        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                            Assigned on Briefs April 23, 2013

            STATE OF TENNESSEE v. LAVARIO DEVON KIBBLE

               Direct Appeal from the Circuit Court for Bedford County
                          No. 17302      Lee Russell, Judge




                No. M2012-00775-CCA-R3-CD             Filed October 17, 2013


Defendant, Lavario Devon Kibble, entered guilty pleas to reckless endangerment and
aggravated assault pursuant to a negotiated plea agreement. Under the agreement he received
consecutive sentences of one year for reckless endangerment and four years for aggravated
assault. The manner of service of the effective sentence of five years was left to
determination by the trial court after a sentencing hearing. The trial court ordered the
sentences to be served totally by incarceration. Defendant appeals, arguing that the trial court
should have ordered an alternative sentence of either split confinement or periodic
confinement. After a thorough review, we affirm the judgments of the trial court.

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

T HOMAS T. W OODALL, J., delivered the opinion of the court, in which J OSEPH M.T IPTON, P.J.
and N ORMA M CG EE O GLE, J., joined.

Robert L. Marlow, Shelbyville, Tennessee, for the appellant, Lavario Devon Kibble.

Robert E. Cooper, Jr., Attorney General and Reporter; Michelle Consiglio-Young, Assistant
Attorney General; Charles Frank Crawford, Jr., District Attorney General; Michael Randles,
Assistant District Attorney General; and Richard Cawley, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                          OPINION

       At the guilty plea submission hearing, the prosecutor provided a summary of the
State’s evidence to support the guilty pleas. The following transpired.
        [PROSECUTOR]: On June the 25th , 2011, Ms. Julie Price and her son, [],
                      and a passenger, Trent Ransom, were returning from
                      Taco Bell, on 321 here in Shelbyville, to 202
                      Scottland Heights. And on the way back to 202
                      Scottland Heights, [Defendant’s] car approached
                      them. He forced them to pull over with his car. I
                      think he actually made contact with her car in doing
                      so.

                              He then pulled Ms. Price from the vehicle, kicked her
                              and struck her with a tire iron. And she was taken to
                              the hospital, however, she did not suffer any - - she
                              had to have stitches, but no serious bodily injury.

        THE COURT:            Okay. All right. So the agg assault is the tire iron and
                              the reckless endangerment is with the vehicle?

        [PROSECUTOR]: Yes, Your Honor.

        BY THE COURT:

        Q.                    Okay. Did you hear what the General says you did?

        [DEFENDANT]:          Yes, sir.

        Q.                    Okay. Do you agree you did those things?

        A.                    Yes, sir.

        At the sentencing hearing, the State also presented the pre-sentence report which was
admitted as an exhibit. Defendant, in his testimony, admitted that all of the information in
the report was “true and accurate.” The State did not call any witnesses to testify. Defendant
testified, and called the victim as a witness.

       Defendant was thirty-one years old at the time of the offenses. He had been “staying
together” with the victim, and they had a child together. This child was three years old at the
time of the offenses and was in the car with the victim when she was attacked by Defendant.
Defendant claimed that the incident was a result of his having “a fit of rage or jealousy”
because the victim was with another man.



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        Defendant admitted to having a history of violence and having criminal convictions
that involved violence. He claimed that he voluntarily attended and successfully completed
an anger management class shortly after the incident with the victim. At the time of the
sentencing hearing, Defendant was employed full time as a cook at a restaurant where his
mother and father were also employed. He said that he and the victim had reconciled their
differences , though he had moved to Fayetteville, and the victim and her children remained
in Shelbyville. The victim had one child by Defendant, but also three other children aged
five, nine, and fifteen. Defendant testified that he paid the victim money to support her and
all four of the children.

        Defendant admitted that he had been previously placed on probation and that it had
been revoked, but he could not recall why it was revoked. However, Defendant assured the
trial court he would never do anything to violate the conditions of probation if granted an
alternative sentence in this case. Defendant admitted that he drank beer on occasion and had
smoked marijuana in the past on a regular basis, but had quit using marijuana when he was
seeking “another job and stuff.” Defendant denied that he was under the influence of drugs
or alcohol at the time of the crimes in this case.

       The victim accompanied Defendant to court for the sentencing hearing. She testified
that she received four staples on her head as the result of Defendant striking her with the tire
iron. She was afraid of Defendant at the time, but testified she was no longer afraid of him.
She had regular communication with Defendant about their minor child. She stated that
although Defendant did not pay a set amount of child support, he always paid for anything
she needed for any of her four children. She testified that it would hurt their minor child if
Defendant was ordered to serve his entire sentence by incarceration. The victim added that
she had no fear that Defendant would ever attack her again and that she believed Defendant
could conform himself to the requirements of society if he received a sentence involving
probation. The victim explicitly stated that she wanted Defendant to be on probation and not
serve any of his sentence in jail.

        In response to questioning by the trial court, the victim stated that her three-year-old
child by Defendant was in her vehicle when Defendant rammed it twice with his vehicle.
She also admitted that the three-year-old child saw Defendant hit her on the head with the
tire iron. She acknowledged that the only provocation for Defendant to commit the criminal
acts was the fact she was in her car with another man.

       According to the pre-sentence report, Defendant’s prior criminal record included a
conviction for misdemeanor failure to appear, four convictions for driving on a revoked
license, a conviction for misdemeanor reckless endangerment, one conviction for pubic



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intoxication, two convictions for misdemeanor drug possession, one conviction for DUI, and
numerous findings of delinquency in Juvenile Court at ages 16 and 17.

       In announcing the sentencing decision, the trial court stated, “I do find that in a very
profound way the presumption in favor of alternative sentencing has been overcome here.”
The trial court explicitly concluded that Defendant’s prior record and history of violating
conditions of probation previously granted showed “virtually no potential for rehabilitation
without incarceration and that the risk of re-offending would be tremendously high in this
particular case.”

       In State v. Caudle, 388 S.W.3d 273 (Tenn. 2012), our supreme court said,

       [W]e now explicitly hold 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.

Id., at 278-79.

        A defendant is eligible for probation if the sentence imposed is ten years or less and
the offense for which the defendant is sentenced is not specifically excluded by statute.
Tenn. Code Ann. § 40-35-303(a) (2010). Defendant concedes he is not an appropriate
candidate to be sentenced to community corrections, and he does not seek full probation. He
asserts though that he should have been sentenced to serve the effective sentence of five
years as an alternative sentence of either split confinement or periodic confinement. See
Tenn. Code Ann. §§ 40-35-306 and 40-35-307 (2010). Defendant is not presumed to be a
favorable candidate for alternative sentencing. See State v. Carter, 254 S.W.3d 335, 347
(Tenn. 2008). Instead, Defendant can only be considered a favorable candidate for
alternative sentencing if he or she does not possess a criminal history showing a clear
disregard for society’s laws and morals, he or she has not failed past efforts at rehabilitation,
and he or she is being sentenced for an eligible Class C, D, or E felony. Tenn. Code Ann.
§ 40-35-102(5),(6). Further, if confinement is necessary to protect society from a defendant
who has a long history of criminal conduct, or measures less restrictive than confinement
have recently or frequently been applied unsuccessfully to the defendant, then this weighs
to remove the defendant’s statutory entitlement to be even considered a favorable candidate
for alternative sentencing. Tenn. Code Ann. § 40-35-103.

        Defendant’s extensive prior record of convictions is set forth above. While the record
reflects clear evidence of only one violation of probation as an adult offender about four
years prior to the sentencing hearing in this case, on direct examination at the sentencing

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hearing Defendant could not remember why his probation was violated. This testimony is
certainly not the sole reason that the trial court did not err by denying any alternative
sentence. However, it sends a strong message that Defendant is an extremely poor candidate
for rehabilitation with any sentence other than incarceration.

        Reviewing the trial court’s decision regarding the manner of service of the sentence
under the standard of abuse of discretion with a presumption of reasonableness, we conclude
that Defendant is not entitled to relief in this appeal. Accordingly, the judgment of the trial
court is affirmed.


                                                    _________________________________
                                                    THOMAS T. WOODALL, JUDGE




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