        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                             Assigned on Briefs June 17, 2014

               STATE OF TENNESSEE v. DEAUNDRA BROOKS

                 Appeal from the Circuit Court for Rutherford County
                        No. F69793    David M. Bragg, Judge


                  No. M2013-02670-CCA-R3-CD - Filed June 20, 2014


Appellant, Deaundra Brooks, entered guilty pleas to two counts of robbery and received the
agreed-upon sentence of five years on each count. The parties requested a sentencing hearing
for determination of sentence alignment and alternative sentencing. Following the hearing,
the trial court aligned the sentences concurrently but denied alternative sentencing and
ordered appellant to serve the sentences in the Tennessee Department of Correction.
Appellant now appeals the denial of alternative sentencing. Following our review, we affirm
the judgments of the trial court.

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

R OGER A. P AGE, J., delivered the opinion of the court, in which JERRY L. S MITH and N ORMA
M CG EE O GLE, JJ., joined.

Gerald L. Melton, District Public Defender; and Russell N. Perkins, Assistant District Public
Defender, Murfreesboro, Tennessee, for the appellant, Deaundra Brooks.

Robert E. Cooper, Jr., Attorney General and Reporter; Brent C. Cherry, Senior Counsel;
William C. Whitesell, Jr., District Attorney General; and Shawn Puckett, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                           OPINION

                       I. Facts from Guilty Plea Submission Hearing

        With regard to the first count, the State set forth that had the matter gone to trial, the
evidence would have established that on March 1, 2013, the victim, Farhad Salman Ali,
answered an advertisement on Craigslist to purchase a cellular telephone. When he arrived
at the predetermined location to meet the purported seller, appellant wielded a handgun and
demanded the victim’s telephone and money. Appellant was subsequently charged with
aggravated robbery and theft of property valued less than $500. The second offense
involving victim Lying Bun occurred in a similar manner on the following day. The plea
agreement provided for a reduction of the aggravated robbery charges to robbery and
sentences of five years for each offense. The parties submitted the issues of alternative
sentencing and sentence alignment to the trial court for determination at a separate sentencing
hearing.

                             II. Facts from Sentencing Hearing

        At the hearing, the State relied upon the presentence report, which was admitted as
an exhibit. Appellant testified on his own behalf and stated that the gun that he utilized
during the robberies was, in fact, a BB gun but that the gun resembled an actual pistol. He
said that he placed the advertisements on Craigslist because he actually had telephones for
sale but that he had been taking Xanax at the times the victims called and “wasn’t in [his]
right mind.” He testified that his criminal history consisted of one misdemeanor conviction
for attempted forgery and one misdemeanor charge for domestic assault that had been placed
on the inactive docket for 120 days, or “retired,” in February 2013 but that he had no felony
convictions. Appellant stated that he was, at the time of the sentencing hearing, employed
by an automobile detail shop and that he resided with his mother. Despite his alleged use of
Xanax at the time of the offenses, he denied having a problem with drugs and admitted that
he consumed alcohol on the weekends. He further maintained that he was “in the process”
of obtaining his GED. Appellant explained that he had one child, a daughter, and that he was
expecting a baby. He stated that he wanted to work and care for his children.

        On cross-examination, appellant admitted that he had been subject to a probation
revocation earlier that year because of a positive drug screen for cocaine. He said that he
tested positive for cocaine because he “touched it, and it got in [his] pores.” He claimed that
he had touched a dollar bill that had cocaine on it. He also alluded to a previous violation
of probation based on a positive drug screen for marijuana. However, he claimed that the last
time he used drugs was in June 2013. Appellant also acknowledged that he was on
misdemeanor probation when he committed the instant offenses. Appellant agreed that in
his statement to law enforcement officers, he said that he committed the offenses “to get
money because [he] was broke” but that at the hearing, he added that he was also taking
narcotics. Appellant acknowledged that he had been adjudicated to be delinquent in juvenile
court for conspiracy to commit robbery and for theft of property valued less than $500. He
also clarified that his daughter had previously resided out of state but that she currently lived
with him and his mother.




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        Although appellant received the agreed-upon sentences per the plea agreement, the
trial court nonetheless addressed enhancement factors and found that appellant had a
previous history of criminal convictions or criminal behavior in addition to those necessary
to establish the appropriate range, that he committed the offenses while he was released into
the community under the supervision of a state or government authority, and that he had been
adjudicated to have committed a delinquent act as a juvenile that would constitute a felony
if committed by an adult. Tenn. Code Ann. § 40-35-114(1), (13)(G), (16). With regard to
sentence alignment, the trial court found that appellant was on probation at the time he
committed the offenses. Id. § 40-35-115(b)(6).

        In denying an alternative sentence, the trial court concluded that it did not reasonably
appear that appellant would abide by the terms of release into the community and that the
interest of society needed to be protected from future criminal conduct by appellant. It also
determined that measures less restrictive than confinement had frequently or recently been
applied unsuccessfully to appellant. Accordingly, the trial court ordered appellant to serve
his five-year sentences but ordered them to be aligned concurrently with each other.

                                        III. Analysis

       Appellant presents one issue for our review: whether the trial court erred in denying
alternative sentencing.

                                   A. Standard of Review

        In determining an appropriate sentence, a trial court must consider the following
factors: (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 mitigating and enhancement factors; (6) any
statistical information provided by the administrative office of the courts as to sentencing
practices for similar offenses in Tennessee; (7) any statement the defendant makes on his
own behalf as to sentencing; and (8) the potential for rehabilitation. Tenn. Code Ann. §§ 40-
35-103(5), -113, -114, -210(b). In addition, “[t]he sentence imposed should be the least
severe measure necessary to achieve the purposes for which the sentence is imposed.” Tenn.
Code Ann. § 40-35-103(4).

      When an accused challenges the length and manner of service of a sentence, this court
reviews the trial court’s sentencing determination under an abuse of discretion standard
accompanied by a presumption of reasonableness. State v. Bise, 380 S.W.3d 682, 707 (Tenn.
2012). This standard of review also applies to “the questions related to probation or any

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other alternative sentence.” State v. Caudle, 388 S.W.3d 273, 278-79 (Tenn. 2012). This
court will uphold the trial court’s sentencing decision “so long as it is within the appropriate
range and the record demonstrates that the sentence is otherwise in compliance with the
purposes and principles listed by statute.” Bise, 380 S.W.3d at 709-10. Moreover, under
such circumstances, appellate courts may not disturb the sentence even if we had preferred
a different result. See State v. Carter, 254 S.W.3d 335, 346 (Tenn. 2008). The party
challenging the sentence imposed by the trial court has the burden of establishing that the
sentence is erroneous. Tenn. Code Ann. § 40-35-401, Sentencing Comm’n Cmts.; State v.
Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).

            B. Trial Court’s Consideration of Inapplicable Enhancing Factors

        Appellant argues that the trial court erred in applying the enhancing factor that he had
been adjudicated to have committed a delinquent act as a juvenile that would constitute a
felony if committed by an adult. Tenn. Code Ann. § 40-35-114(16). He also contests the
trial court’s reliance on Tennessee Code Annotated section 40-35-114(1), that appellant had
a previous history of criminal convictions or criminal behavior in addition to those necessary
to establish the appropriate range. We emphasize that the factors found in Tennessee Code
Annotated section 40-35-114 are germane to a trial court’s determination of whether to
enhance, or make greater, a defendant’s sentence. Because the length of appellant’s
sentences were fixed by the plea agreement, appellant’s argument in this regard is futile.

                            C. Denial of Alternative Sentencing

        When reviewing the denial of alternative sentencing, we begin with the proposition
that a defendant is eligible for alternative sentencing if the sentence actually imposed is ten
years or less. See Tenn. Code Ann. § 40-35-303(a). An especially mitigated or standard
offender convicted of a Class C, D, or E felony is considered to be a favorable candidate for
alternative sentencing in absence of evidence to the contrary. See Tenn. Code Ann. § 40-35-
102(6). “A court shall consider, but is not bound by, this advisory sentencing guideline.”
Id. The trial court must automatically consider probation as an alternative sentence for
eligible defendants, but the defendant bears “the burden of establishing suitability for
probation.” Tenn. Code Ann. § 40-35-303(b). This burden includes demonstrating that
probation will “‘subserve the ends of justice and the best interest of both the public and the
defendant.’” Carter, 254 S.W.3d at 347 (quoting State v. Housewright, 982 S.W.2d 354, 357
(Tenn. Crim. App. 1997)). In determining whether to grant or deny probation, a trial court
should 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 the defendant and the public. State v. Grear, 568 S.W.2d 285, 286 (Tenn. 1978). A trial



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court should base its decision regarding any sentence involving confinement on the following
considerations:

       (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 trial court should examine the
defendant’s potential for rehabilitation or lack thereof when determining whether an
alternative sentence is appropriate. Id. § 40-35-103(5).

       In denying alternative sentencing, the trial court considered the presentence report,
appellant’s physical and mental condition, his social history, the facts and circumstances
surrounding the offenses, the nature and circumstances of the criminal conduct involved,
appellant’s prior criminal history, and his potential for rehabilitation, including the risk that
during the period of probation appellant would commit another crime. Specifically, the court
concluded:

              It would have to be disturbing to the Court that shortly after - while
       you’re on probation on one offense, . . . and shortly after you go to court and
       get another charge retired, you’re out using Xanax to the extent that you don’t
       know what you’re doing.

               I’m sorry about the Xanax story. I find it difficult to believe. Because
       at some point you place an ad on [Craigslist] and lure these people out to come
       see you. I mean, they wouldn’t have come to see you if they weren’t going to -
       if they didn’t think they were going to go buy a phone.

       ....

              Whether or not it reasonably appears that [appellant] will abide by the
       terms of probation. And based on your prior actions, you have not.




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              Whether or not the interest of society in being protected from future
       criminal conduct of [appellant] are great. And, apparently, even though you
       were on probation and waiting to find out what was going on in this case, you
       continued to use marijuana and Xanax without any type of prescription for the
       Xanax, and knowing that marijuana is an illegal substance, and its possession
       or use is illegal. And certainly that would be criminal conduct.

              Whether or not measures less restrictive than confinement have
       frequently or recently been applied unsuccessfully to [appellant]. And they
       have. You have been placed on probation. That didn’t have any impact on
       you. You had a case that was retired shortly before you committed the instant
       offenses that bring[] you here today.

       Reviewing the trial court’s determination for abuse of discretion, attributed with a
presumption of reasonableness, we cannot conclude that the trial court abused its discretion.
Appellant was on probation at the time he committed the instant offenses. During his
probationary period, he used illegal drugs, including marijuana, Xanax, and arguably cocaine.
He utilized what appeared to be a deadly weapon, albeit a BB gun, to rob individuals whom
he surreptitiously planned to meet to allegedly conduct a sales transaction. Appellant
received the benefit of having a domestic violence case retired but, days later, committed the
instant offenses. Appellant previously had failed to abide by the terms of a sentence
involving release into the community. We discern no abuse of discretion on these facts.

                                      CONCLUSION

       Based on the record, the briefs of the parties, and the applicable legal authority, we
affirm the judgments of the trial court.


                                                   _________________________________
                                                   ROGER A. PAGE, JUDGE




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