                                                                                        08/30/2019
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                           Assigned on Briefs July 24, 2019

           STATE OF TENNESSEE v. CLARENCE REED JULIAN

                  Appeal from the Criminal Court for Knox County
                     No. 114178 Steven Wayne Sword, Judge
                     ___________________________________

                           No. E2019-00074-CCA-R3-CD
                       ___________________________________


Defendant, Clarence Reed Julian, pled guilty to criminal simulation in exchange for a
sentence of two years as a Range II, multiple offender with the manner of service of the
sentence to be determined after a sentencing hearing. At the hearing, the trial court
denied an alternative sentence, ordering Defendant to serve the sentence in incarceration.
Defendant appeals. After a review, we determine there is a clerical error in the judgment
form. The judgment form wrongly designates Defendant as a Range I, standard offender
and the technical record indicates that Defendant, as a Range I offender, has already
received the benefit of Determinate Release from the Department of Correction. We
remand for entry of a corrected judgment form, designating Defendant as a Range II,
multiple offender, requiring Defendant to complete his sentence as such an offender.
Otherwise, we affirm the trial court’s denial of alternative sentencing.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
                and Remanded for Entry of Corrected Judgment

TIMOTHY L. EASTER, J., delivered the opinion of the court, in which CAMILLE R.
MCMULLEN and ROBERT L. HOLLOWAY, JR., JJ., joined.

Michael Cabage, Knoxville, Tennessee, for the appellant, Clarence Reed Julian.

Herbert H. Slatery III, Attorney General and Reporter; Renee W. Turner, Assistant
Attorney General; Charme P. Allen, District Attorney General; and Randall Kilby,
Assistant District Attorney General, for the appellee, State of Tennessee.


                                       OPINION
       Defendant was charged via information with criminal simulation on November 5,
2018, after Defendant passed a computer generated counterfeit check for $1791.23 at
Smart Bank. Defendant waived his right to be tried on an indictment and/or presentment
and ultimately pled guilty as charged. The State recommended a sentence of two years as
a Range II, multiple offender and payment of $1791.23 in restitution to Smart Bank and
left Defendant the ability to “[a]pply for probation.” According to the trial court minutes
from November 5, 2018, Defendant was sentenced to two years as a Range II, multiple
offender.

        On December 13, 2018, the trial court held a sentencing hearing to determine
whether Defendant would receive an alternative sentence. Trial counsel acknowledged
Defendant’s lengthy criminal history and “Strong-r” score of “High” on his presentence
report Risk and Needs Assessment indicating that Defendant would need to be placed on
“[e]nhanced” probation if the trial court granted probation. Trial counsel also informed
the trial court that Defendant had “an open [probation] violation out of Roane County.”

        The trial court determined that Defendant had a 25-year criminal history, with
multiple violations of both probation and parole and several violent convictions. The trial
court recalled that Defendant pled guilty to the E felony of criminal simulation and got
the minimum sentence of two years as a Range II offender but noted that Defendant had
“reached a point, . . . where even if [he committed] a property crime, [he was] a danger to
society” and it was no longer “appropriate to keep [him] in the community.” The trial
court acknowledged the multiple attempts at probation and parole had failed and “nothing
in the record indicates . . . that [Defendant is] a good candidate for probation or amenable
to rehabilitation.” The trial court denied probation and sentenced Defendant to serve his
sentence in the Tennessee Department of Correction with credit for time served prior to
sentencing. The trial court entered the judgment on December 13, 2018. Defendant filed
a timely notice of appeal.

                                          Analysis

        On appeal, Defendant argues that the trial court did not “review” or “consider” the
sentencing guidelines prior to fashioning Defendant’s sentence. Instead, Defendant
argues that the trial court “had already made up its mind before the hearing” and, as a
result, abused its discretion. The State disagrees.

       At the outset, we note that the judgment form indicates that Defendant was
sentenced as a Range I, standard offender. This is in conflict with the court minutes and
the transcript of the sentencing hearing, both of which indicate that Defendant was
sentenced as a Range II, multiple offender. When there is a conflict between the
judgment and the transcript of the trial court’s statements, the transcript controls. State v.
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Moore, 814 S.W.2d 381, 383 (Tenn. Crim. App. 1991) (citing State v. Zyla, 628 S.W.2d
39, 42 (Tenn. Crim. App. 1981); Farmer v. State, 574 S.W.2d 49, 50 (Tenn. Crim. App.
1978)); see also State v. Brent Rowden, No. M2012-01683-CCA-R3-CD, 2013 WL
4774131, at *12 (Tenn. Crim. App. Sept. 5, 2013). On remand, the trial court should
correct this clerical error so that the judgment accurately reflects the sentence imposed by
the trial court-a sentence of two years as a Range II, multiple offender.1

       With regard to the denial of an alternative sentence we are mindful that when a
defendant challenges the length or manner of service of a within-range sentence, this
Court reviews the trial court’s sentencing decision under an abuse of discretion standard
with a presumption of reasonableness. State v. Caudle, 388 S.W.3d 273, 278-79 (Tenn.
2012); State v. Bise, 380 S.W.3d 682, 708 (Tenn. 2012). This presumption applies to
“within-range sentencing decisions that reflect a proper application of the purposes and
principles of the Sentencing Act.” Bise, 380 S.W.3d at 707. A trial court abuses its
discretion in sentencing when it “applie[s] an incorrect legal standard, or reache[s] a
decision which is against logic or reasoning that cause[s] an injustice to the party
complaining.” State v. Shuck, 953 S.W.2d 662, 669 (Tenn. 1997) (citing Ballard v.
Herzke, 924 S.W.2d 652, 661 (Tenn. 1996)). This deferential standard does not permit an
appellate court to substitute its judgment for that of the trial court. Myint v. Allstate Ins.
Co., 970 S.W.2d 920, 927 (Tenn. 1998). The defendant bears the burden of proving that
the sentence is improper. T.C.A. § 40-35-101, Sentencing Comm’n Cmts.

       A defendant is eligible for alternative sentencing if the sentence actually imposed
is ten years or less. See T.C.A. § 40-35-303(a). Moreover, 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

        1
           Defendant filed the notice of appeal in January. After the notice of appeal was filed, on March
11, 2019, a “probation certificate” for “determinate release” from the Tennessee Department of
Correction appears in the technical record. The document indicates that Defendant is “eligible to be
released from Knox County Jail.” The “expiration date” of the probationary sentence is listed as
“08/27/2020.” Indeed, from the jacket of the technical record it appears that Defendant is currently on
determinate release. While this Court is not tasked with determining a defendant’s release eligibility or
overall length of sentence, we note that Defendant’s original judgment listed a release eligibility of 30%.
On remand for correction of the clerical error, Defendant’s judgment will reflect a release eligibility of
35%. The Department of Correction is solely responsible for calculating a prisoner’s release eligibility
date and a defendant with a felony sentence of two years or less “shall have the remainder of their original
sentence suspended upon reaching their release eligibility date. T.C.A. § 40-35-501(a)(3), (r). Release
eligibility for a defendant sentenced as a Range II, multiple offender “shall occur after service of thirty-
five percent (35%) of the actual sentence less sentence credits earned and retained by the defendant.”
T.C.A. § 40-35-501(d). Thus, it appears that Defendant may have some time left to serve on his sentence
after the correction of the clerical error in the judgment form.

                                                   -3-
contrary. See T.C.A. § 40-35-102(6). In this case, Defendant was eligible, but not
considered a favorable candidate for alternative sentencing because he was sentenced to
ten years or less but was not an especially mitigated or standard offender.

       Tennessee Code Annotated section 40-35-103(1) sets forth the following
sentencing considerations, which are utilized in determining the appropriateness of
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
       been applied unsuccessfully to the defendant.

See also T.C.A. § 40-35-102(5); State v. Zeolia, 928 S.W.2d 457, 461 (Tenn. Crim. App.
1996). Additionally, “[t]he potential or lack of potential for the rehabilitation or
treatment of the defendant should be considered in determining the sentence alternative
or length of a term to be imposed.” T.C.A. § 40-35-103(5). A defendant with a long
history of criminal conduct and “evincing failure of past efforts at rehabilitation” is
presumed unsuitable for alternative sentencing. T.C.A. § 40-35-102(5). Our supreme
court has specifically held that the abuse of discretion standard, with a presumption of
reasonableness, also applies to a review of a denial of alternative sentencing. Caudle,
388 S.W.3d at 278-79.

        Here, the trial court recognized that Defendant was eligible for probation. The
trial court commented on Defendant’s “very long criminal history with multiple
violations” including some “violent convictions” as well as Defendant’s past failures at
both probation and parole. Undeniably, the presentence report indicates that Defendant
has at least twenty-four prior criminal convictions including theft, burglary, possession of
drugs, resisting arrest, aggravated assault, child abuse, and driving under the influence
from 1992 to the present offense. Moreover, the Risk and Needs Assessment indicated
Defendant’s classification as “high,” and the recommendation from the Knox County
Sheriff’s Office Community Alternatives to Prison Program concluded that Defendant
was “not appropriate” for placement in the program. The trial court determined that
Defendant was a “danger to society” who had been repeatedly unable to complete an
alternative sentence. As a result, the trial court deemed Defendant was not “amendable to
rehabilitation [be]cause we’ve been trying this for 25 years and it hasn’t worked.” In
                                           -4-
other words, the trial court denied an alternative sentence. The trial court followed the
statutory sentence procedure, weighed the factors and principles, and placed its reason on
the record. The trial court did not abuse its discretion. Defendant is not entitled to relief.
However, because there is a clerical error on the judgment form, we remand for
correction of the judgment form to reflect Defendant is a Range II, multiple offender.

                                         Conclusion

       For the foregoing reasons, the judgment of the trial court is affirmed and remanded
for entry of a corrected judgment form.

       Furthermore, it appears Defendant’s appellate counsel filed with this Court a
motion to dismiss this appeal on August 28, 2019. Based on the conclusions reached
herein and the failure of said motion to comply with Tennessee Court of Criminal
Appeals Rule 11, the motion is denied.

                                               ____________________________________
                                               TIMOTHY L. EASTER, JUDGE




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