        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                          Assigned on Briefs March 22, 2016

             STATE OF TENNESSEE v. BRIAN ALLEN CATHEY

                Appeal from the Criminal Court for Sullivan County
                        No. S62562   R. Jerry Beck, Judge




                  No. E2015-01284-CCA-R3-CD – Filed May 6, 2016
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Defendant, Brian Allen Cathey, pled guilty to possession with intent to sell or deliver
over one-half ounce of marijuana and to possession with the intent to use drug
paraphernalia in exchange for a one-year sentence as a Range I, standard offender with
the manner of service of the sentence to be determined by the trial court after a
sentencing hearing. The trial court denied alternative sentencing. On appeal Defendant
challenges the denial of an alternative sentence. We determine that the trial court did not
abuse its discretion. Consequently, the judgments of the trial court are affirmed.

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

TIMOTHY L. EASTER, J., delivered the opinion of the Court, in which JOHN EVERETT
WILLIAMS and NORMA MCGEE OGLE, JJ., joined.

Steven M. Wallace, District Public Defender; Andrew J. Gibbons (on appeal) and Joseph
F. Harrison (at trial), Assistant District Public Defenders, for the appellant, Brian Allen
Cathey.

Herbert H. Slatery III, Attorney General and Reporter; Clarence E. Lutz, Senior Counsel;
Barry P. Staubus, District Attorney General; and Andrea Black, Assistant District
Attorney General, for the appellee, State of Tennessee.


                                       OPINION

       This is Defendant‟s direct appeal from the trial court‟s denial of an alternative
sentence after Defendant pled guilty as charged to felony possession of marijuana and
drug paraphernalia.
       On January 14, 2014, the Sullivan County Grand Jury returned a two-count
indictment against Defendant for possession with intent to sell or deliver over one-half
ounce of marijuana and for possession with the intent to use drug paraphernalia. On
April 25, 2015, Defendant pled guilty to both counts of the indictment in exchange for a
sentence of one year as a Range I, standard offender and a fine of $2000 for the
possession with intent to sell or deliver conviction and a sentence of eleven months and
twenty-nine days with a 75% “jail release date” and a $150 fine on the possession with
intent to use drug paraphernalia conviction. The sentences were ordered to run
concurrently with the trial court to determine the manner of service of the sentence at a
hearing.

       Defendant stipulated to the following facts from the affidavit of complaint as the
basis for the conviction:

        On 07/10/2013 at 00:14 hours, Officer Mike Hickman (1535) responded to
        a Drugs/Narcotics Violation/Felony at 120 W Stone Dr. On this date I
        initiated a conversation with a male subject leaving the Roadrunner on
        [W]est [S]tone Dr. I spoke to the driver [D]efendant . . . and ask[ed] for his
        ID. During a pat down of the subject[‟]s pants I located a small baggie I
        believed to be crack cocaine. I then ask[ed] for consent to search the car. I
        ask[ed] the passenger to step out and I saw in plain view a large baggie
        containing marijuana. I then found a second baggie of marijuana in the
        console of the car. I then removed a third passenger . . . from the rear of the
        car and located another large baggie of marijuana. I then found a needle in
        the back pocket of the driver [D]efendant . . . . Defendant . . . was arrested
        and charged with possession of over ½ gram of cocaine1, possession of over
        ½ oz of marijuana for resale and possession of drug paraphernalia.

       Defendant, who was twenty-four years of age, testified at the sentencing hearing.
Defendant received his GED in 2010 and participated in job training. After growing up
in New York, Defendant spent some time in Tennessee before returning to New York.
He was ultimately returned to Tennessee and placed in state custody. He acknowledged a
prior history of drug abuse and addiction as well as a diagnosis of bipolar disorder as a
juvenile. Defendant began using alcohol at age fifteen and marijuana at age twelve. At
the time of sentencing, Defendant was a patient at the LaConte Recovery Center in
Knoxville receiving treatment for an opioid addiction. At the time of his arrest,
Defendant was employed as a roofer. He resigned from that job when he received the
drug charges. Defendant expressed an intention to start his own landscaping business.

        1
            It appears that the charge for cocaine was dismissed in General Sessions Court after the
preliminary hearing.
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       The trial court noted that there was a previous denial of alternative sentencing on
an aggravated burglary charge.2 The trial court acknowledged Defendant‟s youth but
commented on his prior record and failure at past drug rehabilitation attempts and their
“effect on [Defendant‟s] propensity to commit crime.” The trial court found that
Defendant is “not eligible for probation . . . [b]ut looking at residential Community
Corrections, considering prior efforts, prior drug treatment, [and] present drug treatment,
[the] Court[] [i]s of the opinion that probation/alternative sentencing, including
Community Corrections, should be denied.”

       Defendant filed a timely notice of appeal.

                                               Analysis

       On appeal, Defendant argues that the trial court abused its discretion by denying
an alternative sentence where he was entitled to the presumption of being a favorable
candidate for an alternative sentence and less restrictive measures had not “frequently”
been unsuccessfully applied. The State, on the other hand, urges this Court to affirm the
judgment of the trial court.

       Appellate review of sentencing is for abuse of discretion and we must apply “a
presumption of reasonableness to within-range sentencing decisions that reflect a proper
application of the purposes and principles of our Sentencing Act.” State v. Bise, 380
S.W.3d 682, 707 (Tenn. 2012); State v. Caudle, 388 S.W.3d 273, 278-79 (Tenn. 2012)
(extending presumption of reasonableness to determinations regarding the manner of
service of a sentence). Thus, under Bise, a “sentence should be upheld 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 710.

       Tennessee Code Annotated section 40-35-102(6)(A) states that a defendant who
does not require confinement and “who is an especially mitigated or standard offender
convicted of a Class C, D or E felony, should be considered as a favorable candidate for
alternative sentencing options in the absence of evidence to the contrary[.]” Here,
Defendant entered guilty pleas to one Class E felony and one Class A misdemeanor as a
standard offender. Accordingly, he was considered a favorable candidate for alternative
sentencing. However, a trial court “shall consider, but is not bound by, the advisory
sentencing guideline” in Tennessee Code Annotated section 40-35-102(6)(A). T.C.A. §

       2
         The trial court‟s denial of alternative sentencing in the burglary case was subsequently upheld
by this Court. State v. Brian Allen Cathey, No. E2014-02320-CCA-R3-CD, 2015 WL 6083193 (Tenn.
Crim. App. Oct. 16, 2015). Defendant was on bond in that matter when he committed the offenses in the
subject matter; thus the trial court correctly ordered the one-year sentence in the subject matter to be
consecutive to the aggravated burglary sentence.
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40-35-102(6)(D). A trial court should consider the following when determining whether
there is “evidence to the contrary” indicating that an individual should not receive
alternative sentencing:

       (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[.]

Id. § 40-35-103(1)(A)-(C); see State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).

        A defendant is eligible for probation if the actual sentence imposed is ten years or
less and the offense for which the defendant is sentenced is not specifically excluded by
statute. T.C.A. § 40-35-303(a). The trial court shall automatically consider probation as
a sentencing alternative for eligible defendants; however, the defendant bears the burden
of proving his or her suitability for probation. Id. § 40-35-303(b). In addition, “the
defendant is not automatically entitled to probation as a matter of law.” Id. § 40-35-
303(b), Sentencing Comm‟n Cmts. Rather, the defendant must demonstrate that
probation would “„serve the ends of justice and the best interest of both the public and the
defendant.‟” State v. Carter, 254 S.W.3d 335, 347 (Tenn. 2008) (quoting State v.
Housewright, 982 S.W.2d 354, 357 (Tenn. Crim. App. 1997)).

       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. See State v. Kendrick, 10 S.W.3d 650, 656 (Tenn. Crim. App.
1999) (citing State v. Grear, 568 S.W.2d 285, 286 (Tenn. 1978)). The principles of
sentencing also require the sentence to be “no greater than that deserved for the offense
committed” and “the least severe measure necessary to achieve the purposes for which
the sentence is imposed.” T.C.A. § 40-35-103(2), (4). In addition, “[t]he potential or
lack of potential for the rehabilitation or treatment of the defendant should be considered
in determining the sentence alternative or length of a term to be imposed[,]” and “[t]he
length of a term of probation may reflect the length of a treatment or rehabilitation
program in which participation is a condition of the sentence[.]” Id. § 40-35-103(5).
Moreover, our supreme court has held that truthfulness is a factor which the court may
consider in deciding whether to grant or deny probation. State v. Bunch, 646 S.W.2d
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158, 160 (Tenn. 1983) (citing State v. Poe, 614 S.W.2d 403, 404 (Tenn. Crim. App.
1981)).

        Based upon the pre-sentence report, the court found that Defendant had two prior
felonies, which Defendant claimed related to a “family domestic situation.” Defendant
also admitted to a long history of drug abuse and was on bond at the time the offenses
were committed. The trial judge expressed his doubt with regard to Defendant‟s ability
to successfully complete an alternative sentence based on the fact that he had been
involved in drug treatment programs in the past and they “didn‟t appear to have a lot of
effect on his propensity to commit crime.” The trial court noted that Defendant had
additional pending charges the trial court did not and could not consider in fashioning the
sentence. The record shows that the trial court considered the relevant sentencing
considerations, and Defendant has not established that the trial court abused its discretion
in denying alternative sentencing or “otherwise overcome the presumption of
reasonableness afforded sentences [that] reflect a proper application of the purposes and
principles of our statutory scheme.” See Caudle, 388 S.W.3d at 280. Defendant is not
entitled to relief.

                                        Conclusion

       Based on the foregoing analysis, we affirm the judgment of the trial court.



                                                  ___________________________
                                                  TIMOTHY L. EASTER, JUDGE




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