        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                  Assigned on Briefs at Knoxville October 15, 2013

     STATE OF TENNESSEE v. TAMIKA MICHELLE CLAYBOURNE

                  Appeal from the Circuit Court for Marshall County
                     No. 2012-CR-144       Robert Crigler, Judge


               No. M2013-00460-CCA-R3-CD - Filed December 30, 2013


The Defendant, Tamika Michelle Claybourne, challenges the trial court’s denial of
alternative sentencing. After a review of the record and the applicable authorities, we discern
no error in the trial court’s determinations and affirm the judgments of the trial court.

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

D. K ELLY T HOMAS, J R., J., delivered the opinion of the court, in which C AMILLE R.
M CM ULLEN and J EFFREY S. B IVINS, JJ., joined.

Donna Orr Hargrove, District Public Defender; and William J. Harold, Assistant Public
Defender, for the appellant, Tamika Michelle Claybourne.

Robert E. Cooper, Jr., Attorney General and Reporter; Meredith Devault, Senior Counsel;
Robert Carter, District Attorney General; and Weakley E. Barnard, Assistant District
Attorney General; for the appellee, State of Tennessee.

                                     OPINION
                               FACTUAL BACKGROUND

        The Defendant was indicted for the following offenses in July 2012: eight counts of
obtaining controlled substances by fraud, Class D felonies, and eight counts of TennCare
fraud, Class E felonies. On November 15, 2012, the Defendant entered open guilty pleas to
all the offenses as charged. The State offered the following facts as a basis for the guilty
pleas:

       The facts . . . are as follows: September 27, 2011, to May 16, 2012, [the
       Defendant] was . . . working as a medical assistant at Celebration Family Care
       Clinic . . . in Lewisburg, Tennessee.
       During that period of time, she called in eight prescriptions for 120 tablets, on
       each occasion, of 10 milligram[s] Lortab, or hydrocodone, to Parson’s
       Pharmacy, [for] a total of . . . 960 tablets.

       She called these in without authorization from any medical person at the clinic.
       She called them in, in her name. This was discovered by a combination of
       phone calls between Parson’s Pharmacy and the clinic. A report was made.
       Each of these times, she was working, but she was on TennCare. Each of these
       times, TennCare paid $21 . . . . [T]hat is $168 restitution to TennCare.

       When the [D]efendant was . . . first questioned by the people at the Celebration
       Family Care Clinic, she denied these accusations. Then in a letter of
       resignation . . . , she admitted to [calling in the prescriptions].

       Then an investigator from the Inspector General’s office was notified. He
       questioned her. She admitted to that investigator [that she] call[ed] in the
       prescriptions, pick[ed] up the prescriptions, [and] fill[ed] the prescriptions to
       her TennCare account.

       She did say . . . that someone else, an ex-boyfriend, made her do it, but she
       wouldn’t give his name.

        A sentencing hearing was held on January 23, 2013. At the hearing, Crystal Gray,
employed with the Department of Correction as a presentence report officer and probation
officer in Marshall County, presented the Defendant’s presentence report. Ms. Gray testified
that the Defendant cancelled her scheduled appointments with Ms. Gray twice due to work
obligations. Ms. Gray testified that she was able to meet with the Defendant to prepare the
presentence report during the third appointment because she threatened to revoke the
Defendant’s bond. She further testified that she supervises offenders on State probation.
The offenders are required to meet with her, and failure to do so may result in their probation
being revoked.

       Ms. Gray stated that the Defendant had a conviction for facilitation of aggravated
robbery in Maury County on her record. While on probation for this conviction, the
Defendant tested positive for marijuana on one occasion and for cocaine on another occasion.
The Maury County probation office did not revoke her probation for these violations but
instead imposed additional sanctions. Ms. Gray testified that the Defendant was on probation
for five years, which ended in May of 2011, for the facilitation of aggravated robbery
conviction and that the current offenses commenced in September of 2011. On cross-
examination, she testified that the Defendant had given consistent statements about her

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abusive ex-boyfriend; that she was in the Hope House Domestic Violence Program; that she
had been attending Centerstone, a behavioral healthcare organization; that she had two adult
children and two minor children; and that she was employed at the time of the hearing.

       Aside from the testimony offered by Ms. Gray, the presentence report further stated
that the Defendant was thirty-eight years old at the time of the sentencing hearing and
detailed the Defendant’s criminal history. The Defendant had been charged with disorderly
conduct at the age of twenty-one which resulted in a six month suspended sentence. The
Defendant was charged with shoplifting just over a year after the disorderly conduct
conviction which resulted in an eleven month and twenty-nine day sentence with all but thirty
days suspended. Just over two years after the shoplifting charge, the Defendant was
convicted of driving on a suspended license. At the age of twenty-seven, the Defendant was
convicted of resisting arrest with a sixty-day suspended sentence. The Defendant was
convicted of speeding at the age of twenty-eight.

        At the age of thirty-one, the Defendant was convicted of facilitation of aggravated
robbery, as stated by Ms. Gray, and received a sentence of five years’ probation. While on
this probation, the Defendant was convicted of three traffic offenses: one for a violation of
financial responsibility requirements, one for a violation of an undefined driver’s license law,
and one for speeding.

       James Mays, an employee at Celebration Family Care Clinic, testified that he had
worked with the Defendant. Mr. Mays testified that he had seen bruises on the Defendant
and that the Defendant told him that her daughter’s father had caused the bruises. On cross-
examination, Mr. Mays stated that he believed that the Defendant had shown him the bruises,
which were on her thighs and hips, around May 2012.

       At the close of proof, the Defendant offered the following allocution:

       Your Honor, I just want to say I am very sorry[] and with fear and regret. I just
       feared for my life. And still, to this day, I am terrified.

       I am working through the Hope House agency to try to see about getting me
       removed from Maury County or even out of the state. But we just have to see
       what all is going on with the court situation because she said I do still have up
       to a year to press charges against him, if it came down to it.

        In issuing its findings, the trial court noted the sentencing considerations and found
the following enhancement factors applicable: (1) “a previous history of criminal convictions
and criminal behavior” to which it applied great weight; (8) a failure “to comply with the

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conditions of a sentence involving release into the community” in that the Defendant had
tested positive for marijuana and cocaine while on probation; and (14) the abuse of “a
position of public or private trust” in that she used her employment status to facilitate the
crimes. See Tenn. Code Ann. § 40-35-114(1), (8), (14). The trial court also found one
mitigating factor, number (13), that the Defendant had cooperated with investigators and had
entered an open plea. See Tenn. Code Ann. § 40-35-113(13). The trial court explained that
it was denying alternative sentencing because the Defendant had a long history of criminal
conduct and because less restrictive measures had been applied to the Defendant both
frequently and recently, and those measures were unsuccessful. See Tenn. Code Ann. § 40-
35-103(1)(A), (C). The trial court sentenced the Defendant as a Range I, standard offender
as follows: for the eight counts of obtaining controlled substances by fraud, three years and
six months each; and for the eight counts of TennCare fraud, one year and nine months each.
The sentences are to be served concurrently, for an effective three year and six month
sentence in the Department of Correction (DOC).

                                         ANALYSIS

       The Defendant contends that the trial court erred by denying alternative sentencing
because it improperly found a long history of criminal conduct, because the “totality of the
circumstances” did not demand a sentence of confinement, because the trial court did not
apply the mitigating factor relating to excuse or justification, and because the state has scarce
economic resources. The State responds that alternative sentencing was properly denied
because of the Defendant’s criminal history and the ineffectiveness of previous probationary
sentences. We agree with the State.

        Before a trial court imposes a sentence upon a convicted criminal defendant, it must
consider: (a) the evidence adduced at the trial and the sentencing hearing; (b) the presentence
report; (c) the principles of sentencing and arguments as to sentencing alternatives; (d) the
nature and characteristics of the criminal conduct involved; (e) evidence and information
offered by the parties on the enhancement and mitigating factors set forth in Tennessee Code
Annotated sections 40-35-113 and 40-35-114; (f) any statistical information provided by the
Administrative Office of the Courts as to Tennessee sentencing practices for similar offenses;
and (g) any statement the defendant wishes to make in the defendant’s own behalf about
sentencing. Tenn. Code Ann. § 40-35-210(b). 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 other alternative sentence.” State v. Caudle, 388
S.W.3d 273, 278-79 (Tenn. 2012). If a trial court misapplies an enhancing or mitigating
factor, the error will not remove the presumption of reasonableness from its sentencing

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determination. Bise, 380 S.W.3d at 709. 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.” Id.
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 (2010), Sentencing
Comm’n Cmts.; State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).

       The Defendant was eligible for probation because the “sentence actually imposed
upon [her was] ten (10) years or less.” Tenn. Code Ann. § 40-35-303(a), (b). Thus, the trial
court was required to consider probation as a sentencing option. Tenn. Code Ann. § 40-35-
303(b). However, no criminal defendant is automatically entitled to probation as a matter of
law. State v. Davis, 940 S.W.2d 558, 559 (Tenn. 1997). The defendant has the burden of
establishing his or her suitability for full probation. See Carter, 254 S.W.3d at
347 (citing Tenn. Code Ann. § 40-35-303(b)). A defendant must demonstrate 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)). Among the factors applicable to probation consideration are the circumstances
of the offense; the defendant’s criminal record, social history, and present condition; the
deterrent effect upon the defendant; and the best interests of the defendant and the
public. State v. Grear, 568 S.W.2d 285, 286 (Tenn. 1978).

        Additionally, a defendant who is an especially mitigated or standard offender
convicted of a Class C, D, or E felony should be considered a favorable candidate for
alternative sentencing absent evidence to the contrary. See Tenn. Code Ann. § 40-35-102(6).
Following the June 7, 2005 amendments to our Sentencing Act, no longer is any defendant
entitled to a presumption that he or she is a favorable candidate for alternative sentencing.
State v. Carter, 254 S.W.3d 335, 347 (Tenn. 2008). Further, Tennessee Code Annotated
section 40-35-102(6) is only advisory. See Tenn. Code Ann. § 40-35-102(6)(D).

       In determining a defendant’s suitability for alternative sentencing, the 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



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         (C) Measures less restrictive than confinement have frequently or recently
         been applied unsuccessfully to the defendant[.]

Tenn. Code Ann. § 40-35-103(1)(A)-(C). A trial court should also consider a defendant’s
potential or lack of potential for rehabilitation when determining if an alternative sentence
would be appropriate. Tenn. Code Ann. § 40-35-103(5); State v. Boston, 938 S.W.2d 435,
438 (Tenn. Crim. App. 1996). Ultimately, in sentencing a defendant, a trial court should
impose a sentence that is “no greater than that deserved for the offense committed” and is
“the least severe measure necessary to achieve the purposes for which the sentence is
imposed.” Tenn. Code Ann. § 40-35-103(2), (4).

       After reviewing the record and the applicable authorities, we conclude that the trial
court did not abuse its discretion in denying all forms of alternative sentencing. The trial
court found that the Defendant had a long history of criminal conduct. The trial court further
found that the Defendant had been on probation frequently and recently, and it had not
deterred her criminal activity. The record supports these findings. With respect to the former
finding, the Defendant had eight misdemeanor convictions and one felony conviction before
committing the sixteen felonies in the current case. With respect to the latter finding, the
Defendant had been placed on probation multiple times, including the five year probation
sentence for the facilitation of aggravated robbery conviction. During the five year
probation, the Defendant was convicted of three misdemeanors and failed two drug tests.
The Defendant then started the actions that are the basis for the convictions in the present
case only four months after the five year probation ended. Thus, the previous alternative
sentences were unsuccessful in deterring her future criminal activity.

       We agree with the trial court that the mitigating factor found in Tennessee Code
Annotated section 40-35-113(3) relating to the existence of substantial grounds that establish
an excuse or justification is inapplicable in this case. The evidence shows that the Defendant
had a twenty-year criminal history. Further, she would not give the name of the ex-boyfriend
who allegedly made her commit these crimes to the authorities. Mr. Mays did testify that the
Defendant had shown him the bruises allegedly caused by her ex-boyfriend, but this was not
until May 2012, which was after the crimes in the instant case had occurred. Thus, the record
supports the trial court’s finding.

        The Defendant emphasizes that she was convicted of nonviolent offenses and argues
that the DOC’s scarce prison resources would be better used for other types of criminals.1
Our statutes favor sentences of incarceration for felons committing the most severe offenses
as well as felons with criminal histories indicating a disregard for the law and past failure of
1
  Despite the Defendant’s contention that prisons are overcrowded, there is no evidence in the record to support
this argument. Thus, we will not consider it.

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rehabilitative efforts. The Defendant meets the last two criteria. The Defendant has made
no additional arguments as to why she is suitable for alternative sentencing and, thus, has
failed to meet her burden. Again, there is no evidence to rebut the presumption of
reasonableness afforded the trial court in its sentencing determinations. Therefore, the
Defendant is not entitled to relief on this issue.

                                     CONCLUSION

               Based on our review of the record and the applicable law, we discern no
reversible error and affirm the judgments of the trial court.




                                                  _________________________________
                                                  D. KELLY THOMAS, JR., JUDGE




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