        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                       Assigned on Briefs May 5, 2015 Session

                    STATE OF TENNESSEE v. LARRY LENZ

                 Appeal from the Criminal Court for Shelby County
               Nos. 13-03311; 13-05978  James C. Beasley, Jr., Judge


                No. W2014-01720-CCA-R3-CD - Filed June 24, 2015


Appellant, Larry Lenz, pleaded guilty to five counts of theft: two counts of theft of
property valued at $10,000 or more but less than $60,000, Class C felonies; two counts of
theft of property valued at $1,000 or more but less than $10,000, Class D felonies; and
one count of theft of property valued at $500 or more but less than $1,000, a Class E
felony. He received the agreed-upon effective sentence of twelve years as a Range III,
persistent offender, to be served at forty-five percent release eligibility. The trial court
denied appellant’s request for alternative sentencing pursuant to the Community
Corrections Act, and he appeals the denial. Upon our review, we affirm the judgments of
the trial court.

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

ROGER A. PAGE, J., delivered the opinion of the court, in which NORMA MCGEE OGLE
and ROBERT W. WEDEMEYER, JJ., joined.

Stephen C. Bush, District Public Defender; and Barry W. Kuhn (on appeal) and Clifford
Thomas Abeles, Jr., (at plea hearing), Assistant District Public Defenders, Memphis,
Tennessee, for the appellant, Larry Lenz.

Herbert H. Slatery III, Attorney General and Reporter; M. Todd Ridley, Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Jose Francisco Leon,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                        OPINION

                                         I. Facts

                           A. Guilty Plea Submission Hearing
        At the guilty plea submission hearing, the State asserted that had the case
proceeded to trial, the evidence would have established that between December 12, 2012,
and January 29, 2013, appellant placed orders to five different businesses while claiming
to be affiliated with reputable companies. Specifically, he placed eight orders and
received goods from Diamond International valued at $25,254 while claiming to be a
representative of two different companies, Superior Carriers and Apac Tennessee. Again
claiming to represent Apac Tennessee, appellant placed an order and received property
from Truck Pro valued at $11,770. He placed five different orders from MHC Kenworth
and received property valued at $7,511. He ordered and received property from Tag
Truck valued at $2,686. Appellant also placed an order from O’Reilly Auto Parts valued
at $854, claiming to be a representative of Poly Packaging. When questioned by the
investigator in this case, representatives from each company disavowed appellant’s
affiliation with their businesses.

       Appellant entered guilty pleas to all five counts of the indictment and received the
agreed-upon concurrent sentences of twelve years for the Class C and D felonies and six
years for the Class E felony, to be served as a Range III, persistent offender at forty-five
percent release eligibility. He also pleaded guilty to an unrelated one-count indictment
for theft of property valued at $1,000 or more but less than $10,000, with all sentences to
be served concurrently with each other. At the close of the plea submission hearing,
appellant requested a hearing on the issue of alternative sentencing.

                                  B. Sentencing Hearing

       At the sentencing hearing, the trial court heard testimony from each of the
companies that were victimized by appellant’s crimes. The State also introduced
appellant’s pre-sentence report into evidence. Appellant requested that he be allowed to
serve his sentence pursuant to the Community Corrections Act.

       Appellant testified on his own behalf and stated that he became involved in the
theft scheme because he became indebted to drug dealers. He admitted that he was a
heroin addict. He claimed that the person to whom he owed money spearheaded the
scheme and that he would pick up the orders and take the goods to “the dude.” Appellant
denied that he knew from the outset that the transactions were “bogus” but admitted that
“it didn’t take long to figure it out what was going on.”

       Appellant acknowledged his criminal history of more than twelve felony
convictions and stated that he had been a drug addict for twenty to twenty-two years. He
stated that he had never sought counseling for his addiction and that he “always thought
[he] could do it on [his] own.” Appellant said that during his brief periods of sobriety, he
was a “productive citizen.” He stated that while incarcerated, he had “done everything
[he] could” to address his addiction. He completed Moral Recognition Therapy,
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participated in a drug and alcohol class, and attended Narcotics Anonymous. Appellant
testified that he wanted to attend the Memphis Union Mission, a residential treatment
facility.

       In denying a community corrections sentence, the trial court considered the
presentence report, the length and complexity of appellant’s criminal enterprise, and his
criminal history. The court opined that appellant’s record belied the expectation that he
could be rehabilitated. While noting that appellant had completed some programs during
his incarceration, the trial court stated that nothing indicated that he would abide by the
conditions of alternative sentencing or follow the rules of society and recognized that
appellant had previously been placed on community corrections. The trial court
concluded:

       I cannot in good conscience consider placing [appellant] on Community
       Correction. He doesn’t qualify for probation. But placing him on
       Community Correction because to me all of those factors factored in, would
       . . . send an absolutely horrible message to members in this community who
       choose to violate the law in this form or this fashion. And it’s not a
       deterrent to them. It very much would depreciate this in the eyes of these
       businesses who were severely hampered by all of this and I just do not feel
       that under all the circumstances he’s a proper candidate for me to consider
       for Community Correction.

Appellant now challenges the trial court’s denial of his request for community
corrections.

                                        II. Analysis

        Because a sentence under the Community Corrections Act is an alternative
sentence, we must first consider whether appellant is a suitable candidate for alternative
sentencing. State v. Grigsby, 957 S.W.2d 541, 545 (Tenn. 1997); see also State v. Johnny
Arwood, No. E2004-00319-CCA-R3-CD, 2004 WL 2826998, at *2 (Tenn. Crim. App.
Dec. 9, 2004) (citing State v. Taylor, 744 S.W.2d 919, 920 (Tenn. Crim. App. 1987))
(stating that the Tennessee Criminal Sentencing Reform Act and the Community
Corrections Act are in pari materia). We begin with the proposition that a defendant is
eligible for probation if the sentence actually imposed is ten years or less. See Tenn.
Code Ann. § 40-35-303(a). Based on the length of appellant’s sentence, he is ineligible
for probation.

        This court has held that ineligibility for probation does not foreclose a defendant’s
eligibility for a suspended sentence pursuant to the Community Corrections Act. State v.

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Johnson, 342 S.W.3d 520, 524 (Tenn. Crim. App. 2009). Tennessee Code Annotated
section 40-36-106(a) provides:

      (a)(1) An offender who meets all of the following minimum criteria shall
             be considered eligible for punishment in the community under this
             chapter:

             (A)    Persons who, without this option,             would   be
                    incarcerated in a correctional institution;

             (B)    Persons who are convicted of property-related or drug-
                    or alcohol-related felony offenses or other felony
                    offenses not involving crimes against the person . . . ;

             C)     Persons who are convicted of nonviolent felony
                    offenses;

             (D)    Persons who are convicted of felony offenses in which
                    the use or possession of a weapon was not involved;

             (E)    Persons who do not demonstrate a present or past
                    pattern of behavior indicating violence; and

             (F)    Persons who do not demonstrate a pattern of
                    committing violent offenses.

Thus, appellant meets the minimum requirements for sentencing pursuant to community
corrections.

        However, although a defendant meets the minimum eligibility requirements for
community corrections, he is not automatically entitled to such relief. Grigsby, 957
S.W.2d at 546 (citing State v. Grandberry, 803 S.W.2d 706, 707 (Tenn. Crim. App.
1990). After finding that a defendant is eligible for a community corrections sentence,
the trial court must then apply the sentencing considerations set forth in the Tennessee
Code Annotated and the general sentencing guidelines to determine whether the
defendant is entitled to a sentence under the Community Corrections Act. Id. We review
the trial court’s sentencing determination under an abuse of discretion standard
accompanied by a presumption of reasonableness. State v. Bise, 380 S.W.3d 682, 707
(Tenn. 2012); State v. Caudle, 388 S.W.3d 273, 278-79 (Tenn. 2012) (extending Bise to
“the questions related to probation or any other alternative sentence”). On appeal, we are
guided by the following principles.

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       In determining an appropriate sentence, a trial court must consider the following
factors: (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 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
makes on his own behalf as to sentencing; and (8) the potential for rehabilitation. Tenn.
Code Ann. §§ 40-35-103(5), -113, -114, -210(b). In addition, “[t]he sentence imposed
should be the least severe measure necessary to achieve the purposes for which the
sentence is imposed.” Tenn. Code Ann. § 40-35-103(4).

      A trial court should base its decision regarding any sentence involving
confinement on the following considerations:

       (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). Furthermore, the trial court should examine the
defendant’s potential for rehabilitation or lack thereof when determining whether an
alternative sentence is appropriate. Id. § 40-35-103(5).

        In this case, the trial court specifically noted appellant’s lengthy criminal history
as summarized in the presentence report, the complexity of the criminal enterprise in
which appellant was involved, and appellant’s poor potential for rehabilitation. Tenn.
Code Ann. §§ 40-35-103(1), (5), -113, -114, -210(b). It also recognized that appellant
had previously received the benefit of a community corrections sentence. Id. § 40-35-
103(1)(C). The trial court concluded that a sentence of incarceration was necessary to
avoid depreciating the seriousness of the offense and to provide a deterrent to others
likely to commit similar offenses. Id. § 40-35-103(1)(B).

       Based on our review of the record, and attributing the trial court’s sentencing
decision with a presumption of reasonableness, we conclude that the trial court did not
abuse its discretion in denying appellant’s request for community corrections. In addition
to the foregoing, we further note that appellant’s criminal history included not only
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twelve felonies but also several misdemeanor convictions.      We find Tennessee Code
Annotated section 40-35-102(6)(A) instructive on this issue:

      A defendant who . . . 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; however, a defendant’s prior convictions shall be considered
      evidence to the contrary and, therefore, a defendant who is being sentenced
      for a third or subsequent felony conviction involving separate periods of
      incarceration or supervision shall not be considered a favorable candidate
      for alternative sentencing.

Appellant fails to qualify as a favorable candidate for alternative sentencing for two
reasons: he was sentenced as a persistent offender, and he had twelve prior felony
convictions. Appellant is not entitled to relief.

                                    CONCLUSION

       Based on our review of the record, the briefs of the parties, and applicable legal
authority, we affirm the judgments of the trial court.


                                                 _________________________________
                                                 ROGER A. PAGE, JUDGE




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