                                                                                        08/03/2018
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                          Assigned on Briefs May 22, 2018

               STATE OF TENNESSEE v. TEDDY LYNN SAMS
                   Appeal from the Circuit Court for Sullivan County
                           No. S66005      Jerry Beck, Judge



                             No. E2017-01837-CCA-R3-CD
                        _____________________________

The Defendant, Teddy Lynn Sams, pleaded guilty to three counts of violating a condition
of community supervision in exchange for an effective sentence of eleven months and
twenty-nine days with the trial court to determine the manner of service of the sentence.
After a hearing, the trial court ordered that the Defendant serve his sentence in
confinement. On appeal, the Defendant contends the trial court erred when it did not
order an alternative sentence. We affirm the trial court’s judgment.

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

ROBERT W. WEDEMEYER, J., delivered the opinion of the court, in which JOHN EVERETT
WILLIAMS, P.J., and THOMAS T. WOODALL, J., joined.

Stephen M. Wallace, Public Defender; Terry L. Jordan, Assistant Public Defender,
Blountville, Tennessee, for the appellant, Teddy Lynn Sams.

Herbert H. Slatery III, Attorney General and Reporter; Nicholas W. Spangler, Assistant
Attorney General; Barry P. Staubus, District Attorney General; Julie R. Canter, Assistant
Attorney General, for the appellee, State of Tennessee.

                                       OPINION
                                        I. Facts

       This case arises from the Defendant’s violation of the terms of his Community
Supervision for Life as a result of his attempted aggravated sexual battery conviction in
2006. At the guilty plea hearing, the parties agreed that the affidavit of complaint would
serve as the factual basis for the Defendant’s guilty plea. The affidavit of complaint,
included in the record, states that the Defendant was aware of the conditions of his
supervision, having signed forms on March 24, 2014, which enumerated the conditions.
       The affidavit of complaint goes on to state that the Defendant violated Rule #2 of
the conditions of release, which required him to obey the law. The complaint stated:

      The [Defendant] committed the offense of Driving Under the Influence and
      Violation of Financial Responsibility Law on or about 12-25-2014 in
      Blountville, Sullivan County, TN. Essential facts of the offenses reveal that
      the [Defendant] was the driver of a Chevrolet S10 pickup involved in a
      single vehicle crash . . . . Upon investigation, Deputy Matt Pendleton,
      SCSO, noticed an odor of an alcoholic beverage about [the Defendant]’s
      person and breath. Additionally, the [Defendant] stated to Deputy
      Pendleton that he had consumed several beers during the course of the day,
      with his last one being approximately two hours prior to the collision. He
      also indicated that he had eaten very little during the course of the day. An
      investigation of the vehicle revealed numerous beer cans strewn about the
      vehicle cabin.

The affidavit also alleged that the Defendant violated Special Condition #1 of the
Community Supervision for Life certificate, which stated that he agreed “to abide by the
Specialized Parole Conditions for Sex Offenders as adopted by the Department of
Correction.” One of these rules was that he not use or possess any alcoholic beverage. In
contravention of this, the Defendant had admitted to Deputy Pendleton that he had
consumed several beers on the day of the accident, which comprised Count 1 of this
violation. In Count 2, on or about August 19, 2015, the Defendant told his probation
officer that he had purchased and consumed beer on or about July 30, 2015.

        During the plea hearing, the trial court ensured that the Defendant understood that
while in accordance with the agreement he could seek probation, there was no agreement
that he would actually receive probation. The trial court ensured that the Defendant
understood that he was charged with three counts of violating his community supervision,
first for not maintaining control of his vehicle, the second and third for consuming
alcohol on different dates. The trial court summarized that the plea agreement, which
included that the Defendant’s effective sentence would be eleven months and twenty-nine
days, at a 75% release eligibility date. After ensuring that the Defendant understood his
relevant rights, and the rights he was waiving by entering a plea of guilt, the trial court
accepted his guilty plea and set a hearing at which it would determine the manner of
service of the Defendant’s sentence.

        At the sentencing hearing, the trial court reviewed the presentence report, which
listed the Defendant’s age as fifty-two at the time the officer prepared the report. The
Defendant’s prior record included that he was convicted: at age thirty-seven of
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aggravated sexual battery; at age thirty-three of five counts of forgery and one count of
theft; at age twenty-nine of theft over $1000, theft of services, obtaining money by
signature by false pretense, and DUI; at age twenty-three of grand larceny and second
degree burglary; at age twenty-two of DUI and driving on a suspended license; at age
twenty-one of failure to appear; at twenty of public intoxication, reckless driving, and
failure to stop for blue lights; at age nineteen of reckless driving.

      The trial court noted that the Defendant had obtained his GED and worked at a
wood plant. He also attended various schools while in state custody. The Defendant
admitted in the report that he began drinking excessively in his twenties and quit drinking
in 2014. The Defendant stated in the presentence report that he was self-employed, he
had no wife, no children, and owned very little property.

       The Defendant then testified, confirming much of what was in the presentence
report. He expounded on his self-employment saying that he and a partner had recently
purchased equipment with which to start a tree cutting service. He said he had between
twelve and thirteen yard clients at the time of the hearing.

       The Defendant explained the circumstances of the accident, saying that a deer
jumped in front of his vehicle and caused him to swerve to miss it. He dropped off the
edge of the road, lost control of his vehicle, and hit a tree. The Defendant said he was
drinking “near beer” at the time because he was craving beer but it was a non-alcoholic
option for him. He said that he had since learned that it does contain a small amount of
alcohol. He agreed that he had beer cans in his vehicle, but he explained that he collected
the cans to sell them, which earned him about $50 per week.

       As to the second count of drinking, the Defendant explained that his mother and
“wife” were both diagnosed with cancer. Shortly thereafter, when he went to his
counseling meeting at the probation office, someone asked how he was doing. He told
them that he had to “get me a beer and drink it,” but he said he was referring to the non-
alcoholic “near beer.” According to the Defendant, upon hearing this, his counselor
reported him as having consumed alcohol.

      The Defendant said that his last offense had been eleven years ago and that he had
been released from incarceration in March 2014. He said he had no other pending
charges. The Defendant said that he had passed lie detector tests as part of his sex
offender treatment. He had also passed drug screens.

      The Defendant said that his wife, who was battling cancer, lived with him and
depended on him for her care.

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      The Defendant reiterated that he was unaware that near beer contained alcohol,
and he said he had passed a lie detector saying as much. He asked the trial court to grant
him probation.

       Based upon this evidence, the trial court made the following findings:

       The Defendant has a terribly long record. Some of it’s old. But
       considering his prior record, prior failures on probation on this situation,
       I’m going to deny relief. He’ll be required to serve his sentence of 11
       months and 29 days at 75%.

       It is from this judgment that the Defendant now appeals.

                                       II. Analysis

       On appeal, the Defendant contends that the trial court erred when it denied him an
alternative sentence. He asserts that he had received no other charges in the two years
that the case was pending against him, demonstrating that he can comply with conditions
of release into the community. He further asserts that he had no intent to violate the law,
being unaware that “near beer” contained a small amount of alcohol. The State counters
that the Defendant’s exceptionally long criminal record alone provided the trial court a
rational and sufficient basis to order confinement for the three misdemeanor convictions.

       The standard of review for questions related to probation or any other form of
alternative sentencing is “‘an abuse of discretion standard of review, 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. Caudle, 388
S.W.3d 273, 278-79 (Tenn. 2012) (citing State v. Bise, 380 S.W.3d 682, 707 (Tenn.
2012). With regard to alternative sentencing, Tennessee Code Annotated section 40-35-
102(5) provides as follows:

              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.

      A defendant shall be eligible for probation, subject to certain exceptions, if the
sentence imposed on the defendant is ten years or less. T.C.A. § 40-35-303(a). A
defendant is not, however, automatically entitled to probation as a matter of law. The
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burden is upon the defendant to show that he or she is a suitable candidate for probation.
T.C.A. § 40-3-303(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 considering “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) (quoting State v. Moss, 727 S.W.2d 229, 235 (Tenn. 1986)). 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.

T.C.A. § 40-35-103(1)(A)-(C). In addition, the sentence imposed should be (1) “no
greater than that deserved for the offense committed,” and (2) “the least severe measure
necessary to achieve the purposes for which the sentence is imposed.” T.C.A. § 40-35-
103(2), -103(4). The party appealing a sentence bears the burden of establishing that the
sentence was improper. T.C.A. § 40-35-401, Sentencing Comm’n Cmts.

       The trial court must also consider the potential or lack of potential for
rehabilitation or treatment of the defendant in determining the sentence alternative or
length of a term to be imposed. T.C.A. § 40-35-103 (2014). A trial court should also
“consider the circumstances of the offense, the defendant’s criminal record, the
defendant’s social history and present condition, the need for deterrence, and the best
interest of both the defendant and the public” in determining whether to grant or deny
probation.” State v. Ring, 56 S.W.3d 577, 586 (Tenn. Crim. App. 2001) (citations
omitted).

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       As the Defendant in this case is convicted of three misdemeanors, with a total
effective sentence of eleven months and twenty-nine days, he is considered a favorable
candidate for probation. However, even if a defendant is a favorable candidate for
alternative sentencing under Tennessee Code Annotated section 40-35-102(6), a trial
court may deny an alternative sentence pursuant to Tennessee Code Annotated section
40-35-103.

       In this case, the trial court reviewed the Defendant’s lengthy criminal history
dating back more than thirty years and including multiple driving and alcohol related
offenses. The trial court considered that the Defendant was on probation in this case
when he consumed a beverage containing alcohol. On these bases, the trial court denied
the Defendant’s request for an alternative sentence. After review, we conclude that the
trial court did not err when it denied the Defendant an alternative sentence. The
Defendant is not entitled to relief on this issue.

                                   III. Conclusion

       In accordance with the foregoing reasoning and authorities, we affirm the trial
court’s judgment.

                                              _________________________________
                                              ROBERT W. WEDEMEYER, JUDGE




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