       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                        AT NASHVILLE
                       Assigned on Briefs November 12, 2015


   STATE OF TENNESSEE v. DEMONTISE MARTEZ DRUMWRIGHT
              a.k.a DEMONTISE J. DRUMWRIGHT

               Appeal from the Criminal Court for Davidson County
                   No. 2014-B-1446     Steve R. Dozier, Judge




             No. M2015-00098-CCA-R3-CD – Filed December 17, 2015
                       _____________________________

Demontise Martez Drumwright a.k.a. Demontise J. Drumwright (“the Defendant”)
pleaded guilty to one count each of aggravated burglary and robbery. The trial court
denied alternative sentencing, ordering the Defendant to serve his effective four-year
sentence in confinement. On this appeal, the Defendant claims that the trial court erred
when it (1) considered the Defendant‟s pending case in Knox County as a basis for denial
of alternative sentencing and (2) ordered the Defendant to serve his sentence in
confinement. Discerning no error, we affirm the judgments of the trial court.

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

ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the Court, in which NORMA
MCGEE OGLE and CAMILLE R. MCMULLEN, JJ., joined.

Brian M. Griffith, Nashville, Tennessee, for the appellant, Demontise Martez
Drumwright a.k.a. Demontise J. Drumwright.

Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Senior Counsel;
Glenn Funk, District Attorney General; and Jennifer Charles, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                      OPINION

                        Factual and Procedural Background

      The Defendant, along with co-defendants Secquoyah Smikes and Keiahtee Terrell,
was indicted for one count of aggravated burglary while acting in concert with two or
more persons and one count of robbery while acting in concert with two or more persons.
The Defendant pleaded guilty, as a Range I standard offender, to aggravated burglary and
robbery. Pursuant to a plea agreement, the Defendant was sentenced to concurrent four-
year sentences with the manner of service to be determined by the trial court. The State
provided the following factual basis for the plea:

             Had the parties proceeded to trial on case number 2014-B-1146, the
      State anticipates the facts at trial would reveal that on March the 14[th] of
      last year, a hotel employee reported two male subjects were attempting to
      break into room 284 at the Econo Lodge, located at 1412 Brick Church
      Pike here in Davidson County. Several officers responded to the call.

             When Officer Brown arrived on the scene, [the Defendant] was
      inside room 284. [The Defendant] was screaming, walking around the
      room and refused to follow officers[‟] instructions. Officers escorted [the
      Defendant] out of the room. The victim Robert Hammonds was hiding in
      the bathroom. [Ms. Smikes] and [Mr. Terrell] were located in the parking
      lot. [Mr.] Hammonds related the following: He and Ms. Smikes were
      going to spend the night together at that location. At about 11:00 p.m.
      someone knocked on the door. Mr. Hammonds looked out of the peephole
      and saw two men standing outside of the room. He recognized one of the
      subjects as Ms. Smikes[‟] ex[-]boyfriend, [Mr. Terrell]. Ms. Smikes has
      previously told Mr. Hammonds about how [Mr.] Terrell used to rob people.

             [Mr.] Hammonds refused to open the door, the suspects began
      pounding on the door and kicked it open. The suspects then forced their
      way into the room and began assaulting Mr. Hammonds. He managed to
      get away from them[,] run into the bathroom and lock[] the door. The
      officers noticed scratches to the left side of Mr. Hammond[s‟] neck, back
      and check [sic], his shirt was also ripped.

              [Ms.] Smikes originally told the officers that she was also a victim of
      the assault. She sustained asthma-type symptoms and was transported to
      General Hospital that night. Mr. Terrell told Officer Holycross that his
      girlfriend Ms. Smikes and Mr. Hammonds met and were going to hang out
      in a room in the Econo Lodge. [Mr.] Terrell stated that [Ms.] Smikes
      contacted him, stated she was uncomfortable with [Mr.] Hammonds and
      wanted [Mr.] Terrell to come to the room.

            [Mr.] Terrell stated that he and [the Defendant] went to the lodge
      and began banging on the door. [Mr.] Terrell stated the door opened,
      stepped inside. Mr. Hammonds began shutting the door on him. Mr.
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        Terrell continued trying to push the door back open. At that time, Mr.
        Terrell stopped talking to Officer Holycross and refused to provide any
        other information.

                At about 12:45 a.m. Officer Holycross placed Mr. Terrell under
        arrest and advised him of his rights. He said he understood his rights and
        refused to talk. Due to discrepancies in her story, Ms. Smikes was
        questioned again after being advised of her rights by Officer Brown. She
        then confessed that she helped set Mr. Hammonds up. She agreed to go to
        the hotel with Mr. Hammonds and have sex with him. [Ms.] Smikes stated
        she waited until [Mr.] Hammonds was in the shower and then called Mr.
        Terrell and [the Defendant] to come and rob him.

               The plan was to wait until the victim was naked and [Ms.] Smikes
        would let [the Defendant] and [Mr.] Terrell into the room. And [Mr.]
        Terrell and [the Defendant] knocked, [Mr.] Hammonds refused to open the
        door. [Mr.] Hammonds tried without success to stop [Ms.] Smikes from
        opening the door.

               According to Ms. Smikes, [the Defendant] entered the room and
        began assaulting Mr. Hammonds. After [Mr. Hammonds] locked himself
        in the bathroom, [the Defendant] took Mr. Hammond[s‟] car keys. Ms.
        Smikes admitted that it was premeditated and [the Defendant] would hide
        the keys outside of the room in the bushes and retrieve them later and take
        Mr. Hammond[s‟] vehicle. The keys were not recovered.

       At a subsequent sentencing hearing, the State introduced the Defendant‟s
presentence report and certified copies of the Defendant‟s prior convictions as exhibits.
The exhibits are not included in the record on this appeal. However, the Defendant‟s
presentence report is included in the record for Mr. Terrell‟s appeal.1 The presentence
report indicates that the Defendant‟s probation for his statutory rape conviction was
revoked twice, although the reasons for revocation are not included in the report.
Additionally, the report indicates that the Defendant was charged with several instances
of assault and criminal trespass between 2009 and 2012. The presentence report does not
include any details about the charges, but it appears the Defendant was convicted in six of
the charges and two charges include a note that the Defendant‟s probation was revoked.

        1
           To assist in the resolution of this proceeding, we take judicial notice of the record from Mr.
Terrell‟s direct appeal, State v. Keiahtee Terrell, No. M2015-00019-CCA-R3-CD. See Tenn. R. App. P.
13(c); State v. Lawson, 291 S.W.3d 864, 869 (Tenn. 2009); State ex rel Wilkerson v. Bomar, 376 S.W.2d
451, 453 (Tenn. 1964).

                                                  -3-
Moreover, the Defendant admitted that he was a member of the Hoover Crips gang in
Maury County.

       The Defendant testified that he was twenty-three years old at the time of the
hearing and that he had a large extended family in Columbia, Tennessee. The Defendant
explained that his mother passed away when he was twelve and his father was
incarcerated at that time, so the Defendant was placed in state custody until he was
eighteen. During that time, he received no support from his extended family and
“basically was forgot[ten] about.”

       The Defendant admitted that he had a prior conviction for statutory rape from
Columbia, Tennessee. The Defendant stated that he “had a little dealing with this
female” after he was released from the group home at age eighteen and that the girl had
become pregnant. The Defendant was placed on supervised probation, but he violated
probation by failing to pay his court costs. The Defendant denied that his violation
stemmed from his accruing new criminal charges. The Defendant explained that he was
unable to pay court costs because he did not have a job and he had to support his
daughter,2 so he decided to serve his sentence. The Defendant stated that he had fathered
his daughter “for sure.” However, the Defendant stated that he did not have to pay child
support to her mother because he had “never been arrested for no child support.”

        Prior to the instant case, the Defendant lived with his father in Knoxville. At some
point, the Defendant moved to Nashville to find a job. While in Nashville, the Defendant
lived with his girlfriend, Amber Bruster, Ms. Bruster‟s father, and Ms. Bruster‟s son.
The Defendant was “supposedly” the father of Ms. Bruster‟s child.

        The Defendant admitted that he had a pending charge in Knox County for “selling
crack cocaine” and that there was a $50,000 bond set in that case. The Defendant
reported that his step-mother was willing to post the Defendant‟s bond if he was released
in the instant case in Davidson County. The Defendant explained that he would return to
Nashville after he made bond on the Knoxville charges and live with Ms. Bruster. The
Defendant stated that he would “also be going to the little Y-Build situation.” The
Defendant explained that Y-Build was a program that helped people find housing, apply
for food stamps, find a job, and “stuff like that.” The Defendant testified that he wanted
to participate in the Y-Build program because he wanted to change his life.

      The Defendant stated that he dropped out of school in the eleventh grade and that
he had not gotten his GED because he “kept getting incarcerated.” The Defendant also
admitted that he was charged with assault while he was incarcerated. Additionally, the

        2
        It is not clear from the record whether the victim in the statutory rape case is the mother of the
Defendant‟s daughter.
                                                  -4-
Defendant acknowledged that he had gotten into trouble in every city where he had lived
after the age of eighteen. The Defendant testified that he had not been employed since he
was in high school. The Defendant reported that he had applied to various fast food
restaurants but that he was unable to find employment because he did not have proper
identification. The Defendant stated that he had tried to get proper identification but was
unable to because he lacked a permanent address. The Defendant expressed hope that Y-
Build would help him find a job.

        The trial court entered a written order denying alternative sentencing. Although
the trial court‟s order is not very detailed, the court did find that the Defendant had an
open warrant from Knox County for conspiracy to manufacture and deliver cocaine. The
trial court also stated that it had considered the evidence presented at the trial and
hearing, the pre-sentence report, the principles of sentencing and arguments as to
sentencing alternatives, the nature and characteristics of the criminal conduct involved,
evidence offered as to enhancing and mitigating factors, and the Defendant‟s potential for
rehabilitation. In considering the Defendant‟s suitability for probation, the trial court
concluded:

      The [D]efendant has entered a plea agreement to a four[-]year sentence at
      30% for each count to run concurrently. Therefore, the only issue before
      the Court is the manner of service. The Court must consider the lack or
      potential for rehabilitation in determining the sentence length or how the
      sentence is to be served. T.C.A. § 40-35-103. In making that
      determination, the Court notes the [D]efendant‟s criminal history includes a
      conviction for Statutory Rape and a probation violation. The Court also
      notes the serious nature of this offense. The Court does not find that the
      [D]efendant is a proper candidate for probation, especially with pending
      charges in Knox County.

Based upon these considerations, the trial court denied the Defendant‟s request for
probation. This timely appeal followed.

                                        Analysis

       The Defendant contends that the trial court erred when it denied alternative
sentencing. The Defendant claims that he does not have a long history of criminal
conduct as contemplated in Tennessee Code Annotated section 40-35-103(1)(A). In
making his argument, the Defendant relies heavily on Tennessee Code Annotated section
40-35-102(6) and claims that that statute “gives an implied approval of alternative
sentence[ing]” for the Defendant because he is a Range I offender convicted of a Class C
felony. The State argues that the Defendant has failed to overcome the presumption that
his sentence is reasonable. We agree with the State.
                                           -5-
       Initially, we note that the Defendant asserts in his brief that “he should have been
afforded the opportunity at some variety of alternative sentence.” However, at the
sentencing hearing, the Defendant only asked to be placed on probation, and the trial
court only considered the Defendant‟s suitability for probation. As such, we will confine
our analysis to the denial of probation.

       When the record establishes that the trial court imposed a sentence within the
appropriate range that reflects a “proper application of the purposes and principles of our
Sentencing Act,” this court reviews the trial court‟s sentencing decision under an abuse of
discretion standard with a presumption of reasonableness. State v. Bise, 380 S.W.3d 682,
707 (Tenn. 2012). A finding of abuse of discretion “„reflects that the trial court‟s logic
and reasoning was improper when viewed in light of the factual circumstances and
relevant legal principles involved in a particular case.‟” State v. Shaffer, 45 S.W.3d 553,
555 (Tenn. 2001) (quoting State v. Moore, 6 S.W.3d 235, 242 (Tenn. 1999)). When
applying this standard, this court may not disturb the sentence even if it had preferred a
different result. See State v. Carter, 254 S.W.3d 335, 346 (Tenn. 2008). In State v.
Caudle, our supreme court expanded its holding in Bise to trial courts‟ decisions
regarding alternative sentencing. State v. Caudle, 388 S.W.3d 273, 278-79 (Tenn. 2012).

        In determining the proper sentence, the trial court must consider: (1) the evidence,
if any, received at the trial and the sentencing hearing; (2) the presentence report; (3) the
principles of sentencing and arguments as to sentencing alternatives; (4) the nature and
characteristics of the criminal conduct involved; (5) evidence and information offered by
the parties on the mitigating and enhancement factors set out in Tennessee Code
Annotated sections 40-35-113 and -114; (6) any statistical information provided by the
administrative office of the courts as to sentencing practices for similar offenses in
Tennessee; and (7) any statement the defendant made in the defendant‟s own behalf
about sentencing. See Tenn. Code Ann. § 40-35-210 (2014); State v. Taylor, 63 S.W.3d
400, 411 (Tenn. Crim. App. 2001). 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. Tenn. Code Ann. § 40-35-103
(2014).

        To facilitate meaningful appellate review, the trial court must state on the record
the factors it considered and the reasons for imposing the sentence chosen. Tenn. Code
Ann. § 40-35-210(e) (2014); Bise, 380 S.W.3d at 706. However, “[m]ere inadequacy in
the articulation of the reasons for imposing a particular sentence . . . should not negate the
presumption [of reasonableness].” Bise, 380 S.W.3d at 705-06. The party challenging
the sentence on appeal bears the burden of establishing that the sentence was improper.
Tenn. Code Ann. § 40-35-401 (2014), Sentencing Comm‟n Cmts.


                                            -6-
       Under the revised Tennessee sentencing statutes, a defendant is no longer
presumed to be a favorable candidate for alternative sentencing. Carter, 254 S.W.3d at
347 (citing Tenn. Code Ann. § 40-35-102(6)). Instead, the “advisory” sentencing
guidelines provide that a defendant “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.” Tenn. Code
Ann. § 40-35-102(6). However, no criminal defendant is automatically entitled to
probation as a matter of law. State v. Davis, 940 S.W.2d 558, 559 (Tenn. 1997). The
defendant bears the burden of proving his or her suitability for probation. Carter, 254
S.W.3d at 347 (citing Tenn. Code Ann. § 40-35-303(b)). The defendant must show that
probation “will subserve the ends of justice and the best interests of both the public and
the defendant.” Hooper v. State, 297 S.W.2d 78, 81 (Tenn. 1956), overruled on other
grounds, State v. Hooper, 29 S.W.3d 1, 9-10 (Tenn. 2000).

       The trial court should look to the following considerations to determine whether a
sentence of confinement is appropriate:

      (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) (2014). The 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) (2014).

        We must first address the Defendant‟s contention that the trial court erred when it
relied upon the Defendant‟s pending case in Knox County to deny alternative sentencing
because the Defendant is presumed innocent of those charges until he is convicted. The
Defendant also asserts that the State did not present any evidence about the level of the
offense and that there was nothing in the record to indicate that the Defendant could not
post bond on those charges and return to Nashville to comply with the terms of an
alternative sentence. We do not agree with the Defendant‟s contention that the trial court
relied on the pending charges in Knox County to deny probation. The trial court did
mention the pending charges at the end of the sentencing order, but it appears that the
trial court relied upon evidence in the presentence report to deny probation, not the
pending charges in Knox County. However, even if it was error for the trial court to
                                           -7-
consider the pending charges in Knox County in its sentencing determination, any such
error was harmless because there was sufficient evidence in the record to order the
Defendant to serve his sentence in confinement.

        In this case, the trial court noted the Defendant‟s history of criminal conduct and
found that he was not “a proper candidate for probation[.]” The record supports the trial
court‟s finding. The Defendant‟s presentence report indicates that he has prior
convictions for assault and criminal trespass. In his testimony at the sentencing hearing,
the Defendant admitted that, in addition to the convictions in the instant case, he had a
conviction for statutory rape. Moreover, the Defendant was previously sentenced to
probation for his statutory rape conviction, and that probation was twice revoked. There
was sufficient evidence for the trial court to find that measures less restrictive than
confinement had frequently or recently been applied unsuccessfully to the Defendant.
See Tenn. Code Ann. § 40-35-103(1) (2014). Accordingly, the trial court did not abuse
its discretion when it ordered the Defendant to serve his sentence in confinement.

                                       Conclusion

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


                                                 _________________________________
                                                 ROBERT L. HOLLOWAY, JR., JUDGE




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