         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                            Assigned on Briefs August 19, 2003

              STATE OF TENNESSEE v. TRAVIS BRONSON, a/k/a
                         TERRY CRUSENBERRY

                 Direct Appeal from the Criminal Court for Sullivan County
                          No. S46,807    Phyllis H. Miller, Judge



                                 No. E2003-00385-CCA-R3-CD
                                        October 9, 2003

The defendant pled guilty to theft under $500 and was sentenced to eleven months, twenty-nine days
in the county jail at zero percent work release eligibility, to be served consecutively to a two-year
sentence in a separate case. On appeal, the defendant argues that the trial court erred in denying him
probation. Finding no error, we affirm the judgment of the trial court.

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

ALAN E. GLENN, J., delivered the opinion of the court, in which JOSEPH M. TIPTON and JOHN
EVERETT WILLIAMS, JJ., joined.

Julie A. Rice, Contract Appellate Defender (on appeal); Stephen M. Wallace, District Public
Defender; and Leslie S. Hale, Assistant Public Defender (at trial), for the appellant, Travis Bronson,
a/k/a Terry Crusenberry.

Paul G. Summers, Attorney General and Reporter; Renee W. Turner, Assistant Attorney General;
H. Greeley Wells, Jr., District Attorney General; and Lewis Combs, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                             OPINION

                                              FACTS

        On November 25, 2002, the defendant, Travis Bronson, a/k/a Terry Crusenberry, pled guilty
in the Sullivan County Criminal Court in case number S46,634 to criminal attempt to commit
robbery, a Class D felony, and possession of Lortab, which the trial court merged with the attempted
robbery, and in case number S46,807 to theft under $500, a Class A misdemeanor. At the guilty plea
hearing, the assistant district attorney general informed the court of the evidence the State would
have offered at trial:
                        The State’s case in S46,634 would have been had this case
               gone to trial, that on June the 1st, 2002 the defendant entered the CVS
               Pharmacy located on Virginia Avenue in Bristol, Tennessee . . . that
               he approached the pharmacist’s desk, that he saw a bottle of Lortab
               back behind the counter . . . rushed past the desk and grabbed the pills
               and attempted to take them by force and started back towards the door
               of the CVS Pharmacy. The State’s proof would be further that the
               pharmacist, Dave Gilmore, tackled the defendant and pinned him to
               the floor and held him there until the police could come and arrest
               him. . . .

                      The State’s proof in S46,807 would be that the defendant
               entered the Lowe’s store . . . in Kingsport . . . [and] selected and
               concealed various merchandise from the store valued at forty dollars
               and ninety-two cents ($40.92). It would be proof that he left the store
               without paying for the merchandise, bypassed the registers, and he
               was apprehended by Mr. Robbins outside and confessed to Mr.
               Robbins that he had taken the property from Lowe’s that was taken
               without consent.

       The record establishes that the defendant’s theft of merchandise from the Lowe’s store
occurred on December 12, 2001. The record further establishes that he was out on bond for that
offense at the time he committed the attempted robbery of the CVS Pharmacy. Pursuant to his plea
agreement, the defendant was sentenced as a Range I, standard offender to two years for the
attempted robbery conviction and to eleven months, twenty-nine days for the theft conviction, with
the manner of service for the theft conviction to be determined by the trial court at a later sentencing
hearing.

        The defendant testified at the January 30, 2003, sentencing hearing that his name was Terry
Crusenberry, but that he had used several aliases in the past, including Travis McCrosky and Travis
Bronson. He acknowledged the prior convictions listed on his presentence report were accurate,
although he testified he was unable to remember several of the traffic violations. He further
acknowledged he had a charge for misdemeanor failure to appear and a probation violation warrant
pending at the time the presentence report was prepared. The defendant admitted he had a drug
problem and said he was willing to undergo treatment to overcome it. He said he had, in fact, been
“thinking about going . . . straight to Magnolia Ridge,” a substance abuse treatment center, upon his
release from jail. He informed the trial court that he wished to be granted probation or some other
sentence involving release into the community so that he could be with his mother, who had had two
or three heart attacks and recently undergone open heart surgery, and could spend more time with
his children whom he had not seen in almost a year. The defendant testified he had three children,
ages seven, eight, and twelve, who presently lived with his wife. He said he provided support for
his children when he was working and had spoken to a former employer, a handicapped man who
owned a car lot, who told him he would rehire him as his assistant upon his release from jail.


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        On cross-examination, the defendant testified he could reside with his employer if he had
nowhere else to live. He conceded his Virginia probation officer listed his address as “transient” on
a probation report, but he could not understand why she did so, saying that he lived with his mother
after her open heart surgery and provided his probation officer with her address. He acknowledged
the probation officer had also written in her report that his case was difficult to monitor and that she
did not consider him a good candidate for probation. The defendant explained he had been “on the
drugs real bad” at that time. He testified, however, that he had not used any drugs in the nine months
he had spent in jail, could now see what drugs had done to his life, and no longer desired to use
them.

        Upon questioning by the trial court, the defendant acknowledged he was not married to the
woman he referred to as his wife. Asked about his presentence report, which stated his mother had
said she would not allow him to live with her, the defendant testified his mother denied saying that
and said that he was welcome to stay with her. However, he also testified he had already made
arrangements for a job and a place to live with his former employer. The defendant testified his
former employer knew him by the name “Crusenberry,” which was his girlfriend’s last name and one
he had first used when he was pulled over by the police while “strung out on the pills.”

       The defendant admitted having once changed his address without informing his Virginia
probation officer. He explained he had moved in with some friends, but had been forced to move
when they failed to pay rent and subsequently abandoned the residence. He testified he had lived
in one motel in the Bristol, Virginia, area for two months during that time, but had informed his
probation officer of his address. He denied having told his probation officer he had stayed in various
motels in the area and said he was sure that information, which was in her report, “was all just a
mistake.”

         At the conclusion of the hearing, the trial court found the defendant was not a suitable
candidate for probation or other alternative sentencing and accordingly sentenced him to serve his
eleven-month-twenty-nine-day sentence in confinement. Thereafter, the defendant filed a timely
appeal to this court, raising as his sole issue whether the trial court erred in ordering that he serve
his full sentence in confinement, rather than granting him probation.

                                             ANALYSIS

        The defendant contends the trial court erred in sentencing him because it failed to consider
two appropriate mitigating factors: his crime neither caused nor threatened serious bodily injury, and
he committed the theft under strong provocation. See Tenn. Code Ann. § 40-35-113(1), (2) (1997).
He argues mitigating factor (1) should have been applied based on the evidence he was apprehended
outside the Lowe’s store “with ease and without any indication of violence on his part whatsoever,”
and mitigating factor (2) should have been applied based on the evidence that his strong addiction
to pain medication caused him to commit the crime in order to fund his habit. The defendant
additionally argues that his addiction to pain pills and the withdrawal symptoms he was experiencing
at the time of his attempted robbery of the CVS Pharmacy should have been considered as a


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mitigating factor by the trial court under Tennessee Code Annotated section 40-35-113(13), the
“catchall” provision of the statute. He asserts an appropriate consideration and weighing of the
enhancement and mitigating factors by the trial court should have resulted in a partial probationary
sentence, rather than a sentence of full confinement. The State argues the trial court properly denied
probation based on the defendant’s extensive criminal history, lack of truthfulness, and history of
probation violations. We agree with the State.

       Misdemeanor sentencing is controlled by Tennessee Code Annotated section 40-35-302,
which provides in part that the trial court shall impose a specific sentence that is consistent with the
purposes and principles of the 1989 Sentencing Reform Act. See Tenn. Code Ann. § 40-35-302(b)
(1997). Although the Sentencing Reform Act typically treats misdemeanants and felons the same,
misdemeanants are not given the presumption of a minimum sentence. See State v. Seaton, 914
S.W.2d 129, 133 (Tenn. Crim. App. 1995). A separate sentencing hearing is not required in
misdemeanor sentencing, but the trial court must “allow the parties a reasonable opportunity to be
heard on the question of the length of any sentence and the manner in which the sentence is to be
served.” Tenn. Code Ann. § 40-35-302(a) (1997). A misdemeanor sentence, unlike a felony
sentence, has no sentence range. State v. Baker, 966 S.W.2d 429, 434 (Tenn. Crim. App. 1997).

        The trial court has great flexibility and discretion in fashioning a misdemeanor sentence.
Unlike the felony sentencing statute, which requires the trial court to place its findings on the record,
the misdemeanor sentencing statute “merely requires a trial judge to consider enhancement and
mitigating factors when calculating the percentage of a misdemeanor sentence to be served in
confinement.” State v. Troutman, 979 S.W.2d 271, 274 (Tenn. 1998). When a defendant challenges
a misdemeanor sentence, this court conducts a de novo review with a presumption that the trial
court’s determinations are correct. Tenn. Code Ann. § 40-35-401(d) (1997).

        Even if eligible, a defendant is not automatically entitled to probation as a matter of law. See
Tenn. Code Ann. § 40-35-303(b) (1997). The burden is upon the defendant to show that he is a
suitable candidate for probation. Id.; 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)), overruled on other
grounds by State v. Hooper, 29 S.W.3d 1, 9 (Tenn. 2000). 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, the best interest of the defendant and
the public, and the defendant’s credibility. Goode, 956 S.W.2d at 527.

        The record demonstrates that the trial court considered each of the statutory enhancement and
mitigating factors in sentencing the defendant. The trial court applied enhancement factors (1) and
(8) based on the defendant’s extensive criminal record and his previous history of probation


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violations. See Tenn. Code Ann. § 40-35-114(1), (8) (1997).1 As for mitigating factors, the trial
court noted factor (1), the defendant’s criminal conduct neither caused nor threatened serious bodily
injury, was “true for every thief” and, thus, gave it little, if any, weight. The court found the
defendant’s status as a high school graduate a positive factor but, again, apparently assigned it little
or no weight. The court also considered a number of nonstatutory mitigating factors, including
whether the defendant had expressed remorse for his crimes, whether he had an excellent work
history, whether he had voluntarily confessed his guilt, and whether he had made any efforts at
rehabilitating himself. However, based on the record, the trial court found that none of these
mitigating factors applied.

        In finding the defendant unsuitable for probation, the trial court noted, inter alia, his many
violations of probation in Virginia, use of four different names, untruthfulness to the court, poor
social history, and violations of the conditions of his release on bond. After reviewing the
defendant’s record, the trial court concluded:

                  So, I find that you have a criminal history demonstrating a failure of
                  past efforts at rehabilitation. I find that you’re untruthful, that your
                  potential for rehabilitation is almost zero and none. That probation
                  officer has worked with you in Virginia way beyond what I would
                  hope any of our people would. You know, I would have signed a
                  warrant the first time out of this Court because we demand
                  truthfulness, and your chances of making it on probation are, it just
                  won’t do, or any other form of alternative sentencing because even in
                  the Brown Annex you wouldn’t make it.

        The record fully supports the trial court’s sentencing determinations. The defendant’s
presentence report reflects a lengthy criminal history beginning at age 19 and culminating at age 36
with his attempted robbery of the CVS Pharmacy when he was out on bond for the instant offense.
In addition, the defendant was on probation with the Commonwealth of Virginia at the time he
committed the offense. According to the report of his supervising probation officer, Sally Johnson,
on multiple occasions the defendant failed to inform her of his changes in address, provided false
information regarding his residences, and failed to stay in contact with her. Johnson stated that when
she ultimately tracked him down, the defendant “admitted he was living in various motels in the Lee
Highway area of Washington County/Bristol, Virginia.” She stated that the defendant’s case had
been an “extremely difficult” one to monitor, and she held the opinion that he was not a suitable
candidate for probation supervision.

       The record further reflects that the defendant has used multiple names in the past, including
“Travis Ray Johnson,” which the defendant’s mother reported was the defendant’s true name; “Terry
Crusenberry,” the name the defendant informed the trial court was his real name; “Travis Taylor


         1
            Under the current statute, these would be enhan cement facto rs (2) and (9 ). See Tenn. Code Ann. § 40-35-114
(Sup p. 20 02).

                                                          -5-
McCrosky”; and “Travis Raymond Bronson.” Additionally, the defendant told the trial court that
his mother would welcome him into her home and that he had never admitted to his Virginia
probation officer that he had been living in various motels in the area, in spite of the information
contained in his presentence report to the contrary. The defendant testified at the sentencing hearing
that he realized what drugs had done to his life and had been “thinking” about entering a
rehabilitation program upon his release from jail. However, his information about the program was
unspecific and his plans vague. Moreover, his mother reported to the officer who prepared the
presentence report that she believed the defendant would probably quickly turn to drugs upon his
release from jail. She also reported that the defendant, to her knowledge, was not married to “Kristie
Crusenberry” and that it was not clear to her whether Crusenberry’s three children were, in fact, the
defendant’s children. In sum, the defendant’s social history, record of prior convictions under
multiple names, and testimony at the sentencing hearing evidence a complete lack of candor and
truthfulness on his part.

        A trial court may base a sentence of confinement upon any one of several considerations,
including a finding that “[m]easures less restrictive than confinement have frequently or recently
have been applied unsuccessfully to the defendant.” Tenn. Code Ann. § 40-35-103(1)(C) (1997).
Here, the trial court observed that measures less restrictive than confinement had been unsuccessfully
applied to the defendant many times in the past, and thus sentenced the defendant to serve his eleven-
month-twenty-nine-day sentence in confinement. Based on the record in this case, we find no error
in the sentence imposed by the trial court.

                                          CONCLUSION

        After reviewing the record, we conclude that the trial court did not err in sentencing the
defendant to serve his eleven-month-twenty-nine-day sentence in confinement. Accordingly, we
affirm the judgment of the trial court.


                                                       ___________________________________
                                                       ALAN E. GLENN, JUDGE




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