        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                          Assigned on Briefs March 28, 2012

              STATE OF TENNESSEE v. KIMBERLY JOHNSON

              Direct Appeal from the Circuit Court for Sullivan County
                        No. S58580     R. Jerry Beck, Judge


                  No. E2011-02257-CCA-R3-CD - Filed June 27, 2012


The Defendant-Appellant, Kimberly Johnson, was charged by presentment with three counts
of the sale of a Schedule II controlled substance and three counts of the delivery of a
Schedule II controlled substance. Johnson subsequently entered guilty pleas to the charges
in the Sullivan County Circuit Court. Pursuant to the terms of her plea agreement, Johnson
was sentenced as a Range I, standard offender, she was required to pay a $6,000 fine, and her
delivery convictions were merged with her sale convictions for an effective sentence of four
years, with the manner of service of the sentence to be determined by the trial court. At the
sentencing hearing, the trial court denied all forms of alternative sentencing and imposed a
sentence of confinement in the Tennessee Department of Correction. On appeal, Johnson
argues that the trial court erred in denying an alternative sentence. Upon review, we affirm
the trial court’s judgments.

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

C AMILLE R. M CM ULLEN, J., delivered the opinion of the court, in which J OSEPH M. T IPTON,
P.J., and T HOMAS T. W OODALL, J., joined.

Stephen M. Wallace, District Public Defender; Andrew J. Gibbons, Assistant Public
Defender, Blountville, Tennessee, for the Defendant-Appellant, Kimberly Johnson.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy E. Wilber, Assistant Attorney
General; Barry P. Staubus, District Attorney General; and James F. Goodwin, Jr., Assistant
District Attorney General, for the Appellee, State of Tennessee.

                                         OPINION

       Plea Submission Hearing. Prior to Johnson entering her guilty pleas, the State and
the defense agreed that a written stipulation of facts supporting Johnson’s guilty pleas would
be entered into evidence. This stipulation stated that Johnson sold Oxycodone pills to a
confidential informant while under the surveillance of police officers on August 27, 2009,
September 24, 2009, and January 8, 2010. Three lab reports from the Tennessee Bureau of
Investigation, which were also entered into evidence, showed that the blue tablets Johnson
sold to the confidential information were, in fact, Oxycodone. After the trial court advised
Johnson of her rights, she entered her guilty pleas to the aforementioned offenses.

       Sentencing Hearing. At the October 13, 2011 sentencing hearing, the State entered
the presentence report into evidence. In addition, three letters written on Johnson’s behalf
were also admitted as exhibits.

       After reviewing the presentence report, the trial court noted that Johnson was fifty-one
years old and had the following criminal record:


 Conviction                     Age at time of conviction       Sentence
 Possession of Marijuana        38                              11 months, 29 days,
                                                                suspended after serving 2
                                                                days in jail

 Violation of the Habitual      37                              1 year, suspended after
 Motor Vehicle Offender                                         serving 20 days in jail,
 Act                                                            balance of sentence served
                                                                in a Community
                                                                Corrections program

 Two Convictions for the        36                              Concurrent Sentences of 4
 Sale of a Schedule IV Drug                                     years, suspended after
                                                                serving 90 days in jail

 Assault                        32                              11 months, 29 days,
                                                                suspended (from
                                                                presentence report)

 Illegal Massage                31                              11 months, 29 days,
                                                                suspended (concurrent with
                                                                DUI sentence)

 Soliciting Prostitution        31                              6 months suspended after
                                                                serving 30 days in jail
                                                                (consecutive to DUI
                                                                sentence)

                                              -2-
 Driving Under the              31                             11 months, 29 days,
 Influence of an Intoxicant                                    suspended after serving
                                                               120 days in jail

 Driving on a Revoked           31                             6 months, suspended
 License

 Public Intoxication            30                             30 days, suspended

 Driving Under the              30                             11 months, 29 days,
 Influence of an Intoxicant                                    suspended to probation
                                                               after serving 48 hours in
                                                               jail

       The trial court also noted that Johnson had previously received alternative sentences
for some of her convictions. The court stated that on August 15, 1997, Johnson had been
granted a probationary sentence for the violation of the habitual motor vehicle offender act,
and on October 14, 1997, Johnson had violated her probation because she tested positive for
marijuana during a drug screen, which resulted in the revocation of her probation. Johnson
was granted probation a second time for her two convictions for the sale of a Schedule IV
drug, and this probation was revoked when she tested positive for cocaine during a drug
screen. This probation was reinstated and revoked a second time when Johnson absconded.

       The trial court reviewed Johnson’s educational background and determined that she
had dropped out of high school her sophomore year because she ran away from her
“stepfather from hell[,]” who she claimed physically and mentally abused her. The court
noted that she later obtained her GED. In 1997, Johnson earned a degree in general
education from East Tennessee State University, which was verified. At the time of the
sentencing hearing, Johnson was enrolled at “Northeast State” community college and had
earned a 4.0 grade point average the previous semester, which the court determined was a
“favorable factor.” The court also noted that Johnson hoped to complete a two-year degree
in criminal justice. Johnson also disclosed that she had already earned a two-year degree in
business management, although no proof of this degree was provided to the investigating
officer.

       In the presentence report, Johnson disclosed that she suffered from chronic obstructive
pulmonary disease and degenerative disk disease, although she denied seeking treatment or
taking any prescriptions for these conditions. She also disclosed that the last time she had
been seen by a physician was in 2009 when her doctor prescribed her Hydrocodone,
Clonazepam, and Carisoprodol for back pain associated with her 1990 car accident, which
caused her to be in a coma for three weeks. She acknowledged that she was ultimately
convicted for driving under the influence of an intoxicant in conjunction with this car

                                             -3-
accident.

       The court observed that Johnson described her mental health as “fair.” Johnson
disclosed that she suffered from manic depression and obsessive compulsive disorder. She
was also treated for bipolar disorder in 1999, for which she was prescribed Klonopin,
Tegretol, and Doxepin, and was treated by a psychiatrist. Johnson reported that she stopped
going to psychiatric treatment and stopped taking her medication in 2005. The trial court
determined that it would not hold Johnson’s mental conditions against her because those
were akin to “being sick.” The court found that it was “[f]avorable [that] she sought
treatment.”

        The trial court then reviewed Johnson’s history of drug and alcohol addiction. It noted
that Johnson first began drinking alcohol at age fifteen because of the abuse she suffered but
stopped drinking in 1994. In addition, the court noted that Johnson first smoked marijuana
at age sixteen as “an escape mechanism.” Johnson asserted in the presentence report that it
had been at least two years since she had last smoked marijuana. The court also noted that
Johnson first used cocaine at age twenty-five and had been “shooting the cocaine
intravenously on a daily basis for five years.” Johnson reported that she used cocaine for the
last time in 1999. Johnson also disclosed that she abused Lortab, which had been prescribed
to her by a pain management physician and that she took three to five Roxicet pills per day
until 2010. She reported that in August 2010, she went to a rehabilitation program for opiate
dependency “through Recovery Associates,” where she received one prescription for
Suboxone, which lessened her withdrawal symptoms. This single prescription for Suboxone
was verified by the investigating officer.

       The trial court also reviewed Johnson’s employment history, which it determined was
“a favorable factor.” Johnson was currently employed at a temporary agency but had worked
at two different restaurants as a dishwasher earning minimum wage in 2010. She had also
worked as a cook at an Olive Garden restaurant from 1999-2009, where she earned $12.40
an hour. Johnson received an honorable discharge from the United States Army in 1985,
which the court stated was a “favorable factor.”

       After reviewing the contents of the presentence report, the court said, “I’ve made a
cursory review [of this report], so [that will] be adopted and included in my final finding[s].”
The court reminded Johnson that she had the burden of establishing her suitability for
probation.

       Johnson presented letters from two community college faculty members and one
employer who emphasized her excellent work ethic and her capacity to overcome life’s
obstacles. The trial court said that it had considered these letters and determined that they
were “favorable.”


                                              -4-
       Johnson testified in her own behalf at the sentencing hearing. She stated that she was
currently attending Northeast State Community College and was halfway through the fall
semester. She said she had earned a 4.0 grade point average for the preceding semester and
was planning on graduating the following year. Johnson said she had previously received
an Associate’s degree in business management and had already contacted another college
about finishing her four-year degree in business management after completing her spring
semester. She said she hoped to attend law school.

       Johnson did not dispute any of the prior convictions noted by the trial court but
asserted that the most recent conviction was from 1999. She admitted that she had previously
been placed on probation eight different times and had violated her probation at least two
times. She also admitted that she had a history of substance abuse which had “led to one
problem after another[.]” However, Johnson said that she had undergone rehabilitative
treatment at the Suboxone Clinic and had gotten “cleaned up.” Johnson asserted that she had
“been clean over a year now.”

       Johnson informed the court that she would reside with a lifelong friend if she were
granted probation in this case. She also said she would abide by the terms of probation.
Johnson said that she had been successful in turning her life around since her convictions in
the 1980’s and 1990’s.

       Johnson also discussed the series of events that ultimately led to her convictions in
this case. She said she quit her job at the Olive Garden restaurant, which was her “first
mistake[,]” given that she had worked there for ten years, had seniority, had a 401K, and had
paid vacation time. She said she initially worked at the Olive Garden to earn money to regain
her driver’s license after being convicted of violating the habitual motor vehicle offender act.
She said she was without a driver’s license for thirteen years until she was able to pay off all
the fines associated with this conviction.

       Johnson admitted that she sold the drugs in this case to support her drug habit. She
said that a physician at a pain clinic had been prescribing Oxycodone to her and that she had
been using some of the pills and had been selling some of the pills. She further admitted that
she obtained marijuana from individuals she knew through college. However, she claimed
that she no longer used drugs.

       Johnson made the following statement to the court: “I’m very sorry for what I did.
I’m not sorry because I got caught, I’m sorry because I broke the law[,] and I was wrong.”
She also stated that she had not been “raised to be like this, but this was how [she] ended up.”
She added, “[I]t’s just something I have to deal with and I have to watch every day of my
life.” Defense counsel informed the court that Johnson had several people present in the
courtroom to support her.


                                              -5-
       In making its sentencing determination, the court said it considered the evidence, the
statements of counsel, and all of the documents submitted to court. The court also considered
the “favorable factors[,]” which included Johnson’s prior military service, her consistent
employment history, and her educational history and pursuits. Although the trial court did
not apply any enhancement factors, it did apply the mitigating factor that Johnson’s “criminal
conduct neither caused nor threatened serious bodily injury[.]” T.C.A. § 40-35-113(1)
(2006). The court also considered the unfavorable factors in this case, including Johnson’s
“numerous prior convictions” for both felony and misdemeanor offenses and the fact that
Johnson “ha[d] continued to violate the law for a long period of time.” Although the trial
court noted that a substantial period of time had passed between Johnson’s last conviction
in 1999 and the offenses in this case, it stated Johnson “was a longtime seller of drugs,
[which] support[ed] a longtime [drug] habit.” The court noted that it came down “to
weighing the favorable factors against the unfavorable factors.” Ultimately, the court
determined that the “unfavorable factors outweigh[ed] the favorable factors” and denied all
forms of alternative sentencing, thereby ordering Johnson to serve her effective four-year
sentence in the Tennessee Department of Correction. Johnson filed a timely notice of appeal.

                                          ANALYSIS

        Johnson argues that the trial court abused its discretion in denying her an alternative
sentence. See Mattino v. State, 539 S.W.2d 824, 828-29 (Tenn. Crim. App. 1976)
(concluding that the trial court abused its discretion in denying probation “based on the
nature of the offense and the . . . plea reduction” where all the other factors clearly favored
a probationary sentence). She contends that a sentence of full probation is appropriate in her
case. Although she acknowledges that she has a history of criminal conduct, she argues that
confinement is not necessary to protect society. She also contends that confinement is not
necessary to avoid depreciating the offense because she entered guilty pleas to three non-
violent Class C felonies with concurrent sentences. Moreover, Johnson argues that she has
a strong work history, has returned to college, has received excellent grades, and has
successfully completed rehabilitative treatment for her substance abuse problems. She
asserts that the trial court failed to consider her accomplishments in the areas of rehabilitation
and education, “the negative effect incarceration would have on the appellant’s continued
progress”, and the issue of prison overcrowding before denying an alternative sentence.
Finally, she argues the trial court made no specific findings of fact beyond mentioning her
prior convictions, stating that she was a “longtime seller of drugs[,]” and determining that
the unfavorable factors outweighed the favorable factors in her case.

        In response, the State contends that the trial court properly sentenced Johnson to
confinement after considering all of the proof at the sentencing hearing and finding that the
unfavorable factors outweighed the favorable factors. Upon review, we conclude that the
trial court’s imposition of total confinement was proper.


                                               -6-
        On appeal, we must review issues regarding the length and manner of service of a
sentence de novo with a presumption that the trial court’s determinations are correct. T.C.A.
§ 40-35-401(d) (2006). This means that if the trial court followed the statutory sentencing
procedure, made adequate findings of fact that are supported by the record, and gave due
consideration and proper weight to the factors and principles that are relevant to sentencing
under the 1989 Sentencing Act, this court “may not disturb the sentence even if we would
have preferred a different result.” State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App.
1991). However, in a case where “the trial court applies inappropriate mitigating and/or
enhancement factors or otherwise fails to follow the Sentencing Act, the presumption of
correctness fails.” State v. Carter, 254 S.W.3d 335, 345 (Tenn. 2008) (citing State v.
Shelton, 854 S.W.2d 116, 123 (Tenn. Crim. App. 1992)). In this case, our review will be de
novo without a presumption of correctness because the trial court failed to affirmatively show
in the record its consideration of the sentencing principles and failed to apply the factors in
Tennessee Code Annotated section 40-35-103(1)(A)-(C) (2006).

       A trial court, when sentencing a defendant, must consider the following:

       (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.

T.C.A. § 40-35-210(b) (2006); see also Carter, 254 S.W.3d at 343; State v. Hayes, 337
S.W.3d 235, 264 (Tenn. Crim. App. 2010). In addition, “[t]he potential or lack of potential
for the rehabilitation or treatment of the defendant should be considered in determining the
sentence alternative or length of a term to be imposed.” T.C.A. § 40-35-103(5) (2006). The
defendant has the burden of showing the impropriety of the sentence. Id. § 40-35-401(d),
Sentencing Comm’n Comments.


                                              -7-
        Any sentence that does not involve complete confinement is an alternative sentence.
See generally State v. Fields, 40 S.W.3d 435 (Tenn. 2001). Tennessee Code Annotated
section 40-35-102(6)(A) (2006) states that a defendant who does not require confinement
under subsection (5) and “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[.]” However, a trial court
“shall consider, but is not bound by, the advisory sentencing guideline” in section 40-35-
102(6)(A). T.C.A. § 40-35-102(6)(D) (2006). Because Johnson entered guilty pleas to six
Class C felonies as a Range I, standard offender, she was considered a favorable candidate
for alternative sentencing. A trial court should consider the following when determining
whether there is “evidence to the contrary” indicating that an individual should not receive
alternative sentencing:

       (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[.]

Id. § 40-35-103(1)(A)-(C); State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). Tennessee
Code Annotated section 40-35-102(5) (2006) provides guidance to courts regarding the types
of defendants who should be required to serve their sentences in confinement:

              In recognition that state prison capacities and the funds to build and
       maintain them are limited, convicted felons committing the most severe
       offenses, possessing criminal histories evincing a clear disregard for the laws
       and morals of society, and evincing failure of past efforts at rehabilitation shall
       be given first priority regarding sentencing involving incarceration[.]

       We note that the trial court’s determination of whether the defendant is entitled to an
alternative sentence and whether the defendant is a suitable candidate for full probation are
different inquiries with different burdens of proof. State v. Boggs, 932 S.W.2d 467, 477
(Tenn. Crim. App. 1996). When a defendant is considered a favorable candidate for
alternative sentencing, the State has the burden of presenting evidence to the contrary. State
v. Bingham, 910 S.W.2d 448, 455 (Tenn. Crim. App. 1995), overruled on other grounds by
State v. Hooper, 29 S.W.3d 1, 9 (Tenn. 2000). However, the defendant has the burden of
establishing suitability for full probation, even if the defendant is considered a favorable


                                               -8-
candidate for alternative sentencing. Id. (citing T.C.A. § 40-35-303(b)).

       Johnson was also eligible for probation because her sentences were ten years or less
and the offenses for which she was sentenced were not specifically excluded by statute.
T.C.A. § 40-35-303(a) (2006). The trial court shall automatically consider probation as a
sentencing alternative for eligible defendants; however, the defendant bears the burden of
proving his or her suitability for probation. Id. § 40-35-303(b) (2006). In addition, “the
defendant is not automatically entitled to probation as a matter of law.” Id. § 40-35-303(b),
Sentencing Comm’n Comments. Rather, the defendant must demonstrate that probation
would serve the ends of justice and the best interests of both the public and the defendant.
State v. Souder, 105 S.W.3d 602, 607 (Tenn. Crim. App. 2002).

       When considering probation, the trial court should consider the nature and
circumstances of the offense, the defendant’s criminal record, the defendant’s background
and social history, his present condition, including physical and mental condition, the
deterrent effect on the defendant, and the best interests of the defendant and the public. State
v. Kendrick, 10 S.W.3d 650, 656 (Tenn. Crim. App. 1999) (citing State v. Grear, 568 S.W.2d
285, 286 (Tenn. 1978)). In addition, the principles of sentencing require the sentence to be
“no greater than that deserved for the offense committed” and “the least severe measure
necessary to achieve the purposes for which the sentence is imposed.” T.C.A. § 40-35-
103(2), (4) (2006). In addition, “[t]he potential or lack of potential for the rehabilitation or
treatment of the defendant should be considered in determining the sentence alternative or
length of a term to be imposed[,]” and “[t]he length of a term of probation may reflect the
length of a treatment or rehabilitation program in which participation is a condition of the
sentence[.]” Id. § 40-35-103(5). Moreover, our supreme court has held that truthfulness is
a factor which the court may consider in deciding whether to grant or deny probation. State
v. Bunch, 646 S.W.2d 158, 160 (Tenn. 1983) (citing State v. Poe, 614 S.W.2d 403, 404
(Tenn. Crim. App. 1981)).

       We conclude that the trial court properly imposed a sentence of full confinement in
this case, despite the fact that the trial court failed to affirmatively show in the record its
consideration of the sentencing principles and failed to apply the factors in Tennessee Code
Annotated section 40-35-103(1)(A)-(C). Johnson’s criminal record, which included two
convictions for the sale of a Schedule IV drug, two convictions for driving under the
influence of an intoxicant, and convictions for possession of marijuana, violating the habitual
motor vehicle offender act, assault, illegal massage, soliciting prostitution, driving on a
revoked license, and public intoxication, constituted “a long history of criminal conduct”
necessitating confinement pursuant to code section 40-35-103(1)(A). Moreover, because
Johnson had previously received a sentence of probation eight times and had violated her
probation at least two times, the record shows that “[m]easures less restrictive than
confinement ha[d] frequently or recently been applied unsuccessfully” to her pursuant to


                                              -9-
code section 40-35-103(1)(B). Although Johnson was considered a favorable candidate for
an alternative sentence and was eligible for probation, the aforementioned factors constitute
“evidence to the contrary” indicating that she should not receive alternative sentencing.
Accordingly, we affirm the trial court’s judgments.

                                         CONCLUSION

      The trial court’s denial of alternative sentencing in this case was proper. Upon
review, we affirm the trial court’s judgments.


                                                   ______________________________
                                                   CAMILLE R. McMULLEN, JUDGE




                                            -10-
