        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                                January 7, 2014 Session

             STATE OF TENNESSEE v. DONALD LEE REBURN

                   Appeal from the Circuit Court for Tipton County
                      No. 7407     Joseph H. Walker, III, Judge


              No. W2013-01281-CCA-R3-CD - Filed February 27, 2014


Appellee, Donald Lee Reburn, pleaded guilty to theft of property valued at $1,000 or more
but less than $10,000. At his guilty plea submission hearing, the trial court sentenced him
as a persistent offender to ten years, suspended to probation. The State has appealed and
argues that the trial court erred by sentencing appellee without a sentencing hearing and
without a presentence report. Following our review, we reverse the judgment of the trial
court and remand for a sentencing hearing.

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

R OGER A. P AGE, J., delivered the opinion of the court, in which A LAN E. G LENN and D.
K ELLY T HOMAS, J R., JJ., joined.

Robert E. Cooper, Jr, Attorney General and Reporter; J. Ross Dyer, Senior Counsel; D.
Michael Dunavant, District Attorney General; and James Walter Freeland, Jr., Assistant
District Attorney General, for the appellant, State of Tennessee.

Gary F. Antrican, District Public Defender; and David S. Stockton, Assistant District Public
Defender, Covington, Tennessee, for the appellee, Donald Lee Reburn.

                                        OPINION

                                  I. Factual Background

       On July 9, 2012, appellee was indicted for theft over $1,000 but less than $10,000.
The State filed a Notice of Intent to Seek Enhanced Punishment on July 12, 2012, in which
the State argued that appellee was a career offender based on his prior convictions.
        Subsequently, appellee entered into a plea agreement with the State without a
recommended sentence. Appellee agreed to plead guilty to the charged offense, and the
parties agreed that the trial court would sentence appellee. Appellee entered his guilty plea
on May 7, 2013. At the hearing, the State provided the following factual basis for the plea:
A citizen reported that scrap metal had been stolen from his property in Tipton County and
that the value of the stolen property was over $1,000. Appellee, while incarcerated on
unrelated charges, initiated a conversation with a detective and confessed to stealing the
scrap metal. According to the detective, appellee provided information that only the person
responsible would have known. Following the State’s recitation of the factual basis for the
plea, appellee’s counsel asked that the trial court accept appellee’s plea and that the trial
court consider allowing appellee to undergo rehabilitation at Harbor House. Appellee’s
counsel provided a proposed order to the trial court regarding rehabilitation but noted that
a sentencing hearing would not be possible on the day of the plea acceptance hearing because
a presentence report had not yet been prepared.

       After questioning appellee, the trial court accepted his guilty plea. Immediately
thereafter, the trial court sentenced appellee to ten years, suspended to probation, and signed
the order allowing appellee to enter rehabilitation at Harbor House. This appeal from the
State follows.

                                         II. Analysis

       The State argues on appeal that the trial court erred by sentencing appellee without
holding a sentencing hearing. Appellee replies that the trial court did not err because it was
familiar with appellee’s situation and because the State did not object below; however,
appellee did not support his argument with citations to any appropriate authority. Therefore,
appellee has waived his argument. See Tenn. Ct. Crim. App. R. 10(b).

       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).

        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

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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).

        The statutory provision governing sentencing hearings states, “Before imposing
sentence or making other disposition upon acceptance of a plea of guilty or upon a verdict
or finding of guilty, the court shall conduct a sentencing hearing without unreasonable
delay.” Tenn. Code Ann. § 40-35-209(a). In addition, “[a]t the sentencing hearing, the court
shall afford the parties the opportunity to be heard and present evidence relevant to the
sentencing of the defendant.” Tenn. Code Ann. § 40-35-209(b). Tennessee Code Annotated
section 40-35-203(a)-(b) provides that a trial court must hold a sentencing hearing unless the
parties have agreed to a sentence and the trial court accepts the agreed-upon sentence. The
same statute further states that the preparation of a presentence report is in the trial court’s
discretion but that “[t]here shall be a presentence report and hearing on any issue of
sentencing not agreed upon by the parties and accepted by the court.” Tenn. Code Ann. § 40-
35-203(b).

        In this case, the parties did not agree on a sentence prior to the plea submission
hearing. Both parties mentioned to the trial court that a sentencing hearing would be
necessary at a later date. Moreover, there were clearly issues of sentencing about which the
parties did not agree, thus necessitating the preparation of a presentence report. In particular,
the State sought to have appellee sentenced as a career offender, which would have resulted
in a sentence of twelve years for the Class D felony that would not have been probatable. See
Tenn. Code Ann. §§ 40-35-108(a)(3), (d); -112(c)(4); -303(a). On the other hand, appellee
sought to have his entire sentence suspended to probation. Under our sentencing statutes,
therefore, the trial court was required to hold a sentencing hearing and to order a presentence
report prepared prior to the hearing. Instead, the trial court sentenced appellee without a
presentence report and without a sentencing hearing. Therefore, we conclude that the trial
court abused its discretion in sentencing appellee. We reverse the trial court’s decision and
remand for a sentencing hearing.

                                       CONCLUSION

       Based on our review of the record, the parties’ arguments, and the applicable law, we
reverse the judgment of the trial court and remand for a sentencing hearing.


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                                                     ROGER A. PAGE, JUDGE


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