                                                                                            07/24/2017
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                            Assigned on Briefs May 10, 2017

            STATE OF TENNESSEE v. CLAUDE DAVID POWERS

               Appeal from the Circuit Court for Montgomery County
               No. CC-15-CR-968      William R. Goodman III, Judge


                             No. M2016-02019-CCA-R3-CD


The Defendant, Claude David Powers, pleaded guilty in the Montgomery County Circuit
Court to aggravated assault, a Class C felony. See T.C.A. § 39-13-102 (2014) (amended
2015). The trial court sentenced the Defendant as a Range I, standard offender to four
years, with one year to serve in confinement and the remainder to serve on probation. On
appeal, the Defendant contends that (1) his four-year sentence is excessive and (2) the
trial court erred in denying his request for full probation. Because the trial court failed to
place the appropriate findings of fact and determinations on the record as required by our
sentencing laws, we remand the case to the trial court for a new sentencing hearing.

  Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed;
                                  Case Remanded

ROBERT H. MONTGOMERY, JR., J., delivered the opinion of the court, in which NORMA
MCGEE OGLE and ALAN E. GLENN, JJ., joined.

Joshua W. Etson, Clarksville, Tennessee, for the appellant, Claude David Powers.

Herbert H. Slatery III, Attorney General and Reporter; Katherine C. Redding, Assistant
Attorney General; John W. Carney, Jr., District Attorney General; and Chris Dotson,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                         OPINION

       In September 2015, the Defendant was indicted for attempt to commit first degree
murder and aggravated assault. Pursuant to the plea agreement, the Defendant pleaded
guilty to aggravated assault, the State dismissed the attempted murder charge, and the
trial court would determine the length and manner of service of the sentence. The
transcript of the guilty plea hearing is not included in the appellate record.
       At the sentencing hearing, the presentence report was received as an exhibit. The
report showed previous convictions for three counts of public intoxication, two counts of
driving under the influence of an intoxicant, two counts of vandalism, assault, domestic
assault, reckless driving, driving with a suspended license, and resisting arrest. The
report also showed two previous probation violations.

       The presentence report showed that the Defendant obtained his GED, that he
reported only one previous employer, and that he intended to work for a construction
company if he received probation. The Defendant had previously completed drug and
alcohol awareness classes. At the time of the presentence investigation, the Defendant
was undergoing Suboxone treatment for opiate addiction. He reported good mental
health and excellent physical health. He reported first drinking alcohol at age fifteen and
drinking one beer weekly at the time of the presentence investigation. The report noted
that the investigator believed the Defendant “fabricated” his alcohol-related responses
because of the Defendant’s history of alcohol-related criminal conduct. The Defendant
reported first abusing prescription opiates at age twenty-seven.

       The Defendant submitted a written statement to the presentence investigator
explaining the night of the incident. In the statement, the Defendant explained that earlier
that evening, he had been at an acquaintance’s home, that he left, and that he walked
home. He said that after being home for about thirty minutes to one hour, he began
walking to a nearby convenience store to purchase cigarettes and beer. He said that
during the walk to the store, he was approached by the victim and another man the
Defendant identified as Tim. The Defendant explained that the men

       walked up to me and seemed like everything was normal. Then
       immediately they demanded that I give them whatever I had whether it was
       drugs or money. So I said “Hell no.” That’s when [the victim] pulled a
       knife on me. When this happened the other man named Tim ran off to the
       side of the building so I took out my pocket knife in the intent to [persuade]
       him to stop what he was doing and back off. But he did not[. He] took his
       weapon and tried to thrust it into my chest area. So what happened next
       was my first instinct which was stop him to get him off of me. And I did so
       to keep him from coming at me. I believe that I pricked him 2 times in the
       abdomen area. When this happened he dropped to the ground and lay[]
       there. So I was really scared and shaking so I ran to my house. I tried to
       tell my wife what happened but I was hysterical. She was trying to help me
       breathe and calm down. Before I could even get to a phone to explain to
       police what had happened. They were already at my front door knocking,
       looking for me. Then I was escorted downtown. I never wanted any harm
       to come of this man. I wish that I could change the outcome of this offense,
       and maybe handled the situation in a better manner.
                                            -2-
      Tony Bush, the victim, testified that on the evening of April 25, 2015, he and Tim
went to his visit their friend, Tammy. The victim said that he, Tim, Tammy, and
Tammy’s daughter were at Tammy’s home and that the Defendant arrived late that night.
The victim said that everyone was drinking alcohol and was having fun. He said that the
Defendant asked if the victim could acquire drugs for the Defendant and that the victim
made arrangements to obtain cocaine. The victim said that the Defendant gave the victim
money, that the victim left for about five minutes, that the victim returned with cocaine
and gave it to the Defendant, and that the Defendant left.

       The victim testified that the Defendant returned to Tammy’s home about twenty-
five minutes to one hour later, that the Defendant wanted “fifty more” because the
cocaine “wasn’t that good,” that the victim obtained more cocaine, that the victim gave
the cocaine to the Defendant, and that the Defendant left. The victim said that the
Defendant returned a third time ten or fifteen minutes later and that everyone socialized
until daylight. The victim said that around 6:00 a.m., the Defendant asked Tim to drive
the Defendant to purchase beer, that the victim mentioned he saw the Defendant’s wife
looking out her front door for the Defendant, who lived nearby, and that Tim drove the
Defendant home.

       The victim testified that the Defendant returned to Tammy’s home about ten
minutes later, that “the girls” told the victim to tell the Defendant that “he had to leave”
because the girls were scared of the way the Defendant was talking and behaving, and
that the Defendant left but returned. The victim said that previously the Defendant had
entered the home through the front door but knocked on the back door this time. The
victim said that the girls told him not to allow the Defendant inside, that the Defendant
said he wanted “thirty more,” and that the victim and the Defendant left the home and
began walking toward the victim’s friend’s “building.” The victim said that the next
thing he knew, the Defendant was stabbing him with a knife. The victim said that he and
the Defendant struggled, that the victim got away, that the Defendant caught him and
stabbed him again, and that the Defendant stabbed him four times. The victim said the
Defendant “ran off” toward the Defendant’s home. The victim denied pulling a knife and
said he did not carry knives.

        The victim testified that after the stabbing, he ran to his home, told his wife what
occurred, grabbed a towel for the bleeding, and walked to Tammy’s home and told her to
call the police. He said that when the paramedics were taking him to the ambulance, he
told them that the Defendant stabbed him and that the Defendant was standing beside the
police car. The victim denied attempting to rob the Defendant.

       On cross-examination, the victim testified that the last time the Defendant returned
to Tammy’s home to purchase drugs, the Defendant showed the victim money before the
victim left the home and began walking with the Defendant. The victim denied knowing
                                            -3-
why the Defendant stabbed him. The victim said that although he was bleeding heavily,
he walked to Tammy’s home to inform her of the stabbing and to ask her to call the
police. He said that his wife had a telephone and probably called the police but that he
wanted to let his friends know the Defendant had stabbed him. The victim denied
possessing cocaine when the stabbing occurred and discussing with his wife what he
would tell the police. He agreed that he was on probation for a drug-related offense at the
time of the stabbing and the sentencing hearing and that he had a previous theft
conviction.

       The victim testified that he was also known as Tommy Bush and that he told the
investigating officer that his name was Tommy. When counsel suggested that the victim
told the police his name was Tommy instead of Tony to escape detection that he was on
probation, the victim said his identification reflected his name as Tommy, not Tony. The
victim said that he had not socialized much with the Defendant before this incident,
although they lived in the same area. The victim said he had not sold the Defendant
drugs before this incident.

       The trial court found that no mitigating and enhancement factors applied. See
T.C.A. §§ 40-35-113 (2014); 40-35-114 (2014). The court noted that the victim’s
testimony reflected the victim was, at a minimum, a drug delivery person and was
possibly a drug dealer. The court found that this case was “perhaps” related to a dispute
regarding the quality or quantity of the cocaine. The trial court, without explaining its
rationale, sentenced the Defendant to four years, with one year to serve in confinement
and the remainder to serve on probation. This appeal followed.

        The Defendant contends that his sentence is excessive and that the trial court
should have granted his request for full probation. The State responds that no error in
sentencing occurred. We conclude that a new sentencing hearing is required because the
trial court failed to place on the record any of its findings and determinations supporting
the length and manner of service of the Defendant’s sentence.

        This court reviews challenges to the length and manner of service of a sentence
within the appropriate sentence range “under an abuse of discretion standard with a
‘presumption of reasonableness.’” State v. Bise, 380 S.W.3d 682, 708 (Tenn. 2012). A
trial court must consider any evidence received at the trial and sentencing hearing, the
presentence report, the principles of sentencing, counsel’s arguments as to sentencing
alternatives, the nature and characteristics of the criminal conduct, any mitigating or
statutory enhancement factors, statistical information provided by the Administrative
Office of the Courts as to sentencing practices for similar offenses in Tennessee, any
statement that the defendant made on his own behalf, and the potential for rehabilitation
or treatment. State v. Ashby, 823 S.W.2d 166, 168 (Tenn. 1991) (citing T.C.A. §§

                                            -4-
40-35-103 (2014), -210 (2014); State v. Moss, 727 S.W.2d 229, 236 (Tenn. 1986); State
v. Taylor, 744 S.W.2d 919 (Tenn. Crim. App. 1987)); see T.C.A. § 40-35-102 (2014).

        Likewise, a trial court’s application of enhancement and mitigating factors is
reviewed for an abuse of discretion with “a presumption of reasonableness to within-
range sentencing decisions that reflect a proper application of the purposes and principles
of our Sentencing Act.” Bise, 380 S.W.3d at 706-07. “[A] trial court’s misapplication of
an enhancement or mitigating factor does not invalidate the sentence imposed unless the
trial court wholly departed from the 1989 Act, as amended in 2005.” Id. at 706. “So long
as there are other reasons consistent with the purposes and principles of sentencing, as
provided by statute, a sentence imposed . . . within the appropriate range” will be upheld
on appeal. Id.

       The standard of review for questions related to probation or any other alternative
sentence is an abuse of discretion with a presumption of reasonableness. State v. Caudle,
388 S.W.3d 273, 278-79 (Tenn. 2012). Generally, probation is available to a defendant
sentenced to ten years or less. T.C.A. § 40-35-303(a) (2014). The burden of establishing
suitability for probation rests with a defendant, who must demonstrate that probation will
“‘subserve the ends of justice and the best interest of both the public and the defendant.’”
State v. Souder, 105 S.W.3d 602, 607 (Tenn. Crim. App. 2002) (quoting State v. Dykes,
803 S.W.2d 250, 259 (Tenn. Crim. App. 1990)); see T.C.A. § 40-35-303(b); State v.
Carter, 254 S.W.3d 335, 347 (Tenn. 2008).

       A sentence is based upon “the nature of the offense and the totality of the
circumstances,” including a defendant’s background. State v. Ashby, 823 S.W.2d 166,
168 (Tenn. 1991); see State v. Trotter, 201 S.W.3d 651, 653 (Tenn. 2006). A trial court
is permitted to sentence a defendant who otherwise qualifies for probation or alternative
sentencing to incarceration when:

       (A) [c]onfinement is necessary to protect society by restraining a defendant
       who has a long history of criminal conduct;

       (B) [c]onfinement 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) [m]easures less restrictive than confinement have frequently or recently
       been applied unsuccessfully to the defendant[.]

T.C.A. § 40-35-103(1)(A)-(C) (2014); see Trotter, 201 S.W.3d at 654.


                                            -5-
        The record does not reflect that the trial court considered any of the purposes and
principles of sentencing in determining the length and manner of service of the
Defendant’s sentence. Although the trial court thought the offense was the result of a
drug-related dispute and found, without elaboration, that no mitigating and enhancing
factors applied, the court made no findings supporting its imposition of a four-year
sentence with split confinement. The record does not reflect that the court considered the
presentence report, the evidence presented at the guilty plea hearing, counsel’s
arguments, the nature of the Defendant’s conduct, his statement during the presentence
investigation, his social history, his physical and mental health, his potential for
rehabilitation, or the deterrent effect of the sentence. See T.C.A. §§ 40-35-102, -103, -
210; Ashby, 823 S.W.2d at 168; Moss, 727 S.W.2d at 236. In essence, the court failed to
state its reasoning for imposing the Defendant’s sentence “in order to ensure fair and
consistent sentencing.” T.C.A. § 40-35-210(e).

        Furthermore, the record reflects that the Defendant was eligible for probation
because the sentence imposed was less than ten years. See id. § 40-35-303(a). Likewise,
he was a favorable candidate for probation based upon his standard offender
classification, although a trial court is not bound by this advisory sentencing guideline.
See id. § 40-35-102(6)(A), (D). However, the record does not reflect that the court
considered any of the appropriate principles in denying the Defendant’s request for full
probation. See id. § 40-35-103(1)(A)-(C). The court did not discuss the Defendant’s
criminal history, whether confinement was necessary to avoid depreciating the
seriousness of the offense, or whether measures less restrictive than confinement had
been applied unsuccessfully to the Defendant. See id.

       Based upon the trial court’s failure to state on the record the relevant findings of
fact and conclusions of law in determining the length and manner of service of the
Defendant’s sentence, we cannot afford the court’s determinations a presumption of
reasonableness. Bise, 380 S.W.3d at 705. Our supreme court has stated that when a trial
court fails to place on the record its reasons for imposing a sentence pursuant to
Tennessee Code Annotated section 40-35-210(e), as we have concluded in this case, “the
more appropriate course of action . . . may be to remand to the trial court” for a new
sentencing hearing because proper appellate review is prevented. Id. at 705 n.41.
Therefore, we conclude that it is necessary to remand this case in order for the trial court
to consider all of the purposes and principles of sentencing and to place its findings of
fact and reasoning on the record for imposing a particular sentence.

       In consideration of the foregoing and the record as a whole, we affirm the
Defendant’s conviction but remand the case to the trial court for further proceedings
consistent with this opinion.
                                       ____________________________________
                                       ROBERT H. MONTGOMERY, JR., JUDGE
                                            -6-
