                                                                                        03/05/2020
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                        Assigned on Briefs February 25, 2020

           STATE OF TENNESSEE v. AARON FRANK BRITTON

                  Appeal from the Criminal Court for Knox County
                       No. 114556    Steve W. Sword, Judge


                            No. E2019-01104-CCA-R3-CD


The defendant, Aaron Frank Britton, appeals his Knox County Criminal Court guilty-
pleaded conviction of aggravated assault, arguing that the trial court erred by imposing a
fully incarcerative sentence. Discerning no error, we affirm.

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

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which D. KELLY
THOMAS, JR., and, ROBERT H. MONTGOMERY, JR., JJ., joined.

Michael A. Graves, Knoxville, Tennessee, for the appellant, Aaron Frank Britton.

Herbert H. Slatery III, Attorney General and Reporter; Garrett D. Ward, Assistant
Attorney General; Charme P. Allen, District Attorney General; and Randall Kilby,
Assistant District Attorney General, for the appellee, State of Tennessee.


                                       OPINION

             On January 8, 2019, the defendant entered a plea of guilty to the single
count of aggravated assault charged by information on that same day. Pursuant to a plea
agreement with the State, the defendant received an agreed sentence of six years, with the
manner of service of the sentence to be determined by the trial court. The State
summarized the facts of the case:

                    [O]n October 25, 2018, . . . Knoxville Police
             Department officers would testify that they observed [the
             defendant] pull into a drive-through line at the McDonald’s
             located at 2812 Magnolia Avenue here in Knox County. [The
              defendant] was known to these officers to have outstanding
              warrants.

                     Officers attempted to approach him to take him into
              custody on these warrants. Officers would testify that . . .
              once they did so, [the defendant], when he observed them,
              accelerated his vehicle across the parking lot at McDonald’s
              and struck a police vehicle occupied by Officer David Lee of
              the Knoxville Police Department, causing him to fear serious
              imminent bodily injury . . . .

               Neither party presented any evidence at the May 23, 2019 sentencing
hearing. The defendant acknowledged that he had been rejected by several alternative
sentencing programs and that he had failed to appear for the original setting of his
sentencing hearing. He blamed his estranged wife, who was also on probation, for his
failure to be accepted into those programs, saying that “everything she did was planned”
to prevent his being granted probation. He also observed that two programs “didn’t want
to take me because they went back on my history. . . . So, really, I’m getting judged off
something I did in the past.”

             An assessment from the Tennessee Department of Correction Day
Reporting Center (“DRC”), which was exhibited to the hearing, reflected that the
defendant was rejected by that program because the defendant’s wife was then enrolled in
the program. It also established that DRC would consider reassessing the defendant
should his wife be released from the program. That report also indicated that the
defendant, by his own admission, had used marijuana “a few days prior to our interview”
in March 2019.

               An assessment from the Knox County Sheriff’s Office Community
Alternatives to Prison Program (“CAPP”), which was also exhibited to the hearing,
reflected that the defendant “may not be technically eligible for placement at CAPP due
to the violent nature of the offense.” The assessment noted that the defendant “has a
criminal history that includes arrests for multiple assaults, robbery and has had his parole
revoked on at least three occasions.” On these bases, “CAPP has determined that [the
defendant] is not appropriate for placement on CAPP.”

              The presentence report, also exhibited to the hearing, established that the
30-year-old defendant’s criminal history began when he was 16 years old and spanned
his entire adult life. He had prior convictions for assault and drug possession, among
other things. In addition to his record of criminal convictions, the defendant had a record
of revocations of sentences involving release into the community. The risk needs
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assessment showed that the defendant had “a score of high for violence.”

             The court found that the defendant had a long history of criminal
convictions and a failure to abide by sentences involving release into the community.
The court observed:

                     And so what I’m faced with is, I’ve got somebody
              who’s pled guilty to aggravated assault, fleeing from the
              police in a vehicle, who has assaultive convictions in the past.
              You’ve been to prison before. You’ve had your parole
              revoked before. You’ve had probation revoked before. You
              came back as a high risk on your presentence investigation
              because of those violent convictions in the past. And that’s
              why Enhanced and CAPP said no. And then you don’t report
              for the sentencing hearing for whatever reason. It may be
              issues with your wife, but then you pick up this new
              aggravated assault.

                     And so you’ve really sort of put yourself in the
              position where you’ve got this long criminal history with a
              poor track record on efforts to rehabilitate you. And so
              because of that, you are not a good candidate for probation of
              any form.

Based upon these findings, the trial court ordered the defendant to serve his six-year
sentence in confinement.

              After the defendant stated that he had rejected the State’s offer of three
years to serve in favor of the opportunity to apply for probation and insisted that he
should not be sentenced to six years to serve, the court told the defendant, “Had you not
picked up new criminal offenses and shown up for court when you were supposed to,
there’s a chance that [you] could have gotten probation. So, I mean, you gambled and
you lost.”

               In this timely appeal, the defendant contends that the trial court erred by
imposing a fully incarcerative sentence. The State asserts that the record supports the
denial of alternative sentencing.

             Our supreme court has adopted an abuse of discretion standard of review
for sentencing and has prescribed “a presumption of reasonableness to within-range
sentencing decisions that reflect a proper application of the purposes and principles of our
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Sentencing Act.” State v. Bise, 380 S.W.3d 682, 707 (Tenn. 2012). The application of
the purposes and principles of sentencing involves a consideration of “[t]he potential or
lack of potential for the rehabilitation or treatment of the defendant . . . in determining the
sentence alternative or length of a term to be imposed.” T.C.A. § 40-35-103(5). Trial
courts are “required under the 2005 amendments to ‘place on the record, either orally or
in writing, what enhancement or mitigating factors were considered, if any, as well as the
reasons for the sentence, in order to ensure fair and consistent sentencing.’” Bise 380
S.W.3d at 698-99 (quoting T.C.A. § 40-35-210(e)). The abuse-of-discretion standard of
review and the presumption of reasonableness also applies to “questions related to
probation or any other alternative sentence.” State v. Caudle, 388 S.W.3d 273, 278-79
(Tenn. 2012).

               Although the trial court must consider the defendant’s potential for
rehabilitation in determining whether to impose an alternative sentence, see T.C.A. § 40-
35-103(5), “[c]onvicted 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” are not considered favorable candidates for alternative
sentencing, id. § 40-35-102(5)-(6)(A).

              That being said, the imposition of an effective six-year sentence in this case
mandated the trial court’s considering probation as a sentencing option. See T.C.A. § 40-
35-303(a) (“A defendant shall be eligible for probation under this chapter if the sentence
actually imposed upon the defendant is ten (10) years or less . . . .”). Traditionally, the
defendant has borne the burden of establishing his “suitability for full probation.” State
v. Mounger, 7 S.W.3d 70, 78 (Tenn. Crim. App. 1999); see T.C.A. § 40-35-303(b). Such
a showing required the defendant to demonstrate that full probation would “subserve the
ends of justice and the best interest[s] of both the public and the defendant.” State v.
Dykes, 803 S.W.2d 250, 259 (Tenn. Crim. App. 1990) (quoting Hooper v. State, 297
S.W.2d 78, 81 (1956), overruled on other grounds by State v. Hooper, 29 S.W.3d 1, 9-10
(Tenn. 2000)).

              When a trial court orders confinement and therefore rejects any form of
alternative sentencing such as probation, split confinement, or periodic confinement, it
must base the decision to confine the defendant upon the considerations set forth in Code
section 40-35-103(1), which provides:

              (1) Sentences involving confinement should be based on the
              following considerations:




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                     (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 our view, the trial court did not abuse its discretion by ordering a
sentence of full confinement in this case. The record indicates that the defendant had a
long criminal history littered with violent offenses and revocations of both probation and
parole. Additionally, the defendant was placed on bond pending the sentencing hearing
in this case but nevertheless failed to appear for the original setting of the sentencing
hearing. Although the trial court did not express its finding in the words used by the
statute, the record clearly supports the trial court’s implicit finding that measures less
restrictive than confinement had frequently and recently been applied unsuccessfully to
the defendant.

             Accordingly, we affirm the judgment of the trial court.

                                            _________________________________
                                            JAMES CURWOOD WITT, JR., JUDGE




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