        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                   Assigned on Briefs May 10, 2016

        STATE OF TENNESSEE v. KEVIN O’DONNELL STONE

            Direct Appeal from the Circuit Court for Robertson County
  Nos. 2011-CR-486, 2011-CR-103, 2013-CR-528, 2013-CR-530, 2013-CR-531, and
                 2014-CR-281     William R. Goodman, III, Judge


                 No. M2015-01874-CCA-R3-CD – Filed June 28, 2016


In 2015, the Defendant, Kevin O‟Donnell Stone, pleaded guilty to violating his probation in
case numbers 2011-CR-486 and 2011-CR-103 and to possession of cocaine in case number
2013-CR-528. The trial court revoked the Defendant‟s probation and ordered him to serve
the balance of his three-year sentence in confinement. The trial court also sentenced the
Defendant to a concurrent sentence of five years of incarceration for the possession of
cocaine conviction. On appeal, the Defendant contends that the trial court erred when it
ordered him to serve his sentences in confinement instead of ordering an alternative sentence.
 After a thorough review of the record and the applicable authorities, we affirm the trial
court‟s judgments.

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

ROBERT W. WEDEMEYER, J., delivered the opinion of the court, in which NORMA MCGEE
OGLE and TIMOTHY L. EASTER, JJ., joined.

Gregory D. Smith, Clarksville, Tennessee, for the appellant, Kevin O‟Donnell Stone.

Herbert H. Slatery III, Attorney General and Reporter; Jeffrey D. Zentner, Assistant Attorney
General; John W. Carney, Jr., District Attorney General; and Jason White, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                         OPINION

                             I. Facts and Procedural History
       On April 27, 2012, the Defendant pleaded guilty in case numbers 2011-CR-486 and
2011-CR-103 to sale of a Schedule II substance and facilitation of the sale of a Schedule II
substance, and the trial court sentenced him to three years of probation. In 2013, the
Defendant was indicted for three counts of sale and delivery of a Schedule II substance in
case numbers 2013-CR-528, 2013-CR-530, and 2013-CR-531. On August 30, 2013, the
Defendant‟s probation officer filed a probation violation report alleging that the Defendant
had violated his probation in case numbers 2011-CR-486 and 2011-CR-103. The trial court
issued a probation violation warrant that same day. In 2014, the Defendant was indicted in
case number 2014-CR-281 for possession of a Schedule II substance with intent to sell and
deliver; an amended probation violation report was filed.

        On July 13, 2015, the Defendant pleaded guilty in case number 2013-CR-528 to
possession of cocaine, agreeing to allow the trial court to determine the manner of service of
his sentence. The trial court dismissed the remaining indictments from 2013. The Defendant
waived his right to a probation violation hearing in case numbers 2011-CR-486 and 2011-
CR-103 and admitted that he had violated the terms of his probation. At the guilty plea
submission hearing, the State offered the following recitation of the facts in support of the
trial court‟s acceptance of the guilty plea:

              [T]he proof would show that narcotics officers set up – used a
       [confidential informant] . . . [who] was given buy money and . . . went to . . .
       Park Circle and went up to [the Defendant] and you can clearly see [the
       Defendant] on the video and [he] did buy one pill from him, Your Honor.

        By agreement of the parties, the disposition for the violation of probation was to be
determined at the sentencing hearing for the cocaine conviction. At the sentencing hearing,
the presentence report and certified copies of the Defendant‟s prior convictions for
possession of a Schedule II substance, assault, reckless endangerment, evading arrest,
resisting arrest, and simple possession were admitted into evidence. The parties presented
the following evidence: Angela Vaughn, a probation officer in Robertson County, testified
that she was assigned to the Defendant‟s case on April 27, 2012. She stated that the
Defendant was on probation when he committed the offenses in 2013. She testified that the
Defendant failed to report his 2014 charges to her and that he was later arrested in Florida on
those charges. She stated that the Defendant did not have permission to go to Florida and
that she had no knowledge of his leaving Tennessee. Ms. Vaughn testified that the
Defendant posted bond on those charges in July of 2015 and, while he reported to her a
couple of times, he failed to report on several occasions. She recalled that the Defendant
failed a drug screen in July of 2015 and that he admitted to using drugs.

       The Defendant testified that he was on social security disability. He stated that he was
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“clean” and would be willing to submit to a drug screen that day. He agreed that he had
“quite a few” prior misdemeanors. He testified that he was living with family. The
Defendant stated that he did not know he was not allowed to leave the state when he traveled
to Florida while on probation and that he only went for four days. He testified that the
positive drug screen was because he had smoked marijuana at a time he thought he was no
longer serving probation. He stated that he understood that, if placed on probation in the
present case, he would have to obey the court‟s rules, and he said he was willing to follow
the terms of probation. The Defendant stated that he had a learning disability and had
dropped out of school in the eighth grade.

       After considering this evidence, the trial court stated that it had considered the
ramifications of ordering the Defendant to serve his sentence in confinement, particularly that
he would lose his disability benefits. The trial court also stated that it was considering the
Defendant‟s prior convictions involving narcotics. The trial court went on to say:

       We move on to [T.C.A. §] 40-35-103. The statute provides where . . .
       sentences involving 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. The Court finds that the
       criminal conduct [in this case] involves matters other than just simply felonies.
        That confinement is, in fact, as set forth in subsection B, necessary to avoid
       depreciating the seriousness of the offense. Therefore, the Court finds in this
       instance we are going to have to have confinement.

               We next look at the mitigating and enhancement factors. The question
       arises is whether [the Defendant‟s] mental condition falls under [T.C.A. §] 45-
       35-113, subsection three as a ground tending to excuse [the Defendant‟s]
       criminal conduct though failing to establish an offense. The Court find that his
       completing the eighth grade . . . does not excuse or justify his behavior.

              ...

       We next move on to the enhancement factors. Number one: . . . [The
       Defendant], before sentencing, has failed to comply with the conditions of a
       sentence involving release into the community. . . . Judge Jones back in . . .
       2012, afforded [the Defendant] that opportunity [to be on probation].
       Furthermore, the Court does find under [T.C.A. §] 40-35-114 subsection 13
       also is applicable.

              Therefore, it‟s the finding of the Court that pursuant to the agreement
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       reached in this case this sentence will run concurrent with the . . . probation
       violation in [case numbers 2011-CR-486 and 2011-CR-103] . . . the Court
       finds [the Defendant has] violated the terms of his probation, probation is
       revoked, he‟s ordered to serve the . . . remaining balance of his sentence on the
       violation of probation.

              On the subject of the case before us today, [case number] 2013-CR-528,
       in consideration of the enhancement factors, the failure to qualify for the
       mitigating factors the Court orders the [Defendant] to serve a term of five-
       years as a range one standard offender at 30 percent. He‟ll receive credit for
       the pretrial incarceration.

       It is from this judgment that the Defendant now appeals.

                                         II. Analysis

        On appeal, the Defendant contends that the trial court erred when it ordered him to
serve his sentences in confinement because the trial court failed to consider alternative
sentencing such as Community Corrections. He contends that the case should be remanded
for the trial court to consider an alternative sentence or to set forth factual findings to show
that an alternative sentence was considered. The State responds that the trial court found that
confinement was necessary and that the Defendant had failed to comply with prior conditions
of an alternative sentence. The State further asserts that the Defendant‟s criminal history was
sufficient justification for the trial court to deny his request for an alternative sentence. We
agree with the State.

        “Sentences imposed by the trial court within the appropriate statutory range are to be
reviewed under an abuse of discretion standard with a „presumption of reasonableness.‟”
State v. Bise, 380 S.W.3d 682 (Tenn. 2012). A finding of abuse of discretion “„reflects that
the trial court‟s logic and reasoning was improper when viewed in light of the factual
circumstances and relevant legal principles involved in a particular case.‟” State v. Shaffer,
45 S.W.3d 553, 555 (Tenn. 2001) (quoting State v. Moore, 6 S.W.3d 235, 242 (Tenn. 1999)).
 To find an abuse of discretion, the record must be void of any substantial evidence that
would support the trial court‟s decision. Id. at 554-55; State v. Grear, 568 S.W.2d 285, 286
(Tenn. 1978); State v. Delp, 614 S.W.2d 395, 398 (Tenn. Crim. App. 1980). The reviewing
court should uphold the sentence “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.” Bise, 380 S.W.3d at 709-10. So long as the trial court sentences within the
appropriate range and properly applies the purposes and principles of the Sentencing Act, its
decision will be granted a presumption of reasonableness. Id. at 707. The defendant bears
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“[t]he burden of demonstrating that the sentence is improper.” State v. Ashby, 823 S.W.2d
166, 169 (Tenn. 1991).

      In determining a specific sentence within a range of punishment, the trial court should
consider, but is not bound by, the following advisory guidelines:

       (1) The minimum sentence within the range of punishment is the sentence that
       should be imposed, because the general assembly set the minimum length of
       sentence for each felony class to reflect the relative seriousness of each
       criminal offense in the felony classifications; and

       (2) The sentence length within the range should be adjusted, as appropriate, by
       the presence or absence of mitigating and enhancement factors set out in §§
       40-35-113 and 40-35-114.

T.C.A. § 40-35-210(c) (2014). The trial court must consider: (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 Tennessee Code Annotated sections 40-35-113
and -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
made in the defendant‟s own behalf about sentencing. See T.C.A. §40-35-210 (2014); State
v. Taylor, 63 S.W.3d 400, 411 (Tenn. Crim. App. 2001). The trial court must also consider
the potential or lack of potential for rehabilitation or treatment of the defendant in
determining the sentence alternative or length of a term to be imposed. T.C.A. § 40-35-103
(2014).

        Regarding the possession of cocaine conviction, the trial court found that serving the
sentence in confinement was necessary to avoid depreciating the seriousness of the
Defendant‟s offense. The trial court stated that the Defendant‟s previous attempts to comply
with alternative sentences had failed, specifically that he had failed to comply with his prior
probationary sentences. The trial court then applied 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. T.C.A. § 40-35-114(1) (2014). We
conclude that the trial court did not err when it ordered the Defendant to serve his sentence in
confinement, and that the Defendant‟s within range sentence is consistent with the purposes
set out in the Sentencing Act.

       As to the revocation of probation in case numbers 2011-CR-486 and 2011-CR-103,
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we review this decision for an abuse of discretion. See State v. Eric O. Turner, No. M2014-
00597-CCA-R3-CD, 2015 WL 3563053, at *8 (Tenn. Crim. App., at Nashville, June 9,
2015), no perm. app. filed. “This court has repeatedly cautioned that „an accused, already on
probation, is not entitled to a second grant of probation or another form of alternative
sentencing.‟” Id. (citations omitted). There is no requirement that the trial court consider
other sentencing options when revoking a defendant‟s probation. Id. (citation omitted).
After finding that the Defendant had violated the terms of his probation by being arrested and
indicted in case number 2013-CR-528, the trial court did not abuse its discretion when it
ordered the Defendant to serve his original sentence. The Defendant is not entitled to relief.

                                      III. Conclusion

       In accordance with the aforementioned reasoning and authorities, we affirm the trial
court‟s judgments.

                                                    ________________________________
                                                     ROBERT W. WEDEMEYER, JUDGE




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