                                                                                       11/14/2017
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                   Assigned on Briefs July 25, 2017 at Knoxville

           STATE OF TENNESSEE v. TONY ANTHONY HATLEY

                    Appeal from the Circuit Court for Tipton County
                      No. 8594    Joseph H. Walker, III, Judge


                           No. W2016-01802-CCA-R3-CD


The Defendant, Tony Anthony Hatley, pled guilty to theft of property valued at $1000 or
more but less than $10,000, a Class D felony, and possession of drug paraphernalia, a
Class A misdemeanor, in exchange for an effective sentence of eight years with the
manner of service to be determined by the trial court. Following a sentencing hearing,
the trial court imposed a sentence of confinement, which the Defendant now challenges.
After review, we affirm the sentencing decision of the trial court.

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

ALAN E. GLENN, J., delivered the opinion of the court, in which ROBERT H.
MONTGOMERY, JR., and J. ROSS DYER, JJ., joined.

Michael Thorne, Lexington, Tennessee (on appeal); Bo G. Burk, District Public
Defender; and Melissa Downing, Assistant Public Defender (at hearing), for the
appellant, Tony Anthony Hatley.

Herbert H. Slatery III, Attorney General and Reporter; Zachary T. Hinkle, Assistant
Attorney General; D. Michael Dunavant, District Attorney General; and James Walter
Freeland, Jr., Assistant District Attorney General, for the appellee, State of Tennessee.

                                       OPINION

                                        FACTS

      The Defendant was indicted in Case Number 8594 for theft of property valued at
$1000 or more but less than $10,000, in Count 1, and possession of drug paraphernalia, in
Count 2. The Defendant pled guilty to these counts, and the State recommended a
sentence of eight years served at 45% release eligibility in Count 1 concurrent with a
sentence of eleven months and twenty-nine days in Count 2. A sentencing hearing would
be held to determine the manner of service of the sentence. At the guilty plea hearing,
the State recited the facts it would have presented at trial as follows:

      [O]n July 14, 2015, in Covington, Tennessee at approximately 8:26 in the
      evening, Officer Ginn with the Covington Police Department responded to
      a shoplifting at Wal-Mart. Officer Ginn met with the loss prevention
      officer. Loss prevention officer, Mr. Young, advised that he had seen a
      suspect on camera, later identified as [the Defendant], putting assorted
      items into a car seat box. [The Defendant] opened the box and removed the
      car seat and started to refill the box. Officer Ginn observed by camera [the
      Defendant] remove security sensors from one item in electronics. [The
      Defendant] then proceeded to take the box to the infant section where he
      placed multiple items in the box, which had a total value of $1,221.43. The
      car seat, which was removed, was valued at $54.88.

             [The Defendant] retaped the box using tape from the store. [The
      Defendant] then placed the box back on the shelf and attempted to exit the
      store. [The Defendant] was apprehended at the grocery door entrance.
      They did show [the Defendant] was with an unknown black female.
      Officer Ginn was unable to make contact with the female.

             [The Defendant] had a glass pipe back in his pocket at the time of
      the stop. [The Defendant] admitted to smoking heroin[] prior to being in
      Wal-Mart.

       The Defendant was also charged in two other indictments. In Case Number 8595,
the Defendant was charged with driving under the influence (“DUI”), driving while
license suspended, introduction of contraband into a penal facility, and possession of less
than 0.5 grams of a Schedule II controlled substance with intent to deliver. He agreed to
plead guilty to DUI, driving while license suspended, and simple possession, with the
sentence from that indictment to run concurrently to the sentence in Case Number 8594.
In addition, the Defendant was indicted in Case Number 8733 for failure to appear. He
agreed to plead guilty to that charge with a four-year sentence at 45% to run
consecutively to the sentences stemming from the other two indictments. The State
provided a factual basis for each of the other cases, and the Defendant stipulated to the
facts.

       The trial court then engaged in a plea colloquy with the Defendant to ensure that
he was aware of the rights he was waiving and the sentences he was facing. The court
stated that the Defendant was facing an effective twelve-year sentence from the three
indictments and that there would be a hearing to consider “relief from incarceration.”
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However, the court noted that there was “no guarantee” that the relief would be granted,
which the Defendant acknowledged that he understood. The Defendant indicated that he
was satisfied with the representation of his attorney and that no one was forcing him to
enter the pleas. Thereafter, the Defendant pled guilty to the offenses, and the trial court
accepted his pleas.

       At the sentencing hearing, the trial court first accepted the presentence report “as
submitted,” after defense counsel noted that she had reviewed it “and there [we]re no
corrections.” The report reflected that the forty-eight-year-old Defendant had thirty-six
prior convictions, including three assault-related and sixteen theft-related offenses. The
report also reflected a number of prior arrests and dismissed charges. The Defendant
only had one verified period of employment, between May 2014 and July 2015.

       The Defendant testified that he began using drugs recreationally after leaving the
Army and had now been addicted to cocaine for more than twenty years. He said that
“drugs have always gotten [him] in trouble,” but he never got help because he “always
thought [he] could cure it [him]self.” Up to this point, the longest he had been in jail due
to his drug problem was three or four years. He claimed that he committed the theft at
Walmart to support his drug habit. After he was released from jail following his arrest in
this case, the Defendant went to a rehabilitation facility called Harbor House on his own
accord and completed a twenty-eight-day treatment program.

       The Defendant testified that, after he finished the program at Harbor House, he
and his wife moved to Maryland. He continues to go to meetings “everywhere, anywhere
[he] get[s] a chance” to help him overcome his addiction. The Defendant denied moving
to Maryland to avoid the pending charges, despite the fact that he missed a court date
which ultimately resulted in his charge of failure to appear. He claimed that he missed
that court date because he thought it was scheduled for May 14, not March 14. He
indicated that he would “transfer” his probation to Maryland if the court placed him on
probation. He said that he had a job in Maryland working as painter, and he was working
on obtaining a “pipefitter’s certificate.” The Defendant stated that, for the first time in
his adult life, he had been sober for a little over a year and that had changed his view of
life.

       On cross-examination, the Defendant acknowledged that the presentence report
showed that he was charged with shoplifting in West Virginia that occurred after the
offense in this case but claimed it was an “old charge[]” that he had “disposed of.” He
then admitted to a number of felony and misdemeanor offenses he had committed in
other states and that he had also been charged with failure to appear in other states.



                                            -3-
       At the conclusion of the hearing, the trial court recognized the Defendant’s efforts
at rehabilitation and suspended his sentence in Case Number 8733, which was agreed to
run consecutively to his sentences in the other cases. However, in light of the
Defendant’s long history of criminal behavior and his behavior with regard to the facts of
the case, the court declined to suspend the Defendant’s sentence in Case Number 8594.
Thus, the Defendant received a partial alternative sentence but was ordered to serve eight
years at 45% release eligibility.

       The Defendant filed a timely notice of appeal through counsel. After that, the
Defendant filed a pro se motion for reconsideration, alleging that he was led to believe he
would receive probation as a condition of his plea and that he would not have pled guilty
otherwise. He also simultaneously filed a pro se notice of appeal and “motion for notice
of appeal” regarding the allegation, which the trial court denied. The Defendant’s appeal
of the trial court’s imposition of a sentence of confinement in Case Number 8594 is now
before this court.

                                       ANALYSIS

       A trial court is to consider the following when determining a defendant’s sentence
and the appropriate combination of sentencing alternatives:

              (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 the mitigating
       and enhancement factors set out in §§ 40-35-113 and 40-35-114;

              (6) Any statistical information provided by the administrative office
       of the courts as to sentencing practices for similar offenses in Tennessee;
       and

             (7) Any statement the defendant wishes to make in the defendant’s
       own behalf about sentencing.

                                            -4-
Tenn. Code Ann. § 40-35-210(b).

       The trial court is granted broad discretion to impose a sentence anywhere within
the applicable range, regardless of the presence or absence of enhancement or mitigating
factors, and “sentences should be upheld so long as the statutory purposes and principles,
along with any enhancement and mitigating factors, have been properly addressed.”
State v. Bise, 380 S.W.3d 682, 706 (Tenn. 2012). Accordingly, we review a trial court’s
sentencing determinations under an abuse of discretion standard, “granting a presumption
of reasonableness to within-range sentencing decisions that reflect a proper application of
the purposes and principles of our Sentencing Act.” Id. at 707. This standard of review
also applies to “questions related to probation or any other alternative sentence.” State v.
Caudle, 388 S.W.3d 273, 278-79 (Tenn. 2012).

       Under the revised Tennessee sentencing statutes, a defendant is no longer
presumed to be a favorable candidate for alternative sentencing. State v. Carter, 254
S.W.3d 335, 347 (Tenn. 2008) (citing Tenn. Code Ann. § 40-35-102(6)). Instead, the
“advisory” sentencing guidelines provide that a defendant “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.” Tenn. Code Ann. § 40-35-102(6).

       A defendant shall be eligible for probation, subject to certain exceptions, if the
sentence imposed on the defendant is ten years or less. Id. § 40-35-303(a). A defendant
is not, however, automatically entitled to probation as a matter of law. The burden is
upon the defendant to show that he is a suitable candidate for probation. Id. § 40-35-
303(b); State v. Goode, 956 S.W.2d 521, 527 (Tenn. Crim. App. 1997); State v. Boggs,
932 S.W.2d 467, 477 (Tenn. Crim. App. 1996). In order to meet this burden, the
defendant “must demonstrate that probation will ‘subserve the ends of justice and the best
interest of both the public and the defendant.’” State v. Bingham, 910 S.W.2d 448, 456
(Tenn. Crim. App. 1995) (quoting State v. Dykes, 803 S.W.2d 250, 259 (Tenn. Crim.
App. 1990)).

       There is no bright line rule for determining when a defendant should be granted
probation. Bingham, 910 S.W.2d at 456. Every sentencing decision necessarily requires
a case-by-case analysis. Id. Factors to be considered include the circumstances
surrounding the offense, the defendant’s criminal record, the defendant’s social history
and present condition, the need for deterrence, and the best interest of the defendant and
the public. Goode, 956 S.W.2d at 527. Also relevant is whether a sentence of probation
would unduly depreciate the seriousness of the offense. See State v. Davis, 940 S.W.2d
558, 559 (Tenn. 1997); Bingham, 910 S.W.2d at 456.

                                            -5-
      In determining if incarceration is appropriate in a given case, a trial court should
consider whether:

            (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 defendant’s potential for
rehabilitation or lack thereof should be examined when determining whether an
alternative sentence is appropriate. Id. § 40-35-103(5).

        The Defendant contends that the trial court erred in denying him an alternative
sentence and imposing a sentence of confinement in Case Number 8594. He asserts that
the trial court should have relied on the absence of bodily injury, the fact that the owner
was not deprived of property, and his amenability to rehabilitation. The trial court based
its denial on the Defendant’s long history of criminal behavior and his behavior with
regard to the facts of the case. The record shows that the Defendant has a history of
criminal conduct spanning at least twenty-six years and including thirty-six prior
convictions, as well as numerous other arrests and dismissed charges across multiple
states. He admittedly has a long history of drug abuse. In addition, the circumstances of
the offense show that the Defendant brazenly removed merchandise from its appropriate
box and replaced it with merchandise that was over $1000 more valuable. He did this
after smoking heroin and while in possession of drug paraphernalia. Under the Bise
standard of review, “a trial court’s decision to grant or deny probation will not be
invalidated unless the trial court wholly departed from the relevant statutory
considerations in reaching its determination.” State v. Sihapanya, 516 S.W.3d 473, 476
(Tenn. 2014) (order) (per curiam). We conclude that the trial court did not abuse its
discretion in denying the Defendant full probation.

                                    CONCLUSION

       Based on the foregoing authorities and reasoning, we affirm the sentencing
decision of the trial court.
                                            _________________________________
                                            ALAN E. GLENN, JUDGE
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