The record
clearly shows that the trial court considered all relevant aspects of the Defendant’s
records. We conclude that the court did not abuse its discretion in denying alternative
sentencing.

        We note that at the hearing, the trial court ordered the Defendant to pay $2880 for
the victim’s medical expenses, but the judgment reflects the amount as $2280.
Accordingly, this matter is remanded for entry of a corrected judgment setting the amount
of restitution at $2880.

                                      CONCLUSION

       Based upon the foregoing authorities and reasoning, we affirm the sentencing
decision of the trial court.
                                             _________________________________
                                             ALAN E. GLENN, JUDGE
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