        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                            Assigned on Briefs May 18, 2011

               STATE OF TENNESSEE v. GEORGIA ANN TATE

            Direct Appeal from the Criminal Court for Putnam County
  Nos. 08-194B, 08-1029, 08-0294B, 08-1028B, & 08-1029C     Leon Burns, Judge




                No. M2010-00979-CCA-R3-CD - Filed January 30, 2012


Pursuant to a negotiated plea agreement Defendant, Georgia Ann Tate, pled guilty to three
counts of the sale of less than 0.5 grams of cocaine, and received a sentence of five years for
each count, to be served concurrently with each other. Also, pursuant to the plea agreement,
she pled guilty to one count of sale of 0.5 grams or more of cocaine and received a sentence
of eight years to be served consecutively to the other sentences, for an effective sentence of
thirteen years. The manner of service of the effective sentence was agreed to be determined
by the trial court. Other pending charges were dismissed. The trial court ordered the entire
effective sentence to be served by incarceration. Defendant argues on appeal that the trial
court erred by denying her an alternative sentence. We affirm the judgments of the trial
court.

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

T HOMAS T. W OODALL, J., delivered the opinion of the court, in which J AMES C URWOOD
W ITT, J R., J., joined. J UDGE J.C. M CL IN was originally on the panel to which this case was
assigned. Judge McLin died September 3, 2011, and we acknowledge his faithful service to
this Court.

Eugenia R. Grayer, Nashville, Tennessee, for the appellant, Georgia Ann Tate.

Robert E. Cooper, Jr., Attorney General and Reporter; Meredith Devault, Assistant Attorney
General; Randall A. York, District Attorney General; Douglas Crawford, Assistant District
Attorney General; for the appellee, the State of Tennessee.




                                         OPINION
I. Background

       In the guilty plea submission hearings, the State provided the factual basis for each
charge. In each case Defendant participated, in 2008, in the sale of cocaine to undercover
officers of the Putnam County Sheriff’s Department or the Cookeville City Police.

        At the sentencing hearing, Lindsey Houston, an employee of the Tennessee Board of
Probation and Parole, testified that she prepared a presentence report in this case. She
confirmed that Defendant pled guilty to two felony cocaine charges in the Franklin County
Circuit Court on August 24, 1995, and received an eight-year sentence on community
corrections. Ms. Houston testified that on November 12, 1997, and on June 5, 1998, while
still on probation in the community corrections program, Defendant committed felony
cocaine offenses in Franklin County and on September 24, 1998, received an effective four-
year sentence to be served consecutively to the eight-year sentence. Ms. Houston testified
that Defendant’s probation in the first two cases was revoked on June 9, 1998, because she
absconded supervision. She said that Defendant was released on parole on June 28, 2000,
and was supervised out of Wilson County, Coffee County, and then eventually transferred
to Putnam County.

       Ms. Houston testified that Defendant committed another felony cocaine offense on
May 4, 2002, while on parole. She pled guilty to the offense on January 11, 2005, in the
Franklin County Circuit Court and received a three-year suspended sentence to the
community corrections program to be served consecutively to the previous sentences of eight
years and four years for an effective fifteen-year sentence. Ms. Houston agreed that the fact
that Defendant was in violation of her parole when she was again placed on community
corrections was overlooked.

       Ms. Houston testified a drug screen was administered to Defendant on December 21,
2009, and was negative for all drugs tested. Defendant indicated that she was living at the
Dismas House in Cookeville and was employed by the Clarion Inn in the laundry
department. Ms. Houston agreed that Defendant had drug offenses that dated back to
November 19, 1993.
       On cross-examination, Ms. Houston testified that she had a personal meeting with
Defendant, and they discussed Defendant’s prior narcotic usage. Ms. Houston said:

       She reported an addiction to crack cocaine, dating back to her first use at
       approximately 1997. And she stated that she was using three to four rocks a
       day approximately every other day, and that lasted for about two years. In
       1999, she reported that she went to rehab. She had stayed at the Dismas House
       before, and completed that program. She reported that she’s been clean since
       1999.

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Defendant told Ms. Houston that she was at the Dismas House for eight months. Ms.
Houston testified that Defendant indicated that she began using marijuana at the age of
nineteen, which lasted for around one year. She said that Defendant received her first
treatment in 2000 at Pathfinders while she was on parole supervision. Ms. Houston testified
that Defendant had been at the Dismas House since February of 2009, and Defendant
indicated that she had been attending Narcotics Anonymous and Alcoholics Anonymous
meetings. She also provided proof of employment.

        Kim England, the Executive Director of the Dismas House in Cookeville, explained
that the Dismas House is a “transitional living facility for former offenders, both male and
female.” She also said that they offered transitional services for former offenders. Ms.
England testified that offenders may remain in the program up to two years. She testified
that Defendant called her in October or November of 2008, to see if there were any available
beds at the Dismas House. Defendant then entered the program on February 11, 2009.
Concerning Defendant’s behavior, Ms. England stated:

       She’s been very compliant. She’s actually a mentor to a lot of the new
       residents that come in. Of course, you know, our residents face everyday
       struggles, and, you know, she’s always been, you know, the first one to kind
       of aid a struggling resident, or trying to lift them up. She interacts well with
       the volunteers that come. She’s always willing to, you know, go above and
       beyond as far as what our needs are there at the Dismas House, whether it be
       helping around the house or within the program, or even mentoring to new
       residents or, you know, helping, you know, with volunteers when they come,
       or whatever. She’s - - I mean, she’s very compliant.

Ms. England testified that Defendant had a mental health assessment the day before the
sentencing hearing. She said that the report indicated that Defendant had Post Traumatic
Stress Disorder (PTSD):

       [W]hich stems from a number of trauma circumstances throughout her life.
       Not just one particular incident, but there was a series of those, that maybe I’m
       not qualified to bring up since I don’t have the report, but it does stem back
       from childhood.

Ms. England testified that Defendant has a “deep sense of moral obligation to take care of
her family” and that her mother and a number of family members depend on her for “moral,
support, or financial assistance.”

       Ms. England testified that Defendant was caring for her mother in 2008 when the
present charges occurred and that her mother, who had Alzheimer’s disease, and other family

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members were living with her at the time. She said that Defendant’s sister, Clemmie
Brannon, also had a narcotics addiction. Ms. England testified that if Defendant was allowed
to remain at the Dismas House, any violations would be reported to the Board of Probation
and Parole. She noted that Defendant had been given routine drug tests, and all of them were
negative. Ms. England was aware of Defendant’s past history with drugs, and it was
common for someone to transition from using drugs to selling them, which she would
consider to be a relapse. Ms. England then read two character references for Defendant into
the record.

       Gail Prewett was the General Manager at the Clarion Inn on South Jefferson Street
in Cookeville. She said that Defendant had been employed by the Inn for approximately
one year and was in charge of the laundry. Ms. Prewett confirmed that Defendant would be
allowed to keep her job if placed on community corrections. She said that Defendant was
an excellent employee and has “six housekeepers that she takes care of, in addition to all of
the laundry for the hotel, and our banquet, and restaurant, and bar.”

       II. Standard of Review

        Defendant argues that the trial court erred in denying her alternative sentencing
including community corrections. She contends that at the sentencing hearing, “it was
demonstrated that the Appellant was amenable to treatment, and that her criminal and
addictive behavior was likely rooted in Post Traumatic Stress Disorder.” On appeal, the
party challenging the sentence imposed by the trial court has the burden of establishing that
the sentence is improper. See T.C.A. § 40-35-401, Sentencing Comm'n Comments; see also
State v. Arnett, 49 S.W.3d 250, 257 (Tenn. 2001). When a defendant challenges the length,
range, or manner of service of a sentence, it is the duty of this Court to conduct a de novo
review on the record with a presumption that the determinations made by the court from
which the appeal is taken are correct. T.C.A. § 40-35-401(d). This presumption of
correctness, however, “‘is conditioned upon the affirmative showing in the record that the
trial court considered the sentencing principles and all relevant facts and circumstances.’”
State v. Carter, 254 S.W.3d 335, 344-45 (Tenn. 2008) (quoting State v. Ashby, 823 S.W.2d
166, 169 Tenn. 1991)). “If, however, the trial court applies inappropriate mitigating and/or
enhancement factors or otherwise fails to follow the Sentencing Act, the presumption of
correctness fails,” and our review is de novo. Carter, 254 S.W.3d at 345 (quoting State v.
Shelton, 854 S.W.2d 116, 123 (Tenn. Crim. App. 1992); State v. Pierce, 138 S.W.3d 820,
827 (Tenn. 2004)).

       In conducting a de novo review of a sentence, this Court must consider (a) the
evidence adduced at the trial and the sentencing hearing; (b) the presentence report; (c) the
principles of sentencing and arguments as to sentencing alternatives; (d) the nature and
characteristics of the criminal conduct involved; (e) evidence and information offered by the

                                             -4-
parties on the enhancement and mitigating factors set forth in Tennessee Code Annotated
sections 40-35-113 and 40-35-114; (f) any statistical information provided by the
Administrative Office of the Courts as to Tennessee sentencing practices for similar offenses;
and (g) any statement the defendant wishes to make in the defendant's own behalf about
sentencing. T.C.A. § 40-35-210(b); see also Carter, 254 S.W.3d at 343; State v. Imfeld, 70
S.W.3d 698, 704 (Tenn. 2002).

        Effective June 7, 2005, our legislature amended Tennessee Code Annotated section
40-35-102(6) by deleting the statutory presumption that a defendant who is convicted of a
Class C, D, or E felony, as a mitigated or standard offender, is a favorable candidate for
alternative sentencing. Our sentencing law now provides that a defendant who does not
possess a criminal history showing a clear disregard for society's laws and morals, who has
not failed past rehabilitation efforts, 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. T.C.A. § 40-35-
102(5), (6) (emphasis added). Additionally, a trial court is “not bound” by the advisory
sentencing guidelines; rather it “shall consider” them. Id. § 40-35-102(6).

        As of June 7, 2005, no longer is any defendant entitled to a presumption that he or she
is a favorable candidate for probation. Carter, 254 S.W.3d at 347. Generally, defendants
classified as Range II or Range III offenders are not to be considered as favorable candidates
for alternative sentencing.      T.C.A. § 40-35-102(6). 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;

       (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....

T.C.A. § 40-35-103(1); see also Carter, 254 S.W.3d at 347. Additionally, the principles of
sentencing reflect that the sentence should be no greater than that deserved for the offense
committed and should be the least severe measure necessary to achieve the purposes for
which the sentence is imposed. T.C.A. § 40-35-103(2), (4). The court should also consider
the defendant's potential for rehabilitation or treatment in determining the appropriate
sentence.

                                              -5-
        The determination of entitlement to full probation necessarily requires a separate
inquiry from that of determining whether a defendant is entitled to an alternative sentence.
See State v. Bingham, 910 S.W.2d 448, 455 (Tenn. Crim. App. 1995), overruled on other
grounds by State v. Hooper, 29 S.W.3d 1, 9-10 (Tenn. 2000). A defendant is required to
establish his suitability for full probation as distinguished from his favorable candidacy for
alternative sentencing in general. State v. Mounger, 7 S.W.3d 70, 78 (Tenn. Crim. App.
1999); see T.C.A. 40-35-303(b) (2006); Bingham, 910 S.W.2d at 455-56. A defendant
seeking full probation bears the burden of showing that probation will subserve the ends of
justice and the best interest of both the public and the defendant. State v. Dykes, 803 S.W.2d
250, 259 (Tenn. Crim. App. 1990), overruled on other grounds by Hooper, 29 S.W.3d at 9.
As the Sentencing Commission points out, “even though probation must be automatically
considered as a sentencing option for eligible defendants, the defendant is not automatically
entitled to probation as a matter of law.” Id. § 40-35-303, Sentencing Comm’n Cmts.

        Pursuant to statute, offenders who satisfy the following minimum criteria are eligible
for participation in a community corrections program:

       (A) Persons who, without this option, would be incarcerated in a correctional
       institution;

       (B) Persons who are convicted of property-related, or drug- or alcohol-related
       felony offenses or other felony offenses not involving crimes against the
       person as provided in title 39, chapter 13, parties 1-5;

       (C) Persons who are convicted of nonviolent felony offenses;

       (D) Persons who are convicted of felony offenses in which the use or
       possession of a weapon was not involved;

       (E) Persons who do not demonstrate a present or past pattern of behavior
       indicating violence;

       (F) Persons who do not demonstrate a pattern of committing violent offenses
       [.]

T.C.A. § 40-36-106(a). Section (c) of this same statute, which is sometimes referred to as the
“special needs” provision, states:

       Felony offenders not otherwise eligible under subsection (a), and who would
       be usually considered unfit for probation due to histories of chronic alcohol,
       drug abuse, or mental health problems, but whose special needs are treatable

                                             -6-
       and could be served best in the community rather than a correctional
       institution, may be considered eligible for punishment in the community under
       the provisions of this chapter.

In other words, felons not otherwise eligible under the criteria of subsection (a) are eligible
under subsection (c) of Tennessee Code Annotated section 40-36-106 if they are unfit for
probation due to a history of chronic alcohol or drug abuse or mental health problems, but
their special needs are better treatable in a community corrections program than in
incarceration. An offender must also be eligible for probation in order to qualify for a
community corrections sentence under subsection (c). State v. Staten, 787 S.W.2d 934, 936
(Tenn. Crim. App. 1989); State v. George C. Peery, III, No. E2008-00086-CCA-R3-CD,
2009 WL 537064, at *4 (Tenn. Crim. App., at Knoxville, Mar. 4, 2009).

       However, even though an offender meets the requirements for eligibility for
community corrections, he or she is not automatically entitled to such relief. State v. Ball,
973 S.W.2d 288, 294 (Tenn. Crim. App. 1998); State v. Taylor, 744 S.W.2d 919, 922 (Tenn.
Crim. App. 1987). Rather, the statute provides that the criteria shall be interpreted as
minimum standards to guide a trial court’s determination of whether that offender is eligible
for community corrections. T.C.A. § 40-36-106(d).

       In this case, we initially note that defendant was convicted of a Class B felony in Case
No. 08-0294. Therefore, she should not be considered a favorable candidate for alternative
sentencing in that case. Nonetheless, she remains eligible for an alternative sentence because
her individual sentences were ten years or less and the offenses for which she was convicted
are not specifically excluded by statute. T.C.A. §§ 40-35-102(6), -303(a).

       The trial court in this case denied alternative sentencing based on Defendant’s “rather
lengthy history of offenses.” The court further found that “confinement is necessary to avoid
depreciating the seriousness of the offense, or confinement is particularly suited to provide
an effective deterrent to others likely to commit similar offenses.” The trial court noted that
Defendant had failed to accept responsibility for her actions, and the court also essentially
found that measures less restrictive than confinement had frequently or recently been applied
unsuccessfully to Defendant. The trial court noted that she was on probation or parole at the
time of the offenses in this case and that her violations of parole and probation indicated that
Defendant was not a “very good candidate for rehabilitative prospects.”

       The record supports the trial court’s findings. The presentence report indicates that
Defendant has at least five prior felony convictions involving drugs and two misdemeanor
convictions involving drugs. She also has prior convictions for theft of property, and two
convictions for driving on a revoked license. In the presentence report, Defendant admitted
that she began using marijuana at the age of nineteen and continued to use the substance

                                              -7-
twice a day for a year. She then began using crack cocaine in 1997 and admitting to using
three to four rocks every other day for a period of two years. Defendant has been placed on
community corrections in the past, which she violated, and she also violated her parole. In
fact, Ms. Houston testified that Defendant received a suspended three-year sentence on
community corrections in 2005, and that no one caught the fact that Defendant was in
violation of her parole when she was again placed on community corrections. It appears that
Defendant was on community corrections at the time of the present offenses.

       As for Defendant’s failure to accept responsibility for her actions, the presentence
report contained the following statement concerning Defendant’s version of the offenses: “I
was selling crack & I sold to a under cover but I didn’t sale [sic] to them, it was not me, but
my lawyer said I wouldn’t win so I cop [sic] out on it.” Defendant’s failure to accept
responsibility for her actions reflects poorly upon her potential for rehabilitation. See State
v. Dowdy, 894 S.W.2d 301, 306 (Tenn. Crim. App. 1994).

       Consequently, we affirm the judgment of the trial court ordering Defendant to serve
her sentence in confinement.

                                      CONCLUSION

       For the foregoing reasons, the judgments of the trial court are affirmed.


                                                    ___________________________________
                                                    THOMAS T. WOODALL, JUDGE




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