                                                                                           06/20/2018
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                                  May 22, 2018 Session

        STATE OF TENNESSEE v. KENTRELL LEBRON LINDSEY

                 Appeal from the Criminal Court for Bradley County
                    No. 16-CR-371      Sandra Donaghy, Judge
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                           No. E2017-01542-CCA-R3-CD
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The Defendant, Kentrell Lebron Lindsey, appeals the trial court’s order requiring him to
serve in confinement his effective six-year sentence for his guilty-pleaded convictions of
possession of dihydrocodeinone, a Schedule III controlled substance, with the intent to
sell or deliver; possession of oxycodone, a Schedule II controlled substance, with the
intent to sell or deliver; and possession of a firearm with the intent to go armed during the
commission of a dangerous felony. The trial court found that Tennessee Code Annotated
section 39-17-1324(e), which required that the Defendant serve his three-year sentence
for the firearm conviction in confinement and consecutively to his sentences for the drug
convictions, rendered the Defendant statutorily ineligible for probation for his drug
convictions. We conclude, and the State concedes, that the trial court erred in finding the
Defendant statutorily ineligible for probation for his drug convictions. Accordingly, we
reverse the trial court’s denial of probation for the drug convictions and remand the case
for the trial court to consider the Defendant’s suitability for probation on his three-year
sentences for the drug convictions. The trial court’s judgments are otherwise affirmed.

 Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed
                     in Part, Reversed in Part, and Remanded

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which THOMAS T.
WOODALL, P.J., and ROBERT W. WEDEMEYER, J., joined.

Philip L. Duval, Chattanooga, Tennessee, for the appellant, Kentrell Lebron Lindsey.

Herbert H. Slatery III, Attorney General and Reporter; Benjamin A. Ball, Senior Counsel;
Stephen D. Crump, District Attorney General; and Andrew Watts, Assistant District
Attorney General, for the appellee, State of Tennessee.
                                        OPINION

                     FACTUAL AND PROCEDURAL HISTORY

        The Defendant was charged with possession of dihydrocodeinone with the intent
to sell or deliver, possession of oxycodone with the intent to sell or deliver, possession of
a firearm with the intent to go armed during the commission of a dangerous felony,
possession of less than one-half ounce of marijuana, driving on a cancelled, suspended, or
revoked license, and speeding. The Defendant entered into a plea agreement whereby he
pleaded guilty to the dihydrocodeinone, oxycodone, and firearm charges, and the
remaining charges were dismissed. Pursuant to the plea agreement, the Defendant
received a three-year sentence as a Range I offender for each conviction, and his
sentences for the drug convictions were to run concurrently with each other and
consecutively to his sentence for the firearm conviction. The trial court was to determine
the manner of service of the sentences. The trial court entered an order accepting the
Defendant’s guilty plea.

       The transcript of the plea hearing is not included in the appellate record.
According to the affidavit of complaint, a deputy with the Bradley County Sheriff’s
Department conducted a traffic stop after the Defendant was traveling thirty-nine miles
per hour in a thirty-mile-per-hour zone. The deputy checked the Defendant’s driver’s
license and learned that it was suspended. While speaking to the Defendant, the deputy
smelled what he believed to be marijuana coming from the Defendant’s vehicle. The
Defendant granted the deputy consent to search the vehicle. The deputy asked the
Defendant whether he had any drugs on his person, and the Defendant told the deputy
that he had marijuana in his pocket. The deputy patted the Defendant down and found a
baggie containing thirty-seven hydrocodone pills, nine oxycodone pills, a small baggie of
marijuana, and cigarillos in the front pocket of the Defendant’s cargo shorts. While
searching the Defendant’s vehicle, the deputy found a .380 firearm and an additional
magazine in the center console. The deputy advised the Defendant of his rights and
asked the Defendant what he was planning to do with the pills. The Defendant admitted
that he planned to sell the pills.

       During the sentencing hearing, the State entered the Defendant’s presentence
report into evidence, and the witnesses who testified included the Defendant, his mother,
and a probation officer. At the conclusion of the sentencing hearing, the trial court made
extensive findings based upon the nature and circumstances of the offenses, the
Defendant’s education, his employment history, his social history, his criminal history,
his potential for rehabilitation, and the applicable enhancement and mitigating factors.
The trial court recognized that the Defendant’s three-year sentence for the firearm
conviction was the mandatory minimum sentence and that he was not eligible for
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probation for that conviction. See T.C.A. § 39-17-1324(a), (e)(2), (g)(1). The trial court
also recognized that Tennessee Code Annotated section 39-17-1324(e)(1) required that
the Defendant serve his sentence for the firearm conviction consecutively to his sentences
for the drug convictions, which were the underlying dangerous felonies upon which the
firearm conviction was based. The trial court stated that it was initially inclined to grant
the Defendant probation for the drug convictions. However, the trial court found that it
was prohibited from doing so based upon its reading of section 39-17-1324(e).
Accordingly, the trial court ordered the Defendant to serve his effective six-year sentence
in confinement.

                                       ANALYSIS

       The Defendant contends that the trial court erred in finding that it did not have the
authority to order him to serve his sentences for the drug convictions on probation. The
State concedes error, and we agree.

       A trial court’s decision regarding alternative sentencing is reviewed for abuse of
discretion, accompanied by a presumption of reasonableness for a sentence that falls
within the appropriate range and reflects that a decision was based on the purposes and
principles of sentencing. State v. Caudle, 388 S.W.3d 273, 278-79 (Tenn. 2012). A trial
court’s decision regarding probation will only be invalidated if the court “wholly
departed from the relevant statutory considerations in reaching its determination.” State
v. Sihapanya, 516 S.W.3d 473, 476 (Tenn. 2014) (order) (per curiam). Under an abuse of
discretion standard, an appellate court may not substitute its judgment for that of the trial
court. Id. at 475.

       The trial court should consider “[t]he potential or lack of potential for the
rehabilitation or treatment of the defendant” in determining whether alternative
sentencing should be granted. T.C.A. § 40-35-103(5). A trial court may deny alternative
sentencing when:

       (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.

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T.C.A. § 40-35-103(1). “When considering probation, the trial court should consider the
nature and circumstances of the offense, the defendant’s criminal record, the defendant’s
background and social history, the defendant’s present condition, including physical and
mental condition, the deterrent effect on the defendant, and the best interests of the
defendant and the public.” State v. Brian Allen Cathey, No. E2015-01284-CCA-R3-CD,
2016 WL 2641766, at *3 (Tenn. Crim. App. May 6, 2016) (citations omitted). The court
should also consider the defendant’s truthfulness. State v. Bunch, 646 S.W.2d 158, 160
(Tenn. 1983). The defendant bears the burden of establishing his suitability for
probation. T.C.A. § 40-35-303(b).

       The Defendant was convicted of possession of dihydrocodeinone, a Schedule III
controlled substance, with the intent to sell or deliver, a Class D felony, and possession of
oxycodone, a Schedule II controlled substance, with the intent to sell or deliver, a Class C
felony. See T.C.A. § 39-17-417(a)(4), (c)(2)(A), (d)(1). The Defendant also was
convicted of possession of a firearm with the intent to go armed during the commission
of a dangerous felony, a Class D felony with a mandatory minimum sentence of three
years. See T.C.A. § 39-17-1324(a), (g)(1). As noted by the trial court, the Defendant is
ineligible for probation by statute for his firearm conviction. See T.C.A. § 39-17-
1324(e)(2). Furthermore, the sentence imposed for the firearm conviction “shall be
served consecutive to any other sentence the person … is sentenced to serve for
conviction of the underlying dangerous felony.” T.C.A. § 39-17-1324(e)(1).

        The trial court found that section 39-17-1324(e) also rendered the Defendant
ineligible for probation for the drug convictions and the underlying dangerous felonies.
However, section 39-17-1324(e) limits the trial court’s discretion to grant probation only
for convictions resulting from a violation of that statute and does not limit the trial court’s
discretion to grant probation for the underlying dangerous felonies. Rather, the
Defendant, who was sentenced to three years each for the drugs convictions, was eligible
for probation for those convictions. See T.C.A. § 40-35-303(a) (proving that a defendant
is eligible for probation if the sentence actually imposed is ten years or less, and the
offense is not specifically excluded from probation consideration). Accordingly, we
remand the case for the trial court to consider the Defendant’s suitability for probation for
his three-year sentences for the drug convictions. See State v. Curtis Moore, No. W2013-
00179-CCA-R3-CD, 2014 WL 465751, at *12 (Tenn. Crim. App. Feb. 4, 2014) (holding
that although the defendant was statutorily ineligible for probation for his firearm
conviction pursuant to 35-17-1324(e), he was eligible for probation for his eight-year
sentence for attempted second degree murder, which was the underlying dangerous
felony).




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                                   CONCLUSION

       We affirm the trial court’s denial of probation with regard to the Defendant’s
three-year sentence for possession of a firearm with the intent to go armed during the
commission of a dangerous felony. We reverse the trial court’s denial of probation with
regard to the Defendant’s two drug convictions and remand the case to the trial court to
consider the Defendant’s suitability for probation for the two drug convictions.




                                            ____________________________________
                                            JOHN EVERETT WILLIAMS, JUDGE




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