        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                         Assigned on Briefs February 12, 2013

                   STATE OF TENNESSEE v. ARNES’A HART

                   Appeal from the Criminal Court for Davidson County
                          No. 2011-C-2082 Steve Dozier, Judge



                    No. M2012-00967-CCA-R3-CD - Filed April 3, 2013


Appellant, Arnes’a Hart, was indicted by the Davidson County Grand Jury for one count of
felony murder, one count of aggravated child neglect, and one count of child neglect after
the death of her infant son. In exchange for pleas of guilty to criminally negligent homicide
and child neglect, Appellant received sentences of six years and one year, respectively. The
sentences were ordered to be served concurrently. The charge of aggravated child neglect
was dismissed. The plea agreement specified that the trial court would determine the manner
of service of the sentence after a hearing. After a sentencing hearing, the trial court denied
alternative sentencing, ordering Appellant to serve her sentence in confinement in order to
avoid depreciating the seriousness of the offense and due to Appellant’s lack of truthfulness
at the sentencing hearing. Appellant appeals the denial of alternative sentencing. After a
review of the record and the applicable authorities, we conclude the record indicates that the
trial court did not abuse its discretion in denying an alternative sentence where the proof
showed that there was a need for deterrence of similar crimes, and Appellant was untruthful
at the sentencing hearing. Accordingly, the judgment of the trial court is affirmed.

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

J ERRY L. S MITH, J., delivered the opinion of the court, in which R OBERT W. W EDEMEYER and
J EFFREY S. B IVINS, JJ., joined.

Emma Rae Tennent, Assistant Public Defender, (on appeal), and Jerrilyn Manning, Assistant
Public Defender, (at hearing), Nashville, Tennessee, for the appellant, Arnes’a Hart.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney
General; Victor S. Johnson, III, District Attorney General, and Brian Holmgren, Assistant
District Attorney General, for the appellee, State of Tennessee.
                                                   OPINION

                                             Factual Background

        Appellant was indicted by the Davidson County Grand Jury in July of 2011 with one
count of felony murder, one count of aggravated child neglect, and one count of child neglect
after the death of her infant son.

       Appellant pled guilty to one count of criminally negligent homicide and one count of
child neglect. The aggravated child neglect charge was dismissed. The plea agreement
called for Appellant to receive a six-year sentence for criminally negligent homicide and a
one-year sentence for child neglect, to be served concurrently. The trial court was to
determine the manner of service of the sentence at a sentencing hearing.

       At the plea hearing, the prosecutor offered the following as the factual basis for the
guilty plea:

         [Appellant] was employed at the Comfort Inn at 2516 Music Valley Drive as
         a front desk clerk. On February 20, 2011, [Appellant] did not have child care
         for her children. She took both of her children, the victim, Sir Rodrick
         Polk-Donelson, [whose] date of birth was 9-28-10, and her [son] Sir Amore
         Hart,1 date of birth 1-23-08, to the hotel with her.

                [Appellant] originally left the children [in] the car for a period of about
         30 minutes then brought them into a hotel room and left them without any
         adult supervision other than her visiting the hotel room, according to the card
         key, one time during the eight hour shift that she worked there.

                Sometime[ ] toward the end of that shift, [Appellant] returned to that
         hotel room, found her three-year-old son lying across the baby. The baby was
         dead. The results of that death were determined to occur from overlaying by
         the three-year-old chid.

               During the course of the investigation, [Appellant] admitted that she
         had done this in terms of leaving the children and bringing the children to
         work on prior occasions. She did not have the child - baby in a crib although


        1
           The spelling of the names of the children are not consistent in the record. W e have chosen to utilize the
spelling in the indictment.



                                                        -2-
       a crib was available at the hotel. [Appellant] provided information to the
       police indicating that she had provided a lunchable and a juice box for the
       three-year-old child, however, there was no physical evidence to corroborate
       that in terms of any waste products from that.

        At the sentencing hearing, the State introduced Appellant’s presentence report.
Appellant had no prior criminal history and, at the time of the hearing, had been incarcerated
for six months. During that time, Appellant had taken several courses involving anger
management, parenting, and critical thinking. Appellant also took several computer
certification courses during that time. Appellant was a high school graduate and, by the time
of the hearing, had another child. Appellant denied alcohol and drug use.

        Appellant moved to Nashville from Florida in 2009 to find a better life. Her sister
moved to Nashville just before the sentencing hearing. At the time of the hearing, her
youngest child was being cared for by a family in the Nashville area. This family was at the
sentencing hearing. Her oldest child had spent some time with her sister in Maine and was
living in Florida at the time of the hearing.

       At the sentencing hearing, Detective Jacob Pilarski2 testified that he was in charge of
the investigation surrounding the victim’s death. Appellant confirmed that she had taken her
children to work with her on prior occasions and usually utilized a hotel room closest to the
front desk.

        On the day of the child’s death, the room she used was about a ten to fifteen second
walk from the front desk. Based on the investigation, it was discovered that Appellant used
a card key to enter the room where she left her children one time during her eight-hour shift.
All eight hours of video surveillance tape were reviewed and the tape showed Appellant
entering the room one time and stopping near the room on one other occasion. There were
periods of time on the tape where Appellant had “hours” of “downtime” with no customers
at all. She did not check on her children during these times.

       Detective Pilarski testified that he investigated all child deaths in Nashville.
According to his past investigations, the majority of child deaths result from unsafe sleep
environments. Detective Pilarski estimated that he investigated twelve to twenty-four of
these cases each year in Nashville alone. Detective Pilarski explained that in the majority of




       2
        The detective’s name is spelled “Pullarski” in the transcript. We will refer to the
detective as “Pilarski, ” as we believe this to be the proper spelling of his name.

                                             -3-
the cases no criminal charges were filed. In cases where charges were filed, it was usually
the result of one parent using alcohol or drugs which created an unsafe environment.

        Detective Pilarski testified that the issue of unsafe sleep environment is a significant
issue in Nashville. He explained that the Child Death Review Team had made public service
announcements and provided information to the public about unsafe sleep environments to
new mothers in an effort to prevent or reduce these type of child deaths.

       Appellant testified at the hearing. She expressed remorse over taking her children to
work with her and asked the trial court to grant her a sentence of probation to enable her to
take parenting and grief classes. Appellant stated that, as a result of her own actions, she
“suffered a great loss.” Appellant recognized that there were “consequences” to her actions
and had learned that she should have taken her children to a proper place.

        Appellant claimed that on the day of the incident, she took her children to work
because she was worried she would get laid off if she missed more work. She admitted that
she left her children, unattended, in the car for about thirty to forty-five minutes before she
put them in the hotel room. The car was unlocked and the windows were cracked. She did
not check on them while they were in the car, but she could see them from the front desk.

       On prior occasions when Appellant brought her children with her, she had notified
other hotel personnel of their whereabouts. This time she did not “have a chance” because
it was a “very busy weekend.” Appellant denied leaving her children in the car to try to
conceal their presence.

       Appellant claimed she was unaware that the hotel had cribs available. In fact, she
insisted that she had asked the management if the hotel supplied cribs and “they always told
[her] no.” At home, Appellant stated that she always placed her children in a crib because
they needed a safe sleeping environment.

       Appellant admitted that she only checked on the children once during the eight-hour
shift and claimed it was because the hotel was “busy.” She went to the room “as much as
[she] possibly could” but agreed that there were hours of time on the surveillance tape during
which she could have checked on her children.

        Maryann Heath, a licensed clinical social worker with the Public Defender's Office,
testified that she met with Appellant on “numerous” occasions prior to the sentencing
hearing. According to Ms. Heath, Appellant was “extremely” remorseful and needed trauma
and grief counseling. Ms. Heath had “lined up” these services as well as “alternative
housing” for Appellant if she received probation.

                                              -4-
      Appellant’s sister, Kamia Duckworth, testified at the hearing that she moved to
Nashville to help Appellant.

        At the conclusion of the first day of the hearing, the trial court expressed concern over
the discrepancy in the testimony about cribs being available at the hotel. The trial court was
concerned that Appellant was lying to the court. The State offered to call a hotel employee
to testify about availability of cribs at a later date.

        At a second hearing, Darrell John Pike, II, the manager of the Comfort Inn, testified
that the hotel had portable cribs available at the time of the incident. In fact, the “national
flag” or chain of Choice Hotels, of which the Comfort Inn was a part, required the hotel to
provide portable cribs. “All employees” receive training on the availability of portable cribs
for guests at the “very beginning” of their employment. During the training, which lasts
three to four days, the employees do a walk through of the hotel to show “where the storage
areas are” located where the portable cribs are kept. Mr. Pike did not recall telling Appellant
that she could be fired if she continued to miss work due to child care issues. Appellant’s
personnel file indicated that she missed one day of work prior to the accident due to a “bad
tire.”

        At the conclusion of the hearing, the trial court noted Appellant’s lack of criminal
history and that punishment should be imposed to provide “an effective deterrent for those
likely to violate criminal laws.” The trial court noted the “general deterrence language”
contained in Detective Pilarski’s testimony. The trial court determined that confinement was
appropriate because of the “testimony and the facts of the case” as well as to avoid
depreciating the seriousness of the offense. The trial court also placed great weight on the
fact that Appellant was not “honest” with the trial court. The trial court denied an alternative
sentence.

       Appellant filed a timely notice of appeal.

                                            Analysis

        On appeal, Appellant challenges the trial court’s denial of an alternative sentence.
Specifically, Appellant argues that the trial court erred in imposing a sentence of total
confinement because she was a favorable candidate for probation and “alternative sentencing
would subserve the ends of justice and the best interests of both the public and [Appellant].”
Further, Appellant argues that confinement was not necessary to avoid depreciating the
seriousness of the offense or to provide a deterrent to others likely to commit similar offenses
and that no other provisions of Tennessee Code Annotation section 40-35-103 apply to her
situation. Lastly, Appellant insists that the trial court improperly based its decision on

                                               -5-
Appellant’s lack of candor and credibility. The State insists that the trial court did not abuse
its discretion in denying an alternative sentence.

       Appellate review of sentencing is for abuse of discretion. We must apply “a
presumption of reasonableness to within-range sentencing decisions that reflect a proper
application of the purposes and principles of our Sentencing Act.” Bise, 380 S.W.3d at 707.
This standard of review is also applicable to “questions related to probation or any other
alternative sentence.” State v. Caudle, 388 S.W.3d 273, 278-79 (Tenn. 2012). Thus, in
reviewing a trial court’s denial of an alternative sentence, the applicable standard of review
is abuse of discretion with a presumption of reasonableness so long as the sentence
“reflect[s] a decision based upon the purposes and principles of sentencing.” Id. The party
appealing the sentence has the burden of demonstrating its impropriety. T.C.A. § 40-35-401,
Sent’g Comm’n Cmts.; see also State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).


      With regard to alternative sentencing, Tennessee Code Annotated section
40-35-102(5) 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 . . . .


       A defendant who does not fall within this class of offenders:


       [A]nd who is an especially mitigated offender 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 . . .
       . A court shall consider, but is not bound by, this advisory sentencing
       guideline.


T.C.A. § 40-35-102(6); see also Carter, 254 S.W.3d at 347. For offenses committed on or
after June 7, 2005, a defendant is eligible for probation if the sentence actually imposed is
ten years or less. See T.C.A. § 40-35-303(a). Appellant herein was eligible for probation
because her sentence was ten years or less, and the offenses for which she was convicted
were not specifically excluded by statute. T.C.A. § 40-35-303(a).


                                              -6-
       All offenders who meet the criteria for alternative sentencing are not entitled to relief;
instead, sentencing issues must be determined by the facts and circumstances of each case.
See State v. Taylor, 744 S.W.2d 919, 922 (Tenn. Crim. App. 1987) (citing State v. Moss, 727
S.W.2d 229, 235 (Tenn. 1986)). Even if a defendant is a favorable candidate for alternative
sentencing under Tennessee Code Annotated section 40-35-102(6), a trial court may deny
an alternative sentence because:


       (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)(A)-(C). In choosing among possible sentencing alternatives, the trial
court should also consider Tennessee Code Annotated section 40-35-103(5), which states,
in pertinent part, “[t]he potential or lack of potential for the rehabilitation or treatment of the
defendant should be considered in determining the sentence alternative or length of a term
to be imposed.” T.C.A. § 40-35-103(5); see also State v. Dowdy, 894 S.W.2d 301, 305
(Tenn. Crim. App. 1994). The trial court may consider a defendant’s untruthfulness and lack
of candor as they relate to the potential for rehabilitation. See State v. Nunley, 22 S.W.3d
282, 289 (Tenn. Crim. App. 1999); see also State v. Bunch, 646 S.W.2d 158, 160-61 (Tenn.
1983); State v. Zeolia, 928 S.W.2d 457, 463 (Tenn. Crim. App. 1996); State v. Williamson,
919 S.W.2d 69, 84 (Tenn. Crim. App. 1995); Dowdy, 894 S.W.2d at 305-06.


        Any sentence that does not involve complete confinement is an alternative sentence.
See generally State v. Fields, 40 S.W.3d 435 (Tenn. 2001). The principles of sentencing
require the sentence to be “no greater than that deserved for the offense committed” and “the
least severe measure necessary to achieve the purposes for which the sentence is imposed.”
T.C.A. § 40-35-103(2), (4). In addition, “[t]he potential or lack of potential for the
rehabilitation or treatment of the defendant should be considered in determining the sentence
alternative or length of a term to be imposed[,]” and “[t]he length of a term of probation may
reflect the length of a treatment or rehabilitation program in which participation is a
condition of the sentence [.]” Id. § 40-35-103(5).

                                                -7-
        The trial court’s determination of whether the defendant is entitled to an alternative
sentence and whether the defendant is a suitable candidate for full probation are different
inquiries with different burdens of proof. State v. Boggs, 932 S.W.2d 467, 477 (Tenn. Crim.
App. 1996). The trial court shall automatically consider probation as a sentencing alternative
for eligible defendants; however, the defendant bears the burden of proving his or her
suitability for probation. Id. § 40-35-303(b). In addition, “the defendant is not automatically
entitled to probation as a matter of law.” Id. § 40-35-303(b), Sentencing Comm’n Cmts.
Rather, the defendant must demonstrate that probation would serve “the ends of justice and
the best interests of both the public and the defendant.” State v. Souder, 105 S.W.3d 602,
607 (Tenn. Crim. App. 2002) (citations omitted).


       When considering probation, the trial court should consider the nature and
circumstances of the offense, the defendant’s criminal record, the defendant’s background
and social history, the defendant’s present condition, including physical and mental
condition, the deterrent effect on the defendant, and the best interests of the defendant and
the public. See State v. Kendrick, 10 S.W.3d 650, 656 (Tenn. Crim. App. 1999) (citing State
v. Grear, 568 S.W.2d 285, 286 (Tenn. 1978)).


        In the case herein, the trial court based its decision to deny alternative sentencing in
order to avoid depreciating the seriousness of the offense, to provide a deterrent to others,
and due to Appellant’s lack of candor. Although Appellant had no previous criminal history,
the record reflects that she left her three-year-old and five-month-old children unattended in
a hotel room during her eight-hour work shift. The surveillance video indicated that
Appellant visited the room only one time during the eight-hour shift despite several
hour-long blocks of time during which Appellant was not otherwise occupied and could have
easily walked the ten to fifteen seconds from the front desk to the hotel room to tend to her
children. Further, Appellant claimed that there were no cribs available at the hotel, but the
manager testified that not only were cribs available but that all employees received training
on both the availability and location of cribs in the hotel. The trial court gave Appellant an
opportunity to retract her denial, and she declined. The trial court assessed Appellant’s
credibility and determined that she was untruthful. Further, the testimony of Detective
Pilarski indicated that the Child Death Squad investigated multiple cases of child deaths each
year in Davidson County that, like the case herein, resulted from unsafe sleep environments.
The detective opined that there was a need for education and deterrence in the community.



     We agree with the trial court that the victim’s death was needless and entirely caused
by Appellant’s irresponsibility. While we do not dispute the pain and anguish felt by

                                              -8-
Appellant due to the death of her infant son as a result of her own actions, Appellant has not
established that the trial court abused its discretion by denying an alternative sentence.
Appellant is not entitled to relief.


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




                                           ___________________________________
                                           JERRY L. SMITH, JUDGE




                                             -9-
