                                                                                         06/06/2019
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                           Assigned on Briefs May 30, 2019

                STATE OF TENNESSEE v. TAIRON SLAPPEY

                  Appeal from the Criminal Court for Knox County
                         No. 113201 G. Scott Green, Judge
                     ___________________________________

                           No. E2018-01380-CCA-R3-CD
                       ___________________________________


Tairon Slappey, Defendant, pled guilty to one count of aggravated assault and one count
of domestic assault with a recommendation from the State that he receive concurrent
sentences of three years as a Range I offender for aggravated assault and eleven months
and twenty-nine days for domestic assault. The manner and method of service were to be
determined by the trial court. Following a sentencing hearing, the trial court ordered
Defendant to serve three years in the Tennessee Department of Correction. After a
thorough review of the record, we affirm the judgments of the trial court.

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

ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the court, in which JOHN
EVERETT WILLIAMS, P.J., and ROBERT W. WEDEMEYER, J., joined.

Mark E. Stephens, District Public Defender; and Michael R. Tabler, Assistant Public
Defender, for the appellant, Tairon Slappey.

Herbert H. Slatery III, Attorney General and Reporter; Jeffrey D. Zentner, Assistant
Attorney General; Charme Allen, District Attorney General; and Molly Martin, Assistant
District Attorney General, for the appellee, State of Tennessee.


                                       OPINION

       Defendant was charged with one count of aggravated assault involving
strangulation for allegedly choking his wife and one count of domestic assault for striking
his stepdaughter with his fist when she attempted to intervene on behalf of her mother.
At the Plea Submission Hearing, the parties announced that Defendant would plead guilty
as charged with a recommendation from the State that he be sentenced to three years as a
Range I offender for aggravated assault and to a concurrent eleven months and twenty-
nine days for domestic assault, with the manner and method of service to be determined
following a sentencing hearing. After advising and questioning Defendant concerning his
rights and establishing a factual basis, the trial court accepted the plea and set the
sentencing hearing for July 20, 2018.

       At the sentencing hearing, the State introduced the Investigation Report from the
Tennessee Department of Correction (“the presentence report”), a report from the
Knoxville Sheriff’s Office Community Alternative to Prison Program (“the CAPP
report”), and an “Appropriate for Enhanced Probation” report as collective exhibit 1.
Defendant introduced a letter from “Helen Ross McNabb” “outlining [Defendant]’s
treatment while in jail as well as any release plans they have” as exhibit 2. Neither the
State nor Defendant called a witness, but the trial court allowed Defendant to make an
unsworn statement.

       Counsel for Defendant argued that enhanced probation would be appropriate
because Defendant had been on his medications for bipolar depression during his four
months in jail and that he was “compliant” when properly medicated. Counsel said
Defendant was “engaging with Helen Ross McNabb for medication management, anger
management, as well as an intensive outpatient program” and that Defendant “was eager
to take advantage of these opportunities[.]” Counsel said Defendant had a place to stay
separate from his wife and stepdaughter and had a job opportunity.

       Included as part of collective exhibit 1, was the CAPP report of the “Day
Reporting Center.” The report noted that Defendant admitted to “a substance abuse
history beginning at age 23 including alcohol, cocaine, MDMA[ecstasy] and his drug of
choice,     cannabinoids.”         The     Day       Reporting  Center     Director’s
“concerns/recommendations” were:

             It is NOT recommended that [Defendant] be instructed and court-
      ordered to complete the TDOC Day Reporting Center program. During the
      assessment, [Defendant] shared that he does not believe he has a drug
      addiction and “don’t need it [drugs].” He also stated that his motivation for
      wanting to participate in the program is that he would be able to return
      home. He did express interest in receiving counseling, but this could be
      accomplished through outpatient services.

      The State argued that Defendant would likely not “be successful on probation.”

      The trial court asked Defendant, “[I]s there anything you wish to say before the
Court pronounces judgment in your case?” Defendant stated:
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              Yeah. I mean, I was off my medicine when things like that
       happened. It’s no excuse, you know what I mean, wrong was wrong. You
       know, I apologize and stuff, but, you know, but the last few months I’ve
       had time to reflect, you know what I mean. But saying I can’t be with my
       wife, that’s – that’s an understatement because you’re seeing one thing.
       That’s not me. I didn’t have my medicine. No insurance. You know what
       I mean. I was just going through something in that time, but, you know, the
       past four months I had time to reflect and, you know, regain things and start
       kind of putting stuff back where it needed to be at. You know, seek
       treatment, after that, you know, go to AA and stuff like that. You know, I
       can’t stand here and say that I didn’t have a problem because, obviously, I
       did because I wouldn’t be here. You know, and I take full responsibility of
       it. And if you give me probation, I would thank you.

      Near the conclusion of the sentencing hearing, the trial court articulated its reasons
for denying probation and ordering Defendant to serve the three-year sentence in the
Department of Correction:

              Well, unfortunately, [Defendant], your good record follows you into
       this courtroom, and your bad record follows you into this courtroom. You
       were on misdemeanor probation when this crime occurred. You already
       received a significant break in this case, you should be a range two
       offender. Your lawyer worked out a range one sentence at the bottom of
       the range for three years.

               According to my count in this presentence investigation report, you
       had seven juvenile citations when you were a juvenile. You have three
       felony convictions and 42 misdemeanor convictions in addition to 86 other
       arrests. You have a history of multiple violations of probation and you’re
       rated high for violence. You’re just one I can’t take a chance on. If you
       would, sir, please stand up.

      On July 20, 2018, Defendant filed a Motion for Reduction of Sentence pursuant to
Tennessee Rule of Criminal Procedure 32(b) and Tennessee Code Annotated section 40-
35-212. The trial court entered an order denying the motion on July 24, 2018, and
Defendant timely appealed.

                                         Analysis

       On appeal, Defendant asks this court to conduct a de novo review of the denial of
an alternative sentence alleging that the trial court failed to adequately state its reasons
                                           -3-
for ordering the sentence to be served. Defendant also claims the trial court committed
plain error in relying on “unreliable and inadmissible hearsay” in determining
Defendant’s criminal history and erred in considering Defendant’s juvenile record.

       The State claims that this court should not apply de novo review to the trial court’s
sentencing decision, that the trial court did not commit plain error, and that the trial court
properly denied an alternative sentence. We agree with the State.

                                    Standard of Review

       When a defendant challenges the denial of probation or other alternative sentence,
this court reviews the trial court’s sentencing decision under an abuse of discretion
standard with a presumption of reasonableness if that decision is based on a proper
application of the purposes and principles of sentencing. State v. Caudle, 388 S.W.3d
273, 278-79 (Tenn. 2012), State v. Bise, 380 S.W.3d 682, 707 (Tenn. 2012). A court only
abuses its discretion 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. Kyto Sihapanya, 516 S.W.3d 473, 475 (Tenn. 2014) (quoting State v. Shuck, 953
S.W.2d 662, 669 (Tenn. 1997)).

       To facilitate meaningful appellate review of a sentencing decision, the trial court
must state on the record the factors it considered and the reasons for imposing the
sentence chosen. Tenn. Code Ann. § 40-35-210(e) (2017); Bise, 380 S.W.3d at 706.
“Mere inadequacy in the articulation of the reasons for imposing a particular sentence,
however, should not negate the presumption [of reasonableness].” Id., at 705-06. The
party appealing the sentence has the burden of demonstrating its impropriety. Tenn.
Code Ann. § 40-35-401 (2010), Sent’g Comm’n Cmts.; see also State v. Ashby, 823
S.W.2d 166, 169 (Tenn. 1991).

                          Purposes and Principles of Sentencing

       The purpose of sentencing is to “promote justice” by insuring that defendants are
punished “in relation to the seriousness of the offense” and in a manner that eliminates
unjust disparity and provides predictability. See Tenn. Code Ann. § 40-35-102(1), (2)
(2017). Punishment is imposed “to prevent crime and promote respect for the law” by
providing a “general deterrent,” confining defendants with “a lengthy history of criminal
conduct[,]” and encouraging rehabilitation and restitution. Tenn. Code Ann. § 40-35-
102(3) (2017).




                                            -4-
       Sentences of confinement “should be” based on the following considerations:

       (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[.]

Tenn. Code Ann. § 40-35-103(1) (2017).

       In recognition of the limited resources of the state prisons, “convicted felons
committing the most severe offenses, possessing criminal histories evincing a clear
disregard for the laws and morals of society[,] and evincing failure of past efforts at
rehabilitation shall be given first priority regarding sentencing involving incarceration[.]”
Tenn. Code Ann. § 40-35-102(5) (2017).

                          Reliable Hearsay in the Presentence Report

       After accepting Defendant’s guilty pleas, the trial court was required to determine
the method and manner in which Defendant would serve his sentence based on evidence
presented at “the sentencing hearing, the presentence report, [and] the validated risk and
needs assessment[.]” Tenn. Code Ann. § 40-35-210(f) (2017). The presentence report
was entered into evidence at the sentencing hearing by the State without objection by
Defendant. Defendant did not make a hearsay objection or any other evidentiary
objection concerning any of the offenses listed in the “Prior Record” section of the
presentence report. “Reliable hearsay” is admissible at a sentencing hearing as long as
“the opposing party is accorded a fair opportunity to rebut any hearsay evidence so
admitted.” Tenn. Code Ann. § 40-35-209(b). Defendant did not deny that he committed
the prior offenses of which he was convicted, nor did he seek a continuance to obtain
evidence to refute the accuracy of the information in the presentence report.1 See State v.
Richardson, 875 S.W.2d 671, 677 (Tenn. Crim. App. 1993). Therefore, we determine the


       1
           The presentence report was “submitted” on July 13, 2018, and filed July 16, 2018. Tennessee
Code Annotated section 40-35-208 states that “[t]he presentence report shall be made available ten days
prior to the sentencing hearing, which may be waived by the consent of all parties and the court.”
Because neither party nor the trial court objected to the report, we determine any objection to the late
filing of the report was waived.
                                                 -5-
evidence of prior convictions contained in the presentence report was admissible as
reliable hearsay.

       The section of the presentence report concerning Defendant’s “Prior Record”
spans twenty-two pages and lists one hundred and twenty-eight separate charges.
Although many of the charges were dismissed and therefore cannot be considered in
determining the manner or method of service of the sentence, the presentence report
shows that Defendant has been convicted of forty-four offenses since he turned nineteen;
including convictions for driving under the influence, driving under the influence second
offense, misdemeanor weapon possession, third degree assault, possession of drug
paraphernalia, felony firearm possession by a person with a prior drug conviction (for
which Defendant was sentenced to three years), misdemeanor reckless endangerment,
felony possession of cocaine (for which Defendant was sentenced to five years), criminal
impersonation, possession of less than one half ounce of marijuana, and resisting arrest.
The “Prior Record” section of the presentence report also lists seven offenses for which
Defendant was charged as a juvenile. As a seventeen-year-old, Defendant was
“convicted” in New Jersey of aggravated assault and sentenced to two years’
confinement. Because this offense if committed by an adult would be a felony, the trial
court could properly consider the offense in determining the manner and method of
service of the sentence. Tenn. Code Ann. § 40-35-114(16). Defendant was also
“convicted” of resisting arrest, unlawful taking means of conveyance, and theft as a
juvenile. These offenses would not constitute felonies if committed as an adult and
cannot be considered in sentencing Defendant. See Tenn. Code Ann. § 40-35-114 (16)
(2017); State v. Jackson, 60 S.W.3d 738, 744 (Tenn. 2001). Three juvenile charges were
dismissed and, therefore, cannot be considered in sentencing.

       In addition to the twenty-two pages of prior convictions and charges, the
presentence report also lists nineteen warrants for violations of probation issued against
Defendant when he resided in Delaware. Defendant was found in violation of probation
on nine of those warrants.2 Defendant was sentenced in Tennessee on August 18, 2017,
to eleven months and twenty-nine days for vandalism and six months for resisting arrest.
The aggravated assault and domestic assault to which Defendant pled guilty occurred on
April 13, 2018, well before Defendant’s vandalism sentence expired.

      Attached to the presentence report is a seven page “Strong-R” risk and needs
assessment. Under “High Needs[,]” the report states:

       Aggression is an on-going concern.

       2
          Another nine warrants are shown as pending, and one is shown as withdrawn, and these ten
probation violation warrants cannot be considered in determining the method and manner of service.
                                              -6-
       [Defendant] has displayed threatening, aggressive or violent behaviors in
       the community during his lifetime.

       Subject has per[p]etrated domestic violence against his/her current partner
       within his/her lifetime.

       [Defendant]’s threatening, aggressive or violent behaviors have been
       motivated by conflict or stress.

       [Defendant]’s threatening, aggressive or violent behaviors have been
       motivated by lack of medication compliance.

                Trial Court’s Articulated Reasons for Denying Probation

       “Every sentencing decision necessarily requires a case-by-case analysis
considering ‘the nature of the offense and the totality of the circumstances . . . including a
defendant’s background.”’ State v. Stevean Wilson, No. E2015-01446-CCA-R3-CD,
2016 WL 1633031, at *5 (Tenn. Crim. App. Apr. 22, 2016) (citing State v. Ashby, 823
S.W.2d 166, 168 (Tenn. 1991) (quoting State v. Moss, 727 S.W.2d 229, 235 (Tenn.
1986)), perm. app. denied (Tenn. Aug. 18, 2016). As the trial court found, Defendant’s
criminal history includes three felony convictions and forty-two misdemeanor
convictions. Undoubtedly, Defendant has “a long history of criminal conduct[.]” Tenn.
Code Ann. § 40-35-103(1)(A) (2017). Defendant was found to have violated probation
nine times while he resided in Delaware, and he was on misdemeanor probation in
Tennessee when he committed aggravated assault and domestic assault. Without
question, “measures less restrictive than confinement have frequently or recently been
applied unsuccessfully” to Defendant. Tenn. Code Ann. § 40-35-103(1)(C) (2017).

       “[C]onvicted felons committing the most severe offenses, possessing criminal
histories evincing a clear disregard for the laws and morals of society[,] and evincing
failure of past efforts at rehabilitation shall be given first priority” in regards to
incarceration. Tenn. Code Ann. § 40-35-102(5) (2017). Crimes involving intentional
acts of violence, such as aggravated assault involving strangulation, are among “the most
severe offenses.” The Strong-R report supports the trial court’s finding that Defendant is
“rated high for violence. You’re just one I can’t take a chance on.”

       We hold that the trial court’s denial of probation for Defendant was based on a
proper application of the purposes and principles of sentencing. The trial court properly
determined that Defendant had an extensive history of criminal conduct, repeated
violations of probation, was on probation when he committed the violent offenses of
                                            -7-
aggravated assault and domestic assault, and had a history of aggressive and violent
conduct. Therefore, the denial of probation and the sentence of confinement is presumed
to be reasonable. Defendant failed to prove the trial court abused its discretion and failed
overcome the presumption of reasonableness. Caudle, 388 S.W.3d at 280.

                                       Conclusion

       For the aforementioned reasons, we affirm the judgments of the trial court.



                                          ____________________________________
                                          ROBERT L. HOLLOWAY, JR., JUDGE




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