                                                                                       09/07/2017
     IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                      AT KNOXVILLE
                              June 27, 2017 Session

       STATE OF TENNESSEE v. ROBIN KATHERN BURTON

             Appeal from the Criminal Court for Hawkins County
                 No. CC15CR160 Alex E. Pearson, Judge
                  ___________________________________

                        No. E2016-01597-CCA-R3-CD
                    ___________________________________

The Defendant, Robin Kathern Burton, was indicted by a Hawkins County grand
jury of one count of possession of a controlled substance with the intent to deliver
and received a sentence of four years, with six months to be served in confinement.
In this appeal as of right, the Defendant argues that the trial court abused its
discretion in ordering her to serve a portion of her sentence in confinement. Upon
review, we affirm the judgment of the trial court.

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

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

R.B. Baird, III, Rogersville, Tennessee, for the Appellant, Robin Kathern Burton.

Herbert H. Slatery III, Attorney General and Reporter; Zachary T. Hinkle, Assistant
Attorney General; Charme Allen, District Attorney General; and Courtney N. Orr,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                    OPINION

      On December 7, 2015, the Defendant was charged with “knowingly
possessing with the intent to deliver one hundred sixteen (116) tablets of
Oxycodone, a Schedule II controlled substance; a Class C felony in violation of
T.C.A. [section] 39-17-417(a)(4),(c)(2)(A).” The affidavit of complaint stated that:

            On March 16, 2015, affiant along with other officers of the
      Hawkins County Sheriff’s Office Narcotics Unit executed a
      search warrant at the residence of [the Defendant], 1171 Old
        Stage Rd[.], Hawkins County, Tennessee. During the search,
        officers located and seized (3) three prescription bottles in the
        residence for [the Defendant] that contained round blue tablets,
        believed to be Oxycodone (schedule II). Each bottle contained
        different quantities of tablets for an approximate total of 116
        dosage units. Also seized from the residence was a LG cell phone
        and paperwork from a medical office. [The Defendant] was
        arrested and transported to the Hawkins County Jail. During an
        interview, after Miranda, [the Defendant] made several verbal
        comments indicating her involvement in the illegal drug trade.

       Following a jury trial, the Defendant was convicted as charged. The only
evidence introduced at the June 24, 2016 sentencing hearing was the presentence
report prepared by the Department of Correction. The trial court was advised by
counsel that the Defendant had recently undergone surgery to remove lymph nodes
from her arm and side and that she had scheduled follow-up appointments with her
doctors to determine whether she would require any radiation treatments. Prior to
imposing the sentence, the trial court acknowledged that the Defendant’s “lack of
prior criminal history” was emphasized during the trial and that “certainly her
presentence report bears that out.”1 The court further recognized that the
Defendant had previously been charged with worthless checks, which she paid.
Moreover, the trial court noted that there was no “judgment of conviction
associated” with these checks. Although the State did not claim the Defendant’s
sentence should be supported by any specific enhancement factors, it urged the trial
court to impose “some incarceration” because the offense involved a Schedule II
narcotic, which had become an “epidemic” in the state and community.

        Following the hearing, the court imposed a four-year sentence, with six
months to be served in confinement and the remainder to be served “on house
arrest or Community Corrections.” On July 29, 2016, defense counsel advised the
court that the Defendant had received a “good bill of health” during her last visit to


        1
           The record does not include a copy of the trial transcript. “If . . . the record is adequate
for meaningful review, the appellate court may review the merits of the sentencing decision with a
presumption that the missing transcript would support the ruling of the trial court.” State v.
Caudle, 388 S.W.3d 273, 279 (Tenn. 2012). In this case, because the record includes the
presentence report and sentencing transcript with the trial court’s reasoning for its sentencing
decisions, the record is sufficient for this court to conduct a meaningful review of the defendant’s
sentence with a presumption that the missing trial transcript would support the trial court’s ruling.
See Id. at 279-80.

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her medical provider. The judgment was entered the same day, and the Defendant
filed a timely notice of appeal on August 8, 2016.

                                        ANALYSIS

        On appeal, the Defendant argues that the trial court abused its discretion in
denying alternative sentencing or probation. The Defendant specifically relies on
the following mitigating factors: her possible cancer, absence of a prior criminal
record, graduation from high school, classes taken at Walters State Community
College, and gainful employment. She also claims the following factors support a
sentence of probation: a lack of criminal history and the fact that there was no
victim, injuries, or death involved in the crime. The State responds, and we agree,
that the trial court properly denied complete probation.

       “[T]he abuse of discretion standard, accompanied by a presumption of
reasonableness, applies to within-range sentences that reflect a decision based upon
the purposes and principles of sentencing, including questions related to probation
or any other alternative sentence.” State v. Caudle, 388 S.W.3d 273, 278-79 (Tenn.
2012). A trial court must consider the following when determining a defendant’s
specific sentence and the appropriate combination of sentencing alternatives: (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 the mitigating and enhancement
factors set out in sections 40-35-113 and 40-35-114; (6) any statistical information
provided by the administrative office of the courts as to sentencing practices for
similar offenses in Tennessee; and (7) any statement the defendant wishes to make
in the defendant’s own behalf about sentencing. Tenn. Code Ann. § 40-35-
210(b)(1)-(7). In addition, “[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.” Id. § 40-35-103(5). The court must
impose a sentence “no greater than that deserved for the offense committed” and
“the least severe measure necessary to achieve the purposes for which the sentence
is imposed.” Id. § 40-35-103(2), (4).

       Any sentence that does not involve complete confinement is an alternative
sentence. See generally State v. Fields, 40 S.W.3d 435 (Tenn. 2001). Tennessee
Code Annotated section 40-35-102(6)(A) states that a defendant who does not
require confinement under subsection (5) 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
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the contrary[.]” However, a trial court “shall consider, but is not bound by, the
advisory sentencing guideline” in section 40-35-102(6)(A). See Tenn. Code Ann. §
40-35-102(6)(D). Despite a defendant’s eligibility, he or she is not automatically
entitled to probation as a matter of law. Id. § 40-35-404(b), Sentencing Comm’n
Cmts. Moreover, the defendant bears the burden of establishing his or her
suitability for probation. Id. § 40-35-303(b).

       A defendant is eligible for probation if the actual sentence imposed upon the
defendant is ten years or less and the offense for which the defendant is sentenced
is not specifically excluded by statute. Tenn. Code Ann. § 40-35-303(a). When
considering probation, the trial court should consider the nature and circumstances
of the offense, the defendant’s criminal record, the defendant’s background and
social history, the defendant’s present condition, including physical and mental
condition, the deterrent effect on the defendant, and the best interests of the
defendant and the public. State v. Kendrick, 10 S.W.3d 650, 656 (Tenn. Crim.
App. 1999) (citing State v. Grear, 568 S.W.2d 285, 286 (Tenn.1978)). “[A] trial
court’s decision to grant or deny probation will not be invalidated unless the trial
court wholly departed from the relevant statutory considerations in reaching its
determination.” State v. Sihapanya, 516 S.W.3d 473, 476 (Tenn. 2014).

      Finally, in determining whether to deny alternative sentencing and impose a
sentence of total confinement, the trial court must 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[.]

Id. §§ 40-35-103(1)(A)-(C); see State v. Ashby, 823 S.W.2d 166, 169 (Tenn.
1991).

       As an initial matter, the Defendant was required to be sentenced as a Range
I, standard offender subject to a sentencing range of three to six years for each
count of possession with intent to sell, a Class C felony. See Tenn. Code Ann. §39-
17-417(c)(2)(A); §40-35-112(a)(3). Thus, the trial court’s four-year sentence with

                                       -4-
six months of confinement was within the statutory range and presumed
reasonable.

       In the Defendant’s brief, she emphasizes that she is entitled to an alternative
sentence based on her medical condition and her lack of a criminal history.
However, the record shows that the trial court was sympathetic to her medical
condition and allowed her to report back to court after a medical appointment,
which presumably was scheduled to determine whether she had cancer. Upon her
return, she advised the court that she had a clean bill of health. The trial court
clearly considered the Defendant’s medical condition and properly determined, in
light of all the other factors, that it was not grounds to impose a sentence of
complete probation.

        The Defendant additionally argues that the trial court based its decision to
impose partial confinement on the seriousness of the offense and deterrence,
neither of which was supported by the record. While we agree that the proof of
deterrence is minimal at best, the record shows that deterrence was not the sole
basis for the trial court’s denial of relief. Sihapanya, 516 S.W.3d at 476 (declining
to apply heightened standard of review). In sentencing the Defendant, the trial
court recalled “transactions that weren’t charged that were introduced [at trial] as
404(b) evidence.” It further noted that “this was not a situation where it was an
isolated time . . . . This is a situation where you’re actively selling these pills.” The
trial court’s decision was “based on the circumstances of the offense which [had] to
do with more than one transaction of illegal controlled substances being delivered
or sold or fronted . . . .” Moreover, the trial court noted that the Defendant “didn’t
play a minor role” in the offense, she played “a major role.” Finally, throughout its
ruling, the trial court emphasized the Defendant’s dishonesty and noted that she
was “flat not honest” in her representation to the court or the jury. Given these
considerations, the trial court’s imposition of a four-year sentence, with six months
to serve was proper. See State v. Hooper, 29 S.W.3d 1, 11-12 (Tenn. 2000)
(noting that one of the factors to consider in deterrence include whether the
defendant has previously engaged in criminal conduct of the same type as the
offense in question, irrespective of whether such conduct resulted in previous
arrests or convictions).

        We therefore conclude that the Defendant has failed “to either establish an
abuse of discretion or otherwise overcome the presumption of reasonableness
afforded sentences which reflect a proper application of the purposes and principles
of our statutory scheme.” Caudle, 388 S.W.3d at 280. Accordingly, the Defendant
is not entitled to relief.

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                                 CONCLUSION

        Based on the aforementioned authorities and reasoning, the judgment of the
trial court is affirmed.


                                      ____________________________________
                                      CAMILLE R. McMULLEN, JUDGE




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