                                                                                       05/25/2018
       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                        AT NASHVILLE
                          Assigned on Briefs April 18, 2018

           STATE OF TENNESSEE v. WILLIAM S. VANWINKLE

               Appeal from the Circuit Court for Rutherford County
               No. F-72538, F-74515, M-75892    Royce Taylor, Judge


                            No. M2017-00812-CCA-R3-CD


The Defendant, William S. Vanwinkle, pleaded guilty in case numbers F-72538 and F-
74515 to initiating a process intended to result in the manufacture of methamphetamine,
see T.C.A. § 39-17-435, and in case number M-75892 to shoplifting, see id. § 39-14-146.
In this appeal, the Defendant contends that the twenty-year effective sentence imposed in
this case is excessive and that the trial court erred by denying all forms of alternative
sentencing. After a thorough review of the record, the briefs of the parties, and the
applicable law, we affirm the judgments of the trial court.

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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which ROBERT W.
WEDEMEYER and CAMILLE R. MCMULLEN, JJ., joined.

William Henry Stover, Nashville, Tennessee, for the Appellant, William S. Vanwinkle.

Herbert H. Slatery III, Attorney General and Reporter; Renee W. Turner, Senior Counsel;
Jennings H. Jones, District Attorney General; and Allen D. Hale, Assistant District
Attorney General, for the Appellee, State of Tennessee.

                                       OPINION

                      FACTS AND PROCEDURAL HISTORY

       On January 18, 2017, the Defendant pleaded guilty in case number F-72538 to one
count of initiating a process intended to result in the manufacture of methamphetamine,
in case number F-74515 to one count of initiating a process intended to result in the
manufacture of methamphetamine, and in case number M-75892 to one count of
shoplifting. The transcript of the guilty plea submission hearing was not made a part of
the record on appeal.
        At the March 21, 2017 sentencing hearing, Rutherford County Sheriff’s Office
Deputy Michael Paul Moody testified that on May 21, 2014, he went to a residence to
serve an active criminal warrant on Ms. Lisa Martin. Deputy Moody found Ms. Martin at
that address and placed her under arrest. While he was at the residence, he encountered
the Defendant and Ms. Martin’s mother, Ms. Theresa Busey. Deputy Moody transported
Ms. Martin “to booking and served the warrant,” and, as he was leaving the sheriff’s
office, he “heard a call coming out” at the residence of “an unwanted guest situation.”

       Deputy Moody and other deputies went to the residence and encountered Ms.
Busey, who indicated that she wanted the Defendant to leave the property. Initially, Ms.
Busey and the Defendant argued about Ms. Martin’s purse, and, eventually, Ms. Busey
indicated that the Defendant was preventing her from accessing a barn at the rear of her
property. Deputy Moody walked around the barn at issue and observed two burn piles.
“In the burn piles were some mason jars with white residue [and] lithium strips from
busted batteries.” Near the barn, Deputy Moody observed “a jug of muriatic acid and
some empty lighter fluid bottles laying around.”

       Deputy Moody testified that he had encountered methamphetamine manufacturing
laboratories as part of his duties and that, as a result, he had some familiarity with the
accoutrement to the manufacture of methamphetamine. He said that the items located
inside the burn piles and near the barn were typically involved in the manufacture of
methamphetamine. Ms. Busey granted Deputy Moody permission to enter the barn, but
the door was locked with a padlock. Ms. Busey did not have a key to the lock, and she
told Deputy Moody that the Defendant “had threatened her with physical violence if she
went anywhere near” the barn. The Defendant denied any knowledge of the lock and any
ownership interest in the barn. Ms. Busey provided Deputy Moody her written consent to
cut the padlock with bolt cutters and enter the barn.

       Immediately upon entering the barn, a deputy from the narcotics division ordered
everyone out of the barn because “there was something smoking in the back of the
building.” Deputy Moody observed “a coke bottle with a rubber hose coming out of it”
as well as other items generally associated with an active methamphetamine
manufacturing operation.

       After other deputies retrieved all the items from the barn, Deputy Moody placed
the Defendant under arrest and transported him to the sheriff’s office. During the
booking process, officers discovered the key to the padlock in the Defendant’s pants
pocket.



                                           -2-
       Ms. Busey testified that in February of 2014, the Defendant, whom she had never
met, came to the back door of her residence in apparent physical distress and asked to see
Ms. Martin. Ms. Busey said that the Defendant stayed at the residence from that point
until his May 2014 arrest and that Ms. Martin nursed a bad burn that went from “the
upper part of his body down to the knees.” Ms. Busey said that the Defendant told them
he had been burned when “his radiator had blowed [sic] up.” Ms. Busey recalled that the
Defendant remained bedridden for “[t]wo or three weeks to a month.” After the
Defendant began moving around independently, he began to go out to the barn “every
day or every night. If he didn’t come during the day, he would come at night.”

       Ms. Busey said that when the Defendant and Ms. Martin began to frequent the
barn, they changed the locks and forbade Ms. Busey from entering it. The Defendant and
Ms. Martin also forbade Ms. Busey from attending her church. Around this same time,
the Defendant began “burning trash in the yard.” She said, “He burnt more trash out
there what time he was there than I burnt out there my whole life out there.”

       Ms. Busey recalled that immediately after Ms. Martin was arrested, the Defendant
“started prowling through everything [Ms. Martin] had,” saying that “he was going to get
the money to go get her out.” When Ms. Busey saw the Defendant with Ms. Martin’s
purse, she asked him to leave, and he refused. Ms. Busey called the police. When the
police arrived, Ms. Busey gave them permission to enter the barn but told them that she
did not have a key to the lock that had been placed on the door to the barn.

       Ms. Busey said that because the barn had been used to manufacture
methamphetamine, state authorities had placed it under quarantine. She said that
authorities told her that the barn would have to be decontaminated before it could be used
again or sold.

        Ms. Busey acknowledged having purchased cold medication for the Defendant
during the time that he stayed at her house because she “thought he was sick.” She did
not suspect that the Defendant and Ms. Martin were manufacturing methamphetamine
and instead thought they were stealing her possessions. She thought the Defendant would
leave after Ms. Martin was arrested. She wanted the Defendant gone before then, but she
had not asked him to leave because she did not want to upset Ms. Martin. Ms. Busey
testified that after the Defendant moved in, she “couldn’t keep money” in her purse and
that she “had to sleep in [her] clothes and keep it in [her] bra and in [her] pants.”

       Ms. Tasha Luscinski testified that on May 21, 2014, Ms. Martin came to her
residence in a vehicle driven by the Defendant. Ms. Luscinski described what happened
next, “She said can you do me a favor. Can you run down to the store and get me some
medicine? They won’t sell it to me.” Ms. Luscinski agreed and got into the vehicle with
                                           -3-
the Defendant and Ms. Martin. When they arrived at a drugstore, they told Ms. Luscinski
to purchase Allegra D and provided her with $40. Ms. Luscinski recalled that the
medication cost only $15, but the Defendant told her to keep the change.

       Rutherford County Sheriff’s Office Detective Curtis Brinkley testified that he had
extensive training in the detection and investigation of methamphetamine manufacturing
operations. Detective Brinkley was called to the residence to investigate a possible
methamphetamine manufacturing operation. When he arrived, other officers advised that
“they had already found some items they believed to be associated with
methamphetamine production” and “that there was some type of fume coming out of the
storage building.” Detective Brinkley testified that all of the materials necessary for the
manufacture of methamphetamine using what he called the “one-pot” or “shake and
bake” method were present in and around Ms. Busey’s barn and that officers located an
“active gasser” inside the barn. He said that particular process for manufacturing
methamphetamine was extremely volatile and could result in severe burns. Detective
Brinkley also discovered several jars that contained urine in the barn, which was
indicative of a methamphetamine manufacturing operation. He explained, “It’s been
known that meth cooks will take user urine and run it through the gassing process in an
attempt to pull crystalized meth out of the urine.”

       Detective Brinkley said that he and other trained officers “neutralized the hazmat
portion of” the methamphetamine manufacturing operation inside Ms. Busey’s barn.
After the materials were removed from the barn, the barn was placed under quarantine.
He explained that the methamphetamine manufacturing operation discovered inside the
barn was a “Tier 3,” or nearly the most difficult to clean up. He said that Ms. Busey
would “have to first contact an industrial hygienist” to test the level of contamination and
then pay for the decontamination. He said that the decontamination would cost thousands
of dollars. Detective Brinkley testified that the property would remain under quarantine
until an industrial hygienist certified that “the clean-up has been conducted.”

      Detective Brinkley testified that an online database tracked the purchase of
medications containing pseudoephedrine, and the database showed that Ms. Luscinski
purchased Allegra D on May 21, 2014, at 5:48 p.m.

       Upon viewing photographs taken during a 2015 traffic stop involving the
Defendant, Detective Brinkley, who did not participate in the stop but had been declared
an expert in methamphetamine manufacturing operations, identified all the materials
necessary to complete the process of manufacturing methamphetamine inside the vehicle.
Detective Brinkley noted in particular the specific off-brand drain cleaner located inside
the vehicle was the same as that found inside Ms. Busey’s barn. He said that the brand
stood out to him because he had only seen that particular brand on those two occasions.
                                            -4-
       Rutherford County Sheriff’s Office Detective Dennis Ward testified that he was
present during the investigation of the methamphetamine manufacturing operation in Ms.
Busey’s barn as well as the investigation of methamphetamine production inside a
vehicle during a traffic stop of the Defendant’s vehicle in March 2015. Detective Ward
said that he noted in particular that the same off-brand drain cleaner was found in both
locations. He said that although he had investigated multiple methamphetamine
manufacturing operations, he had seen this particular brand on only those two occasions.

       Ms. Lisa Martin testified that she had known the Defendant “maybe a week, a
couple of weeks” before he came to Ms. Busey’s residence looking for her. She said that
the Defendant had significant burns to his legs and groin area. Ms. Martin said that the
Defendant confided in her that he was burned when the bottle he was using to make
methamphetamine using the shake-and-bake method caught fire in his lap. She testified
that the Defendant was bedridden for a time and that even after he recovered “[h]e pretty
much didn’t leave” Ms. Busey’s house. She said that during this time, the Defendant was
manufacturing methamphetamine inside Ms. Busey’s barn and at his mother’s residence.
Ms. Martin acknowledged having used methamphetamine during that time and
witnessing the Defendant make the drug. She maintained, however, that she did not
begin using the drug until she started hanging around the Defendant.

        Ms. Martin testified that she was familiar with the ingredients for manufacturing
methamphetamine because the Defendant had sent her to purchase them. She denied
knowing how to complete the process herself. Ms. Martin said that the Defendant made
methamphetamine often, which required that they burn “garbage that he had left over” at
least “[a] couple of nights a week.” Ms. Martin insisted that Ms. Busey did not know the
Defendant was making methamphetamine in the barn and that she and the Defendant
prevented Ms. Busey from entering the barn.

       During cross-examination, Ms. Martin testified that on the day she was arrested,
she told the Defendant to get money out of the back of her checkbook to bail her out of
jail.

       The forty-year-old Defendant testified that the presentence report contained
accurate information regarding his background. He said that his father committed suicide
when the Defendant was fifteen years old and that his father’s death affected his mental
health. The Defendant testified that he lost his “left leg above the knee” due to injuries
he sustained in a four-wheeler accident when he was twenty-two years old. The
Defendant said that he began using methamphetamine in 2013 after he met Ms. Martin.
He said that they began using the drug together. The Defendant said that he was addicted

                                           -5-
to the drug and had never actually tried to stop using it. He acknowledged using
methamphetamine during the pendency of his criminal matters.
       The Defendant insisted that he did not ever manufacture methamphetamine,
saying, “I do not cook. I don’t know how to cook.” He denied manufacturing
methamphetamine in Ms. Busey’s barn, but he admitted purchasing the materials
necessary to manufacture the drug. He admitted altering some of the materials so that
they could be used to manufacture methamphetamine but denied having burned trash at
Ms. Busey’s residence.

       During cross-examination, the Defendant conceded that he purchased
pseudoephedrine on multiple occasions to be used in the manufacture of
methamphetamine. He also acknowledged having purchased pseudoephedrine pills only
a month before the sentencing hearing, but he insisted that those pills were for his
mother. He acknowledged that he was prevented from purchasing pseudoephedrine on
multiple occasions because he had already purchased the amount allowed under the law
for the month. He refused to say for whom he had purchased the pills to manufacture
methamphetamine. He said that neither Ms. Busey nor Ms. Martin was manufacturing
methamphetamine inside Ms. Busey’s barn and denied that he was making
methamphetamine at that location. He refused, however, to say who was making the
methamphetamine.

       The Defendant acknowledged that, after making bond, he was arrested in a vehicle
that contained a mobile methamphetamine laboratory but denied knowing that the
laboratory was inside the vehicle. After the Defendant made bond in that case, he was
arrested after officers stopped his vehicle and discovered the materials to manufacture
methamphetamine inside the vehicle. He denied that he used those materials to make
methamphetamine, insisting that he was just hauling off trash he found in his front yard.
He believed that Ms. Martin had put those materials in his front yard.

       The Defendant admitted that if subjected to a drug test on the day of the
sentencing hearing, he would probably test positive for using methamphetamine. He said
that he had used methamphetamine “several days” before the sentencing hearing but
refused to say where he had procured the drug.

       Ms. Jamaica Ivey testified in rebuttal that she was arrested after the vehicle she
was traveling in with the Defendant was stopped. Ms. Ivey said that she had seen the
Defendant manufacture methamphetamine at his residence. Ms. Ivey said that she had
purchased pseudoephedrine pills at the Defendant’s request. She said she did not know
how to make methamphetamine.



                                           -6-
       In arriving at a sentence of ten years for each of the Defendant’s felony
convictions, the trial court found “that the Defendant was the leader in the commission of
an offense involving two or more criminal actors.” The trial court also found that Ms.
Busey was a victim of the Defendant’s manufacturing methamphetamine on her property,
that the Defendant took advantage of her due to her age and physical condition, and that
Ms. Busey had suffered significant damage to her property due to the Defendant’s
manufacturing methamphetamine on the premises. The trial court concluded that the
Defendant had no hesitation about committing the crime despite that “this is a dangerous
process” with a high risk to human life. The court emphasized, “There is no question in
my mind that [the Defendant] was the one that was in there cooking it.” The court
concluded that no mitigating factors were applicable and that the enhancement factors
warranted a sentence greater than the minimum.

        The court determined that “there is no question he was also on bail at the time of
the second offense” and observed that consecutive alignment of the ten-year sentences
was mandatory. The Defendant was sentenced to eleven months and twenty-nine days
for the theft conviction, to be served concurrently with the other convictions. The court
noted that the Defendant was not eligible for probation and ordered him to serve his
entire twenty-year sentence in confinement.

                                       ANALYSIS

        In this timely appeal, the Defendant contends that the trial court erred by imposing
ten-year sentences for his methamphetamine-related convictions and by denying all forms
of alternative sentencing. He raises no challenge regarding his theft conviction.

                                   I. Sentence Length

        This court reviews challenges to the length of a sentence under an abuse of
discretion standard, “granting a presumption of reasonableness to within-range sentences
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). The court will 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.” Id. at 709-
10. This court cannot reverse a sentence based on the trial court’s failure to adjust a
sentence in “light of applicable, but merely advisory, mitigating or enhancement factors.”
State v. Carter, 254 S.W.3d 335, 346 (Tenn. 2008). The trial court is “to be guided by—
but not bound by—any applicable enhancement or mitigating factors when adjusting the
length of a sentence.” Bise, 380 S.W.3d at 706. Further, “a trial court’s misapplication
of an enhancement or mitigating factor does not invalidate the sentence imposed unless
the trial court wholly departed from the 1989 Act, as amended in 2005.” Id. A sentence
                                            -7-
imposed by the trial court that is within the appropriate range should be upheld as long as
it is “consistent with the purposes and principles of sentencing, as provided by statute.”
Id. The appealing party bears the burden of proving that the sentence was improper.
State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).

       In determining “the specific sentence and the appropriate combination of
sentencing alternatives,” the trial court must consider: (1) the evidence 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 applicable
mitigating and enhancement factors; (6) any statistical information provided by the
administrative office of the courts as to sentencing practices for similar offenses in
Tennessee; (7) any statement the defendant wishes to make in the defendant’s own behalf
about sentencing; and (8) the result of the validated risk and needs assessment conducted
by the department and contained in the presentence report. T.C.A. § 40-35-210(b).

       The argument in the Defendant’s brief regarding the length of the sentence is
merely a quarrel with the trial court’s application of the enhancement and mitigating
factors. He argues that the trial court erred by applying enhancement factors due to Ms.
Busey’s vulnerability and the high risk to human life and by applying those factors to
both of his convictions. However, under Bise, “a trial court’s misapplication of an
enhancement or mitigating factor does not remove the presumption of reasonableness
from its sentencing decision.” Bise, 380 S.W.3d 682, 709-10. The trial court is free to
choose a sentence within the proper range so long as the trial court’s choice reflects an
application of the purposes and principles of sentencing set out by statute. Because the
sentence length in this case reflects the appropriate application of the purposes and
principles of the Sentencing Act, we conclude that the trial court did not abuse its
discretion by imposing a ten-year sentence for each of the Defendant’s convictions.

                                   II. Alternative Sentencing

        The Defendant also challenges the trial court’s denial of all forms of alternative
sentencing. The State concedes that the trial court erred by determining that the
Defendant was statutorily ineligible for probation but argues that the record supports the
trial court’s decision to order the Defendant to spend the entire sentence in confinement.

       Like determinations regarding sentence length, the grant or denial of alternative
sentencing is reviewed for an abuse of discretion accompanied by a presumption of
reasonableness when the sentencing decision reflects the purposes and principles of
sentencing. State v. Caudle, 388 S.W.3d 273, 278-79 (Tenn. 2012). The defendant bears
the burden of establishing suitability for probation and that probation will serve the ends
                                             -8-
of justice and the best interest of the public and the defendant. T.C.A. § 40-35-303(b);
Carter, 254 S.W.3d at 347.

        A defendant with a total effective sentence in excess of ten years is eligible for
probation if the individual sentences imposed for the convictions fall within the probation
eligibility requirements. See T.C.A. § 40-35-303(a). A defendant is not entitled to a
presumption that he is a favorable candidate for probation. Additionally, the Defendant
was convicted of a Class B felony, and, therefore, was not considered to be a favorable
candidate for alternative sentencing. See T.C.A. §§ 39-13-213(2)(A); 40-35-102(6)(A).
In determining whether incarceration is an appropriate sentence, the 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).

        In this case, the trial court erroneously concluded that the Defendant was not
eligible for probation, and, as a result, did not make any of the necessary findings under
Code section 40-35-103. Nevertheless, the record fully supports the denial of all forms of
alternative sentencing in this case. By his own admission, the Defendant has previously
completed two probationary sentences, neither of which deterred him from continuing to
manufacture methamphetamine. While released on bond in case number F-72538, the
Defendant committed the offense in case number of F-74515. These facts demonstrate
that measures less restrictive than confinement have failed to deter the Defendant from
continuing criminal activity. In consequence, the denial of alternative sentencing was
justified in this case. Additionally, the Defendant’s lack of candor, as implicitly found in
the trial court’s complete rejection of the Defendant’s claim that he did not make
methamphetamine, supports the denial of probation in this case.



                                            -9-
                             CONCLUSION

Based upon the foregoing, we affirm the judgments of the trial court.



                                           _________________________________
                                           JOHN EVERETT WILLIAMS, JUDGE




                                    -10-
