        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                Assigned on Briefs in Knoxville December 18, 2013

        STATE OF TENNESSEE v. EDWARD FAYTE WEBSTER, IV

              Direct Appeal from the Circuit Court for Marshall County
                      No. 13-CR-34    Robert G. Crigler, Judge


               No. M2013-01425-CCA-R3-CD - Filed January 28, 2014


The appellant, Edward Fayte Webster, IV, pled guilty in the Marshall County Circuit Court
to nine counts of burglary, seven counts of felony vandalism, ten counts of misdemeanor
vandalism, and eight counts of misdemeanor theft. Pursuant to the plea agreement, the trial
court was to determine the length and manner of service of the sentences. After a sentencing
hearing, the appellant received an effective four-year sentence to be served in confinement.
On appeal, the appellant contends that the trial court abused its discretion by denying his
request for alternative sentencing. Based upon the record and the parties’ briefs, we affirm
the judgments of the trial court.

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

N ORMA M CG EE O GLE, J., delivered the opinion of the Court, in which J OSEPH M. T IPTON,
PJ., and R OGER A. P AGE, J., joined.

William J. Harold (on appeal and at trial) and Michael J. Collins (at trial), Lewisburg,
Tennessee, for the appellant, Edward Fayte Webster, IV.

Robert E. Cooper, Jr., Attorney General and Reporter; Deshea Dulany Faughn, Assistant
Attorney General; Robert Carter, District Attorney General; and Weakley E. Barnard,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                        OPINION

                                 I. Factual Background

       In February 2013, the Marshall County Grand Jury indicted the appellant for nine
counts of burglary, a Class D felony; seven counts of vandalism causing damage of $1,000
or more but less than $10,000, a Class D felony; ten counts of vandalism causing damage of
$500 or less, a Class A misdemeanor; and eight counts of theft of property valued $500 or
less, a Class A misdemeanor. In March 2013, the appellant entered an open plea with the
length and manner of service of the sentences to be determined by the trial court after a
sentencing hearing. At the guilty plea hearing, the State advised the court that the charges
resulted from the appellant’s burglarizing several businesses in August, September, October,
and November 2012 and causing property damage to the businesses. During some of the
burglaries, the appellant broke into vending machines inside the businesses, damaged the
machines, and took money out of them.

       At the sentencing hearing, the State introduced the appellant’s presentence report into
evidence. According to the report, the then nineteen-year-old appellant was married with a
one-year-old daughter. The appellant claimed in the report that he graduated from Marshall
County High School. However, when the investigating officer tried to verify the claim, she
received a letter from the high school stating that the appellant did not graduate, that the
school did not have a “dropped file on him,” and that the appellant may have attended
another high school. In the presentence report, the appellant described his mental health as
“excellent” and his physical health as “good.” He stated that he used alcohol from ages
thirteen to seventeen and used to consume alcohol “a lot.” He stated that he had never used
prescription or illegal drugs. The appellant also stated in the report that he currently was
unemployed but worked for Kantus as a technician from March to December 2012, Walker
Diecast in production from November 2011 to March 2012, Quality Auto Sales as a
mechanic from December 2010 to June 2012, and Roger Saw Mill as a topper from 2006 to
August 2008. The report shows that in 2012, when the appellant was eighteen years old, he
was fined for two undisclosed offenses; sentenced to eleven months, twenty-nine days on
probation for domestic violence; and received a thirty-day suspended sentence for driving
without a license in his possession.

       The presentence report also shows that in 2003, the appellant was charged with theft
under $500 and received juvenile pretrial diversion. However, his diversion was revoked
when he failed to complete any conditions proposed by the juvenile court judge. In 2007, the
appellant was adjudicated delinquent for possessing a weapon on school property and
sentenced to probation. In 2008 and 2009, he was adjudicated delinquent for numerous
charges involving burglary, misdemeanor theft, felony theft, misdemeanor vandalism, felony
vandalism, criminal trespass, and domestic assault. For the 2008 offenses, he received
probation; for the 2009 offenses, he was taken into custody by the Department of Children’s
Services. The report shows that the appellant violated an “aftercare” program in February
2011. During the sentencing hearing, the appellant gave a statement in his own behalf,
advising the court that he was sorry for all of the charges in this case and that he did not
“mean to hurt or deprive anybody from anything.”

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        The trial court noted that “there’s a huge number of convictions in this case” and that
the crimes occurred over a period of time. The trial court applied enhancement factor (1),
that “[t]he defendant has a previous history of criminal convictions or criminal behavior, in
addition to those necessary to establish the appropriate range,” due to the appellant’s prior
convictions as an adult. Tenn. Code Ann. § 40-35-114(1). The trial court also applied
enhancement factor (8), that the appellant, before trial or sentencing, failed to comply with
the conditions of a sentence involving release into the community, because he previously
violated the aftercare program, and factor (13)(C), that the appellant, at the time the felony
was committed, was on probation for domestic violence when he committed the current
offenses. See Tenn. Code Ann. § 40-35-114(8), (13)(C). Finally, the trial court applied
enhancement factor (16), that the defendant had been “adjudicated to have committed a
delinquent act or acts as a juvenile that would constitute a felony if committed by an adult.”
Tenn. Code Ann. § 40-35-114(16).

       In mitigation, the trial court applied factors (1), that the defendant’s criminal conduct
neither caused nor threatened serious bodily injury, and (13) for the appellant’s “open plea.”
See Tenn. Code Ann. § 40-35-113 (1), (13). The trial court, referring to the appellant’s claim
that he was a high school graduate, found that he was untruthful in the presentence report.

       The trial court sentenced the appellant as a Range I, standard offender to four years
for the Class D felony convictions and eleven months, twenty-nine days for the Class A
misdemeanor convictions. The trial court denied the appellant’s request for alternative
sentencing, stating that

              it does appear that confinement is needed to protect society by
              restraining. The defendant has a long history of criminal
              conduct. They’re not atrocious crimes, so seriousness would not
              apply, but the defendant is a frequent flyer in the juvenile
              system, and it appears that has not succeed[ed] at all in deterring
              him from, from committing all of these crimes.

The trial court stated that it was “tempted” to run some of the sentences consecutively but
ordered that the appellant serve the sentences concurrently “although it galls me to do so.”

                                         II. Analysis

        The appellant contends that the trial court erred by denying his request for alternative
sentencing because the crimes were not violent and because his prior conviction for domestic
assault “does not indicate a pattern of committing violent offenses.” The appellant contends
that the more appropriate sentence in this case was community corrections. The State argues

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that the trial court did not abuse its discretion by denying the appellant’s request for
alternative sentencing. We agree with the State.

        In sentencing a defendant, the trial court shall 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 enhancement and mitigating 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 by the appellant in his own behalf; and (8) the potential for
rehabilitation or treatment. See Tenn. Code Ann. §§ 40-35-102, -103, -210; see also State
v. Ashby, 823 S.W.2d 166, 168 (Tenn. 1991). Previously, appellate review of the length,
range, or manner of service of a sentence was de novo with a presumption of correctness.
See Tenn. Code Ann. § 40-35-401(d). However, our supreme court has announced that
“sentences imposed by the trial court within the appropriate statutory range are to be
reviewed under an abuse of discretion standard with a ‘presumption of reasonableness.’”
State v. Bise, 380 S.W.3d 682, 708 (Tenn. 2012). Moreover, the court has specifically held
that the abuse of discretion standard, with a presumption of reasonableness, applies to a
review of a denial of alternative sentencing. State v. Caudle, 388 S.W.3d 273, 278-79 (Tenn.
2012). The burden is on the appellant to demonstrate the impropriety of his sentence. See
Tenn. Code Ann. § 40-35-401, Sentencing Comm’n Cmts.

       An appellant is eligible for alternative sentencing if the sentence actually imposed is
ten years or less. See Tenn. Code Ann. § 40-35-303(a). The appellant’s sentences meet this
requirement. Moreover, an appellant who is an especially mitigated or standard offender
convicted of a Class C, D, or E felony should be considered a favorable candidate for
alternative sentencing absent evidence to the contrary. See Tenn. Code Ann. § 40-35-102(6).
Tennessee Code Annotated section 40-35-103(1) sets forth the following sentencing
considerations which are utilized in determining the appropriateness of alternative
sentencing:

                      (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



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                     (C) Measures less restrictive than confinement have
               frequently or recently been applied unsuccessfully to the
               defendant.

See also State v. Zeolia, 928 S.W.2d 457, 461 (Tenn. Crim. App. 1996). Additionally, “[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.” Tenn.
Code Ann. § 40-35-103(5). A defendant with a long history of criminal conduct and
“evincing failure of past efforts at rehabilitation” is presumed unsuitable for alternative
sentencing. Tenn. Code Ann. § 40-35-102(5).

       The trial court’s comments demonstrate that it denied alternative sentencing by
finding that confinement was necessary to protect society by restraining the appellant who
had a long history of criminal conduct, because measures less restrictive than confinement
had frequently or recently been applied unsuccessfully to the appellant, and because the
appellant lacked potential for rehabilitation. Given that the nineteen-year-old appellant has
continued to commit burglaries, thefts, and vandalisms despite having received previous
alternative sentences as a juvenile for those same offenses, the trial court did not abuse its
discretion by ordering that he serve his effective four-year sentence in the Department of
Correction.

                                      III. Conclusion

         Based upon the record and the parties’ briefs, we affirm the judgments of the trial
court.

                                                   _________________________________
                                                   NORMA McGEE OGLE, JUDGE




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