        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                         Assigned on Briefs February 17, 2016

                   STATE OF TENNESSEE v. BOBBY LYNCH

                   Appeal from the Criminal Court for Knox County
                       No. 102427     Steven W. Sword, Judge


                 No. E2015-01512-CCA-R3-CD – Filed March 9, 2016


The Defendant, Bobby Lynch, was convicted by a Knox County Criminal Court jury of third
offense simple possession or casual exchange of a controlled substance, a Class E felony.
See T.C.A. § 39-17-418 (2010) (amended 2014). The trial court sentenced the Defendant as
a career offender to six years‟ confinement. On appeal, the Defendant contends that the trial
court erred by denying him alternative sentencing. We affirm the judgment of the trial court.

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

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

Keith Lowe, Knoxville, Tennessee, for the appellant, Bobby Lynch.

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

                                         OPINION

        At the trial, Knoxville Police Officer Joe Shackleford testified that he had worked for
the police department for nineteen years, that he had received training in the identification
and the smell of marijuana, and that he was able to identify marijuana upon sight. On June
25, 2013, the police department received numerous complaints relative to general criminal
activity, including prostitution and drug use, occurring at a particular intersection. Officer
Shackleford responded to the intersection around 10:00 a.m. and saw the Defendant and
codefendant Collins sitting on the ground of an open parking lot. The officer drove to their
location and got out of his police cruiser. Officer Shackleford initially thought the Defendant
and codefendant Collins were intoxicated but saw they were each rolling marijuana
cigarettes. He said that the Defendant and codefendant Collins each had a bag containing
rolling papers and loose marijuana. Officer Shackleford confiscated the marijuana and
issued the Defendant and codefendant Collins citations for the possession of the marijuana.
The bag confiscated from the Defendant was received as an exhibit and contained two
marijuana cigarettes, loose marijuana, and rolling papers. A video recording from the
officer‟s police cruiser was played for the jury and was consistent with the officer‟s
testimony.

        Tennessee Bureau of Investigation (TBI) Special Agent Ashley Cummings, an expert
in forensic chemistry, testified that she performed three analyses on the substances contained
in the bag confiscated from the Defendant. She concluded that the substances found inside
the rolled papers and loose within the bag were marijuana, a controlled substance.

       Upon this evidence the jury found the Defendant guilty of simple possession of a
controlled substance. After the jury rendered its verdict, additional proof was presented in
order to allow the jury to make additional findings of fact relevant to the State‟s request for
enhanced punishment.

       Stephanie Ogle, records keeper for the Knox County Criminal Court, presented one
previous citation and one previous warrant for simple possession of a controlled substance.
Citation number A369081# reflects that on November 29, 2010, the Defendant was convicted
of simple possession of marijuana. Warrant number @687065 reflects that on November 23,
2004, the Defendant was convicted of simple possession of marijuana.

       Upon this evidence the jury found the Defendant guilty of his third or subsequent
offense of simple possession of a controlled substance.

       At the sentencing hearing, no witnesses were presented, but the presentence report
was received as an exhibit. The report reflects that the Defendant was age forty-seven at the
time of the presentence investigation. The Defendant had previous convictions for eight
counts of public intoxication, three counts of aggravated burglary, two counts of simple
possession, two counts of driving under the influence, attempted especially aggravated
robbery, robbery, assault, domestic assault, theft of property valued at $500 or less, criminal
impersonation, violation of the habitual traffic offender statute, “unlawful paraphernalia uses
and activities,” a minor drug-related offense, driving on a suspended license, failure to carry
driver‟s license and to it present upon demand, and two additional traffic-related offenses.

       The presentence report reflects that the Defendant received probation previously and
that his probation was revoked on five occasions. Likewise, the report reflects that the
Defendant received parole and that it was revoked. The report reflects that while the
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Defendant was in confinement for his previous convictions, multiple disciplinary reports
were filed as a result of his conduct. The report reflects that between May 17, 1993, and
June 28, 2007, the Defendant was involved in thirty-four disciplinary matters, which included
creating disturbances, refusing cell assignments, disrespect, fighting, violating Tennessee
Department of Correction policy, mutilation, drug possession, refusing a drug screen, having
positive drug screens, destroying State property, tampering with security equipment,
possessing contraband, and threatening a correction officer.

       The Defendant dropped out of school during the ninth grade. The Defendant reported
he was in the process of obtaining his GED, and he submitted letters from teachers and
grades as verification. The Defendant reported excellent mental and physical health. The
Defendant said that he began drinking alcohol at age fourteen, that he typically drank “a
twelve pack” two or three times weekly, and that he last drank alcohol in 2014. The
Defendant said he began smoking marijuana at age thirteen and that he last smoked it in
2014. The Defendant reported he began using cocaine at age eighteen and last used it in
2014. The Defendant began using roxycodone daily at age forty-three and last used it in
2014. While confined in the jail, the Defendant completed a peer support group program in
October 2014.

       The Defendant reported previous employment at Labor Finders for more than five
years and working periodically at Johnson‟s Siding, Windows, and Doors from 2004 to the
time of the presentence evaluation. The Defendant provided a statement during the
presentence investigation in which he requested a chance because he finally saw that his life
was “not about yourself” and that life was “up to God‟s will.”

       A report from probation officer Suzanne Green was received as an exhibit and states
that the Defendant was not appropriate for enhanced probation. The report notes the
Defendant‟s previous probation revocations and thirty-five disciplinary matters while in
confinement for previous offenses.

      The prosecutor argued that the Defendant was a career offender and requested the
Defendant serve his sentence in confinement. The prosecutor noted the Defendant‟s lengthy
criminal history and argued he was not a good candidate for alternative sentencing. The
prosecutor noted the Defendant‟s disciplinary matters during his previous periods of
confinement.

       Trial counsel conceded that the Defendant was a career offender and that the
Defendant had many legal troubles during the 1980s and 1990s, which included many of the
disciplinary matters while the Defendant was in confinement. Counsel noted, though, that
since 2004, the Defendant‟s legal troubles were associated with his homelessness. Counsel
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argued that although the Defendant had not been a perfect citizen, the Defendant was not a
menace. Counsel argued that the Defendant‟s potential six-year sentence at 60% service for
rolling a marijuana cigarette was too severe when probation was a viable option. Counsel
informed the court that the Defendant had secured a place to live and employment upon his
release from confinement. Counsel requested probation and an opportunity for rehabilitation.

       The Defendant addressed the trial court. The Defendant conceded he had a lengthy
criminal history and said he was not proud of it. The Defendant said he hated himself
because he had hurt his family. He said, “We can all change.” Relative to his previous
disciplinary matters, he said that for the previous seven months he had “walked a chalk line”
because “life ain‟t about me no more, sir.”

        The trial court found based upon six previous felony convictions that the Defendant
was a career offender and imposed a six-year sentence. Relative to whether confinement was
necessary to protect society by restraining a defendant with a long criminal history, the court
found that the Defendant had a lengthy criminal history. The court noted that many of the
violent offenses occurred in the 1980s but determined that the Defendant‟s recent convictions
were generally associated with offenses committed by someone who was homeless, such as
public intoxication. The court found that the Defendant‟s lengthy criminal history warranted
a period of confinement. Relative to whether confinement was necessary to avoid
depreciating the seriousness of the offense, the court found that the facts of the present case
alone did not warrant confinement. Relative to whether confinement would serve as an
effective deterrent, the court stated that although the legislature had made repeated drug
possession a felony offense, the legislature did not mandate confinement. The court found
that the facts of the case did not warrant confinement as a means of deterrence.

        The trial court determined that although the Defendant had not received probation
recently, his criminal history showed frequent occurrences when alternative sentencing had
been unsuccessful. The court found that the Defendant had five previous probation
revocations and stated that the revocations did not “bode well for probation now” in light of
the thirty-five disciplinary matters when the Defendant was previously incarcerated. Relative
to the potential for rehabilitation, the court found that although the Defendant claimed he had
been “walking the chalk line” the previous seven months, the Defendant‟s history indicated
he was not amenable to rehabilitation. The court determined that split confinement was
insufficient because of the Defendant‟s lengthy criminal history. As a result, the court
ordered the Defendant to serve six years in confinement. This appeal followed.

       The Defendant contends that the trial court erred by denying him alternative
sentencing. He argues that the trial court‟s reliance upon the Defendant‟s previous criminal
history to deny alternative sentencing was an abuse of discretion and that the six-year
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sentence in confinement is unjust for a simple possession of marijuana conviction. The State
responds that the court properly sentenced the Defendant. We agree with the State.

        This court reviews challenges to the manner of service of a sentence within the
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). A trial court must
consider any evidence received at the trial and sentencing hearing, the presentence report, the
principles of sentencing, 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 AOC 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) (citing 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 T.C.A. § 40-35-102 (2014).

        The standard of review for questions related to probation or any other alternative
sentence is an abuse of discretion with a presumption of reasonableness. State v. Caudle, 388
S.W.3d 273, 278-79 (Tenn. 2012). Generally, probation is available to a defendant sentenced
to ten years or less. T.C.A. § 40-35-303(a) (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).

       A sentence is based upon “the nature of the offense and the totality of the
circumstances,” including a defendant‟s background. State v. Ashby, 823 S.W.2d 166, 168
(Tenn. 1991); see State v. Trotter, 201 S.W.3d 651, 653 (Tenn. 2006). A trial court is
permitted to sentence a defendant to incarceration when:

       (A) [c]onfinement is necessary to protect society by restraining a defendant
       who has a long history of criminal conduct;
       (B) [c]onfinement 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) [m]easures less restrictive than confinement have frequently or recently
       been applied unsuccessfully to the defendant[.]

T.C.A. § 40-35-103(1)(A)-(C); see Trotter, 201 S.W.3d at 654.
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       The record reflects that the trial court considered all the appropriate principles and
purposes of sentencing. In denying the Defendant‟s request for alternative sentencing, the
court relied heavily upon the Defendant‟s previous criminal convictions. The record supports
the court‟s finding that the Defendant had a lengthy history of criminal conduct, and we note
the Defendant conceded at the sentencing hearing that he had numerous criminal convictions.
The record also supports the court‟s determining that confinement was necessary to protect
society from the Defendant‟s criminal conduct because the Defendant had continued
engaging in criminal conduct for the majority of his life. See id. § 40-35-103(1)(C).
Likewise, the record reflects that the Defendant had received the benefit of probation and
parole previously but that the Defendant‟s probation was revoked on five previous occasions
and that his parole was revoked, as well. See id. § 40-35-103(1)(B). Furthermore, the
Defendant‟s poor conduct while previously incarcerated supported the court‟s finding that the
Defendant was not amenable to rehabilitation. Although the Defendant was eligible for
alternative sentencing, his previous convictions resulted in his unfavorable candidacy for
alternative sentencing. See id § 40-35-102(6)(A) (stating that “a defendant who is being
sentenced for a third or subsequent felony conviction involving separate periods of
incarceration or supervision shall not be considered a favorable candidate for alternative
sentencing”). The trial court did not abuse its discretion by denying his request for
alternative sentencing, and the Defendant is not entitled to relief.

        In consideration of the foregoing and the record as a whole, we affirm the judgment of
the trial court.

                                           ____________________________________
                                           ROBERT H. MONTGOMERY, JR., JUDGE




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