                                                                                        05/05/2017




        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                          Assigned on Briefs April 11, 2017

                  STATE OF TENNESSEE v. WYNELL FORD

                   Appeal from the Circuit Court for Madison County
                       No. 15-392    Donald H. Allen, Judge


                            No. W2016-01515-CCA-R3-CD



The Defendant, Wynell Ford, pled guilty in the Madison County Circuit Court to
convicted felon in possession of a firearm with a prior violent felony, a Class C felony,
and was sentenced by the trial court as a multiple offender to ten years in the Department
of Correction at thirty-five percent. On appeal, he challenges the trial court’s denial of
his request for alternative sentencing. Following our review, we affirm the sentencing
determinations of the trial court.

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

ALAN E. GLENN, J., delivered the opinion of the court, in which TIMOTHY L. EASTER and
J. ROSS DYER, JJ., joined.

George Morton Googe, District Public Defender; and Gregory D. Gookin, Assistant
Public Defender, for the appellant, Wynell Ford.

Herbert H. Slatery III, Attorney General and Reporter; Benjamin A. Ball, Senior Counsel;
James G. (Jerry) Woodall, District Attorney General; and Aaron J. Chaplin, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                       OPINION

                                         FACTS

       On March 24, 2016, the Defendant pled guilty as a Range II, multiple offender to
convicted felon in possession of a firearm with a prior violent felony, with the sentencing
to be left to the trial court’s later determination. The prosecutor recited the following
factual basis for the plea:
              Your Honor, if the State were to go to trial, we would show that on
      or about April the 27th of 2015 here in Madison County, Tennessee that the
      [D]efendant did unlawfully and knowingly possess a firearm after having
      been convicted of a violent felony offense which was aggravated assault in
      Madison Count[y] Circuit Court No. 99-940 which would be in violation of
      Tennessee Code Annotated [section] 39-17-1307(B)(1)(a). This is the
      result of an encounter the [D]efendant had with Investigator Rhodes and
      Investigator Savage here in Jackson, Madison County at 59 Point O’Wood
      Cove. The investigators were there patrolling the area due to recent shots
      fired in the area. They saw the [D]efendant in the middle of the cove at the
      end of that street next to a car. The vehicle was blocking traffic.
      Investigator Rhodes saw what he knew to be a gun in the [D]efendant’s
      pocket, the imprint of a gun in the [D]efendant’s left pocket. Investigator
      Rhodes exited the vehicle and approached the [D]efendant and asked him if
      that was a gun in his pocket and at first the [D]efendant said, no, and
      Investigator Rhodes replied, “I can see the gun.” Then this [D]efendant
      mumbled some profanities and said, “Yes.” He attempted to reach into his
      left pocket.      At that point, Investigator Rhodes reached into the
      [D]efendant’s pocket and pulled out the firearm. He asked the [D]efendant
      if he had a handgun carry permit and the [D]efendant replied, “No,” and the
      [D]efendant then informed the investigator that he was a convicted felon.
      All of this occurred here in Madison County, Tennessee.

       At the sentencing hearing, the State introduced the Defendant’s presentence report,
which reflected that the thirty-eight-year-old Defendant had a substantial history of
criminal convictions dating from the age of seventeen, including two convictions for
domestic violence, two convictions for aggravated assault, two convictions for criminal
trespassing, a conviction for burglary of an automobile, a conviction for vandalism, a
conviction for simple assault, and various drug and traffic-related convictions. The
presentence report further reflected that the Defendant stated under oath in court that he
had never been employed. The State also introduced as exhibits certified copies of the
Defendant’s 2000 guilty plea convictions for aggravated assault, a 2002 probation
violation order entered with respect to those convictions, the Defendant’s 2002
convictions for automobile burglary and theft of property under $500, and the
Defendant’s 2014 conviction for simple domestic assault.

        The Defendant did not present any proof and made no statement to the court.
During arguments, his counsel pointed out that the Defendant’s right arm and leg were
partially paralyzed from a gunshot wound he received in the early 1990s and that he
suffered from extensive health problems. Defense counsel also noted that many of the
Defendant’s convictions were older, dating from the early 1990s and 2006, and argued
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that the Defendant had “accepted full responsibility” for the instant crime by pleading
guilty. Defense counsel requested that the trial court impose the minimum sentence and
order probation or some other kind of alternative sentencing.

       At the conclusion of the hearing, the trial court reviewed the Defendant’s criminal
history in detail and found two applicable enhancement factors: that the Defendant had a
previous history of criminal convictions or criminal behavior in addition to those
necessary to establish his sentencing as a Range II offender and that he had, before trial
or sentencing, failed to comply with the conditions of a sentence involving release into
the community, which the court based on the “five or possibly six different occasions” he
had committed new offenses while on probation or a sentence involving release into the
community. See Tenn. Code Ann. § 40-35-114(1), (8) (2014). The trial court noted the
Defendant’s partial paralysis and the fact that he was on disability but found no
applicable mitigating factors. The court, therefore, sentenced the Defendant to ten years,
the maximum in his range. The trial court found that the Defendant was not an
appropriate candidate for probation or alternative sentencing, noting the Defendant’s
numerous failures to abide by the terms of sentences involving release into the
community and the nature of his offense, in which he was found carrying a loaded
firearm when he had prior violent felonies and a 2014 conviction for domestic assault.
Accordingly, the court ordered that the Defendant serve his ten-year sentence in the
Department of Correction at thirty-five percent release eligibility as a Range II, multiple
offender.

                                       ANALYSIS

        The Defendant contends on appeal that the trial court erred by denying any form
of alternative sentencing. In support, he cites the fact that he was simply found in
possession of a weapon rather than using it to commit a crime and that he “admitted guilt
and accepted responsibility for his criminal conduct.” The Defendant also cites his
partial paralysis to argue that he is “not a danger to society at large and would have been
able to follow the terms and conditions of probation.” The State argues that the trial
court acted within its discretion in ordering that the Defendant serve his sentence in the
Department of Correction, given his lengthy criminal history and repeated failures to
comply with the conditions of sentences involving release into the community. We agree
with the State.

       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;
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      (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) (2014).

        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 applicable 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.

       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,
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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.

      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).

       We agree with the State that the record supports the trial court’s denial of
probation or other alternative sentencing. The record reflects that the trial court carefully
and at length considered the relevant sentencing principles and applied them to the facts
of the case. As the trial court noted, the Defendant has shown many times that he is
unable to successfully complete a sentence involving probation or other forms of release
into the community. Accordingly, we affirm the sentencing determinations of the trial
court.




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                                   CONCLUSION

       Based on our review of the record, we conclude that the trial court did not abuse
its discretion in denying the Defendant’s request for probation or other alternative
sentencing. Accordingly, we affirm the judgment of the trial court.


                                                _________________________________
                                                ALAN E. GLENN, JUDGE




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