                                                                                      03/20/2017




       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                        AT NASHVILLE
                       Assigned on Briefs November 8, 2016

           STATE OF TENNESSEE v. CHRISTOPHER L. SMITH

                  Appeal from the Circuit Court for Franklin County
                    No. 2015-CR-170     Justin C. Angel, Judge


                           No. M2016-00662-CCA-R3-CD



The defendant, Christopher L. Smith, pled guilty to two counts of aggravated burglary
and one count of aggravated assault, all Class C felonies, in exchange for an effective
sentence of six 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 THOMAS T. WOODALL,
P.J., and ROBERT W. WEDEMEYER, J., joined.

B. Jeffery Harmon, District Public Defender; and R. Chris Albright, Assistant Public
Defender, for the appellant, Christopher L. Smith.

Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Senior Counsel;
James M. Taylor, District Attorney General; and David O. McGovern, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                      OPINION

                                       FACTS


       The defendant was indicted for multiple charges stemming from a continuous
course of criminal conduct that took place in both Marion and Franklin Counties. The
defendant waived venue, and the charges were addressed together in a single guilty plea
hearing held in Marion County. Under the Marion County indictment, the defendant pled
guilty to aggravated burglary and aggravated assault and by agreement received three-
year sentences for each offense, to run concurrently with one another. Under the Franklin
County indictment, the defendant pled guilty to aggravated burglary and by agreement
received a three-year sentence to run consecutively to the Marion County sentence. The
defendant received a total effective sentence of six years with the manner of service to be
determined by the trial court.

       At the guilty plea hearing, the State recited the facts it would have presented had
the case gone to trial:

               Your Honor, if we had gone to trial against [the defendant], we
       would be calling a number of witnesses, both in Marion County and
       Franklin [County]. It’s all one event and if it’s okay with the Court I’ll just
       tell the story.

              ....

                Your Honor, we would be calling first of all, Mr. Danny Hibbs, and
       Mr. Danny Hibbs’ wife, who would testify that back on February the 24th
       of [2015], that they were at home . . ., there was family present. They were
       trying to get some sleep and in the late . . . hours into the early morning
       hours of that particular night they heard a noise. They heard banging on the
       door. [The defendant] came into their home. Mr. Hibbs was armed. It
       could have been a – we could have been dealing very easily with [the
       defendant’s] funeral on that count. But he was incoherent, he was making
       irrational yelling noises. Making demands. He did some damage to the
       home. This prompted ultimately law enforcement to become involved and
       as he was there, law enforcement arrived including Sergeant Tim Prince,
       with the Marion County Sheriff’s Department[,] along with Deputy Chris
       Ladd from the Marion County Sheriff’s Department among others who
       responded to this. The Defendant, this was . . . at the time when there was
       snow on the ground, it was very cold outside. The Defendant was running
       around barefooted in his pajamas, making incoherent statements.
       Ultimately when the officers arrived there, Sergeant Prince and Officer
       Ladd, who are sizable individuals at least not small men began to engage in
       . . . trying to arrest the Defendant. He fought them to the point where . . .
       Officer Ladd was injured, was out of work for several months, and had to
       have surgery on his shoulder. Additionally, . . . Sergeant Tim Prince also
       was engaged in trying to arrest him and had to ultimately use a tazer. [The
       defendant] grabbed the tazer and after it had penetrated him, pulled it out
       and bit[] it, and then ran off through the woods.
                                             -2-
             Ultimately the Defendant did obtain a vehicle of another individual
       without that individual’s permission. He began driving erratically and
       ended up in Franklin County.

              Judge, at that time, he once again irrationally making comments and
       statements busted into the home of the Johnston[s], homeowners there in
       the Sewanee area, the school area. Mr. Johnston actually was armed and in
       his room there was yelling going on as the individual came in. Something
       about his daughter needing help, but his daughter was not in the area.
       There’s blood – there is glass busted out in the living room, there is blood
       spattered in the home where he was injured and bleeding probably from the
       run through the woods, and also due to the breaking of the glass.

             We would possibly be calling personnel from the [Tennessee
       Burearu of Investigation] who would testify that the substance in the . . .
       home . . . was, in fact, blood. And maybe would testify that that blood
       matched the blood of the Defendant.

              Mr. Johnston, who kept his head, and nevertheless felt at one point
       as he saw the door knob turning coming into his bedroom with his wife
       present and with a child in another room nearby discharged the weapon
       over the top of the doorway in such a way that very likely would not strike
       him, and did not strike him. That seemed to temporarily calm him down,
       but he ran back outside, the Defendant did. Other law enforcement officers
       came there from Sewanee Police Department, who would also testify some
       of them also engaged him in . . . trying to arrest him. And one to the point
       that he . . . was so exhausted he literally vomited while in the home of the
       Johnston[s].

              Ultimately, [the defendant] was apprehended, . . . we would be
       calling personnel from Emerald-Hodgson Hospital who would testify that
       he was babbling incoherently at the hospital. No statement could be taken
       from him at that time. That all of this occurred, the first charges referenced
       occurred in Marion County and the other charge occurred in Franklin
       County.

       The trial court conducted a consolidated sentencing hearing at which Deputy Chris
Ladd, of the Marion County Sheriff’s Department, testified that he first became involved
with the defendant after receiving a series of dispatch calls that ultimately led him to the
scene of a home invasion “where a subject had just kicked the door in at a residence and
                                            -3-
run in their house.” Deputy Ladd and Sergeant Tim Prince encountered an “individual
wearing a pair of pajama pants and a white T-shirt running down the road in the snow,”
not wearing any shoes. Upon seeing the officer, the subject began to run, and Deputy
Ladd gave chase and tackled him in a ditch. The subject went “haywire . . . screaming
kill me.” Deputy Ladd described the subject as “incoherent,” explaining, “[Y]ou could
tell by looking in his eyes that there was something wrong with him.” Deputy Ladd and
Sergeant Prince fought with the defendant on the side of the road for seven to ten
minutes, even shooting him with a Taser stun gun. Deputy Ladd expounded on the use of
the Taser:

              Usually it only takes one pop, one cycle. He took five and after the
      fifth one, I mean it was he just reached around and grabbed the leads, which
      [are] the wires that are attached to the cartridge, which lead to the darts that
      are injected. He grabbed the leads while 50,000 [volts] w[ere] going
      through it and put ‘em in his mouth and was sitting there trying to break
      ‘em with his teeth and sparks just ejecting out of his mouth.

       Deputy Ladd stated that, ultimately, however, the defendant escaped. The officers
went to Franklin County and caught the defendant after he crashed a truck he had stolen
into a tree and was engaged with other police officers in a fight. It took six or seven
officers to subdue the defendant. As a result of his fight with the defendant, Deputy Ladd
sustained a torn rotator cuff and damaged tendons in his shoulder. He underwent surgery
and was off work for ten months.

       Patrick Allan Johnston testified that, during the early morning hours of the day in
question, he, his wife, mother-in-law, and eight-year-old son were asleep in their home.
At the time, Mr. Johnston had recently undergone surgery and was “basically . . .
bedridden.” Mr. Johnston was awakened by the sound of his dog barking and pounding
on the door. Within seconds, he heard glass shatter and knew that someone was
intruding. Mr. Johnston armed himself with his AK-47 weapon and “started screaming I
have a gun, I will shoot you.” The intruder was screaming loudly that he was hurt and
needed help. Mr. Johnston’s wife called 911.

        Mr. Johnston stated that he stood behind an interior door in the house that
separated the living room from the bedrooms, yelling at the intruder to not open the door.
He recalled that “there was a hesitancy there and the door knob did start to turn, and at
that point in time I did fire my weapon over the door.” After the warning shot, Mr.
Johnston heard “scampering on the other side.” The damage to his home was “not
extensive,” totaling “maybe a $1,000.00,” but there was blood “all over the place” from
the intruder’s bleeding.

                                            -4-
        On cross-examination, Mr. Johnston recalled that the intruder initially said, “I
need help, I need help, I’ve been injured.” However, after Mr. Johnston informed the
intruder that he had called 911 and help was on the way, the intruder “didn’t say anything
specific other than my little girl, my little girl,” which made Mr. Johnston’s wife worry
that a young girl was “out there or something hurt somewhere.”

        Andrea K. Johnston, Mr. Johnston’s wife, recalled the event of the intruder’s
breaking into their home similarly to her husband. She elaborated that the intruder said,
“[M]y little girl, I’m hurt and my little girl, I love my little girl.” Asked how that night
had affected her life, Mrs. Johnston said that she was “way more frightened and paranoid
than [she] was before” and that she was more protective of her young son. She recalled
that her son asked her about “the crazy guy that was yelling . . . [and] came through
[their] window” and that he seemed more afraid at bedtime than he was before. Asked
what kind of punishment she thought the defendant should receive, Mrs. Johnston said,

               I would like it to be significant. . . . [P]eople want to talk about well,
       you know, the drugs. That’s still a choice to take those drugs and it
       shouldn’t be a reason for other people to say, well, I can just do that, too,
       and not get in trouble. It’s the behavior and the hurting of many people, not
       just us, you know, his loved ones they’re affected, too.

       The defendant testified on his own behalf at the sentencing hearing. He began by
“apologiz[ing] to everybody that [he] came in contact with that night.” He said that he
was not in his right mind and was not trying to hurt anyone. He stated that he quit school
in the eleventh grade and worked until he started having problems with drugs in late
2013. The defendant recalled that his drug use began when a coworker told him that “he
had something that could help [him] get through the night” when he was working the
second shift. The coworker did not tell him what it was, only saying, “[S]nort it, it’ll help
you.”

       The defendant said that he started “running around with the wrong people” after
he began using drugs and that he used drugs almost daily. His family stopped having
anything to do with him because they saw he was not seeking help for his drug problem.
The defendant said that he was almost twenty-four years old at the time of the sentencing
hearing and that he was the father of “[o]ne child and one on the way.” He was engaged
to marry the mother of his expectant child.

       With regard to the night of the crimes in this case, the defendant testified that he
was staying at a friend’s house and went with his friend’s cousin to get drugs. After
taking the drugs, he began to feel weird, so he took a bath and planned to go to bed. He
started to feel “real funny” and thought he was having a panic attack. His friend “got a
                                              -5-
pill and put it in [his] mouth.” He recalled that “it exceeded from there, just [his] heart
pounding, felt like [he] was having a heart attack.” He ran outside barefooted and
wearing only pajama pants and a tee shirt in twenty-degree weather to go to his friend’s
grandmother’s house nearby to call an ambulance because he did not have a phone.
While he was running, he “started blacking in and out and when [he] came to [him]self
[he] was running up the road.” He recalled going toward the police but thought that he
was telling them that he needed help and to go to a hospital. He remembered “getting put
on the ground and blacking out,” but when he came to he was running down the road
toward Franklin County. He did not remember getting into a truck, saying, “I remember
coming to myself and I was driving a vehicle,” and the vehicle hit an embankment.

       The defendant stated that he did not remember getting out of the truck after
wrecking it but remembered going into someone’s yard and knocking on the door of their
house. He did not know how he got into the house and said that he did not have a child
with him that night. He remembered the police “taking [him] down when [he] was on the
side of the road. [He] had stopped on the side of the road and they took [him] down, but
[he] d[id]n’t remember.”

        The defendant said that the night of the offenses, thirteen months ago, was the last
time he had taken any kind of drug. He said that he was presently working a full-time job
at Royal Remanufacturing and had “started working on the line and . . . worked [him]self
up as a line lead.” He had been reporting to a probation officer every week without any
problems, including passing weekly drug tests. At the time of the hearing, he was living
with his fiancée and her two daughters in a house he rented in Marion County. The
defendant agreed that he or his family had already contacted the victims to try to make
restitution for damages they sustained.

        Brent Basham with the Tennessee Department of Correction testified that he had
been monitoring the defendant since September 11, 2015. He saw the defendant once a
week and drug-tested him “[e]very single week.” The defendant never hesitated in taking
a test and never tested positive. Mr. Basham was aware that the defendant was employed
and said that the defendant was following all the rules of supervision. Asked whether he
had any concerns that the defendant would not be able to complete a period of probation,
Mr. Basham said, “I don’t see why he wouldn’t be able to.”

       Jackson Crouch testified that he had known the defendant for ten years, since the
defendant was fourteen years old. Mr. Crouch had never known the defendant to be
violent or aggressive. Mr. Crouch said that the defendant worked with him at Royal
Remanufacturing prior to 2013 when the defendant left to work for O’Neil Color, which
was “when it started spiraling down hill on him.” Mr. Crouch stated that the underlying
actions taken by the defendant in this case did not “sound like the Chris that [he] knew
                                            -6-
growing up.” Mr. Crouch said that the defendant seemed to have “straightened up,”
noting he had started working again and was “taking care of . . . all that stuff from the
past[.]”

       Mr. Crouch testified that the defendant’s attendance at work was “great” and that
the defendant had “moved up quick.” Mr. Crouch felt that the defendant had “pretty
much already beat” his drug problem. He said that the defendant had made amends with
Mr. Crouch’s son, who had previously looked up to the defendant and was hurt when the
defendant stopped spending time with him.

       Kathy Smith, the defendant’s mother, testified that the defendant was a well-
behaved child growing up and did not have an aggressive side or violent tendencies. She
saw changes in him in 2013 when he was working at O’Neil Color – he was “very
agitated, not himself at all.” She was surprised to learn of the charges against the
defendant and did not feel that he would have intentionally committed such acts. When
she visited the defendant in the hospital on the night in question, the defendant “wasn’t
himself.” She believed that the defendant had his addiction under control and was more
mature.

       Troy Middlebrooks, an active member of Sequatchie Valley Free Holiness
Church, testified that he did not know the details about the defendant’s involvement with
drugs but knew that the defendant was doing something of which his mother did not
approve. The defendant was presently a regular attendee of church with his fiancée and
appeared to be “the sweet . . . old Chris that [he] knew before any of this ever come
about.”

       After the conclusion of the sentencing hearing, the trial court denied diversion and
probation and imposed a sentence of confinement.

                                       ANALYSIS

       On appeal, the defendant argues that the trial court abused its discretion in denying
an alternative sentence and imposing a sentence of full confinement.

       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;
                                            -7-
              (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 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), as well as to the grant or denial of judicial
diversion. State v. King, 432 S.W.3d 316, 324-25 (Tenn. 2014).

       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
                                            -8-
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.

        Moreover, following a determination of guilt by plea or by trial, a trial court may,
in its discretion, defer further proceedings and place a qualified defendant on probation
without entering a judgment of guilt. Id. § 40-35-313(a)(1)(A). A qualified defendant is
one who is found guilty or pleads guilty or nolo contendere to the offense for which
deferral of further proceedings is sought, is not seeking deferral of further proceedings for
a sexual offense, a violation of section 71-6-117 or section 71-6-119, or a Class A or
Class B felony, and who has not been previously convicted of a felony or a Class A
misdemeanor. Id. § 40-35-313(a)(1)(B)(i). If the defendant successfully completes the
period of probation, the trial court is required to dismiss the proceedings against him, and
the defendant may have the records of the proceedings expunged. Id. § 40-35-313(a)(2),
(b).

       The decision to grant or deny a qualified defendant judicial diversion lies within
the sound discretion of the trial court. State v. Electroplating, Inc., 990 S.W.2d 211, 229
(Tenn. Crim. App. 1998); State v. Cutshaw, 967 S.W.2d 332, 344 (Tenn. Crim. App.
1997); State v. Bonestel, 871 S.W.2d 163, 168 (Tenn. Crim. App. 1993), overruled on
other grounds by State v. Hooper, 29 S.W.3d 1, 9 (Tenn. 2000). As such, it will not be
disturbed on appeal absent an abuse of discretion. Electroplating, 990 S.W.2d at 229;
Cutshaw, 967 S.W.2d at 344; Bonestel, 871 S.W.2d at 168. To constitute an abuse of
discretion, the record must be devoid of any substantial evidence in support of the trial
court’s decision. Cutshaw, 967 S.W.2d at 344; Bonestel, 871 S.W.2d at 168; State v.
Anderson, 857 S.W.2d 571, 572 (Tenn. Crim. App. 1992).



                                             -9-
        In determining whether to grant diversion, the trial court must consider all of the
following factors: (a) the accused’s amenability to correction, (b) the circumstances of
the offense, (c) the accused’s criminal record, (d) the accused’s social history, (e) the
accused’s physical and mental health, (f) the deterrence value to the accused as well as
others, and (g) whether judicial diversion will serve the interests of the public as well as
the accused. Electroplating, 990 S.W.2d at 229; Bonestel, 871 S.W.2d at 168. A trial
court should not deny judicial diversion without explaining the factors in support of its
denial and how those factors outweigh other factors in favor of diversion. Id. Because
“judicial diversion is a form of probation, see Tenn. Code Ann. § 40-35-313(a)(1)(A)[,] .
. . the trial court’s findings regarding the defendant’s suitability for full probation . . .
apply equally to its decision regarding the defendant’s suitability for judicial diversion.”
State v. Neil Thompson, No. W2008-00311-CCA-R3-CD, 2009 WL 1034519, at *13
(Tenn. Crim. App. Apr. 17, 2009) (citing State v. Vivian Braxton, No. W2004-02506-
CCA-R3-CD, 2005 WL 3059435, at *9 n.4 (Tenn. Crim. App. Nov. 10, 2005), perm.
app. denied (Tenn. Mar. 20, 2006)).

      A trial court may deny alternative sentencing and sentence a defendant to
confinement based on any one of the following considerations:

             (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).

        We conclude that the record before us supports the trial court’s imposition of a
sentence of confinement. In determining the defendant’s sentence, the trial court
explicitly considered the evidence presented at the plea and sentencing hearings, the
presentence report, the principles of sentencing, arguments made as to the sentencing
alternatives, the nature and characteristics of the criminal conduct involved, the evidence
and information offered by the parties on the mitigating and enhancement factors, any
statistical information provided by the administrative office of the courts as to sentencing

                                            -10-
practices for similar offenses in Tennessee, the statement made by the defendant at the
sentencing hearing, and defendant’s potential for rehabilitation or treatment.

       In considering the possibility of probation, the trial court noted that “[v]arious
witnesses testified that before the drug use [the defendant] was a good person, a fine
young man and then . . . after the drugs he was completely different.” The court
elaborated, “During drug use, [the defendant was] the type of person we don’t want
running around in our society. It’s that simple.” The court noted in the defendant’s favor
that there was no proof the defendant had any issues concerning his mental and physical
health. The court “g[a]ve the defendant credit for not having any criminal history of
convictions” and considered the defendant’s potential for rehabilitation to be in the
defendant’s favor because of his lack of criminal history and he seemed to “have obeyed
himself since all this ha[d] happened.” The court opined that it reasonably appeared that
the defendant would abide by the terms of probation. However, the court noted the
seriousness of the circumstances of the offenses, which it determined “trump and
outweigh virtually every other factor you could think of.”

      In considering the interests of society in being protected from possible future
criminal conduct of the defendant, the court said:

      I hope that the defendant has defeated his addiction to methamphetamine.
      My experience with people addicted to methamphetamine is there is a high
      rate of relapse. I hope that is not the case at all here, but that’s something
      the Court has to consider. I can’t simply put my head in the sand and
      ignore the fact that the relapse rate is 80, 90 percent. So the interest of
      society being protected from possible future criminal conduct of the
      defendant are great, based upon his admitted drug use in the past and the
      crimes that we’re here on today, I think there . . . is a possibility for future
      criminal conduct.

       The court then considered and determined that a sentence of probation would
unduly depreciate the seriousness of the offenses, and that confinement was particularly
suited to provide an effective deterrent. As to deterrence, the court elaborated:

      Marion County . . . is a small town, [the defendant] . . . admittedly r[a]n
      around a lot of people who don’t behave themselves properly and . . . they
      know what happened that night and all of a sudden . . . [the trial court has]
      just . . . slapped him on the hand and put him back out on the street, I think
      that would get around pretty quick in Marion County and not deter similar
      activity.

                                           -11-
The court also determined that although the crimes were not particularly gross or heinous,
they were “enormous” in that the defendant committed the “terrifying” act of kicking in
the door to a family’s home during the night.

       The trial court noted the factors it considered in determining whether to grant or
deny judicial diversion, including the defendant’s amenability to correction, the
circumstances of the offense, the defendant’s criminal record, the defendant’s social
history, the defendant’s mental and physical health, and the deterrent effect of the
sentencing decision to the defendant and other similarly situated defendants. The court
noted that the defendant appeared to be amenable to correction and had a good social
history except during the period of his drug use, but the court determined that the
circumstances of the offenses weighed heavily against judicial diversion, outweighing all
other factors. Specifically, the court found:

       The home invasion in Marion County, and the people were home. Then
       stealing a vehicle, fighting with law enforcement. Severely injuring a law
       enforcement officer. Then another home invasion in Franklin County
       where the people are home. A husband, a wife, an eight year old child, the
       mother-in-law. . . . [T]he circumstances of the offenses here outweigh all
       these other factors, including the defendant’s criminal record, which he
       does not have a criminal record.

        The court concluded that “the severity of these crimes warrant a criminal
conviction and for him to have the criminal conviction on his record so people know
what he did.” The court noted the defendant’s failure to take personal responsibility for
his drug use in that he “constantly blamed it on other people, he blamed it on a friend at
work, who just pretty much almost forced him into snorting this stuff at work and then he
blamed it on the friends he’s running around with.” The court also noted the defendant’s
lack of emotion even though he was “facing six years in prison [and] facing the people
who he terrorized that night in their home” and forcing his mother to “take the stand and
testify for [him].”

       The court lastly questioned the defendant’s claim that “he was not in his right
mind [and] . . . didn’t know what he was doing,” noting that the defendant “had enough
sense” to “pull on the emotions” of the victims by saying that his little girl was hurt,
possibly as a ploy to gain access to their home. The court also noted that the defendant
“had enough presence of mind” to run when he heard a gunshot.

       The court concluded by imposing a sentence of six years’ incarceration based on
the factors it set forth and its analysis of those factors and application to the facts of the
case.
                                            -12-
       The record shows that the trial court engaged in a detailed and thorough analysis
to determine whether the defendant should be granted judicial diversion or probation.
The court ultimately determined that the nature and circumstances of the offenses, the
need to avoid depreciating the seriousness of the offenses, and that confinement was
particularly suited to provide an effective deterrent to others likely to commit similar
offenses justified the denial of an alternative sentence.

       Generally, to deny alternative sentencing solely on the basis of the seriousness of
the offense, “‘the circumstances of the offense as committed must be especially violent,
horrifying, shocking, reprehensible, offensive or otherwise of an excessive or
exaggerated degree, and the nature of the offense must outweigh all factors favoring a
sentence other than confinement.” State v. Trotter, 201 S.W.3d 651, 654 (Tenn. 2006)
(quoting State v. Grissom, 956 S.W.2d 514, 520 (Tenn. Crim. App. 1997)). Also, to
determine whether a trial court has properly found a need for deterrence, this court
usually looks to State v. Hooper, 29 S.W.3d 1 (Tenn. 2000), in which our supreme court
noted five factors to consider when denying probation on the basis of deterrence and held
that a trial court may impose a sentence of incarceration based solely on a need for
deterrence “when the record contains evidence which would enable a reasonable person
to conclude that (1) deterrence is needed in the community, jurisdiction, or state; and (2)
the defendant’s incarceration may rationally serve as a deterrent to others similarly
situated and likely to commit similar crimes.” Id. at 10-13.

        Recently, however, our supreme court determined in State v. Kyto Sihapanya, No.
W2012-00716-SC-R11-CD, 2014 WL 2466054, at *3 (Tenn. Apr. 30, 2014), that “the
heightened standard of review [from Trotter and Hooper] that applies to cases in which
the trial court denies probation based on only one of these factors is inapplicable” when
the trial court “combined the need to avoid depreciating the seriousness of the offense
with the need for deterrence and the nature and circumstances of the offense.” Here, the
trial court did not base its denial of an alternative sentence on one factor alone, but on a
combination of factors. Again, “the abuse of discretion standard accompanied by a
presumption of reasonableness applies to all sentencing decisions, including the grant or
denial of judicial diversion.” King, 432 S.W.3d at 325. The trial court did not abuse its
discretion in imposing a sentence of confinement.

                                     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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