          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT NASHVILLE
                              Assigned on Briefs December 1, 2015

            STATE OF TENNESSEE v. CLIFFORD ERIC MARSH
                      Appeal from the Circuit Court for Warren County
                        No. 14-CR-275 Larry B. Stanley, Jr., Judge


                  No. M2015-00803-CCA-R3-CD – Filed January 28, 2016


The Defendant, Clifford Eric Marsh, pleaded guilty to fourth offense driving on a revoked
license, a Class A misdemeanor. See T.C.A. § 55-50-504 (2012). The trial court sentenced
the Defendant to eleven months, twenty-nine days‟ confinement at 75% service. On appeal,
the Defendant contends that the trial court erred by denying his request for alternative
sentencing.

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

ROBERT H. MONTGOMERY, JR., J., delivered the opinion of the court, in which NORMA
MCGEE OGLE and ROBERT L. HOLLOWAY, JR., JJ., joined.

John P. Partin, District Public Defender, for the appellant, Clifford Eric Marsh.

Herbert H. Slatery III, Attorney General and Reporter; Clarence E. Lutz, Senior Counsel;
Lisa S. Zavogiannis, District Attorney General; and Justin Walling, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                                 OPINION

       The Defendant was indicted for theft of property valued at $1000 or more but less
than $10,000 and fourth offense driving on a revoked license. Before the trial, the Defendant
pleaded guilty to fourth offense driving on a revoked license. Although the plea agreement
and the transcript of the guilty plea hearing are not contained in the appellate record, the
record indicates that the length and manner of service of the sentence were to be determined
by the trial court. The Defendant was acquitted of the theft charge following a jury trial.1


1
 We note that although the theft charge is not the subject of this appeal, the record does not contain a judgment
document stating the disposition.
         At the sentencing hearing, certified copies of the Defendant‟s previous convictions
were received as exhibits. The record reflects that between 2002 and 2008, the Defendant
was convicted of various felony offenses, which included aggravated burglary, aggravated
assault, reckless endangerment, three counts of criminal simulation, two counts of identity
theft, two counts of forgery, and two counts of theft. The prosecutor informed the trial court
that at the time of the present offense, the Defendant was on probation for his third offense of
driving on a revoked license and that the Defendant was serving the sentence imposed as a
result of the probation violation.

        The Defendant testified that he had made previous mistakes, that he admitted those
mistakes, that he pleaded guilty in the cases resulting in previous convictions, and that he
served time in prison for his mistakes. The Defendant said he unsuccessfully had attempted
multiple times to obtain a restricted license. Relative to the present offense, he said he was
driving his motorcycle home from the repair shop when he was stopped by the police. He
admitted he was on probation at the time and said he only drove the motorcycle because the
owner of the business was being evicted. The Defendant said he was told to pick up the
motorcycle immediately because the person who owned the real property would “do away
with it.”

       The Defendant testified that he began a new business, On-Site Property Solutions,
LLC, two years previously and that his business involved property renovations and cleaning
services. He discussed contracts his business had with an apartment complex and a hotel and
said the contracts were executed before he pleaded guilty. He noted his customers had been
patient pending the resolution of his probation violation and the present charge. The
Defendant said he had a family for which to care. He said that at the time of his arrest, he
had recently become eligible to have his license reinstated and had planned to obtain his
license within the week. He said, though, that after his arrest, he had to use the money to
post bond.

      The Defendant testified that he realized he would not be eligible to obtain a license for
another year but said that his wife and teenage daughter would drive him. The Defendant
apologized for making a stupid decision and asked the court to consider all of his
circumstances in determining his sentence.

       The trial court stated that it saw positive changes in the Defendant‟s life, noting the
Defendant‟s business and family obligations. The court said that it knew the third offense
driving on a revoked license was the result of the Defendant‟s driving to or from work. The
court stated that it “kind of underst[ood].” The court noted its “sympathy for people who get
a revoked driver‟s license who maybe don‟t have a high paying job. I know it‟s very
expensive.” The court stated that although the fees and fines were expensive, “at some point

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. . . , we all have to act like a grown-up.” The court found that the Defendant‟s previous
felony convictions were the result of incidents occurring in 2002, 2006, and 2008. The court
found that the felony offenses of which the Defendant was convicted did not reflect someone
who was “having a hard time” and was convicted of driving on a revoked license as a result
of driving to work. The court found that the Defendant was on probation at the time of the
present offense.

         The trial court stated that it might have been prudent to allow the Defendant to
continue working and providing for his family but that the Defendant‟s significant criminal
history, his fourth driving on a revoked license conviction, and his serving a probationary
sentence for third offense driving on a revoked license at the time of the fourth offense made
it difficult for the court to sentence the Defendant to probation. The court stated that the time
comes when a defendant must take responsibility for his actions and understand that if he
makes another mistake, the outcome will not be favorable.

       The trial court sentenced the Defendant to eleven months, twenty-nine days at 75%
service. The court also ordered that the sentence be served consecutively to the sentence
imposed for the probation violation. This appeal followed.

       The Defendant contends that the trial court erred by requiring the Defendant to serve
his sentence in confinement. He argues that he is a suitable candidate for probation. The
State contends that the trial court did not abuse its discretion. We agree with the State.

        Tennessee Code Annotated 40-35-302(b) (2014) governs misdemeanor sentencing,
which requires a trial court to impose a specific sentence consistent with the purposes and
principles of sentencing. Likewise, if a trial court orders a defendant to serve a sentence in
confinement, the court must fix a percentage of the sentence a defendant is required to serve.
 Id. § 40-35-302(d). Although a trial court is not required to hold a sentencing hearing, the
court must permit the parties to address “the length of any sentence and the manner in which
the sentence is to be served.” Id. § 40-35-302(a). Trial courts are granted considerable
discretion and flexibility in misdemeanor sentencing determinations, and defendants
convicted of misdemeanors are not presumed eligible for alternative sentencing. State v.
Troutman, 979 S.W.2d 271, 273 (Tenn. 1998); see State v. Combs, 945 S.W.2d 770, 773-74
(Tenn. Crim. App. 1996); see also State v. Williams, 914 S.W.2d 940, 949 (Tenn. Crim. App.
1995). Likewise, defendants convicted of misdemeanors are not “entitled to the presumption
of a minimum sentence.” State v. Creasy, 885 S.W.2d 829, 832 (Tenn. Crim. App. 1994). In
determining the percentage of service for misdemeanors, a trial court must consider the
purposes and principles of sentencing and the enhancement and mitigating factors and must
not impose arbitrary incarceration. T.C.A. § 40-35-302(d); see Troutman, 979 S.W.2d at 274
(stating that “while the better practice is to make findings on the record when fixing a

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percentage of a . . . sentence to be served in incarceration, a . . . court need only consider the
principles of sentencing and enhancement and mitigating factors . . . to comply with the
legislative mandates of the misdemeanor sentencing statute”).

       This court reviews challenges to sentences imposed for felony offenses relative to the
manner of service within an appropriate sentence range “under an abuse of discretion
standard with a „presumption of reasonableness.‟” State v. Bise, 380 S.W.3d 682, 708 (Tenn.
2012). The same standard of review applies to questions related to probation or any other
alternative sentence. State v. Caudle, 388 S.W.3d 273, 278-79 (Tenn. 2012). Although our
supreme court has not considered whether the abuse of discretion with a presumption of
reasonableness standard applies to misdemeanor sentencing determinations, it has stated that
the standard “applies to all sentencing decisions,” and this court has previously applied the
standard to misdemeanor sentencing. State v. King, 432 S.W.3d 316, 324 (Tenn. 2014); see
State v. Sue Ann Christopher, No. E2012-01090-CCA-R3-CD, 2013 WL 1088341, at *6-8
(Tenn. Crim. App. Mar. 14, 2013), perm. app. denied (Tenn. June 18, 2013); State v.
Christopher Dewayne Henson, No. M2013-01285-CCA-R3-CD, 2015 WL 3473468, at *5-6
(Tenn. Crim. App. June 2, 2015); see also T.C.A. § 40-35-401(d) (2014) (stating that all
sentencing questions pursuant to Code section 40-35-401(a) are subject to the same standard
of review).

        Generally, compliance with the purposes and principles of sentencing requires a trial
court to consider any evidence received at the trial and sentencing hearing, the presentence
report, counsel‟s arguments as to sentencing alternatives, the nature and characteristics of the
criminal conduct, any mitigating or statutory enhancement factors, statistical information
provided by the Administrative Office of the Courts as to sentencing practices for similar
offenses in Tennessee, any statement that the defendant made on his own behalf, and the
potential for rehabilitation or treatment. State v. Ashby, 823 S.W.2d 166, 168 (Tenn. 1991);
see T.C.A. §§ 40-35-103 (2014), -210 (2014); State v. Moss, 727 S.W.2d 229, 236 (Tenn.
1986); State v. Taylor, 744 S.W.2d 919 (Tenn. Crim. App. 1987)); see also T.C.A. §
40-35-102 (2014).

       The burden of establishing suitability for probation rests with a defendant, who must
demonstrate that probation will “„subserve the ends of justice and the best interest of both the
public and the defendant.‟” State v. Souder, 105 S.W.3d 602, 607 (Tenn. Crim. App. 2002)
(quoting State v. Dykes, 803 S.W.2d 250, 259 (Tenn. Crim. App. 1990)); see T.C.A. § 40-35-
303(b); State v. Carter, 254 S.W.3d 335, 347 (Tenn. 2008).

        The record reflects that the trial court considered the appropriate purposes and
principles of imposing a sentence of eleven months, twenty-nine days at 75% service.
Although the Defendant‟s previous convictions occurred years before the present offense, we

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note the Defendant had three previous convictions for driving on a revoked license and was
serving his sentence relative to his third offense on probation at the time the present offense
occurred. See T.C.A. §§ 40-35-103(1)(A), (C) (2012). The record reflects that the court
considered the Defendant‟s owning a business and supporting his family but that it
determined the Defendant‟s previous criminal history and his being on probation at the time
of the offense outweighed any mitigating evidence. The Defendant knew he was not
permitted to drive while his license was revoked but chose to drive nonetheless. The court‟s
consideration of these various factors was not improper, and we conclude that the court did
not abuse its discretion. 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.



                                           ____________________________________
                                           ROBERT H. MONTGOMERY, JR., JUDGE




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