        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                           Assigned on Briefs August 22, 2012

          STATE OF TENNESSEE v. RODNEY DEWAYNE HYMES,
                   alias RODNEY DEWAYNE HYNES

               Appeal from the Criminal Court for Hamilton County
      Nos. 261300, 261301, 267502, 272102, 275731, 275815, 277058, 279610
                             Barry A. Steelman, Judge


                No. E2012-00454-CCA-R3-CD - Filed October 18, 2012


The defendant, Rodney Dewayne Hymes, alias Rodney Dewayne Hynes, appeals the
Hamilton County Criminal Court’s revocation of his probation and reinstatement of his
original sentences in the Department of Correction for his 2007 and 2008 convictions for
violation of the Habitual Motor Vehicle Offender (“HMVO”) Act. The defendant also
challenges the trial court’s sentencing determinations in five new cases, arguing that the trial
court abused its discretion by failing to give sufficient weight to his potential and amenability
for rehabilitation. Following our review, we affirm the judgments of the trial court.

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

A LAN E. G LENN, J., delivered the opinion of the Court, in which J OSEPH M. T IPTON, P.J., and
J EFFREY S. B IVINS, J., joined.

Ardena J. Garth, District Public Defender; Richard Kenneth Mabee (on appeal) and Mary
Ann Green (at trial), Assistant Public Defenders, for the appellant, Rodney Dewayne Hymes,
alias Rodney Dewayne Hynes.

Robert E. Cooper, Jr., Attorney General and Reporter; Andrew C. Coulam, Assistant
Attorney General; William H. Cox, III, District Attorney General; and Bret Alexander,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                          OPINION

                                            FACTS

       This case relates to the defendant’s violation of probation in three cases and his
sentencing for five new offenses he committed while on probation or some other form of
release on the first three cases. On April 25, 2007, the defendant pled guilty in the Hamilton
County Criminal Court in case numbers 261300 and 261301 to two counts of violation of the
HMVO Act, committed on July 12 and July 7, 2006, respectively. He was sentenced for
those offenses to consecutive terms of two years, suspended to community corrections. In
November 2007 and again in February 2008, revocation warrants were issued based on the
defendant’s alleged failure to comply with the conditions of his community corrections
sentences, including his having violated curfew, having absconded from the program, and
having been arrested for driving on a revoked license and for theft of property over $1000.

       On March 5, 2008, the Hamilton County Grand Jury indicted the defendant in case
number 267502 for driving on a revoked license, violation of the financial responsibility law,
and another violation of the HMVO Act based on an offense date of November 17, 2007.
On July 28, 2008, the defendant pled guilty to violation of the HMVO Act in exchange for
dismissal of the other counts of the indictment and a two-year sentence on unsupervised
probation, to be served consecutively to the sentences in case numbers 261300 and 261301.
That same day, the trial court revoked the defendant’s community corrections sentences in
case numbers 261300 and 261301 and reinstated him to unsupervised probation.

       On June 3, 2009, the Hamilton County Grand Jury indicted the defendant in case
number 272102 for another violation of the HMVO Act, reckless driving, and violation of
the financial responsibility law based on an offense date of January 10, 2009. On June 12,
2009, a further revocation warrant was issued in case numbers 261300, 261301, and 267502
based on the defendant’s above charges.

       On April 7, 2010, the Hamilton County Grand Jury indicted the defendant in case
number 275731 on another count of violation of the HMVO Act and violation of a traffic
control device based on an offense date of January 28, 2010. On April 14, 2010, the
Hamilton County Grand Jury indicted the defendant in case number 275815 with yet another
violation of the HMVO Act, violation of the financial responsibility law, and speeding, based
on the same offense date of January 28, 2010.

       On April 17, 2010, the defendant was arrested in case number 277058 for attempted
possession of cocaine for resale. Less than six months later, he was arrested in case number
279610 on a new charge of attempted possession of cocaine for resale. On August 17, 2011,
the defendant pled guilty as a Range I offender in the five new cases, 272102, 275731,
275815, 277058, and 279610 to a total of three counts of violation of the HMVO Act and
two counts of attempted possession of cocaine for resale in exchange for dismissal of the
remaining counts of the indictments and the dismissal of other indictments. Pursuant to the
guilty plea agreement, sentencing in the five cases was left to the trial court’s later

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determination. Defense counsel acknowledged at that hearing that each of the defendant’s
offenses had been committed while he was on bond for a previous offense, which made
consecutive sentencing in those cases mandatory.

       At the conclusion of the guilty plea hearing, the trial court granted the defendant’s
request to be allowed to enter the “House of Refuge,” a residential rehabilitation program,
pending sentencing in the case. The trial court therefore released the defendant on his own
recognizance in the new cases and on a furlough order in the probation violation cases. In
so doing, the court noted that the defendant’s ability to comply with the House of Refuge
program during the interim before sentencing would give the court additional insight into his
potential for rehabilitation. On November 4, 2011, the State filed a motion to revoke the
defendant’s own recognizance bonds on the basis that the defendant had violated several
internal rules of the House of Refuge and had absconded from the program. Thereafter, on
November 11, 2011, the trial court issued a capias for the defendant’s arrest.

        At the February 6, 2012 sentencing hearing, Board of Probation and Parole Officer
Bryan Johnson identified the defendant’s presentence report, which was admitted as an
exhibit. Officer Johnson testified that the defendant had a total of thirty-nine felony and
misdemeanor convictions in his criminal history as well as fifteen different suspended
sentences, which included a number of revocations. On cross-examination, he acknowledged
that there were some cases in which the defendant had received suspended sentences and had
not been revoked. He pointed out, however, that in several of those cases, the defendant had
picked up new charges before the suspended sentences would have expired.

       George Thrash, the acting director of the House of Refuge, testified that the defendant
was dismissed from the program and taken back into custody on November 7, 2011, after
having twice violated the rule against having a cell phone. He showed the court a copy of
the house rules, signed by the defendant, on which the first rule was listed as no cell phone
possession. He also testified that the defendant was thoroughly instructed on the rule at the
time he entered the program. He stated that on the first occasion when the defendant was
found with a cell phone, on September 28, he was warned and placed on probation in the
program. When the defendant was again found with a cell phone on November 4, he was
dismissed from the program. On cross-examination, Thrash acknowledged that the defendant
and other residents of the program had complained to him that the houseman often kept the
house phone, which the residents used to arrange work, locked in his own room.

       Reverend Craig Paul testified that he was a pastor in the United Methodist Church and
worked with the “Transformation Project,” an anger management program in the Hamilton
County Jail. He said that his records reflected that the defendant had faithfully completed
three or four of the nine classes of the program. Should the defendant be released from

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incarceration, he would be able to continue with the Transformation Project, which would
involve his attending classes on Monday nights, participating in community fellowship on
Thursday nights, and reporting to a “life coach” by telephone five nights a week.

       Lakisha Vinson, the defendant’s fiancée, testified that the defendant, before his
incarceration, supported a household consisting of the defendant, herself, and the defendant’s
eight and twelve-year-old daughters by working at, variously, “Griffith’s Enterprise,”
“Chicken House,” and the “Electric Power Board.” She said that the defendant’s two
daughters were the center of his universe and that his desire to stay in contact with them was
the reason he had the cell phone in the House of Refuge. She said that the defendant could
once again live with her and his daughters in her home if he were released on probation and
that she knew of individuals who had volunteered to provide transportation for him. On
cross-examination, Vinson acknowledged that the defendant was living with her and his two
daughters at the time he committed the offenses of attempting to sell cocaine.

        In an allocution, the defendant explained to the court that he violated the no cell phone
rule of the House of Refuge because his complaints about his limited access to the house
phone were ignored. He also complained that the House of Refuge had not lived up to his
expectations. He vowed that he was a different person from the one who had “clogg[ed] up”
the court’s docket over the years “with all this foolishness,” and that, if the court allowed him
to get some help through the Transformation Project, it would never again see him in the
courtroom on another charge.

       The defendant also submitted a letter from his most recent employer praising the
defendant’s job performance and potential for probation and letters from two different
individuals who had volunteered to provide him with necessary transportation.

        At the conclusion of the hearing, the trial court issued lengthy and thorough oral
sentencing findings in which it detailed, among other things, the defendant’s numerous failed
attempts to complete different sentences involving alternatives to incarceration. The trial
court found that the defendant had violated the terms of his furlough in case numbers
261300, 261301, and 267502 and ordered that he serve his sentences in the Department of
Correction. With respect to the five new cases, the trial court found that mitigating factor
(1), that the defendant’s conduct neither caused nor threatened serious bodily injury, applied
to the driving cases and that mitigating factor (7), that the defendant was motivated by a
desire to provide for his family, applied to the cocaine cases. See Tenn. Code Ann. § 40-35-
113(1), (7) (2010). The trial court found that enhancement factors (1), (8), and (13), that the
defendant had a history of criminal convictions or criminal behavior in addition to that
necessary to establish his range, that the defendant had failed to comply with a sentence
involving release into the community, and that the defendant was released on probation at

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the time of the offenses, applied to all the offenses. See id. § 40-35-114(1), (8), (13).

       Finding that the defendant was not a suitable candidate for probation or other
alternative sentencing, the trial court sentenced him to serve three consecutive two-year
sentences for the driving offenses, to be served consecutively to case numbers 261300,
261301, and 267502. The court sentenced the defendant to three years for each of the
cocaine convictions, to be served consecutively to each other and consecutively to the other
sentences. The court ordered, however, that the attempted possession of cocaine sentences
could be served on probation.

                                        ANALYSIS

       The defendant contends that the trial court abused its discretion by fully revoking his
probation in his old cases and by not granting probation in his new cases, arguing that the
court should have “put more weight on his willingness to be rehabilitated.” In support, he
cites his “plans to enter the Tranformation Project,” as well as his supportive family,
expressed remorse, and potential for gainful employment. The State argues that the trial
court acted within its discretion in revoking the defendant’s probation and ordering that he
serve his sentences for his new cases in the Department of Correction. We agree with the
State.

                               A. Revocation of Probation

        The defendant first argues that the trial court abused its discretion by ordering a full
revocation of his probation in his 2007 and 2008 violation of the HMVO Act cases. A trial
court, however, is granted broad authority to revoke a suspended sentence and to reinstate
the original sentence if it finds by the preponderance of the evidence that the defendant has
violated the terms of his or her probation and suspension of sentence. Tenn. Code Ann. §§
40-35-310, -311 (2010). The revocation of probation lies within the sound discretion of the
trial court. State v. Shaffer, 45 S.W.3d 553, 554 (Tenn. 2001); State v. Harkins, 811 S.W.2d
79, 82 (Tenn. 1991); State v. Stubblefield, 953 S.W.2d 223, 226 (Tenn. Crim. App. 1997);
State v. Mitchell, 810 S.W.2d 733, 735 (Tenn. Crim. App. 1991). To show an abuse of
discretion in a probation revocation case, “a defendant must demonstrate ‘that the record
contains no substantial evidence to support the conclusion of the trial judge that a violation
of the conditions of probation has occurred.’” State v. Wall, 909 S.W.2d 8, 10 (Tenn. Crim.
App. 1994) (quoting State v. Delp, 614 S.W.2d 395, 398 (Tenn. Crim. App. 1980)).

       We conclude that the trial court did not abuse its discretion by fully revoking the
defendant’s probation in case numbers 261300, 261301, and 267502 and reinstating the
original sentences in the Department of Correction. The record reveals that the defendant

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was given multiple opportunities to serve these sentences on probation or some other form
of alternative release, yet he continued to violate the conditions of his release by committing
new criminal offenses and failing to abide by the rules of his various treatment programs.
We, therefore, affirm the trial court’s sentencing determinations in these cases.

                                  B. Denial of Probation

       The defendant also argues that the trial court abused its discretion by sentencing him
to the Department of Correction in his new cases rather than granting him probation.

       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 , __
S.W.3d __, 2012 WL 4380564, at *16 (Tenn. Sept. 26, 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

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application of the purposes and principles of our Sentencing Act.” Id. at *17.

        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.

      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.



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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 denying the defendant’s request for probation and ordering that he serve his
sentences in the Department of Correction, the trial court appropriately considered the above
sentencing principles as well as all the relevant facts and circumstances, which included the
defendant’s lengthy criminal history, his numerous failed attempts at sentences involving
release, his repeated violations of the law, and his attitude before the court. We discern no
error in the trial court’s sentencing determinations in these cases. Accordingly, we affirm
the trial court’s denial of probation or other alternative sentencing.

                                     CONCLUSION

       Based on the foregoing authorities and reasoning, we affirm the trial court’s full
revocation of the defendant’s probation in case numbers 261300, 261301, and 267502 and
its sentencing determinations in case numbers 272102, 275731, 275815, 277058, and
279610.


                                                   _________________________________
                                                   ALAN E. GLENN, JUDGE




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