        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                           Assigned on Briefs August 17, 2011

           STATE OF TENNESSEE v. TIMOTHY BRIAN MORTON

                  Appeal from the Circuit Court for Marshall County
                    No. 2010-CR-133 Robert G. Crigler, Judge


                No. M2011-00828-CCA-R3-CD - Filed October 18, 2011


The Defendant, Timothy Brian Morton, pled guilty to aggravated burglary, a Class C felony.
See T.C.A. § 39-14-403 (2010). He was sentenced as a Range I, standard offender to five
years’ confinement. On appeal, he contends that the trial court imposed an excessive
sentence. We affirm the judgment of the trial court.

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

J OSEPH M. T IPTON, P.J., delivered the opinion of the Court, in which J ERRY L. S MITH, J., and
D ONALD P. H ARRIS, S R. J., joined.

Donna Orr Hargrove, District Public Defender, and William J. Harold, Assistant District
Public Defender, for the appellant, Timothy Brian Morton.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney
General; Chuck Crawford, District Attorney General; and William Bottoms, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                          OPINION

       This case relates to a home invasion. At the guilty plea hearing, the Defendant
admitted that on August 31, 2010, he entered the home of Connie Messick. He agreed that
he did not have consent to be in the home and that he picked the lock to gain entry.

       At the sentencing hearing, Crystal Gray testified that she prepared the Defendant’s
presentence report. She spoke with the victim and learned that the victim’s eleven-year-old
son had trouble sleeping after the burglary and that they attended therapy to resolve
“problems after this burglary charge.” The victim also informed her that Percocet pills were
missing from her purse after the burglary.
       Ms. Gray testified that the Defendant had numerous misdemeanor convictions,
including three convictions for possessing controlled substances in 2005 and 1999. She said
the Defendant violated the terms of his probation twice and was on probation at the time of
the burglary. She said that the Defendant admitted using crack cocaine weekly and being
under the influence of alcohol and pills during the burglary but that he also claimed to have
previously completed a court-ordered alcohol and drug treatment program. She said the
Defendant claimed that he was in the victim’s apartment during the burglary because he was
searching for his girlfriend’s son.

       On cross-examination, Ms. Gray agreed that the victim did not know if the Defendant
took the Percocet pills from her purse and that the Defendant was not charged with theft. She
agreed the Defendant was convicted of driving with a revoked license in 2009 and possessing
cocaine in 2005. She said that the Defendant had an infant child and that he was employed
by Blalock Plumbing and Electric.

       The Defendant testified that he was sorry for his actions and said he had learned from
the experience. He said that he had a new job and that he was “trying to do better” because
he had to care for a baby.

         The trial court found that the following enhancement factors applied pursuant to
Tennessee Code Annotated section 40-35-114: (1) the Defendant had a previous history of
criminal convictions or criminal behavior, (8) the Defendant, before trial or sentencing, failed
to comply with the conditions of a sentence involving release into the community, and (13)
at the time the felony was committed, the Defendant was released on probation. See T.C.A.
§ 40-35-114 (2010). The court found no mitigating factors applicable. In denying an
alternative sentence, the trial court found that the Defendant had a long history of criminal
conduct and that less restrictive measures than confinement had frequently or recently been
applied unsuccessfully to the Defendant. He was sentenced as a Range I, standard offender
to five years’ confinement. This appeal followed.

       The Defendant contends that his sentence is excessive because the court afforded
undue weight to enhancement factors, he has no previous felony convictions, and an
alternative sentence would allow him to contribute to society and preserve the state’s “scant
resources.” The State contends that the trial court properly sentenced the Defendant after
considering his long history of criminal offenses and probation violations. We agree with
the State.

        Appellate review of sentencing is de novo on the record with a presumption that the
trial court’s determinations are correct. T.C.A. §§ 40-35-401(d), -402(d) (2010). As the
Sentencing Commission Comments to these sections note, the burden is now on the

                                              -2-
appealing party to show that the sentencing is improper. This means that if the trial court
followed the statutory sentencing procedure, made findings of fact that are adequately
supported in the record, and gave due consideration and proper weight to the factors and
principles that are relevant to sentencing under the 1989 Sentencing Act, we may not disturb
the sentence even if a different result were preferred. State v. Fletcher, 805 S.W.2d 785, 789
(Tenn. Crim. App. 1991).

        However, “‘the presumption of correctness which accompanies the trial court’s action
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)). In
this respect, for the purpose of meaningful appellate review, the trial court must place on the
record its reasons for arriving at the final sentencing decision, identify the mitigating and
enhancement factors found, state the specific facts supporting each enhancement factor
found, and articulate how the mitigating and enhancement factors have been evaluated and
balanced in determining the sentence. State v. Jones, 883 S.W.2d 597, 599 (Tenn. 1994); see
T.C.A. § 40-35-210(e) (2010).

        Also, in conducting a de novo review, we must consider (1) any evidence received at
the trial and 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, (5) any mitigating or statutory enhancement factors, (6) statistical information
provided by the administrative office of the courts as to sentencing practices for similar
offenses in Tennessee, (7) any statement that the defendant made on his own behalf, and (8)
the potential for rehabilitation or treatment. T.C.A. §§ 40-35-102, -103, -210; see Ashby,
823 S.W.2d at 168; State v. Moss, 727 S.W.2d 229, 236 (Tenn. 1986).

       In imposing a sentence within the appropriate range of punishment for the defendant:

                     [T]he court shall consider, but is not bound by, the
              following advisory sentencing guidelines:

                     (1) The minimum sentence within the range of
              punishment is the sentence that should be imposed, because the
              general assembly set the minimum length of sentence for each
              felony class to reflect the relative seriousness of each criminal
              offense in the felony classifications; and

                     (2) The sentence length within the range should be
              adjusted, as appropriate, by the presence or absence of

                                              -3-
              mitigating and enhancement factors set out in §§ 40-35-113 and
              40-35-114.

T.C.A. § 40-35-210. From this, “the trial court is free to select any sentence within the
applicable range so long as the length of the sentence is ‘consistent with the purposes and
principles of [the Sentencing Act].’” Carter, 254 S.W.3d at 343 (quoting T.C.A. §
40-35-210(d)).

       When determining if incarceration is appropriate, a trial court should consider if:

              (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) (2010); see also State v. Hooper, 29 S.W.3d 1, 5 (Tenn. 2000).

        Although the Defendant claims that the trial court erred by giving undue weight to
enhancement factors, the 2005 amendments to the 1989 Sentencing Act “deleted as grounds
for appeal a claim that the trial court did not weigh properly the enhancement and mitigating
factors.” Carter, 254 S.W.3d at 344. Although the Defendant does not have previous felony
convictions, the record reflects that he has six misdemeanor convictions, that he regularly
used crack cocaine despite completing a substance abuse program, that he twice violated the
terms of probation, and that he was on probation at the time of this offense. The Defendant’s
long history of criminal conduct and failure to comply with measures less restrictive than
confinement support the trial court’s denial of alternative sentencing. See T.C.A. § 40-35-
103(1). The record reflects that the trial court imposed a sentence within the applicable range
that was consistent with the purposes and principles of the Sentencing Act. The Defendant
is not entitled to relief.

        In consideration of the foregoing and the record as a whole, the judgment of the trial
court is affirmed.

                                               ____________________________________
                                               JOSEPH M. TIPTON, PRESIDING JUDGE

                                              -4-
-5-
