        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                           Assigned on Briefs July 21, 2015

       STATE OF TENNESSEE v. DOMINIQUE RAMELL JARRETT

                Appeal from the Criminal Court for Hamilton County
                         No. 289916   Don W. Poole, Judge


                 No. E2014-02131-CCA-R3-CD – Filed July 27, 2015
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Appellant, Dominique Ramell Jarrett, entered a guilty plea to carjacking, a Class B
felony, and received the agreed-upon sentence of eight years with the trial court to
determine the manner of service. Following a sentencing hearing, the trial court denied
all forms of alternative sentencing and ordered appellant to serve his sentence in the
Tennessee Department of Correction. It is from this judgment that he now appeals.
Following our review, we affirm the judgment of the trial court.

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

ROGER A. PAGE, J., delivered the opinion of the Court, in which CAMILLE R. MCMULLEN
and ROBERT L. HOLLOWAY, JR., JJ., joined.

Michael Lynn Acuff, Chattanooga, Tennessee, for the Appellant, Dominique Ramell
Jarrett.

Herbert H. Slatery III, Attorney General and Reporter; Meredith DeVault, Senior
Counsel; M. Neal Pinkston, District Attorney General; and Cameron B. Williams,
Assistant District Attorney General, for the Appellee, State of Tennessee.


                                       OPINION

                                         I. Facts

                           A. Guilty Plea Submission Hearing

      At the guilty plea submission hearing, the State proffered that on or about July 24,
2013, officers with the Chattanooga Police Department responded to the scene at 7200
Igou Gap Road and spoke with the victims Sara Camp and her boyfriend Christopher
Stock. The victims had been traveling east in Ms. Camp‟s vehicle on Igou Gap Road
when they noticed a young black male wearing a red shirt lying partially in a ditch in the
roadway. They turned around to render aid to the person in the ditch, and when they
exited the vehicle, three unknown assailants “rushed” the victims with pistols and
carjacked them. All of the suspects fled in the vehicle, but Ms. Camp had an application
on her iPhone that allowed her to locate her telephone, which she had left in the vehicle.
Using that information, officers located her vehicle at 3518 Ridgeside Road, where they
also arrested the suspects, including appellant, who had been involved. Ms. Camp‟s
stolen property was returned to her.

        Accordingly, appellant pleaded guilty to carjacking, a Class B felony, and the
State dismissed the second count of the indictment, aggravated assault, a Class C felony.
The plea agreement provided for an eight-year sentence with the trial court to determine
the manner of service. The trial court accepted the agreed-upon length of sentence and
set the remaining sentencing issues for a hearing.

                                  B. Sentencing Hearing

       At the sentencing hearing, Ms. Camp testified and recounted the facts as set forth
by the State at the plea submission hearing. She added that when they encountered the
male in the ditch, he was lying down but that when they approached him, Mr. Stock
assisted him in standing. When the other assailants attacked, Ms. Camp and Mr. Stock
were attempting to walk the allegedly injured male to Ms. Camp‟s vehicle for the purpose
of driving him to a hospital because he appeared to be injured. In addition, she stated that
she was terrified at the time and that she was scared that the perpetrators were going to
return for them. She recalled that because of the “Find My Phone” application on her
iPhone, her vehicle was recovered within three and a half hours from the time it was
stolen. Ms. Camp said that her vehicle had not necessarily been damaged but that it was
“really, really dirty” when it was returned, that it smelled like marijuana, and that
someone had thrown pills all across the backseat. She was not physically injured during
the carjacking, but someone pointed a gun in her face. As a result of the attack, she felt
that she had lost her peace of mind. On cross-examination, Ms. Camp acknowledged that
she later learned that the guns that were used in the carjacking were not real weapons.

     The State also called Mr. Stock as a witness, who added some details to Ms.
Camp‟s testimony but whose recollection was substantially the same.

       Appellant testified on his own behalf and stated that he pleaded guilty to the
offense because he was, in fact, guilty. He participated in this scheme by lying in the
ditch pretending to be hurt. He was seventeen years of age when he was involved in the
carjacking, and he had been previously adjudicated delinquent in juvenile court for two
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felony counts involving vehicle theft. One of those occasions involved theft of a vehicle
and subsequent flight from a group home.

       Appellant described himself as a good student. While in custody, he had worked
toward obtaining his GED. He had not seen his mother in fourteen months because she
was in poor physical condition, but he said that if the trial court released him, he planned
to live with her and his twelve-year-old brother. Appellant stated that when he was
arrested, his girlfriend was pregnant and that at the time of the sentencing hearing, he had
a one-year-old child. He planned to get a job and care for his child, and his step-mother
had arranged a job for him at McDonald‟s. Appellant said that during his incarceration,
he attended church and received counseling.

        On cross-examination, appellant agreed that he had violated the terms of juvenile
probation seven times, most of which were based on his being unruly and running away
from home. In addition to the two adjudications for theft of vehicles, he acknowledged
an adjudication for fraudulent use of a debit card based on his use of his mother‟s debit
card to purchase $4,000 worth of telephones. He admitted that he had smoked two or
three “blunts” of marijuana a day from the time he was thirteen until he was sixteen years
of age.

        Appellant‟s mother, Ronica Scott, testified that appellant started getting into
trouble when he was around twelve years of age, which was the time when his father
came into his life. She believed that a great deal of the criminal behavior in which
appellant had been involved, such as using her debit card, required the assistance of
someone more knowledgeable, and she attributed that assistance to appellant‟s father.
She acknowledged that many of appellant‟s probation violations were the result of her
filing petitions in juvenile court based on his continued misbehavior. Ms. Scott described
her health problems and said that when she took her pain medication and went to sleep,
appellant would take her car and run away to his father‟s house. Despite his past
behavior, she was willing to offer him another chance and allow him to live with her if
the trial court suspended his eight-year sentence.

        In issuing its ruling, in addition to considering all of the requisite factors, the trial
court stated that it considered the testimony of the witnesses and noted in particular the
testimony of Ms. Scott, who had tried to encourage appellant to follow the law to no
avail. The trial court reviewed and considered the presentence report. It also considered
the circumstances of the offense, noting that the nature of the conduct, lying in wait for a
“good Samaritan to come forward and render aid,” was “pretty shocking.”

       Appellant advanced the mitigating factor that he was young and lacked substantial
judgment, see Tenn. Code. Ann. § 40-35-113(6), but the trial court gave no weight to that
factor given appellant‟s extensive history in juvenile court. However, the trial court
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attributed “some credit” under the catch-all provision to the fact that appellant had a “less
than ideal childhood” with his father being in the penitentiary for much of the time and
his mother being left to care for him and his siblings. Id. § 40-35-113(13). The trial
court also gave appellant credit for accepting responsibility, pleading guilty, and
apologizing to the victims. Id.

       The trial court considered appellant‟s near-constant use of marijuana for three
years as criminal behavior pursuant to Tennessee Code Annotated section 40-35-114(1).
It also considered appellant‟s two juvenile adjudications that would have constituted
felonies if they had been committed by an adult. Id. § 40-35-113(16). The trial court
noted appellant‟s repeated failures to comply with the terms of a sentence involving
release into the community. Id. § 40-35-113(8). Finally, the trial court opined that the
possibilities of appellant‟s being rehabilitated were poor. Id.

       The trial court ruled:

              When should the Court consider confinement when the sentence is
       10 years or less? And that‟s set out in 40-35-103, [sub-part] B, to avoid
       depreciating the seriousness of the offense. And looking back at that, I do
       consider this is a reprehensible act. Setting out a situation such as this to
       carjack, I think is reprehensible. I think it‟s offensive. So I do think that
       applies and measures less restrictive than confinement have recently or
       frequently been applied unsuccessfully to the Defendant. So I do think
       those things are in favor of confinement.

The trial court then sentenced appellant to eight years in confinement. It is from this
judgment that he now appeals.

                                        II. Analysis

      Appellant argues that the trial court erred in denying him probation or any other
form of alternative sentence. The State responds that the trial court‟s ruling was proper.

       In determining an appropriate sentence, a trial court must consider the following
factors: (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 mitigating and enhancement factors;
(6) any statistical information provided by the administrative office of the courts as to
sentencing practices for similar offenses in Tennessee; (7) any statement the defendant
makes on his own behalf as to sentencing; and (8) the potential for rehabilitation. Tenn.
Code Ann. §§ 40-35-103(5), -113, -114, -210(b). In addition, “[t]he sentence imposed
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should be the least severe measure necessary to achieve the purposes for which the
sentence is imposed.” Tenn. Code Ann. § 40-35-103(4).

       Pursuant to the 2005 amendments, the Sentencing Act abandoned the statutory
presumptive minimum sentence and rendered enhancement factors advisory only. See
Tenn. Code Ann. § 40-35-114, -210(c). The 2005 amendments set forth certain
“advisory sentencing guidelines” that are not binding on the trial court; however, the trial
court must nonetheless consider them. See id. § 40-35-210(c). Although the application
of the factors is advisory, a court shall consider “[e]vidence and information offered by
the parties on the mitigating and enhancement factors set out in §§ 40-35-113 and 40-35-
114.” Id. § 40-35-210(b)(5). The trial court must also place on the record “what
enhancement or mitigating factors were considered, if any, as well as the reasons for the
sentence, in order to ensure fair and consistent sentencing.” Id. § 40-35-210(e). The
weighing of mitigating and enhancing factors is left to the sound discretion of the trial
court. State v. Carter, 254 S.W.3d 335, 345 (Tenn. 2008). The burden of proving
applicable mitigating factors rests upon appellant. State v. Mark Moore, No. 03C01-
9403-CR-00098, 1995 WL 548786, at *6 (Tenn. Crim. App. Sept. 18, 1995). The trial
court‟s weighing of the various enhancement and mitigating factors is not grounds for
reversal under the revised Sentencing Act. Carter, 254 S.W.3d at 345 (citing State v.
Devin Banks, No. W2005-02213-CCA-R3-DD, 2007 WL 1966039, at *48 (Tenn. Crim.
App. July 6, 2007), aff’d as corrected, 271 S.W.3d 90 (Tenn. 2008)).

       When an accused challenges the length and manner of service of a sentence, this
court reviews the trial court‟s sentencing determination under an abuse of discretion
standard accompanied by a presumption of reasonableness. State v. Bise, 380 S.W.3d
682, 707 (Tenn. 2012). This standard of review also applies to “the questions related to
probation or any other alternative sentence.” State v. Caudle, 388 S.W.3d 273, 278-79
(Tenn. 2012). If a trial court misapplies an enhancing or mitigating factor in passing
sentence, said error will not remove the presumption of reasonableness from its
sentencing determination. Bise, 380 S.W.3d at 709. This court will uphold the trial
court‟s sentencing decision “so long as it is within the appropriate range and the record
demonstrates that the sentence is otherwise in compliance with the purposes and
principles listed by statute.” Id. at 709-10. Moreover, under such circumstances,
appellate courts may not disturb the sentence even if we had preferred a different result.
See Carter, 254 S.W.3d at 346. The party challenging the sentence imposed by the trial
court has the burden of establishing that the sentence is erroneous. Tenn. Code Ann. §
40-35-401, Sentencing Comm‟n Cmts.; State v. Ashby, 823 S.W.2d 166, 169 (Tenn.
1991).

       We begin with the proposition that a defendant is eligible for probation if the
sentence actually imposed is ten years or less. See Tenn. Code Ann. § 40-35-303(a). An
especially mitigated or standard offender convicted of a Class C, D, or E felony is
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considered to be a favorable candidate for probation in absence of evidence to the
contrary. See id. § 40-35-102(6). “A court shall consider, but is not bound by, this
advisory sentencing guideline.” Id. The trial court must automatically consider
probation as an alternative sentence for eligible defendants, but the defendant bears “the
burden of establishing suitability for probation.” Id. § 40-35-303(b). This burden
includes demonstrating that probation will “„subserve the ends of justice and the best
interest of both the public and the defendant.‟” Carter, 254 S.W.3d at 347 (quoting State
v. Housewright, 982 S.W.2d 354, 357 (Tenn. Crim. App. 1997)). In determining whether
to grant or deny probation, a trial court should consider the circumstances of the offense,
the defendant‟s criminal record, the defendant‟s social history and present condition, the
need for deterrence, and the best interest of the defendant and the public. State v. Grear,
568 S.W.2d 285, 286 (Tenn. 1978). A trial court should base its decision regarding any
sentence involving confinement 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). Furthermore, the trial court should examine the
defendant‟s potential for rehabilitation or lack thereof when determining whether an
alternative sentence is appropriate. Id. § 40-35-103(5).

        While appellant is eligible for probation because his sentence is less than ten
years, he is not considered a favorable candidate because he pleaded guilty to a Class B
felony. The trial court considered, as required by law, the circumstances of the offense,
and found the crime “reprehensible.” The trial court also noted appellant‟s juvenile
record, which included two adjudications that would have constituted felony convictions
if they had been committed by an adult and that notably were offenses involving thefts of
vehicles. See State v. Boston, 938 S.W.2d 435, 438 (Tenn. Crim. App. 1996) (stating that
a sentencing court may consider the mitigating and enhancing factors set forth in
Tennessee Code Annotated sections 40-35-113 and -114 “as they are relevant to the
sentences involving confinement”); State v. Claude Ronnie Morrison, No. E2000-02048-
CCA-R3-CD, 2001 WL 881382, at *3 (Tenn. Crim. App. Aug. 7, 2001) (clarifying that
enhancement and mitigating factors are appropriate considerations in determining both
manner of service and length of sentence); Tenn. Code Ann. § 40-35-210(b). Appellant‟s
social history, as outlined by the trial court, included almost daily use of marijuana, a
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history of misbehavior that required intervention by the juvenile court, and a “less than
ideal” childhood that involved incarceration of his father. As to deterrence, the trial court
noted appellant‟s failed attempts to comply with the conditions of juvenile probation that
resulted in seven probation violations.

       Upon the record developed at the sentencing hearing and in light of the standard of
review set forth in Bise, we cannot conclude that the trial court abused its discretion in
denying appellant probation in this case. The record reflects that appellant had engaged
in criminal behavior for nearly three years on a continuous basis by smoking marijuana
almost daily; that appellant had two juvenile adjudications that would have constituted
felonies if they had been committed by an adult; and that he had garnered seven
probation violations in juvenile court. Based on the record, we agree with the trial court
that measures less restrictive than confinement had frequently or recently been applied
unsuccessfully to appellant and that confinement is appropriate in this case.

         We note that appellant also argues that the trial court erred in failing to grant him
another form of alternative sentencing. Tennessee Code Annotated section 40-35-104
lists several forms of sentencing alternatives that may be employed by the trial court
when imposing a sentence, such as: a suspended sentence upon a term of supervised
probation; continuous or periodic confinement in conjunction with a term of probation,
i.e., a “split” sentence; and a community-based alternative. Appellant requested and was
denied probation. He had already served a period of fourteen months in the local jail;
therefore, he was ineligible for an alternative sentence involving confinement in the local
jail.

       At the sentencing hearing, counsel for appellant clearly stated, “What we‟re asking
from the court is probation.” He did not seek any other alternative sentence, and he did
not argue the applicability of the provisions of the community corrections act. Likewise,
in his brief to this court, appellant does not assert his eligibility for community
corrections; he simply argues that the trial court erred in not imposing an alternative
sentence.

       Rule 27(a)(7) of the Tennessee Rules of Appellate Procedure states that an
appellant‟s brief shall contain the following with respect to an argument:

       (A) 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 (which may be quoted verbatim) relied on; and




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       (B) for each issue, a concise statement of the applicable standard of review
       (which may appear in the discussion of the issue or under a separate
       heading placed before the discussion of the issues)[.]

Tenn. R. App. P. 27(a)(7)(A)-(B). Moreover, Rule 10(b) of the Rules of the Court of
Criminal Appeals reads, “Issues which are not supported by argument, citation to
authorities, or appropriate references to the record will be treated as waived in this
Court.” Although appellant cited legal authority that is generally applicable to the issue
of alternative sentencing, he failed to brief any other alternative sentence that could
possibly be available in his particular circumstance. For this reason, we conclude that
appellant has waived this issue on appeal.

                                     CONCLUSION

       Based on the record as a whole, the briefs of the parties, and the applicable legal
authorities, we affirm the judgment of the trial court.


                                                  _________________________________
                                                  ROGER A. PAGE, JUDGE




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