                                                                                         08/22/2017
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                           Assigned on Briefs July 19, 2017

                STATE OF TENNESSEE v. TARELL D. LEWIS

               Appeal from the Criminal Court for Davidson County
           Nos. 2016-A-60, 2016-A-61, 2016-B-593   Steve Dozier, Judge


                            No. M2016-02513-CCA-R3-CD


The defendant, Tarell D. Lewis, appeals his Davidson County Criminal Court guilty-
pleaded convictions of two counts of the sale of heroin, one count of the possession with
intent to sell heroin, and one count of being a felon in possession of a firearm, claiming
that the trial court erred by ordering a fully-incarcerative sentence. Discerning no error,
we affirm.

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

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which JOHN
EVERETT WILLIAMS and TIMOTHY L. EASTER, JJ., joined.

David Von Wiegandt, Nashville, Tennessee, for the defendant, Tarell D. Lewis.

Herbert H. Slatery III, Attorney General and Reporter; Clark B. Thornton, Assistant
Attorney General; Glenn R. Funk, District Attorney General; and Edward Ryan, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                       OPINION

              The Davidson County Grand Jury charged the defendant in case number
2016-A-60 with one count of the sale of heroin; in case number 2016-A-61 with one
count of the sale of heroin; and in case number 2016-B-593 with one count of the
possession with intent to sell cocaine, one count of the possession with intent to sell
heroin, one count of simple possession or casual exchange of marijuana, one count of
being a felon in possession of a firearm, and one count of employing a firearm during the
commission of a dangerous felony having previously been convicted of a dangerous
felony. Pursuant to a plea agreement with the State, the defendant agreed to plead guilty
to the sale of heroin as charged in case numbers 2016-A-60 and 2016-A-61 and to the
possession with intent to sell heroin and being a felon in possession of a firearm as
charged in case number 2016-B-593 in exchange for a total effective sentence of 10
years, with the manner of service of the sentence to be determined by the trial court, and
the dismissal of the remaining charges in case number 2016-B-593.

              According to the recitation of facts provided by the State during the guilty
plea submission hearing, the charges in case numbers 2016-A-60 and -61 related to the
controlled purchase of drugs by a confidential informant. Case number 2016-A-60
related to the August 13, 2015 controlled purchase of half a gram of heroin from the
defendant. Case number 2016-A-61 related to the September 9, 2015 controlled purchase
of one gram of heroin from the defendant. With regard to case number 2016-B-593, the
State proffered:

                     On November 4th, of 2015[,] approximately 9:20,
             officers received information from a subject about two male
             blacks that entered a residence to collect money that was from
             the s[ale] of drugs and entered the residence with a firearm.
             A BOLO was put out for an orange Chevrolet with the
             driver’s side window covered with plastic. It possibly could
             be in the Chatham Place Housing Project.

                     Officers Justin Fox and Joshua Day went to the area
             and observed a vehicle fitting that description. The officers
             approached and the occupants made some movements in the
             car like they were trying to conceal something. Officers
             observed a Smith and Wesson .9 millimeter handgun beside
             [the defendant] in the back right passenger [seat] along with a
             full[y] loaded magazine, a box of ammunition. There was
             also a clear plastic bag of three-grams of crack cocaine, .6
             grams of heroin[] located in the car all next to [the
             defendant’s] foot in plain view.

             At the December 1, 2016 sentencing hearing, Riley Clements testified that
he had known the defendant “since he was a little thing” and that the defendant had
worked for Mr. Clements’ construction company “several times.” He said that the
defendant had worked “off and on” over the course of “three or four years.” Mr.
Clements described the defendant as “[a] very good worker” and insisted that the
defendant could “come do work immediately” at a rate of “$15 an hour” if granted a
sentence involving release into the community.

            Shantika Howard testified that the defendant was the father of her 10-
month-old daughter. The defendant also shared an older daughter with another woman.
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Ms. Howard said that the defendant cared for his other daughter “all of the time when she
was little,” that he had taken the little girl to doctors’ appointments, and that “he was the
provider of all of that for her.” Ms. Howard said that the defendant had been incarcerated
since “a couple of months before [their daughter] was born” and that the defendant’s
continued incarceration was “hard” on her “being a single parent.” She testified that the
defendant used marijuana “[s]eems like every day” before his incarceration and that she
believed he would benefit from drug treatment.

               Ms. Howard testified that the defendant was “planning to stay with his
auntie” should he be released. She said that the aunt “wasn’t able to get out” because
“[s]he’s been real sick and stuff lately.” Ms. Howard described her relationship with the
defendant’s aunt as good. Ms. Howard said that the defendant had expressed remorse for
his actions as well as a desire to “start over” and “help out with his family.”

             During cross-examination, Ms. Howard insisted that the defendant did not
smoke marijuana inside the house. She also said that the defendant had tried
unsuccessfully to quit using drugs.

               The defendant made an unsworn allocution expressing his remorse and his
desire for a fresh start.

             At the conclusion of the hearing, the trial court took the case under
advisement. In a written sentencing order, the trial court ordered the defendant to serve
the entire 10-year sentence in confinement. The court noted with particularity the
defendant’s “criminal record, which includes four felony convictions, and his inability to
comply with alternative release, which includes at least two probation violations,” and
concluded that the defendant was “not an appropriate candidate for alternative release.”
The court also concluded that confinement was “necessary to avoid depreciating the
seriousness of these Schedule I drug offenses and that measures less restrictive than
confinement have recently been applied unsuccessfully to the defendant.”

              In this timely appeal, the defendant challenges the trial court’s denial of
alternative sentencing, arguing that the trial court abused its discretion by refusing to
grant him a community corrections placement pursuant to the “special needs” provision
of Code section 40-36-106(c). The State asserts that the defendant was not eligible for
community corrections placement under the general provision because he was convicted
of being a felon in possession of a firearm, see T.C.A. § 40-36-106(a)(1)(D), and that the
record does not support a conclusion that he was eligible for community corrections
placement pursuant to the “special needs” provision of Code section 40-36-106, see
T.C.A. § 40-36-106(c). The State avers that the trial court properly ordered a sentence of
total confinement.
                                             -3-
                Our standard of review of the trial court’s sentencing determinations in this
case is whether the trial court abused its discretion, but we apply a “presumption of
reasonableness to within-range sentencing decisions that reflect a proper application of
the purposes and principles of our 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 706 n.41 (citing T.C.A. §
40-35-210(e)). Under the holding in Bise, “[a] sentence should be upheld so long as it is
within the appropriate range and the record demonstrates that the sentence is otherwise in
compliance with the purposes and principles listed by statute.” Id. at 709. The supreme
court expanded the holding in Bise to the trial court’s decision regarding probation
eligibility, ruling “that the abuse of discretion standard, accompanied by a presumption of
reasonableness, applies to within-range sentences that reflect a decision based upon the
purposes and principles of sentencing, including the questions related to probation or any
other alternative sentence.” State v. Caudle, 388 S.W.3d 273, 278-79 (Tenn. 2012).

              The imposition of a 10-year sentence in this case mandated the trial court’s
considering probation as a sentencing option. See T.C.A. § 40-35-303(a), (b).
Traditionally, the defendant has born 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)).

               To be eligible for community corrections placement, an offender must
“meet[] all of the following minimum criteria”:

              (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 as provided in title 39,
              chapter 13, parts 1-5;
              (C) Persons who are convicted of nonviolent felony offenses;
                                             -4-
             (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.

T.C.A. § 40-36-106(a)(1). Even where an offender does not meet the above criteria, he
or she may nevertheless “be considered eligible for punishment in the community under
this chapter” if the offender “would be usually considered unfit for probation due to
histories of chronic alcohol or drug abuse or mental health problems, but whose special
needs are treatable and could be served best in the community rather than in a
correctional institution.” Id. § 40-36-106(c).

              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:

             (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).

              The 35-year-old defendant’s criminal record spanned the entirety of his
adult life, beginning with a conviction for possession of cocaine, and included three
felony drug convictions and a 2005 federal conviction for being a felon in possession of a
firearm that garnered the defendant a sentence of 57 months’ incarceration. After several
years without a conviction, the defendant was convicted of drug possession and evading
                                           -5-
arrest in 2014. Sentences of community corrections and probation were revoked in 2002,
and the defendant was on the heels of a probationary sentence imposed in May 2014
when he committed the offenses at issue in this appeal. The record also evinced a spotty
employment history, despite Mr. Clements’ testimony that the defendant had worked for
him “off and on.” The record supports the trial court’s conclusion that confinement was
necessary in this case to avoid depreciating the serious nature of the defendant’s
convictions, including the repeated sale of heroin, a Schedule I substance, and the
defendant’s continuing to possess a firearm despite having been previously convicted of
several felonies. Finally, nothing in the record suggests that the defendant should have
been placed on community corrections pursuant to the “special needs” provision of the
governing statute. Other than the testimony of the mother of the defendant’s child and
the defendant’s statement in the presentence report, no evidence indicated that the
defendant had a history of “chronic alcohol or drug abuse or mental health problems.”
Under these circumstances, the record supports the sentencing decision of the trial court.

                                                  _________________________________
                                                 JAMES CURWOOD WITT, JR., JUDGE




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