        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                            Assigned on Briefs May 8, 2012

              STATE OF TENNESSEE v. JAMES D. LEDFORD, II

             Direct Appeal from the Circuit Court for Sequatchie County
                     No. 2010CR-105      Buddy D. Perry, Judge


               No. M2011-01136-CCA-R3-CD - Filed November 7, 2012


The defendant, James D. Ledford, II, appeals the Seqautchie County Circuit Court’s denial
of his request for alternative sentencing. The defendant pled guilty to one count of vehicular
homicide by reckless conduct, a Class C felony, and received a sentence of nine years, as a
Range II offender, with the manner of service to be determined by the trial court. At the
same time, the defendant also pled guilty to a violation of probation in a separate case with
a sentence of two years, which the trial court revoked and ordered to be served concurrently
with the homicide sentence. On appeal, the defendant contends that the trial court erred by
denying him an alternative sentence. Following review of the record, we affirm the sentence
as imposed.

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

J OHN E VERETT W ILLIAMS, J., delivered the opinion of the Court, in which J AMES C URWOOD
W ITT, J R., and J EFFREY S. B IVINS, JJ., joined.

B. Jeffery Harmon, District Public Defender, for the appellant, James D. Ledford, II.

Robert E. Cooper, Jr., Attorney General and Reporter; Clark B. Thornton, Assistant Attorney
General; James Michael Taylor, District Attorney General; and Steve Strain, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                         OPINION

                      Procedural History and Factual Background

       In September, 2010, the twenty-seven-year-old defendant was serving a two-year
probationary sentence for sale of a Schedule VI controlled substance. This drug sale
occurred in 2007 but due to multiple revocations and re-sentencings, the sentence remained
in effect. On September 27, 2010, the defendant was indicted, in the alternative, for two
counts of vehicular homicide, one by intoxication and the other by reckless conduct. These
charges arose from the defendant’s involvement in the automobile collision which resulted
in the death of his wife. At the time of the incident, the defendant, who was drinking, was
traveling at a high rate of speed, lost control, and ran into a tree. Following the defendant’s
indictment, a violation warrant was filed in the drug case, alleging multiple infractions,
including the new arrest and failure to report.

       In December, the defendant entered a guilty plea to vehicular homicide by reckless
conduct. The agreement provided for an agreed sentence of nine years, as a Range II
offender, with the manner of service to be determined by the trial court. The defendant also
waived his right to a hearing on the probation violation, agreeing to a revocation of the two-
year sentence. On March 28, 2011, the defendant appeared before the trial court for a
sentencing hearing, after which the trial court was to determine the manner of service for the
two sentences and whether they would be served concurrently or consecutively. The only
proof presented at the hearing was the pre-sentence report, although arguments were made.

       After reviewing the pre-sentence report, the trial court determined that the sentences
should be served concurrently in the Department of Correction. The defendant’s appeal of
the manner of service determination made by the trial court is now properly before this court.

                                          Analysis

        On appeal, the defendant raises the single issue of whether the trial court erred by
denying probation or another alternative sentencing option for both his violation of probation
and his new conviction. When reviewing a challenge to the manner of service of a sentence,
the appellate court shall conduct a de novo review on the record of the issues. The review
shall be conducted with a presumption that the determinations made by the court from which
the appeal is taken are correct. T.C.A. § 40-35-401(d) (2010). “[T]he presumption of
correctness ‘is conditioned upon the affirmative showing in the record that the trial court
considered the sentencing principles and all relevant facts and circumstances.’” State v.
Carter, 254 S.W.3d 335, 344-45 (Tenn. 2008) (quoting State v. Ashby, 823 S.W.2d 166, 169
(Tenn. 1991)). If the sentencing court did not do so, then the presumption fails, and this
court’s review is “simply de novo,” with no presumption of correctness. State v. Pierce, 138
S.W.3d 820, 827 (Tenn. 2004). If a trial court considers the statutory criteria, imposes a
lawful but not excessive sentence, states its reasons for the sentence it imposed, and its
findings have adequate support in the record, then appellate courts are bound by the trial
court’s decisions. Carter, 254 S.W.3d at 346. The defendant bears “the burden of showing
that the sentence is improper.” Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).



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        Under the revised Tennessee sentencing scheme, a defendant is no longer presumed
to be a favorable candidate for alternative sentencing. Carter, 254 S.W.3d at 347 (citing
 T.C.A. § 40-35-102(6)). Instead, a defendant not within “the parameters of subdivision (5)
[of Tennessee Code Annotated section 40-35-102], and who is an especially mitigated or
standard offender convicted of a Class C, D or E felony, should be considered as a favorable
candidate for alternative sentencing options in the absence of evidence to the contrary.” Id.
Additionally, we note that a trial court is “not bound” by the advisory sentencing guidelines;
rather, it “shall consider” them. T.C.A. § 40-35-102(6) (emphasis added).

        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 burden is upon
the defendant to show that he is a suitable candidate for probation. Id. at 303(b); see also
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. Id. Factors to be considered include the circumstances surrounding
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.
Goode, 956 S.W.2d at 527. Also relevant is whether a sentence of probation would unduly
depreciate the seriousness of the offense. State v. Davis, 940 S.W.2d 558, 559 (Tenn. 1997);
Bingham, 910 S.W.2d at 456. Denial of probation may be based solely upon the
circumstances of the offense when they are of such a nature as to outweigh all other factors
favoring probation. Bingham, 910 S.W.2d at 456.

       A trial court may deny alternative sentencing and sentence a defendant to confinement
based on any one of the following considerations which establish “evidence to the contrary”
to rebut a defendant’s status as a “favorable candidate” for alternative sentencing:

       (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

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       been applied unsuccessfully to the defendant[.]

T.C.A. § 40-35-103(1). In choosing among possible sentencing alternatives, the trial court
should also consider[t]he potential or lack of potential for the rehabilitation or treatment.
T.C.A. § 40-35-103(5); State v. Dowdy, 894 S.W.2d 301, 305 (Tenn. Crim. App. 1994). The
trial court may consider a defendant’s untruthfulness and lack of candor as they relate to the
potential for rehabilitation. State v. Nunley, 22 S.W.3d 282, 289 (Tenn. Crim. App. 1999);
see also Dowdy, 894 S.W.2d at 305-06. Finally, the court may also consider the mitigating
and enhancing factors set forth in Tennessee Code Annotated sections 40-35-113 and -114.
T.C.A. § 40-35-210(b)(5).

        At this juncture, we note that the defendant is not considered a favorable candidate
for alternative sentencing, because he was convicted as a Range II offender, which negated
the favorable status. Thus, a finding by the trial court of specific “evidence to the contrary”
was not required. Nonetheless, the trial court, in imposing a sentence of confinement, made
the following findings on the record:

               Let me talk a little bit about . . . the criminal history that I see here. I’m
       not sure how he managed in 2001 to get himself tried as an adult, but it looks
       like it was a considerable spurt of criminal activity. There was a vandalism,
       possession of burglary tools that was dismissed, the theft, weapons charge,
       aggravated assault, and then we come along and in 2009, February, there’s a
       charge of aggravated assault, which, apparently, got dismissed and reduced to
       simple assault. Then there’s the drug case that I mentioned earlier, the 4786
       case out of Sequatchie County that was to be a two-year sentence, and served
       26 days on it, and that case has just lingered on and on and on. . . . [The pre-
       sentence report] if you read that it simply indicates an unwillingness to comply
       with the requirements of probation, and it looks like the Court has been
       extremely generous in giving [the defendant] the opportunity to avoid jail
       several different times.

              He’s continued to test positive for drugs, and then while on probation
       he commits this offense, where a person is killed, and he has in his system
       intoxicants, and it’s resulted in the death of another person.

              Although it’s not mandatory, I think I probably could, under 40-35-
       115(6), simply run it consecutive based on the fact that he is on probation at
       the time of the offense. I think, based on this record, I could even find that the
       criminal activity is extensive. I think, however, my real judgment in this case
       is to make the determination of whether this is a served sentence or not, and

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       I’m going to find that it’s a sentence that I really have very little alternative but
       to find that it should be served, simply based upon the fact of the criminal
       activity and the continued unwillingness to meet the requirements of probation.

               He’s been on probation off and on since he was 17 years old, and then
       to come into this courtroom this morning and suggest to me that I’m on
       probation, but I don’t even have to report, and they ought to hunt me down and
       find me if they want me, is just, I think, more indication that he’s not willing
       to comply with the lesser requirement than incarceration that this Court and
       other courts have tried since he was 17 years old, and for this reason, I’m
       going to find that this is a sentence that’s required to be served. Although, I
       think I have the basis to make it a consecutive sentence, I’m going to decline
       to do that, so I’m making it a sentence to be served, and I’m going to require
       him to go into custody now[.]

       The defendant contends that the “principles of sentencing dictate that [he] should not
be sentenced to full confinement” because “[s]uitable alternatives . . . exist that adequately
protect society and provide an opportunity for [him] to rehabilitate himself.” He states that
he has “a limited previous criminal history and there was little evidence that past efforts at
rehabilitation had failed.” In fact, he contends that review should be conducted without a
presumption of correctness being afforded to the trial court’s finding because the court
“improperly decided that [he] had a long criminal history.”

        Again, we note that the defendant, who stands convicted as a Range II offender, is not
considered a favorable candidate for alternative sentencing and bears the burden in this case.
Our review of the record does not lend support to his arguments. Contrary to his contention,
the pre-sentence report establishes that the then twenty-seven-year old began his criminal
activity at the age of seventeen when he amassed seven criminal convictions for offenses
including aggravated assaults, a weapons offense, vandalism, and attempted theft. Following
this spree, the defendant was incarcerated in the Department of Correction until 2005. In
2006, he committed the drug sale, which is the underlying charge in the instant probation
violation case now before us. In 2009, he was again convicted of assault. The suggestion
that the defendant does not have a long criminal history is not well-taken.

       Review of the trial court’s sentencing decisions leads us to the conclusion that the
defendant has wholly failed to meet his burden of showing an impropriety in the sentence as
imposed. The court based its decision to deny alternative sentencing on the defendant’s
abysmal history while on probation, as well as his history of criminal activity. These are
valid conclusions based upon the record and applicable law.



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        The pre-sentence report shows multiple prior violations and revocations of
probationary sentences. In fact, the defendant, in the instant drug case, had violations which
caused his sentence to be extended by at least a year and a half past the original two-year
expiration, resulting in its remaining in effect at the time of the homicide. See State v.
Grigsby, 957 S.W.2d 541, 545 (Tenn. Crim. App. 1997) (failure of past efforts at
rehabilitation was shown by fact present offense committed while on probation). There was
also discussion on the record that the defendant was ordered to continue reporting in the drug
case pending sentencing. The trial court was distressed by the fact that the defendant could
not or would not comply with that order, rejecting the defendant’s claim that probation
officers knew where he was and had told him not to report. We cannot conclude that the trial
court erred in its determination that the defendant failed to comply with probationary
sentences when the record is replete with ample evidence to the contrary. The trial court
considered facts, sentencing principles, and relevant law in reaching its conclusions. The
defendant has failed to carry his burden in this case.

                                      CONCLUSION

       Based upon the foregoing, the denial of alternative sentencing is affirmed.




                                                   _________________________________
                                                   JOHN EVERETT WILLIAMS, JUDGE




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