        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                                  July 26, 2016 Session

            STATE OF TENNESSEE v. MICHAEL GLENN HOLT

                  Appeal from the Criminal Court for Knox County
                  Nos. 105092, 105788     Bobby R. McGee, Judge
                      ___________________________________

               No. E2015-01892-CCA-R3-CD – Filed October 31, 2016
                     ___________________________________


The Defendant, Michael Glenn Holt, entered guilty pleas in the Knox County Criminal
Court to one count of theft over $500 but less than $1,000, a Class E felony, and one
count of criminal trespass, a Class C misdemeanor, with an agreed combined sentence of
four years with manner of service to be determined by the trial court. After failing to
appear at his initial sentencing hearing, the Defendant was also charged, and
subsequently pled guilty to, one count of failure to appear, a Class E felony, with the trial
court to determine the length and manner of sentence. The trial court imposed a sentence
of four years for the failure to appear charge, consecutive to his previous four-year
sentence, for a total effective sentence of eight years’ imprisonment. On appeal, the
Defendant argues that the trial court erred in imposing the maximum sentence on the
failure to appear charge, that the trial court improperly denied the Defendant an
alternative sentence, and that the trial court failed to consider whether the Defendant’s
consecutive sentences were statutorily mandated. Upon review, we affirm the judgments
of the trial court.

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

CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which THOMAS T.
WOODALL, P.J., and ROBERT H. MONTGOMERY, JR., J., joined.

Mark E. Stephens, District Public Defender; Jonathan P. Harwell and Jessica M. Greene,
Assistant Public Defenders, Knoxville, Tennessee, for the Defendant-Appellant, Michael
Glenn Holt.

Herbert H. Slatery III, Attorney General and Reporter; John H. Bledsoe, Deputy Attorney
General; Charme P. Allen, District Attorney General; and Philip H. Morton, Assistant
District Attorney General, for the Appellee, State of Tennessee.
                                              OPINION

        On January 20, 2015, the Defendant entered a Truckstops of America Travel
Center in Knoxville, Tennessee and took $685 in fuel additives, which the Defendant
concealed in his clothing before he left the store without paying. The Defendant repeated
the incident on the same day, and both events were captured on video. The store manager
identified the Defendant and stated that the Defendant had been charged with a previous
theft from the same store, and that, due to the previous theft, the Defendant had been
ordered to stay off the property.

       On March 23, 2015, the Defendant was charged in the Knox County Criminal
Court with one count of theft and one count of criminal trespass (Case No. 105092). The
Defendant entered guilty pleas as to both charges and agreed to a sentence of four years
for theft and an additional thirty days for criminal trespass, to be served concurrently with
the four-year theft sentence. The trial court accepted the Defendant’s guilty pleas and set
the matter for sentencing.

        While the sentencing hearing and the completion of a presentence investigation
were pending, the Defendant was released on his own recognizance. The parties had
previously agreed that the Defendant would attend a facility in Kingsport, Tennessee
during his release for treatment of his drug addiction. However, the Defendant left the
facility against medical advice on April 7, 2015, a few days after being admitted. The
Defendant did not appear at his sentencing hearing on May 28, 2015, and a capias was
issued for his arrest. On June 5, 2015, the Defendant was stopped by law enforcement
and arrested on additional charges unrelated to this case.1 On June 29, 2015, the
Defendant was charged in the Knox County Criminal Court with one count of failure to
appear (Case No. 105788). The Defendant entered a guilty plea, and left the length and
the manner of service to be determined by the trial court.

       At the September 10, 2015 sentencing hearing, the Defendant’s presentence
investigation report was introduced without objection.2 The presentence report reflected
        1
           The Defendant was charged with driving while license revoked (second or subsequent offense)
and possession of drug paraphernalia at the same time he was also charged with failure to appear. These
charges are not at issue in the instant case, but were also committed while the Defendant was released on
his own recognizance pending sentencing and were noted in the Defendant’s presentence investigation
report.
         2
           Although the transcripts from the Defendant’s guilty plea hearings in Case No. 105092 and Case
No. 105788 are not included in the appellate record, we conclude that the record is adequate for our
review. See State v. Caudle, 388 S.W.3d 273, 279 (Tenn. 2012) (“[W]hen a record does not include a
transcript of the hearing on a guilty plea, the Court of Criminal Appeals should determine on a case-by-
case basis whether the record is sufficient for a meaningful review[.]”).

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approximately eighty to ninety separate convictions on the Defendant’s criminal record.
Specifically, the Defendant’s criminal history included multiple convictions for theft,
shoplifting, worthless checks, evading arrest, and various drug offenses, as well as
convictions for assault and aggravated burglary. In addition, the Defendant’s State
probation was revoked on multiple occasions, and he never completed treatment for his
drug addiction, although he admitted to being addicted to cocaine, among other drugs,
and using cocaine daily. The report classified the Defendant as “a very high risk for the
successful completion of probation” and rejected the Defendant’s application for
enhanced probation, noting that “[the Defendant] hasn’t taken his past criminal history
seriously.”

       The parties agreed that the Defendant was a Range II, multiple offender and that
the applicable sentencing range for the failure to appear charge was two to four years.
Significantly, the Defendant conceded that his sentence for failure to appear in Case No.
105788 was required to be served consecutively to the theft and criminal trespass charges
because the failure to appear was committed while he was released on bail. The
Defendant requested an alternative sentence of two years, to be served in the Community
Alternatives to Prison Program (“CAPP”). In support, the Defendant argued that a failure
to appear charge is generally a non-violent, victimless crime and that “a two-year
sentence for one day of missed court is more than [commensurate] with the nature of the
offense.” With regard to the manner of sentencing, the Defendant conceded that State
probation had deemed him a very high risk for successful completion and that he had a
“considerable criminal history[;]” however, the Defendant submitted that the CAPP
office was willing to work with him and that the “root of all of this is his drug problem.”
The trial court denied the Defendant’s request for alternative sentencing and sentenced
the Defendant to four years in the Tennessee Department of Correction. This timely
appeal followed.

                                               ANALYSIS

       On appeal, the Defendant challenges both the effective length and manner of
service of the sentences imposed by the trial court.3 Specifically, he argues that the trial
court erred in denying a community corrections sentence or, alternatively, by failing to
impose a sentence of split confinement. The Defendant also contends that the trial court
erred “in concluding that the failure to appear charge was statutorily required to run
consecutively to the theft charge.” In response, the State contends that the Defendant’s
sentence was proper and that the Defendant was properly subjected to mandatory
consecutive sentencing.

       3
           The issues have been reordered by this Court for clarity.

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        “[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. T.C.A. §§
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).

        As to the length of his sentence, the Defendant does not dispute his Range II,
multiple offender status, which subjected him to a sentence range of two to four years.
Rather, the Defendant argues that the trial court focused exclusively on his criminal
history and failed to consider “any of the other relevant factors;” namely, the victimless
nature of the crime or his explanation for missing his court date. He insists that a four-
year sentence for missing court is “grossly excessive.” Our review of the record supports
the trial court’s imposition of the maximum sentence in this case. As an initial matter,
the Defendant was a Range II, multiple offender and subject to a sentencing range of two
to four years for the offense of failure to appear, a Class E felony. See id. § 40-35-
112(b)(5). Thus, the trial court’s four-year sentence was within the applicable statutory
range and presumed reasonable.

        In determining the appropriate length of the Defendant’s sentence, the trial court
indeed relied primarily upon enhancement factor (1), that “the defendant has a previous
history of criminal convictions or criminal behavior, in addition to those necessary to
establish the appropriate range.” See id. § 40-35-114(1). Although the trial court did not
explicitly reference the victimless nature of the crime or the fact that the Defendant
missed court to be with his sick mother, the record reflects that they were argued to the
trial court at sentencing. Even if the trial court erred in failing to articulate these factors
in mitigation of the Defendant’s sentence, the pre-sentence report established that the
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Defendant’s previously-imposed probationary sentences had been revoked at least eight
times in the past, see T.C.A. § 40-35-114(8), that the Defendant incurred new charges
while released pending sentencing, see id. § 40-35-114(13), as well as his extensive
criminal history which was comprised of approximately eighty to ninety separate
convictions. Because the record shows that the trial court carefully considered the
evidence, the enhancement factors, and the purposes and principles of the Sentencing Act
prior to imposing a sentence of confinement, the Defendant has failed “to either establish
an abuse of discretion or otherwise overcome the presumption of reasonableness
afforded” to the trial court’s sentence. State v. Caudle, 388 S.W.3d 273, 280 (Tenn.
2012). The record amply supports the maximum four-year sentence imposed by the trial
court. The Defendant is not entitled to relief.

       Next, the Defendant argues that the trial court erred by denying a community
corrections sentence. Alternatively, the Defendant argues that the trial court should have
imposed a sentence of split confinement. Any sentence that does not involve complete
confinement is an alternative sentence. See generally State v. Fields, 40 S.W.3d 435
(Tenn. 2001). The intent of the Community Corrections Act was to “[e]stablish a policy
within the state to punish selected, nonviolent felony offenders in front-end community
based alternatives to incarceration, thereby reserving secure confinement facilities for
violent felony offenders.” T.C.A. § 40-36-103(1). A defendant who does not possess a
criminal history showing a clear disregard for society’s laws and morals, who has not
failed past rehabilitation efforts, and who “is an especially mitigated or standard offender
convicted of a Class C, D, or E felony is presumed to be a favorable candidate for
alternative sentencing options in the absence of evidence to the contrary.” Id. § 40-35-
102(6); See also Fields, 40 S.W.3d at 440. The following considerations provide
guidance regarding what constitutes “evidence to the contrary” which would rebut the
presumption 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[.]

T.C.A. §§ 40-35-103(1)(A)-(C); See also State v. Hooper, 29 S.W.3d 1, 5 (Tenn. 2000).

       Eligible offenders under the Community Corrections Act include:
                                                -5-
      (A) Persons who, without this option, would be incarcerated in a
      correctional institution;

      (B) Persons who are convicted of property-related, or drug- or alcohol-
      related felony offenses or other felony offenses not involving crimes
      against the person as provided in title 39, chapter 13, parts 1-5;

      (C) Persons who are convicted of nonviolent felony offenses;

      (D) Persons who are convicted of felony offenses in which the use or
      possession of a weapon was not involved;

      (E) Persons who do not demonstrate a present or past pattern of behavior
      indicating violence;

      (F) Persons who do not demonstrate a pattern of committing violent
      offenses; and

      (2) Persons who are sentenced to incarceration or are on escape at the time
      of consideration will not be eligible for punishment in the community.

T.C.A. §§ 40-36-106(a)(1)(A)-(F), (a)(2).

       Simply because an offender meets the minimum requirements under the
Community Corrections Act “does not mean that he is entitled to be sentenced under the
Act as a matter of law or right.” State v. Ball, 973 S.W.2d 288, 294 (Tenn. Crim. App.
1998) (citing State v. Taylor, 744 S.W.2d 919, 922 (Tenn. Crim. App. 1987)). Instead,
the Act’s criteria “shall be interpreted as minimum state standards, guiding the
determination of eligibility of offenders under this chapter.” T.C.A. § 40-36-106(d).

       Our review of the record supports the trial court’s denial of community corrections
and imposition of a sentence of confinement in this case. We recognize that the
Defendant was eligible for probation because his sentence is ten years or less and because
his offense is not among those excluded from consideration for probation. See id. § 40-
35-303(a). However, the Defendant is not a favorable candidate for alternative
sentencing because he is a Range II, multiple offender. Moreover, as discussed during
the sentencing hearing, the presumption that the Defendant was eligible for community
corrections was subject to be rebutted based on his extensive criminal history. See id. §
40-35-102(6)(A).

                                              -6-
       In denying a sentence of community corrections in this case, the trial court noted
that it generally favored probation and release into the community, especially when
probation agencies, such as CAPP, indicated a willingness to work with a defendant.
However, “like any policy, the Court has to apply that with discretion and must consider
the circumstances of each case.” The trial court noted that the Defendant had an
extensive criminal history, that the Defendant had previously left treatment while on
release, and that he had absconded in the past, indicating that the Defendant “doesn’t take
his criminal past history seriously.” The trial court further reasoned as follows:

             [T]here are some circumstances in which it would be reckless to
      release back to the community someone [who has] demonstrated so many
      times that he will engage in criminal behavior, perhaps, to feed his drug
      habit, but nevertheless, he will engage in it. And there’s no indication that
      he’s going to stick with treatment, even if he’s given the chance.

        Although the Defendant contends that the trial court provided inadequate support
for its imposition of full confinement, the record as a whole reflects that the trial court
fully considered an alternative sentence in light of the circumstances of the Defendant’s
case. We acknowledge and agree that the trial court failed to specifically articulate its
denial of split confinement. However, the trial court not only considered the Defendant’s
criminal history, but also considered the Defendant’s unsuccessful history of less
restrictive confinement measures and his disregard for the seriousness of his extensive
criminal history, see T.C.A. §§ 40-35-103(1)(A), (C), both of which serve as evidence to
rebut the presumption of alternative sentencing. The Defendant argues that his case is no
different than State v. Kristopher Blake Kincer, No. E2013-01740-CCA-R3-CD, 2014
WL 2553429, at *3 (Tenn. Crim. App. June 2, 2014), no perm. app filed (reversing denial
of probation and remanding to the trial court to determine suitability for community
corrections). We disagree and find Kincer distinguishable.

       Unlike Kincer, a Range I, standard offender, the Defendant is not a favorable
candidate for alternative sentencing because he is a Range II, multiple offender. In
addition, in Kincer, there was extensive testimony at the sentencing hearing showing that
the defendant’s history of substance abuse contributed to and related to his crimes. Id. at
*5. Here, aside from the CAPP report, the presentence report, and the Defendant’s brief
allocution, there was no evidence submitted at the sentencing hearing. Finally, the
Kincer court remanded to the trial court because it failed to consider community
corrections as a sentencing option or whether the defendant was a suitable candidate for
community corrections. Id. Here, the record shows the trial court was fully aware of the
Defendant’s request for community corrections and properly considered it. Accordingly,
under these circumstances, we are unable to conclude that the trial court improperly
denied community corrections or a sentence of split confinement.
                                               -7-
        In his final claim, the Defendant argues for the first time on appeal that the trial
court improperly concluded that his failure to appear conviction was statutorily required
to be served consecutively to his theft and criminal trespass conviction. The Defendant
contends that consecutive sentences are discretionary for a failure to appear charge, as
opposed to mandatory, for two reasons. First, the Defendant argues that because he was
“released on his own recognizance,” and not “on bail,” the mandatory provisions of
Tennessee Code Annotated section 40-20-111(b) and Tennessee Rule of Criminal
Procedure 32(c)(3), requiring consecutive sentences when a felony is committed while
“on bail,” do not apply. Second, the Defendant argues that, even if he were determined to
be “on bail” for purposes of the aforementioned statutes, the statutes still do not apply
because Tennessee Code Annotated section 39-16-609(f), which specifically addresses
failure to appear offenses, “trumps” the more general statutes regarding offenses
committed while on bail. The Defendant contends that Tennessee Code Annotated
section 39-16-609(f) “uses permissive language instead of mandatory language” and thus
allows a trial court to make a discretionary decision on whether a defendant’s sentence
for a failure to appear conviction should run consecutively to another conviction.

        There is no indication on the record that this issue was previously raised in the
trial court or that the trial court had any other opportunity to consider whether the
Defendant’s sentences were mandated to run consecutively or whether the trial court had
discretion regarding the issue. In fact, the Defendant acknowledges that he conceded the
issue of mandatory consecutive sentences at the trial court, and proceeds to summarily
conclude, without authority, that waiver does not apply to the Bise analysis applicable to
this case. We consider this issue waived because (1) this issue was not adequately
briefed in this court; and (2) the Defendant cites no authority in support of this issue. See
Tenn. Ct. Crim. App. R. 10(b) (“Issues which are not supported by argument, citation to
authorities, or appropriate references to the record will be treated as waived in this
court.”); See also Tenn. R. App. P. 27(a)(7) (A brief shall contain “[a]n argument . . .
setting forth the contentions of the appellant with respect to the issues presented, and the
reasons therefor, including the reasons why the contentions require appellate relief, with
citations to the authorities and appropriate references to the record . . . relied on.”).

        Waiver notwithstanding, we note that, even had the Defendant’s claim against
mandatory consecutive sentences been properly raised, the Defendant would still be
subject to consecutive sentences, either pursuant to the trial court’s discretionary
authority under Tennessee Code Annotated section 39-16-609(f) or Tennessee Code
Annotated section 40-35-115(b)(2). This Court has held that “an extensive criminal
history, standing alone, is enough to justify the imposition of consecutive sentencing.”
State v. Nelson, 275 S.W.3d 851, 870 (Tenn. Crim. App. 2008) (citing State v. Adams,
973 S.W.2d 224, 231 (Tenn. Crim. App. 1997)). Accordingly, the Defendant is not
entitled to relief on this issue.
                                                -8-
                                     CONCLUSION

       Upon our review, the trial court did not err in ordering the Defendant to serve a
four-year sentence for his failure to appear conviction or in denying the Defendant’s
request for an alternative sentence. In addition, the trial court did not err in ordering the
Defendant’s sentences to be served consecutively. Based upon the foregoing analysis,
the judgments of the trial court are affirmed.



                                              ____________________________________
                                             CAMILLE R. MCMULLEN, JUDGE




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