                                                                                          05/01/2019
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                          Assigned on Briefs March 20, 2019

        STATE OF TENNESSEE v. DENERRA ROSE MCTAGGART

                  Appeal from the Circuit Court for Bedford County
                   Nos. 18725, 18737 Forest A. Durard, Jr., Judge
                      ___________________________________

                           No. M2018-00747-CCA-R3-CD
                       ___________________________________

The Defendant, Denerra Rose McTaggart, pleaded guilty to initiation of a process to
manufacture methamphetamine and failure to appear. The trial court sentenced the
Defendant to serve ten years of incarceration for the initiation of a process to manufacture
methamphetamine conviction, followed by two years of probation for the failure to
appear conviction. On appeal, the Defendant contends that the trial court improperly
denied alternative sentencing. After review, 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 J. ROSS DYER, JJ., joined.

Michael J. Collins, Shelbyville, Tennessee, for the appellant, Denerra Rose McTaggart.

Herbert H. Slatery III, Attorney General and Reporter; Katherine C. Redding, Assistant
Attorney General; Robert J. Carter, District Attorney General; and Michael D. Randles,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                        OPINION
                                         I. Facts

       This case arises from products associated with the manufacture of
methamphetamine found in the Defendant’s shed. She subsequently failed to appear for
court after her release from jail on bond. As a result, a Bedford County grand jury
indicted the Defendant for initiation of a process to manufacture methamphetamine, a
Class B felony, and failure to appear, a Class E felony.

      At the guilty plea submission hearing, the State submitted that on February 15,
2016, Jayden Case, who had been staying with the Defendant, notified the Sheriff’s
Department about her concern that there was illegal drug activity occurring in the shed on
the Defendant’s property. Inside the shed, law enforcement found items associated with
the manufacture of methamphetamine: plastic bottles with residue, mason jars with fluid,
a jug of muriatic acid, a Powerade bottle containing ammonia nitrate, another Powerade
bottle with tubing, an empty “jug” of Coleman fuel, coffee filters, “an improvised funnel,
empty containers of Wal-phed which contains pseudoephedrine, twelve lithium battery
casings, rubber gloves, fiber mesh filter screens, small baggies with ammonia nitrate,
loose pieces of tubing and a receipt for the purchase of pseudephedrine.

       When speaking with law enforcement, Ms. Case admitted that she and the
Defendant had “been cooking meth” in the shed. The Defendant also admitted to law
enforcement that “she had done some meth cooks in the shed.” After her arrest for this
offense, the Defendant was released on bond and subsequently failed to appear for a
General Sessions Court appearance. The Defendant agreed to the facts as submitted by
the State and entered a plea of guilty to initiation of a process to manufacture
methamphetamine and failure to appear.

       At a subsequent sentencing hearing, the parties agreed that the Defendant should
be sentenced as a Range I offender. At the State’s request, the trial court admitted the
presentence report. The State asked the trial court to note that the Defendant had two
outstanding probation revocation charges. The presentence report is included in the
record and reflects three Rutherford County misdemeanor theft of property convictions
with offense dates of: October 2, 2015, March 10, 2015, and November 10, 2014. The
October 2015 offense shows a disposition date of December 14, 2015 and that the
Defendant received a supervised probation sentence. A probation violation was issued
for the October 2015 conviction on March 8, 2016, which was still pending at the time of
the sentencing hearing in this case. The March 2015 and November 2014 offenses show
a June 15, 2015 disposition date and that the Defendant received supervised probation
sentences for both convictions. The trial court revoked probation in both cases on
December 14, 2015, and it extended the probation sentences.

       The record also includes a September 18, 2015 Bedford County citation for the
Defendant, charging her with possession of drug paraphernalia and notifying her of the
court date in the matter. The record also contains two subsequent complaints for the
Defendant’s failure to appear in court on November 18, 2015, and February 10, 2016,
related to the possession of drug paraphernalia charge.

      The Defendant testified that she had prior convictions for theft that were related to
her drug addiction. She explained that she stole items to “sustain [her] habit.” The
Defendant expressed regret about how her drug addiction had affected her past behavior.
The Defendant agreed that she had two probation violations and explained that those
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charges also related to her drug addiction and “not wanting to own up to [her]
responsibilities.” She once again acknowledged that her decision-making in those
situations was “wrong.”

       The Defendant recalled that her drug use began when her mother died. The
Defendant was fifteen years old at the time. She initially used opioids, alcohol, and
marijuana to “drown” her problems. She said that her drug use turned into a “full blown
addiction,” and caused her to become a person she did not recognize. She described her
current circumstances in jail as “a blessing in disguise” and as the impetus for change and
growth in her life.

       The Defendant testified that while in jail she had been studying her Bible and
attending church. Additionally, she researched treatment options avaible to her upon
release. Specifically, she contacted Doors of Hope in Murfreesboro. She confirmed that
she had family support in the area should the trial court order a sentence involving
release.   The Defendant submitted a letter from a jail employee speaking to the
Defendant’s character, and the trial court entered the letter into evidence.

       On cross-examination, the Defendant agreed that she was serving two separate
Rutherford County probation sentences for theft at the time she was arrested for the
current offenses. Her probation sentence had been revoked as to one set of charges in
Rutherford County. The Defendant agreed that she was also charged in Bedford County
with possession of drug paraphernalia and failure to appear on two occasions. The
Defendant admitted that she was also serving the Bedford County probation sentences
related to those convictions at the time she was arrested for the offenses at issue in this
appeal. She further agreed that she had two pending probation revocation charges in
Bedford County.

        The parties agreed as to the applicability of enhancement factor (1), that the
Defendant had a previous history of criminal convictions or behavior beyond those used
to establish the Defendant’s sentencing range, enhancement factor (8), that the Defendant
failed to comply with the conditions of a sentence involving release into the community,
and enhancement factor (13) that the Defendant was released on probation at the time she
committed the instant offenses. T.C.A. § 40-35-114(1), (8), (13) (2014). The trial court
considered the Defendant’s personal situation related to the loss of her mother at a young
age as a mitigating factor. The trial court imposed a ten-year sentence for the initiation of
a process to manufacture methamphetamine conviction and a two-year sentence for the
failure to appear conviction.

      The trial court then considered alternative sentencing and noted that it had
reviewed the presentence report and considered the Defendant’s social history, criminal
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history, and the facts surrounding the offense. The trial court noted the escalation of the
types of offenses the Defendant committed from misdemeanor thefts to felony offenses in
the current case. The trial court found the Defendant’s potential for rehabilitation low
and the risk for violation of an alternative sentence high due to her previous violations of
sentences involving release into the community. The Defendant’s past failed attempts at
probation sentences and her recurring criminal behavior while serving probation
sentences indicated to the trial court that the Defendant would not abide by the terms of a
probation sentence. The trial court again relied on the presentence report in concluding
that measures less restrictive than confinement had been frequently and recently applied
with no success. The trial court expressed concern over the Defendant’s young age and
agreed with the Defendant’s attorney that the Defendant was “at a crossroads.”

       In considering all these factors, the trial court ordered the Defendant to serve the
ten-year sentence in confinement with the two-year sentence for the failure to appear
conviction to be served consecutively, but on supervised probation rather than
confinement. It is from these judgments that the Defendant appeals.

                                       II. Analysis

       On appeal, the Defendant contends the trial court erred when it denied her an
alternative sentence. The Defendant argues that alternative sentencing was warranted in
this case because her criminal record does not evince “a clear disregard for the laws of
society” and because she expressed a desire for rehabilitation; therefore, the trial court
should have granted some form of alternative sentencing. The State responds that the
record shows that the trial court considered the request for alternative sentencing and
exercised its sound discretion in imposing confinement. We agree with the State.

       The standard of review for questions related to probation or any other alternative
sentence is “‘an abuse of discretion standard of review, granting 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. Caudle, 388 S.W.3d 273,
278-79 (Tenn. 2012) (citing State v. Bise, 380 S.W.3d 682, 707 (Tenn. 2012). With
regard to alternative sentencing, Tennessee Code Annotated section 40-35-102(5) (2014)
provides as follows:

       In recognition that state prison capacities and the funds to build and
       maintain them are limited, convicted felons committing the most severe
       offenses, possessing criminal histories evincing a clear disregard for the
       laws and morals of society, and evincing failure of past efforts at
       rehabilitation shall be given first priority regarding sentencing involving
       incarceration.
                                           -4-
A defendant shall be eligible for probation, subject to certain exceptions, if the sentence
imposed on the defendant is ten years or less. T.C.A. § 40-35-303(a) (2014). A
defendant is not, however, automatically entitled to probation as a matter of law. The
burden is upon the defendant to show that he or she is a suitable candidate for probation.
T.C.A. § 40-35-303(b) (2014); State v. Goode, 956 S.W.2d 521, 527 (Tenn. Crim. App.
1997); State v. Boggs, 932 S.W.2d 467, 477 (Tenn. Crim. App. 1996). In order to meet
this burden, the defendant “must demonstrate that probation will ‘subserve the ends of
justice and the best interest of both the public and the defendant.’” State v. Bingham, 910
S.W.2d 448, 456 (Tenn. Crim. App. 1995) (quoting State v. Dykes, 803 S.W.2d 250, 259
(Tenn. Crim. App. 1990)).

       There is no bright line rule for determining when a defendant should be granted
probation. Bingham, 910 S.W.2d at 456. Every sentencing decision necessarily requires
a case-by-case analysis considering “the nature of the offense and the totality of the
circumstances . . . including a defendant’s background.” State v. Ashby, 823 S.W.2d 166,
168 (Tenn. 1991) (quoting State v. Moss, 727 S.W.2d 229, 235 (Tenn. 1986)). In
determining if incarceration is appropriate in a given case, a trial court should consider
whether:

       (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) (2014). 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.

       The record supports the trial court’s findings in this case. The trial court based its
decision to deny an alternative sentence upon the Defendant’s criminal record and the
Defendant’s unsuccessful past attempts at completing an alternative sentence. These
factors are all well-supported by the evidence. The presentence report shows numerous
convictions and charges against the Defendant related to her drug addiction. The
Defendant has demonstrated a history of non-compliance with alternative sentences and
was serving a probation sentence when she committed the present offense. While the
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Defendant was eligible for probation because her sentence was ten years, she failed to
carry her burden of proving suitability for probation. The Defendant has not established
that the trial court abused its discretion when it denied her request for an alternative
sentence. The Defendant is not entitled to relief.

                                    III. Conclusion

        After a thorough review of the record and relevant authorities, we conclude the
trial court properly denied the Defendant an alternative sentence. As such, we affirm the
trial court’s judgments.




                                            ____________________________________
                                                 ROBERT W. WEDEMEYER, JUDGE




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