        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                             Assigned on Briefs June 7, 2016

          STATE OF TENNESSEE v. BRYANT MONTRELL HUNT

                 Appeal from the Circuit Court for Madison County
                       No. 15-275    Donald H. Allen, Judge


               No. W2015-02249-CCA-R3-CD - Filed August 5, 2016


The defendant, Bryant Montrell Hunt, pled guilty to one count each of arson, aggravated
burglary, and vandalism of property over $500. The plea agreement provided the
defendant would be sentenced as a Range I, standard offender. Following a sentencing
hearing, the trial court denied the defendant’s request for alternative sentencing and
imposed the maximum sentences of six years for arson, six years for aggravated burglary,
and two years for vandalism over $500, to be served concurrently in confinement. On
appeal, the defendant contends the trial court erred in denying his motion for alternative
sentencing. Following our review, we affirm the judgments of the trial court.

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

J. ROSS DYER, J., delivered the opinion of the court, in which ALAN E. GLENN and
ROBERT W. WEDEMEYER, JJ., joined.

Gregory D. Gookin, Assitant District Public Defender, Jackson, Tennessee, for the
defendant-Appellant, Bryant Montrell Hunt.

Herbert H. Slatery III, Attorney General and Reporter; Robert W. Wilson, Assistant
Attorney General; Jerry Woodall, District Attorney General; and Brian M. Gilliam,
Assistant District Attorney General, for the Appellee, State of Tennessee.

                                       OPINION

                        I.      Factual and Procedural Background

      This case arises out of a fire occuring November 10, 2014. Following the fire, the
defendant was charged with and subsequently pled guity to one count of arson, one count
of aggravated burglary, and one count of vandalism over $500. The State and the
defendant agreed the defendant would be sentenced as a Range I, standard offender, with
the trial court to determine the sentence length and manner of service. The State and the
defendant further agreed the sentences would be served concurrently. A sentencing
hearing was set for October 19, 2015.

       During the sentencing hearing, the State first submitted a presentence investigation
report. The report summarized the results of an investigation into a fire occurring in the
home of Tameika Curry. The investigation revealed the presence of accelerant in three
locations inside the home and determined the fire was the result of arson by way of
aggravated burglary.

       The State then called the victim, Tameika Curry. Ms. Curry testified that on
November 10, 2014, a fire destroyed the rental home she lived in with her three children.
At the time of the fire, Ms. Curry and her children were not home. The fire destroyed all
of Ms. Curry’s belongings, which she valued at approximately $20,000. Ms. Curry did
not have renter’s insurance at the time of the fire.

       Ms. Curry further testified that at the time of the fire, she was in an intermittent
relationship with the defendant, who is the father of two of her children. Ms. Curry and
the defendant frequently argued over his drug use, and in the days leading to the fire, Ms.
Curry and the defendant were again fighting. On November 6, 2014, the defendant threw
a rock through Ms. Curry’s kitchen window. From November 6, 2014 through November
10, 2014, the date of the fire, the defendant sent Ms. Curry 200 to 400 text messages and
called her at least 200 times. On November 8, 2014, the Saturday before the fire, the
defendant sent Ms. Curry a text message stating that she was “going to be homeless by
sunrise.” Around 6:30 a.m. the following Monday, November 10, 2014, Ms. Curry
learned from a neighbor that a fire had destroyed her home. Ms. Curry asked that the
defendant receive the maximum sentence.

       The defendant testified that at the time of the arson, he was employed and helped
financially support his children. He paid child support, purchased clothes for his children,
and had recently purchased mattresses for his children’s beds. The defendant admitted to
pleading guilty to the offenses and stated, “I take full responsibility for my actions.” The
defendant further admitted to leaving his children homeless and testified that he
understood the magnitude of his actions.

       The defendant testified regarding his prior felony convictions. At age eighteen, he
was convicted of robbery and use of a firearm during a crime of violence, for which he
was sentenced to seventy-eight months in confinement with two years of supervised
release. The defendant ultimately served only sixty-eight months of the sentence. At the


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time of his prior felony convictions, the defendant was a gang member, but his affiliation
ended during his federal incarceration.

        With respect to his criminal history, the defendant further testified that in 2009, he
was convicted of unlawful possession of drug paraphernalia and received probation,
community service, and a fine. In 2009, he also received a speeding ticket. In 2010, he
was convicted of marijuana possession and sentenced to six days in jail, which he served
on the weekends. In 2014, he received a few speeding tickets. In June 2014, he pled
guilty to vandalism and was ordered to serve a sixty-day sentence.

        The defendant testified that while in federal custody, he received job training but
not anger management training. The defendant requested anger management as part of
this sentence, admitting he has a problem with anger. During his current incarceration,
the defendant received medication for depression and paranoid schizophrenia. According
to the defendant, the medications have helped calm him.

      The defendant testified that he has a relationship with his children and would like
to remain in contact with them but is fine with severing contact with the victim. The
defendant expressed understanding that he will have to pay $20,000 in restitution to Ms.
Curry and indicated that will be “no problem.”

       The defendant testified that during his current incarceration, he has assisted the
police with other criminal investigations. He further testified that since being in
protective custody, he has been the victim of a gang-related assault. According to the
defendant, he is not safe in jail. The defendant requested to serve any sentence imposed
by the trial court in a county facility or in a state facility other than a prison operated by
the Tennessee Department of Correction.

        The defendant testified that he threw the rock through the victim’s window on
November 6, 2014, out of anger. He was angry because the victim discussed his drug use
with others. According to the defendant, on November 10, 2014, he set the victim’s house
on fire because he felt betrayed and rejected. The defendant admitted that at the time of
the fire, he had been using cocaine.

       The defendant apologized for setting fire to the victim’s home and admitted he
was wrong. The defendant again confirmed that he has since gone on medication and is
not nearly as angry. The defendant also acknowledged that depression and schizophrenia
are not excuses for his actions.



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       At the conclusion of the sentencing hearing, the State asked the trial court to
impose the maximum sentence to be served in confinement, order $20,000 in restitution
to be paid to the victim, and order the defendant not to have any contact with Ms. Curry.
The defendant asked the trial court to consider his guilty plea and testimony regarding his
remorse in mitigation. Given the defendant’s willingness to pay restitution, request for
anger management, psychiatric treatment, employment history, and criminal record, the
defendant asked the trial court for alternative sentencing. Alternatively, the defendant
requested a sentence less than the maximum of six years.

       After considering the evidence presented at the time of the guilty plea, the
evidence presented as part of the sentencing hearing, and the presentence report, the trial
court denied the defendant’s request for alternative sentencing and instead ordered the
defendant to serve concurrent maximum sentences of six years for arson, six years for
aggravated burglary, and two years for vandalism over $500 in the Tennessee
Department of Correction. This timely appeal followed.

                                          II.      Analysis

       The defendant contends the trial court erred when it denied his request for
alternative sentencing. Due to his admission of guilt, acknowledgment that his criminal
behavior was wrong, willingness to financially support his children, and criminal history,
on appeal the defendant argues that a period of shock incarceration, followed by intensive
supervision, would have fulfilled the goals of sentencing while recognizing the
seriousness of his criminal conduct.1 The State argues that the trial court appropriately
stated its reasons for denying the Defendant’s request for alternative sentencing on the
record, and the proof supports the trial court’s decision. The State further argues the
period of confinement ordered by the trial court was within the appropriate range and in
compliance with the purposes and principles of Tennessee’s sentencing statutes. We
agree with the State.

       The trial court has 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

        1
          At the sentencing hearing, the defendant did not request shock incarceration followed by a
period of intense supervision. Rather, he simply asked the trial court to consider “some form of alternative
sentencing.”

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of reasonableness to within-range sentencing decisions that reflect a proper application of
the purposes and principles of our Sentencing Act.” Id. at 707. In State v. Caudle, our
supreme court clarified 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.” 388 S.W.3d 273, 278-79 (Tenn. 2012).

       Under the 2005 amendments to the sentencing act, trial courts are to consider the
following factors 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.

Tenn. Code Ann. § 40-35-210(b).

       The trial court must state on the record the factors it considered and the reasons for
the ordered sentence. Tenn. Code Ann. § 40-35-210(e); Bise, 380 S.W.3d at 706. “Mere
inadequacy in the articulation of the reasons for imposing a particular sentence ... should
not negate the presumption [of reasonableness].” Bise, 380 S.W.3d at 705–06. The party
challenging the sentence on appeal bears the burden of establishing that the sentence was
improper. Tenn. Code Ann. § 40-35-401, Sentencing Comm’n Cmts.

       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). However, no criminal defendant is
automatically entitled to probation as a matter of law. State v. Davis, 940 S.W.2d 558,
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559 (Tenn. 1997). Instead, the defendant bears the burden of proving his or her suitability
for alternative sentencing options. Carter, 254 S.W.3d at 347 (citing Tenn. Code Ann. §
40–35–303(b)). The defendant must show that the alternative sentencing option imposed
“will subserve the ends of justice and the best interests of both the public and the
defendant.” Hooper v. State, 297 S.W.2d 78, 81 (Tenn. 1956), overruled on other
grounds, State v. Hooper, 29 S.W.3d 1, 9-10 (Tenn. 2000).

      When imposing a sentence of full confinement, the 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)(A)-(C). In addition, the sentence imposed should be (1)
“no greater than that deserved for the offense committed,” and (2) “the least severe
measure necessary to achieve the purposes for which the sentence is imposed.” Tenn.
Code Ann. § 40-35-103(2),(4).

        In this case, the trial court carefully considered each factor mandated by
Tennessee Code Annotated section 40-35-210 prior to imposing concurrent sentences of
six years for arson, six years for aggravated burglary, and two years for vandalism over
$500. When determining the proper sentence, the trial court properly reviewed the
presentence report, considered the evidence presented at the time of the defendant’s
guilty plea, and considered the evidence presented during the sentencing hearing. With
respect to the nature and characteristics of the defendant’s criminal conduct, the trial
court recognized the severe loss incurred by Ms. Curry and her three children, concluding
“this is a very serious offense.”

       The trial court then considered both mitigating and enhancement factors, noting
that the defendant had a history of criminal convictions as an adult in excess of those
necessary to establish the appropriate range, including at least two prior felony
convictions and approximately ten misdemeanor convictions, four of which were Class A
misdemeanors. The trial court gave the defendant’s criminal conviction history great
weight for enhancement purposes.



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       The court also considered the defendant’s criminal behavior. The trial court noted
that as recently as the time of the arson, cocaine use was a part of the defendant’s life.
The trial court gave this great weight.

        The trial court next considered the extensive property damage suffered by the
victim. The victim and her family lost everything and were left homeless. At the very
least, it will take the victim $20,000 to replace the lost belongings. The trial court gave
this factor moderate weight.

       The trial court next found that the defendant has repeatedly failed to comply with
sentence conditions involving release into the community. On at least two prior
occasions, the defendant committed new offenses while on some type of probation or
release. The trial court gave this great weight.

       The trial court considered the defendant’s criminal history. The trial court noted
several juvenile charges that were not considered for sentencing purposes and other
minor adult offenses that it did not give much weight. The trial court next considered the
defendant’s prior felony convictions. Of significance, the defendant received two felony
convictions at age eighteen and after serving sixty-eight months of a seventy-eight-month
sentence, he was released with two years of supervision. While on supervised release, the
defendant was charged with and convicted of vandalism. Both the felony convictions and
the defendant’s commission of additional crimes while on supervised release were given
great weight by the trial court.

       The trial court next considered the defendant’s April 15, 2009, convictions of
unlawful possession of drug paraphernalia and disobeying a traffic control device, for
which the defendant was placed on probation. While on probation for these offenses, the
defendant received a traffic citation, significant only because the defendant was still on
probation, and was charged with and convicted of possession of marijuana.

      The trial court then noted that on November 6, 2014, about four days before the
defendant committed the arson, aggravated burglary, and vandalism at issue, the
defendant was charged with vandalism of property under $500. This crime involved the
same victim, Ms. Curry.

       With respect to mitigating factors, the trial court considered the defendant’s guilty
plea and acceptance of responsibility for his actions. The trial court noted the defendant
obtained his GED while incarcerated for his prior felony convictions and has received
mental health treatment during his current incarceration. However, the defendant also has
two children with the victim and is $4600 behind on child support. Despite the
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willingness expressed by the defendant to pay Ms. Curry restitution, the trial court opined
that “the likelihood that he would ever pay this $20,000 restitution is pretty much zero.”
The trial court did not apply any mitigating factors.

       After considering the various enhancement and mitigating factors, the trial court
imposed the maximum sentence of six years for arson, six years for aggravated burglary,
and two years for vandalism over $500, in the Tennessee Department of Correction as a
Range I, standard offender. Per the plea agreement, the sentences were to be served
concurrently. The trial court then ordered the defendant to submit to DNA testing, have
no future contact with the victim, pay court costs, and pay restitution of $20,000.

       The trial court then denied the defendant’s petition for alternative sentencing,
stating:

              Now, in determining whether or not he would be an appropriate
      candidate for alternative sentencing, I’ve considered this presentence report
      which I’ve talked about. I’ve considered the defendant’s physical and
      mental condition which again it appears to me that he has had some drug
      issues as recently as earlier this year. You know, I do consider that in this
      matter. I also consider the seriousness of this offense and the fact that he
      committed this offense really not only out of betrayal, but out of anger. You
      know, it’s pretty clear that he was mad at Ms. Curry. She apparently had
      told him to leave the house and so forth and apparently he got mad because
      she wouldn’t return his 200 text messages and so he just decided he was
      going to leave her homeless. You know, if you don’t contact me quickly,
      you’re going to be homeless by sunrise and apparently that’s what
      happened. You know, I do find that he has very little remorse. He can sit up
      here and say he’s sorry. He regrets that this happened. I’m sure he regrets
      that it happened, but I don’t sense remorse from him. I think he’s just like
      I’m sorry I got caught, but I don’t really care. Yeah, I burned her house
      down. It’s almost like he takes pride in the fact that he burned her house
      down and left her homeless. I don’t sense much remorse at all from [the
      defendant].

             For those reasons I just don’t feel like he’s a good candidate for
      probation. Measures less restrictive than confinement have been frequently
      applied to this defendant without success. Certainly any kind of probation
      would unduly depreciate the seriousness of this offense. I mean, this
      woman has suffered tremendously and will suffer tremendously in the
      future. I think the likelihood of him ever making restitution is pretty much
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      none even though he says that he’s willing to do that. Again, his previous
      history, his actions, the fact that he vandalized her property just four days
      before he set fire to her home tells me he has no remorse and no regret for
      what he’s done.

            He will be ordered to serve all of these sentences in the Tennessee
      Department of Corrections [sic].

       The trial court did not abuse its discretion in imposing a sentence of confinement.
The record reflects the trial court properly considered the relevant purposes and
principles of Tennessee’s sentencing statutes and imposed sentences within the applicable
range for the defendant’s Class C offense of arson, Class C offense of aggravated
burglary, and Class E offense of vandalism. The trial court then made the requisite
findings on the record in support of its ruling. Accordingly, we affirm the sentencing
imposed by the trial court.

                                    CONCLUSION

        Based on the foregoing authorities and reasoning, we affirm the judgments of the
trial court.




                                                 _________________________________
                                                 J. ROSS DYER, JUDGE




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