        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                           Assigned on Briefs July 16, 2013

              STATE OF TENNESSEE v. TRAVIS LEE DOBSON

                  Appeal from the Circuit Court for Cannon County
                        No. F11-12 David M. Bragg, Judge


              No. M2012-02361-CCA-R3-CD - Filed November 25, 2013


The Defendant, Travis Lee Dobson, pled guilty to one count of vehicular homicide as a
Range I, standard offender, and the trial court imposed twelve years’ incarceration. On
appeal, the Defendant argues that the trial court erred by imposing the maximum sentence
and by denying any form of alternative sentencing. Following our review, we affirm the
judgment of the trial court.

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

D. K ELLY T HOMAS, J R., J., delivered the opinion of the court, in which C AMILLE R.
M CM ULLEN and R OGER A. P AGE, JJ., joined.

William B. Bullock (at guilty plea and sentencing), Murfreesboro, Tennessee; and Caleb B.
McCain (on appeal), Murfreesboro, Tennessee, for appellant, Travis Lee Dobson.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney
General; William C. Whitesell, Jr., District Attorney General; and Trevor H. Lynch, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                     OPINION
                               FACTUAL BACKGROUND

       On January 28, 2011, a Cannon County grand jury returned a multi-count indictment
against the Defendant, charging him with one count of aggravated vehicular homicide, one
count of driving under the influence (DUI), four counts of possession of various controlled
substances, and one count of possession of drug paraphernalia. On July 10, 2012, the
Defendant entered a nolo contendere plea, as a Range I, standard offender, to one count of
vehicular homicide, a Class B felony, and the remaining charges were dismissed. See Tenn.
Code Ann. § 39-13-213(a)(2), (b)(2). Pursuant to the terms of the agreement, the trial court
was to determine the length and manner of service of the sentence.

       The State offered the following facts as a basis for the guilty plea:

               Had this matter gone to trial, the State would have offered evidence and
       presented testimony to establish on or about May 5th of 2010, Mr. Robert
       Eddie Ward [(the victim)] was traveling down Auburntown Road in his
       pickup. As he was headed away from the City of Woodbury [around 2:45
       p.m.], the Defendant . . . was traveling into Woodbury in an S.U.V.

               [The Defendant] lost control of his vehicle. He hit the curb on the side
       of the road, over corrected, traveling into [the victim’s] lane of travel, struck
       his vehicle practically head-on. The injuries that [the victim] sustained
       resulted in his death.

              [The Defendant] survived and was transported to the Woodbury
       hospital, later transferred to Vanderbilt. Blood was drawn. In [the
       Defendant’s] system, the T.B.I. found marijuana, methamphetamine, and
       amphetamine as a metabolite of the methamphetamine; [d]ihydrocodeine,
       which was the Lortab; [d]iazepam, which was the Valium; [n]ordiazepam,
       which is a metabolite or a by-product of the Valium; [a]lprazolam, which is
       Xanax. After the T.B.I. and the Woodbury Police Department conducted their
       investigations, [the Defendant] was charged accordingly.

The Defendant confirmed that the prosecutor’s recount of the relevant events was true and
correct. After further questioning, the trial court accepted the Defendant’s plea.

        The Defendant’s sentencing hearing was held on October 4, 2012. The presentence
report was admitted into evidence. At the hearing, the trial court heard from several of the
officers who investigated the accident. Woodbury Police Department Officer John House
testified that he arrived on the scene and spoke with the Defendant. The Defendant advised
Officer House that “he was heading into Woodbury from Auburntown, and was going around
a curve a little too fast, got in the gravel, over corrected, entered the oncoming lane, and
struck another vehicle.” The posted speed limit in that area was thirty miles per hour.

       The Defendant further advised Officer House that his driver’s license was inside a
Crown Royal bag, which Officer House found “between the two vehicles[.]” The bag
contained the Defendant’s “identification, money, and narcotics[.]” According to Officer
House, the following narcotics were discovered in the vehicle: .2 grams of

                                              -2-
methamphetamine, 9.2 grams of marijuana, 124 alprazolam (Xanax) pills, and 40.5
dihydrocodeine (Lortab) pills. All of those substances, in addition to amphetamine,
diazepam, and nordiazepam, were later found to be present in the Defendant’s blood. Inside
the Crown Royal bag, Officer House also found drug paraphernalia, a “[m]eth pipe” and
“rolling papers[,]” and a large sum of money, $4,540.00.

       Trooper Kevin Curtis of the Tennessee Highway Patrol prepared a diagram of the
accident scene and, from that diagram, determined that the Defendant was traveling at
approximately fifty-two miles per hour at the time of impact. Trooper Curtis found no
indication that the victim was operating his vehicle in an “inappropriate manner[,]” and the
evidence indicated that the victim’s “vehicle remained in the proper lane.” Accordingly,
Trooper Curtis was able to determine that the accident was the Defendant’s fault.

        Diane Mooneyham, a paramedic with Cannon County Emergency Medical Services,
testified that she treated the victim at the scene. The victim was initially unresponsive, and
as they attempted to “work on him, he became combative.” According to Ms. Mooneyham,
the victim had significant lower extremity injuries, significant chest injuries, facial injuries,
and fractures to his right arm. Ms. Mooneyham stated that it took approximately thirty
minutes to extricate the victim from the vehicle; they were then able “to take him out and
immobilize him.” During this time frame, the victim was conscious intermittently and was
able to follow simple commands when awake. Once out of the vehicle, the victim became
“completely unresponsive” and later died from his injuries.

       Cannon County Sherriff Darrell Young also responded to the accident scene on May
5, 2010,1 and collected “some guns” from the Defendant’s vehicle. The Defendant was never
charged in relation to these weapons. Sheriff Young then testified about the capabilities of
the county jail, stating that he had never before had to “house” a paraplegic and that the jail
did not have the resources to meet such needs. According to Sheriff Young, the DeBerry
Special Needs Facility of the Department of Corrections (DOC) would be equipped to care
for such an individual if that individual received a DOC sentence.

       Officer Chip Avera2 testified to an incident where he was dispatched to a one-car
accident involving the Defendant on December 24, 2010, just several months after the
victim’s death. According to Officer Avera, the Defendant relayed the following details to
him:


1
    On May 5, 2010, Sheriff Young was employed as Assistant Chief of the W oodbury Police Department.

2
  At the time he was dispatched to the accident on December 24, 2010, Officer Avera was an officer with the Cannon
County Sheriff’s Department. By the time of the hearing, Officer Avera was employed with the Smithville Police
Department.
                                                       -3-
       As [the Defendant] was traveling down Bradyville Road, he stopped at . . . [a]
       stop sign and attempted to make a left turn onto Murfreesboro Road. At which
       time he says the other vehicle ran the stop sign and attempted to cut him off,
       and which caused him to wreck.

              He ran off the road directly across from Bradyville Road into a creek
       or large ditch.

The Defendant was unable to produce a driver’s license for Officer Avera and also could not
provide proof of insurance. Officer Avera’s computer check revealed that the Defendant’s
license was suspended at that time.

       The trial court also heard from members of the victim’s family, including the victim’s
wife, stepson, aunt, and cousin, about the impact the victim’s death had on them and their
wishes for sentencing.

        In an attempt at mitigation, the forty-three-year-old Defendant presented testimony
from his father, Stan Dobson. Mr. Dobson testified that the Defendant was a paraplegic due
to an on-the-job accident that occurred on February 22, 2001, and was in pain “most of the
time” due to his injuries. Mr. Dobson provided the court with information about the
Defendant’s medical condition following that 2001 accident. According to Mr. Dobson, the
Defendant was cared for by a paid caregiver seven days a week, and the Defendant’s family
and friends were available to assist the Defendant in the evenings. Mr. Dobson stated that
an annuity had been set up to pay the Defendant’s medical bills following the accident and
that he also received disability income. Mr. Dobson estimated that it costs approximately
$50,000.00 per year to pay for the Defendant’s medical care. The Defendant’s caregiver also
testified.

       After hearing the evidence and the arguments of counsel, the trial court ruled from the
bench, imposing the maximum twelve-year sentence for the Class B felony conviction and
denying any form of alternative sentencing. In determining the length of the Defendant’s
sentence, the trial court found the following enhancement factors to be applicable:

              First, that the Defendant has a previous history of criminal convictions
       or criminal behavior in addition to those necessary to support the appropriate
       range. The [c]ourt was surprised to read the presentence report and find the
       number of prior convictions in [the Defendant’s] case. And several of those
       were driving related.




                                             -4-
               Also, that even after being involved in such an event, [the Defendant]
       took it upon himself to drive a car illegally, which ended up, fortunately, only
       in an accident that involved himself.

               It appears that he’s had the opportunity to have folks do things for him
       and take care of things for him. Yet, he finds the need, for whatever reason,
       to get in a vehicle, which is not a healthy thing for him.

               So, the court believes that his prior history, which includes not only
       driving related events, but an assault charge, a concealing charge, a grand
       larceny charge, a burglary charge, and some drug charges should be considered
       by the [c]ourt to be an enhancement factor. And that those are not necessarily
       involved as essential elements of this offense.

              ....

              The [c]ourt further finds that based on his record, [the Defendant] has
       failed to comply with conditions of a sentence involving release into the
       community. And the [c]ourt would concede that those were some time ago.
       But the [c]ourt would also consider that he has evidenced, by his behavior, a
       disrespect for the law and disrespect for his own wellbeing. That he has
       previously been placed on probation and not been successful.

The trial court concluded that no mitigating factors applied to this case.

        The trial court made the following findings of fact and conclusions of law in rendering
its decision to deny the Defendant an alternative sentence:

               The [c]ourt has previously commented on the Defendant’s criminal
       history, which it’s found to be an enhancement factor. And the [c]ourt finds
       very little evidence that it should take in to consider[ation] the Defendant’s
       physical condition, since the fact that he continues to get in a vehicle and drive
       on the roads in the condition that he is in when he has folks to help him and
       has the ability to retain people to help him. Yet he chooses on his own to get
       in a vehicle. And based on his own condition, it’s apparent he has some
       significant problems. That he has some significant pain issues, has to take
       pain medication.




                                              -5-
       But he also chooses to self-medicate, as evidenced by the substances
that were found in his body, and that caused him certainly not to be a sober
individual at the time he was driving a vehicle.

      The [c]ourt has considered the previous actions and character of the
Defendant as represented by his prior criminal history and his -- or lack of
favorable testimony concerning his reputation or his good acts in the
community.

       Whether or not he might reasonably be expected to be rehabilitated, and
his potential or lack of potential for rehabilitation, including the risk that
during the period of probation the Defendant would commit another crime.
And [the Defendant] has provided the [c]ourt with that evidence. Because
while he was on bond awaiting trial or disposition of these charges, he was out
driving again with no driver’s license, no insurance, and as previously stated,
ended up in an accident.

       Whether or not it might reasonably appear that he would abide by the
terms of probation. And it appears that he would not since he could not keep
his conduct lawful at the time that he was awaiting this disposition.

      Whether or not the interest of society in being protected from future
criminal conduct of the Defendant are great. And it appears, based on [the
Defendant’s] behavior, that society does have an interest in being protected
from his behavior.

       Whether or not measures less restrictive than confinement have
frequently or recently been applied unsuccessfully to the Defendant. I don’t
know how much time [the Defendant] has served on these prior arrests. So,
the [c]ourt doesn’t have any particular opinion on that.

        Whether or not a sentence of full probation would depreciate the
seriousness of the offense in considering the evidence submitted on what was
in [the Defendant’s] blood at the time he was driving a vehicle and the fact that
it was early in the day. And although [defense counsel] has stated he doesn’t
believe there’s been much publicity about this case, the [c]ourt believes there
has been some publicity about this case. And certainly several -- the fact that
so many members of the community are present in the courtroom at this time
would indicate that there are people in the community who are concerned



                                       -6-
       about the case and take an interest in it. And certainly a sentence of full
       probation would unduly depreciate the seriousness of the offense in this case.

              Whether or not confinement is particularly suited to provide an
       effective deterrent to others likely to commit similar offenses. And that’s a
       difficult thing to make a decision on. But the [c]ourt believes it would have
       an impact.

              And whether or not the offense was particularly enormous, gross, or
       heinous. And the [c]ourt has heard testimony today about how enormous this
       offense was and the impact it’s had on this family.

              [The Defendant] has suffered an accident while at work that left him
       disabled. Whether by settlement or judicial process, he has received what the
       statutes allow someone in that position. And, yet, in spite of having his needs
       provided for, he has continued to participate in a conduct of illegal possession
       of drugs, driving under the influence of medications.

               And given the totality of the circumstances, looking at the record in this
       case, it appears to this [c]ourt that it was just a question of when and who
       happened to be on the road at the time when this wreck happened.

            The [c]ourt finds [the Defendant] to be a danger to himself and his
       community . . . .

This appeal followed.

                                          ANALYSIS

        On appeal, the Defendant raises two challenges to his sentence: first, that the trial court
improperly sentenced him to the maximum in his range and, second, that the trial court erred
in denying any form of an alternative sentence. The State responds succinctly to the
Defendant’s arguments that he “has failed to overcome the presumption that his maximum
sentence is reasonable.” The State cites to general case law and does not specifically address
any of the evidence supporting enhancement of the Defendant’s sentence. The State also does
not address the Defendant’s alternative sentencing argument except to say that the trial
“court’s consideration of the principles of sentencing and the weighing process concerning




                                                -7-
the suitability of the [D]efendant for any alternative sentence is spread upon the record.” 3
Ironically, the States argues, “The [D]efendant has failed to include appropriate citation to the
record in his argument and has therefore waived consideration of the sentence on appeal.”
Such is simply not the case; the Defendant makes the appropriate citations to the record.

        Before a trial court imposes a sentence upon a convicted criminal defendant, it 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 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. Tenn. Code Ann. § 40-35-210(b). To facilitate appellate review, “it is critical
that trial courts adhere to the statutory requirement set forth in Tennessee Code Annotated
section 40-35-210(e)” and articulate in the record its reasons for imposing the specific
sentence. See State v. Bise, 380 S.W.3d 682, 705 n.41 (Tenn. 2012).

       The 2005 amendments to the Sentencing Act “served to increase the discretionary
authority of trial courts in sentencing. Id. at 708. Currently, upon a challenge to the sentence
imposed, including questions related to probation or any other alternative sentence, it is the
duty of this court to analyze the issues under “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.” Id. at 707; see also
State v. Caudle, 388 S.W.3d 273, 278-79 (Tenn. 2012). Those purposes and principles
include “the imposition of a sentence justly deserved in relation to the seriousness of the
offense,” Tennessee Code Annotated section 40-35-102(1), a punishment sufficient “to
prevent crime and promote respect for the law,” Tennessee Code Annotated section 40-35-
102(3), and consideration of a defendant’s “potential or lack of potential for . . .
rehabilitation,” Tennessee Code Annotated section 40-35-103(5). See State v. Carter, 254
S.W.3d 335, 344 (Tenn. 2007). The burden of showing that a sentence is improper is upon
the appealing party. See Tenn. Code Ann. § 40-35-401, Sentencing Comm’n Cmts.; see also
State v. Arnett, 49 S.W.3d 250, 257 (Tenn. 2001).

                                        A. Length
       The Defendant challenges the imposition of the maximum, twelve-year sentence for
his Class B felony conviction. Our amended Sentencing Act no longer imposes a presumptive



3
  W hile it is true, as discussed later herein, that the record supports the trial court’s sentencing decision, the State does
not include any analysis as to how the evidence “spread upon the record” supports such a determination.
                                                             -8-
sentence. Carter, 254 S.W.3d at 343. Tennessee Code Annotated section 40-35-210 was
amended to provide as follows:

              (c) The court shall impose a sentence within the range of punishment,
       determined by whether the defendant is a mitigated, standard, persistent, career,
       or repeat violent offender. In imposing a specific sentence within the range of
       punishment, the court shall consider, but is not bound by, the following
       advisory sentencing guidelines:

              (1) The minimum sentence within the range of punishment is the
       sentence that should be imposed, because the general assembly set the
       minimum length of sentence for each felony class to reflect the relative
       seriousness of each criminal offense in the felony classifications; and

               (2) The sentence length within the range should be adjusted, as
       appropriate, by the presence or absence of mitigating and enhancement factors
       set out in §§ 40-35-113 and 40-35-114.

             (d) The sentence length within the range should be consistent with the
       purposes and principles of this chapter.

Tenn. Code Ann. § 40-35-210(c), (d) (emphasis added).

         “[T]he 2005 amendments rendered advisory the manner in which the trial court selects
a sentence within the appropriate range, allowing the trial court 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. In accordance with the broad discretion now afforded
a trial court’s sentencing decision,

       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. 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.

      Because the Defendant was convicted of a Class B felony, as a Range I, standard
offender, he was subject to a sentence range of eight to twelve years. See Tenn. Code Ann.
§ 40-35-112(a)(2). In sentencing the Defendant to the maximum within the range, the court

                                              -9-
applied enhancement factor (1), that the Defendant has a previous history of criminal
convictions or criminal behavior in addition to those necessary to establish the appropriate
range. Tenn. Code Ann. § 40-35-114(1). The record revealed that the Defendant had a
number of convictions for concealing stolen property, malicious secretion of property, drug
possession, assault, a prohibited weapons offense, and public intoxication. He also had
convictions for multiple driving offenses—DUI, second offense, driving while intoxicated,
three driving on a revoked license offenses, and reckless driving. In applying this factor, the
trial court also considered the allegations of Officer Avera about the Defendant’s criminal
behavior on December 24, 2010, which followed the accident resulting in the victim’s death.
The trial court also applied enhancement factor (8), that the Defendant, before trial or
sentencing, failed to comply with the conditions of a sentence involving release into the
community. Tenn. Code Ann. § 40-35-114(8). The presentence report reflected that the
Defendant violated his effective four-year probationary sentence, received in 1988 for
concealing stolen property and three counts of malicious secretion of stolen property. The
month following his placement on probation for these convictions, the Defendant was
involved in “additional criminal activity” and “was declared an absconder from state
probation”; he was later convicted of three misdemeanor offenses in January 1991. His
probation was revoked but was reinstated shortly thereafter in February of 1991. He incurred
new arrests in the months that followed and was later found guilty of four misdemeanor
offenses. His probation was again revoked in July 1992 and was reinstated after serving 180
days. In 1995, he was discharged from state probation.

        The Defendant argues that the trial court erred in applying these factors to enhance his
sentence. He first submits that the “trial court improperly considered offenses for which [he]
was not convicted[,]” referring to the trial court’s consideration of his December 24, 2010
behavior. He notes that the driving on a revoked license was later dismissed and that it was
inappropriate for the trial court to rely on that pending charge to enhance his sentence.
The Defendant is correct that evidence of merely being arrested and charged with a crime
does not per se equate with evidence of criminal behavior within the meaning of this
enhancement factor. See State v. Marshall, 870 S.W.2d 532, 542 (Tenn. Crim. App. 1993).
Notwithstanding, prior criminal acts for which there has been no conviction may constitute
“criminal behavior,” if proven. State v. Carico, 968 S.W.2d 280, 288 (Tenn. 1998); see also
State v. Anthony Joel Allen, Jr., No. 01C01-9612-CC-00514 (Tenn. Crim. App. May 7, 1998)
(while it is impermissible to use only arrest records to establish criminal behavior,
enhancement is permissible when the episodes of criminal behavior are established by the
testimony of witnesses). Here, Officer Avera testified sufficiently about the Defendant’s
criminal behavior on December 24, 2010. The Defendant’s argument on this point fails.

        The Defendant also contends that the “trial court improperly applied old offenses[,]”
stating that the “major convictions” relied upon “were approximately twenty years old and

                                              -10-
older” and that, in the last twenty years, he was only convicted misdemeanor offenses. Thus,
he claims that he “is being punished for the rash behavior of a young man some two decades
after the fact.” Although the trial court may consider the amount of time that has passed since
a prior conviction in assessing the weight to be given to that enhancement factor, it is not
required to do so. See State v. Charles Hamlin, No. M1999-01970-CCA-R3-CD, 2000 WL
1208314, at *2 (Tenn. Crim. App. Aug. 24, 2000). The Defendant’s argument regarding this
enhancement factor is essentially that the trial court abused its discretion in the weight given
to the factor.4 While the Defendant is correct that his only felony conviction for concealing
stolen property is over twenty years old, his argument ignores the other criminal conduct
relied upon by the trial court in determining the weight to give the enhancement factor for
prior criminal convictions or behavior. See State v. Roger Vines, No. M2011-01094-CCA-
R3-CD, 2012 WL 2412164, at *6 (Tenn. Crim. App. June 27, 2012). The Defendant also had
a plethora of misdemeanor convictions for driving and intoxication offenses, similar to those
at issue here. See State v. Robert Wayne Wait, No. E2010-01212-CCA-R3-CD, 2011 WL
5137178, at *16 (Tenn. Crim. App. Oct. 28, 2011) (citing State v. Johnny Robinson, No.
02C01-9505-CC-00126, 1996 WL 89419, at *2 (Tenn. Crim. App. Feb. 29, 1996) (defendant
had no prior felony convictions, but did have at least two convictions for DUI, two
convictions for driving with a revoked license, and three convictions for public intoxication,
which were similar to convictions at issue; therefore, the trial court, was entitled to give
considerable weight to the factor in assessing the length of the vehicular assault sentence)),
perm. app. denied, (Tenn. Mar. 7, 2012). Moreover, as noted above, the Defendant’s criminal
behavior on December 24, 2010, i.e., driving on a revoked license and failing to provide proof
of insurance, can also be considered in application of this factor.

        As a final issue regarding enhancement of his sentence, the Defendant argues that the
“trial court improperly relied on an element of the conviction offense[.]” In this regard, he
cites to the trial court’s statement that “the Defendant ‘chooses to self medicate as evidenced
by the substances that were found in his body’ when discussing enhancement factors.” He
extrapolates that the “fact that Defendant had substances in his body was essential to proving
his intoxication.” However, the record belies his contention because the trial court made this
statement in relation to its decision to deny the Defendant an alternative sentence, not as a part
of its decision to apply certain enhancement factors.

       The Defendant justly deserves to have his sentence substantially enhanced given his
extensive history of criminal convictions, spanning most of his adult life; his criminal
behavior following the fatal accident; and his past failures, albeit “some time ago[,]” at


4
  W e note that the Defendant makes no real argument in this section of his brief to the application of enhancement factor
(8), although he does make a similar argument about the “old” nature of the probation violations in the trial court’s
decision to deny any alternative sentence. Again, any argument about the length of time which has passed goes to the
weight, not the application, of the enhancement factor.
                                                           -11-
complying with the conditions of a sentence involving release into the community. The trial
court properly applied enhancement factors (1) and (8). Moreover, we reiterate that the trial
court may set a sentence anywhere within the applicable range so long as the sentence is
consistent with the principles and purposes of the Act, regardless of the presence or absence
of mitigating and enhancement factors. The trial court in this case thoroughly considered the
purposes and principles of the Sentencing Act in rendering its decision; therefore, the
imposition of the maximum sentence in the range is affirmed.

                                  B. Alternative Sentencing
       The Defendant takes exception to the denial of an alternative sentence. A defendant
who is an especially mitigated or standard offender convicted of a Class C, D, or E felony
should be considered a favorable candidate for alternative sentencing absent evidence to the
contrary. See Tenn. Code Ann. § 40-35-102(6)(A). Here, the Defendant was convicted of
a Class B felony and thus is not to be considered a favorable candidate for alternative
sentencing. Moreover, no defendant is entitled to a presumption that he or she is a favorable
candidate for alternative sentencing. Carter, 254 S.W.3d at 347.

      In determining a defendant’s suitability for alternative sentencing, 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[.]

Tenn. Code Ann. § 40-35-103(1)(A)-(C). A trial court should also consider a defendant’s
potential or lack of potential for rehabilitation when determining if an alternative sentence
would be appropriate. Tenn. Code Ann. § 40-35-103(5); State v. Boston, 938 S.W.2d 435,
438 (Tenn. Crim. App. 1996). Ultimately, in sentencing a defendant, a trial court should
impose a sentence that is “no greater than that deserved for the offense committed” and is “the
least severe measure necessary to achieve the purposes for which the sentence is imposed.”
Tenn. Code Ann. § 40-35-103(2), (4).

        Additionally, an offender is eligible for probation if he or she is sentenced to ten years
or less and has not been convicted of certain specified offenses. See Tenn. Code Ann. § 40-
35-303(a). The Defendant, sentenced to twelve years, was statutorily ineligible for probation.
Despite the fact that the Defendant was not eligible for probation due to the length of his


                                               -12-
sentence, the trial court considered the factors applicable to probation, i.e., the circumstances
of the offense, the Defendant’s criminal record, social history, and present condition; the
deterrent effect; the Defendant’s potential for rehabilitation; and whether probation would
serve the ends of justice and the best interests of the Defendant and the public. See State v.
Grear, 568 S.W.2d 285, 286 (Tenn. 1978).

        The Defendant argues that the “trial court improperly considered old probation
violations in denying a suspended sentence.” He submits that the two violations of his 1988
probationary sentence, over two decades old, did not qualify as frequent or recent. The trial
court used the previous violations in application of enhancement factor (8) but did not
consider the previous violations as a basis to deny an alternative sentence because measures
less restrictive than confinement have frequently or recently been applied unsuccessfully to
the Defendant. In fact, the trial court stated that it did not “have any particular opinion on
that.” The record contradicts the Defendant’s assertion and does not provide him with relief.

       Moreover, he argues that the “trial court improperly considered offenses for which [he]
was not convicted to deny probation[,]” referring to the trial court’s consideration of the
December 24, 2010 charges. We disagree. The fact that the Defendant committed driving
offenses after his arrest in the present case and while he was out on bond, reflects negatively
upon his potential for rehabilitation and militates against the imposition of an alternative
sentence. We conclude that the trial court properly relied upon the December 24, 2010
charges as testified to by Officer Avera. See State v. Gregory Bryan Austin, 2013 WL
2424144, at *5 (Tenn. Crim. App. June 5, 2013) (citing State v. Frankie Sue Dees, No.
W2004-02109-CCA-R3-CD, 2005 WL 1768722, at *3 (Tenn. Crim. App. July 26, 2005) (in
denying full probation, “the record indicates that [d]efendant had two pending felony charges
of prescription fraud in Mississippi”)), perm. app. filed, (Aug. 5, 2013).

        As a final argument for alternative sentencing, the Defendant, a paraplegic, contends
that the “trial court improperly disregarded [his] extremely poor physical condition in denying
probation[.]” He notes that the taxpayer will bear the burden for his care because it will cost
the State “tens, if not hundreds of thousands of dollars of its limited resources every year that
[the Defendant] is confined to a state penal institution.” The trial court made multiple
statements reflecting that it did in fact consider the Defendant’s physical condition in its
decision, noting that despite that condition, the Defendant continued to drive while under the
influence although he had assistance available. The trial court heard testimony that the
Defendant’s physical needs could be tended to at the DeBerry Special Needs Facility during
his incarceration. Again, the record does not support the Defendant’s contention that the trial
court disregarded his physical condition in its decision to deny probation or an alternative
sentence.



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        The record contains no proof which supports a finding that the Defendant’s sentence
would best be served in the community rather than in a correctional institution. This becomes
all the more important in this case in view of the fact that the Defendant is not presumed a
favorable candidate for alternative sentencing as a Class B felon. The Defendant has a
criminal history evincing a clear disregard for the laws of society, and his arrest while on bond
for the instant offenses comments poorly upon his potential for successful rehabilitation. See
Tenn. Code Ann. § 40-35-103(1)(A), (C). These factors were noted by the trial court in its
decision to deny any form of alternative sentencing. Our review persuades us that the trial
court considered the sentencing principles and all relevant facts and circumstances in making
its determination. Thus, we conclude that the trial court did not abuse its discretion in denying
probation or any other form of alternative sentencing.

                                       CONCLUSION

        Based upon the foregoing, the sentencing decision of the Cannon County Circuit Court
is affirmed.


                                                     ___________________________________
                                                     D. KELLY THOMAS, JR., JUDGE




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