        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                        Assigned on Briefs September 24, 2013

              STATE OF TENNESSEE v. DAVID WAYNE GROSS

             Direct Appeal from the Criminal Court for Sullivan County
                    Nos. S59567, S59963    R. Jerry Beck, Judge


               No. E2013-00589-CCA-R3-CD - Filed December 23, 2013


The defendant, David Wayne Gross, appeals the sentencing decision denying him an
alternative sentence. The defendant pled guilty to violating a habitual traffic offender order,
two counts of theft over $1000, two counts of identity theft, two counts of forgery, and theft
under $500. Pursuant to the plea agreement, the defendant received an effective four-year
sentence and was allowed to petition the court for an alternative sentence. A hearing was
held, after which the trial court ordered that the sentence be served in incarceration. After
review of the record, we affirm the denial of alternative sentencing.

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

J OHN E VERETT W ILLIAMS, J., delivered the opinion of the Court, in which N ORMA M CG EE
O GLE and R OBERT W. W EDEMEYER, JJ., joined.

Stephen M. Wallace, District Public Defender; Joseph F.Harrison, Assistant Public Defender,
for the appellant, David Wayne Gross.

Robert E. Cooper, Jr., Attorney General and Reporter; Jeffrey D. Zentner, Assistant Attorney
General; Barry Staubus, District Attorney General; and James Goodwin, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                         OPINION

                                    Procedural History

        The present appeal before this court involves two separate cases in which the
defendant entered guilty pleas in the Sullivan County Criminal Court. The facts underlying
the defendant’s multiple convictions were set forth in the affidavits of complaint. At the
guilty plea hearing, the defendant and the State stipulated that those facts were accurate and
supported the convictions. In case number S59567, the complaint read:

               On 5/27/2011, I Officer Matthew Harkleroad, was traveling north on
       Volunteer Parkway and had just past [sic] the intersection of Century Blvd.
       and observed a vehicle attempting to exit the upper entrance only to Wal-Mart.
       I turned around to stop the vehicle before it entered into traffic causing a crash
       and to make sure that the driver was o.k. As I approached the vehicle I
       activated my emergency lights in front of the vehicle. My cruise[r] was placed
       in the slow lane of the south bound lane of travel. At that time I made contact
       with the driver and asked why he was exiting from the entrance only access.
       The driver now known as [the defendant] by the Tennessee identification he
       produced upon request and was checked and returned with a revoked habitual
       traffic offender status. [The defendant] advised he was going to back up
       however, I made contact with him before he could do so.

              [The defendant] was arrested and charged with T.C.A. 55-10-616
       driving while restricted habitual traffic offender and transported to the Sullivan
       County Jail without incident.

       In case number S59963, the complaint states the underlying facts as follows:

              On Aug. 9, 2011 I, Inv. Brian Hess, was assigned a case of theft of
       jewelry from 1104 Carolina Ave. The complainant, Kenny Gross, told me he
       thought his step-son, [the defendant], was who took his jewelry while he was
       living at Kenneth’s residence and the amount totaled over $1000.

              On Sept. 1, 2011 Vinnie Gross reported to the police dept. that her son
       [the defendant] had stolen her check book and wrote three checks without her
       permission. Two checks were wrote in Bristol Tn. and one in Bristol Va.

              On September 19, 2011 I spoke with [the defendant]. [He] admitted to
       me that he had taken some of Kenneth’s jewelry and pawned it and he had also
       used two of his mother’s checks without her permission. [The defendant] told
       me he used one check at Belmont Package to purchase liquor. [He] told me
       that he signed his mothers name on both checks in Bristol, Tn.

        Based upon these actions, a Sullivan County grand jury indicted the defendant for: (1)
violating a habitual traffic offender order; (2) two counts of identity theft; (3) two counts of
theft over $1000; (4) two counts of forgery; and (5) theft under $500. The defendant pled
guilty to all offenses as indicted and received an effective sentence of four years, fines of

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$1000, and restitution. The agreement specifically provided that he would be able to request
an alternative sentence, which was to be determined by the trial court following a sentencing
hearing.

       A sentencing hearing was held on February 25, 2013, during which the trial court
extensively reviewed the defendant’s pre-sentence report, which was admitted into evidence.
The court noted the defendant’s prior criminal history, noting that it would not be considering
some of the offenses, and that the defendant had twice had alternative sentences revoked.
The court also reviewed the statements made by the defendant with regard to his physical and
mental health, as well as his assertions of childhood abuse and molestation. The court also
noted the defendant’s extensive history with alcohol and multiple drugs, as well as his
employment and family history.

       The defendant also testified at the hearing. He stated that he was thirty-nine years old
and currently resided with his parents, his fiancé, and their three-year old child. The
defendant also related that he had three other children that he supported with what he could
and saw very frequently. He further testified that he left school after the ninth grade, but he
did receive his GED and attend a technical college. The defendant also acknowledged that
he had not been formally employed by anyone since 2009, but he testified that he worked for
himself doing small construction jobs, roofing, or lawn care.

       The defendant stated that his physical health was not good because he had been unable
to obtain the treatment he needed following two car accidents. He testified that he had
problems with his neck, lower back, and teeth. The defendant acknowledged that he had
attended mental health counseling to aid him in dealing with the abuse and molestation he
suffered as a child. However, he acknowledged that he had voluntarily stopped attending
because he did not feel like he was being helped.

        The defendant also candidly acknowledged his history of drug and alcohol abuse. He
stated he began drinking at age 14 and that alcohol had played a role in the majority of his
prior criminal convictions. However, he also testified that he stopped drinking alcohol at
least one year prior to the sentencing hearing. The defendant also acknowledged that he
began using marijuana at age 11, and he later used cocaine, LSD, mushrooms, and morphine
thereafter. He denied that he had recently taken any of these narcotics and stated that his
drug of choice was suboxone. The defendant explained that this drug was obtained legally
at various pain management clinics in the area. However, it became so expensive that he was
unable to continue the treatment. Before he stopped treatment, the defendant had tried to cut
the strips of suboxone in half and retain some for later usage. He acknowledged that he had
taken some suboxone within one month of the sentencing hearing.



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       The defendant ended his testimony by noting that he was “done with alcohol.” He
further expressed remorse for the crimes he had committed and noted that he had never
previously been charged with a crime involving theft or dishonesty. An addendum was
added to the sentencing proof, which stated that when the defendant had been questioned by
police in the case that he had been cooperative and provided information.

       After hearing the evidence presented, the trial court concluded that: “The Defendant’s
presentence report is almost entirely negative. The unfavorable factors heavily outweigh any
potential favorable factors.” As a result, the trial court ordered that the sentence be served
in incarceration. The defendant now appeals that decision.

                                          Analysis

       On appeal, the defendant contends that the trial court “erroneously interpreted and
applied applicable law in denying [him] all forms of alternative sentencing.” We disagree.

       As an initial matter, we must note two errors which will require remand only for entry
of corrected judgment forms. Two errors appear in the record, more specifically upon the
judgments of convictions, entered by the trial court. In case number S59567 the judgment
of conviction reads that the trial court imposed a one-year sentence, which was suspended
to probation, for the violation of the habitual traffic offender order. In case number S59963,
specifically Count 6, it reflects a conviction for forgery and a sentence of three years.

        Our reading of the transcript of the sentencing hearing reveals a conflict with the
information on those forms. The trial court was quite clear in its ruling that any form of
alternative sentencing was being denied in both cases. Likewise, in case S59963 every
indication in the record, from the guilty plea to the indictment to the transcript itself, all
indicate that Count 6 was for theft of property over $1000, not forgery. The judgment does
reflect the correct sentence; however, it denotes the wrong crime. Generally, when there is
a conflict between the judgments of conviction and the transcript of the proceedings, the
transcript controls. State v. Crowe, 168 S.W.3d 731, 735 n.1 (Tenn. 2005). As such, we
must remand the case for entry of correct judgments of conviction to reflect the proper
convictions and sentences.

       Again, the only issue raised by the defendant is the denial of an alternative sentence.
When an accused challenges the length, range, or manner of service of a sentence, this court
will review the trial court’s decision under an abuse of discretion standard with a
presumption of reasonableness. State v. Bise, 380 S.W.3d 683, 707 (Tenn. 2012). This
presumption of reasonableness is granted to “within range sentencing decisions that reflect
a proper application of the purposes and principles of our Sentencing Act.” Id. The standard

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is also applicable to probation and alternative sentencing decisions. State v. Caudle, 388
S.W.3d 273, 278-79 (Tenn. 2012).

       In determining a defendant’s specific sentence and the appropriate applicable
sentencing alternatives, trial courts must consider the following:

       (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 §§ 40-35-113 and 40-35-114;
       (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 wishes to make in the defendant’s own behalf
       about sentencing.

T.C.A. § 40-35-210(b) (2010). The defendant has the burden of showing the impropriety of
the sentence on appeal. T.C.A. § 40-35-401(d), Sentencing Comm’n Cmts . Because the
2005 amendments to the Sentencing Act gave trial courts broad discretion in sentencing,
“sentences should be upheld so long as the statutory purposes and principles, along with any
applicable enhancement and mitigating factors, have been properly addressed.” Bise, 380
S.W.3d at 706. “Mere inadequacy in the articulation of the reasons for imposing a particular
sentence . . . should not negate the presumption” of reasonableness in the trial court’s
sentencing decision. Id. at 705-06. “So long as there are other reasons consistent with the
purposes and principles of sentencing, as provided by statute, a sentence imposed by the trial
court within the appropriate range should be upheld.” Id.

       Any sentence that does not involve complete confinement is an alternative sentence.
State v. Fields, 40 S.W.3d 435 (Tenn. 2001). Tennessee Code Annotated section 40-35-
102(6)(A) states that a defendant who does not require confinement under subsection (5) 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[.]”

      In determining whether to deny alternative sentencing and impose a sentence of total
confinement, the trial court must consider if:

       (A) Confinement is necessary to protect society by restraining a defendant who
       has a long history of criminal conduct;


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       (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[.]

§ 40-35-103(1)(A)-(C) . The principles of sentencing 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 [.]”
T.C.A. § 40-35-103(5).

        A trial court’s determination of whether a defendant is entitled to an alternative
sentence and whether a defendant is a suitable candidate for full probation are different
inquires with different burdens of proof. State v. Boggs, 932 S.W.2d 467, 477 (Tenn. Crim.
App. 1996). Defendants convicted of crimes not specifically excluded by statute and
receiving sentences of ten years or less are eligible for probation. T.C.A. § 40-35-303(a).
However, no criminal defendant is automatically entitled to probation as a matter of law.
State v. Davis, 940 S.W.2d 558, 559 (Tenn. 1997). Indeed, the defendant has the burden of
establishing his or her suitability for full probation. State v. Carter, 254 S.W.3d 335, 347
(Tenn. 2008). To do so, a defendant must demonstrate that probation will “subserve the ends
of justice and the best interests of the public and the defendant.” Id. at 347. 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. Kendrick,
10 S.W.3d 650, 656 (Tenn. Crim. App. 1999) (citing State v. Grear, 568 S.W.2d 285, 286
(Tenn. 1978). Moreover, the Tennessee 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 158, 160 (Tenn. 1983).

       Again, the defendant argues that the trial court abused its discretion by denying him
all forms of alternative sentencing. He contends that the trial court “gave no weight to any
evidence presented other than the [defendant’s] record of prior convictions.” In support of
his argument, he points out the positive factors in his life such as his supportive relationship
with his children and his obtaining his GED, that his record was mostly driving offenses, and
his abstinence from alcohol. The defendant argues that it is not necessary that he be

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restrained to protect society and that no evidence was presented to show his confinement
would be a deterrent to others.

        After reviewing the record, we disagree with the defendant’s contention that the trial
court relied exclusively upon his prior record in reaching the decision to deny an alternative
sentence. Our reading of the court’s statements reflect that the trial court said that the
“presentence report is almost entirely negative. The unfavorable factors heavily outweigh
any potential favorable factors.” Granted the defendant’s prior criminal history is one of
those factors contained in the report; however, it is not the only factor. The report contained
the circumstances of the offense, the defendant’s social history, health questions, admitted
drug abuse, prior revocations of probation, and other pertinent information. The trial court
reviewed the report on the record, noting items from each section, and the favorableness or
lack there of with regard to each. Additionally, the court clearly heard testimony from the
defendant regarding the information contained in the report.

         We conclude that no abuse of discretion occurred in the court’s decision to deny the
defendant an alternative sentence. The defendant has previously violated the conditions of
an alternative sentence which he was given, has an extensive criminal history of prior
convictions and admitted behavior, and committed crimes against his parents. Based upon
all the facts contained within the record, we reject the defendant’s contention to conclude that
the trial court erred in reaching its sentencing decision.

                                       CONCLUSION

       Based upon the foregoing, the denial of alternative sentencing is affirmed.




                                                    _________________________________

                                                    JOHN EVERETT WILLIAMS, JUDGE




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