        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                        Assigned on Briefs September 16, 2014

               STATE OF TENNESSEE v. PHALANDA D. FALLS

                  Appeal from the Circuit Court for Sullivan County
                        No. S61014     R. Jerry Beck, Judge


                 No. E2014-00350-CCA-R3-CD - Filed October 8, 2014


Appellant, Phalanda D. Falls, entered a guilty plea to evading arrest, a Class D felony, and
driving with a suspended license, a Class B misdemeanor, and received an effective sentence
of four years. Following a hearing to determine her request for alternative sentencing, the
trial court denied the motion and ordered appellant to serve her sentence in the Tennessee
Department of Correction. This appeal follows. Upon our review of the record, we affirm
the judgments of the trial court.

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

R OGER A. P AGE, J., delivered the opinion of the court, in which N ORMA M CG EE O GLE and
R OBERT H. M ONTGOMERY, J R., JJ., joined.

Stephen M. Wallace, District Public Defender; and Joseph F. Harrison, Assistant District
Public Defender, Blountville, Tennessee, for the appellant, Phalanda D. Falls.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Senior Counsel; Barry
P. Staubus, District Attorney General; and Joshua D. Parsons, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                         OPINION

                                           I. Facts

        Appellant entered a guilty plea to evading arrest, a Class D felony, and driving with
a suspended license, a Class B misdemeanor. She received the agreed-upon concurrent
sentences of four years as a Range II, multiple offender with a thirty-five percent release
eligibility and six months with a seventy-five percent release eligibility, respectively. As a
factual basis for the pleas, the State offered the following recitation:
              On March 28th, 2012, Sgt. Greg Brown of the Bristol[,] Tennessee
       Police Department received a call that an individual by the name of Juan
       Henderson, who was wanted on an active warrant, had been seen at a location
       on Volunteer Parkway in Bristol, Sullivan County, Tennessee.

               En route to that area[,] he was alerted to a particular silver Honda with
       a temporary tag that Mr. Henderson was to be in. The vehicle pulled in front
       of his car and then turned onto Volunteer Parkway.

              He followed the car for some distance, and at some point turned on –
       observed the car, the Honda recklessly pass another vehicle in the emergency
       lane and then continue on the Volunteer Parkway.

             At that point Sgt. Brown initiated his traffic lights and sirens in an
       attempt to stop the vehicle from driving recklessly, but it continued north on
       Volunteer Parkway, failed to stop at red lights, passed cars in the emergency
       lane.

              At some point[,] they were able to get the vehicle stopped with the aid
       of Bristol[,] Virginia Police Department, the driver being the Defendant, Ms.
       Phalanda Falls.

             The evading arrest is a felony evading arrest . . . because she was in a
       motor vehicle. They found her status to drive to be suspended at the time . .
       ..

        Upon the stipulated facts, appellant pleaded guilty. The trial court held a hearing on
appellant’s request for alternative sentencing at which the State offered the presentence
report into evidence. The report indicated that appellant had two convictions for
misdemeanor theft, one conviction for driving with a suspended license, two convictions for
failure to appear, one conviction for driving under the influence of an intoxicant, one count
of public intoxication, one count of domestic violence, three felony convictions for
possession of cocaine, and one conviction for assault.

       Appellant testified on her own behalf and stated that at the time of the offense, she
lived with her uncle. She received Social Security disability benefits due to diagnoses of
bipolar disorder and manic-depressive disorder with schizophrenic traits. Appellant stated
that prior to becoming disabled, she received vocational training and maintained regular
employment.



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       With regard to her prior record, appellant indicated that the driving under the
influence conviction she garnered in Cobb County, Georgia, involved “Air Duster” rather
than alcohol. She stated that she began using marijuana at age seventeen but that she ceased
using it in 2010. However, she explained that she smoked marijuana ten days prior to the
hearing but that she had not used cocaine since 2005. Appellant testified that her addiction
involved “Air Duster,” which is a computer cleaner. She used it by “huffing,” which she
accomplished by spraying it directly into her mouth and lungs. At one point in her substance
abuse, she used fourteen cans per day. Appellant also garnered some misdemeanor theft
convictions when she attempted to shoplift the substance. She maintained that she had not
“huffed” in almost a year. She acknowledged that the substance had done serious damage
to her body and that in 2006, she had been treated in an intensive outpatient program for
“huffing.”

       Appellant testified that she was currently participating in counseling once a month for
her manic-depressive disorder with schizophrenic traits. She had also been admitted to a
mental health facility on two prior occasions in 2010 and 2011 for mental breakdowns. She
explained that both of the breakdowns were related to her “huffing” problem.

       Appellant explained that she had previously failed to appear in court on two different
occasions because her grandmother was sick. Her three felony convictions were on different
days but were very close in time and occurred when she was twenty years old. She
successfully completed probation on those cases. At the time of the hearing, appellant had
a pending felony charge of distribution of hydrocodone, a controlled substance, which she
garnered while out on bond for the instant offense. Appellant, through counsel, also
introduced a letter of support from a family friend, L. Travis Campbell.

       On cross-examination, the State established that after appellant’s failures to appear
in court on two dates in 2005, she relocated to Georgia until late 2007 or 2008 and that she
did not seek to resolve her pending charges until 2009. Appellant also confirmed that she
garnered a drug conviction involving cocaine in 1999 and received a fifteen-year sentence
that was suspended to five years of supervised probation.

       In delivering its ruling, the trial court stated:

              The Court has many balancing factors the Court must consider. The
       prior record is highly negative. The prior failure[s] to appear[] is highly –
       highly negative, in that she didn’t appear back in court, was gone for some
       time, was eventually convicted of misdemeanor failure to appear. She has
       various prior felonies which I’ve read into the record, I won’t repeat.



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              Now, the Court’s also required to consider prison overcrowding. And
       the Court’s required to consider in the nature of Community Corrections the
       potentiality of someone being reformed in regards to drug use. And I have to
       look at those items, too.

              Now, and you have to figure out what’s the best interest of the State,
       what’s the best interest of . . . the Defendant.

               What concerns the Court in many ways here, in addition to all those
       things I found when I was going through the presentence report, is the fact that
       while she was on bond on this case, she’s picked up a new charge that has not
       been tried in Bristol, Virginia, and she also indicated she had reformed
       somewhat, at least in regard to huffing; but nevertheless she now has a – an
       admission that she used marijuana while waiting, just as early as ten days ago.

              Considering all the favorable factors against the unfavorable factors, the
       Court’s of the opinion, considering the number of times she’s been on
       probation before, the Court’s of the opinion probation should be denied. She’ll
       be required to serve her sentence.

       It is from this judgment that appellant now appeals.

                                         II. Analysis

       Appellant raises one issue for our review: whether the trial court erred in denying
alternative sentencing.

                                   A. Standard of Review

        In determining an appropriate sentence, a trial court must consider the following
factors: (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 mitigating and enhancement factors; (6) any
statistical information provided by the administrative office of the courts as to sentencing
practices for similar offenses in Tennessee; (7) any statement the defendant makes on her
own behalf as to sentencing; and (8) the potential for rehabilitation. Tenn. Code Ann. §§ 40-
35-103(5), -113, -114, -210(b). In addition, “[t]he sentence imposed should be the least
severe measure necessary to achieve the purposes for which the sentence is imposed.” Tenn.
Code Ann. § 40-35-103(4).

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       Pursuant to the 2005 amendments, the Sentencing Act abandoned the statutory
presumptive minimum sentence and rendered enhancement factors advisory only. See Tenn.
Code Ann. § 40-35-114, -210(c). The 2005 amendments set forth certain “advisory
sentencing guidelines” that are not binding on the trial court; however, the trial court must
nonetheless consider them. See id. § 40-35-210(c). Although the application of the factors
is advisory, a court shall consider “[e]vidence and information offered by the parties on the
mitigating and enhancement factors set out in §§ 40-35-113 and 40-35-114.” Id. § 40-35-
210(b)(5). The trial court must also place on the record “what enhancement or mitigating
factors were considered, if any, as well as the reasons for the sentence, in order to ensure fair
and consistent sentencing.” Id. § 40-35-210(e). The weighing of mitigating and enhancing
factors is left to the sound discretion of the trial court. State v. Carter, 254 S.W.3d 335, 345
(Tenn. 2008). The burden of proving applicable mitigating factors rests upon appellant. State
v. Mark Moore, No. 03C01-9403-CR-00098, 1995 WL 548786, at *6 (Tenn. Crim. App.
Sept. 18, 1995). The trial court’s weighing of the various enhancement and mitigating
factors is not grounds for reversal under the revised Sentencing Act. Carter, 254 S.W.3d at
345 (citing State v. Devin Banks, No. W2005-02213-CCA-R3-DD, 2007 WL 1966039, at
*48 (Tenn. Crim. App. July 6, 2007), aff’d as corrected, 271 S.W.3d 90 (Tenn. 2008)).

       When an accused challenges the length and manner of service of a sentence, this court
reviews the trial court’s sentencing determination under an abuse of discretion standard
accompanied by a presumption of reasonableness. State v. Bise, 380 S.W.3d 682, 707 (Tenn.
2012). This standard of review also applies to “the questions related to probation or any
other alternative sentence.” State v. Caudle, 388 S.W.3d 273, 278-79 (Tenn. 2012). If a trial
court misapplies an enhancing or mitigating factor in passing sentence, said error will not
remove the presumption of reasonableness from its sentencing determination. Bise, 380
S.W.3d at 709. This court will uphold the trial court’s sentencing decision “so long as it is
within the appropriate range and the record demonstrates that the sentence is otherwise in
compliance with the purposes and principles listed by statute.” Id. at 709-10. Moreover,
under such circumstances, appellate courts may not disturb the sentence even if we had
preferred a different result. See Carter, 254 S.W.3d at 346. The party challenging the
sentence imposed by the trial court has the burden of establishing that the sentence is
erroneous. Tenn. Code Ann. § 40-35-401, Sentencing Comm’n Cmts.; State v. Ashby, 823
S.W.2d 166, 169 (Tenn. 1991).

                                  B. Alternative Sentencing

        When reviewing the denial of alternative sentencing, we begin with the proposition
that a defendant is eligible for alternative sentencing if the sentence actually imposed is ten
years or less. See Tenn. Code Ann. § 40-35-303(a). An especially mitigated or standard
offender convicted of a Class C, D, or E felony is considered to be a favorable candidate for

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alternative sentencing in the absence of evidence to the contrary. See Tenn. Code Ann. § 40-
35-102(6). “A court shall consider, but is not bound by, this advisory sentencing guideline.”
Id. The trial court must automatically consider probation as an alternative sentence for
eligible defendants, but the defendant bears “the burden of establishing suitability for
probation.” Tenn. Code Ann. § 40-35-303(b). This burden includes demonstrating that
probation will “‘subserve the ends of justice and the best interest of both the public and the
defendant.’” Carter, 254 S.W.3d at 347 (quoting State v. Housewright, 982 S.W.2d 354, 357
(Tenn. Crim. App. 1997)). In determining whether to grant or deny probation, a trial court
should consider the circumstances of 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. State v. Grear, 568 S.W.2d 285, 286 (Tenn. 1978). A trial
court should base its decision regarding any sentence involving confinement on 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 trial court should examine the
defendant’s potential for rehabilitation or lack thereof when determining whether an
alternative sentence is appropriate. Id. § 40-35-103(5).

       Accordingly, while appellant is eligible for probation, she is not considered a
favorable candidate due to her status as a Range II, multiple offender. Moreover, she bears
the burden of demonstrating her suitability for probation.

       In this case, the trial court found that appellant’s prior criminal history was “highly
negative.” As noted above, the presentence report indicates that she had twelve prior
convictions, including three felony convictions for possession of cocaine. In addition, while
on bond awaiting disposition of the instant case, she was arrested for possession of
hydrocodone with the intent to distribute.

       The trial court considered appellant’s drug use, as well. Although she had ceased
“huffing” approximately ten months prior to the hearing, she admitted to using marijuana a

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mere ten days prior to her court date. While appellant had successfully completed the terms
and conditions of a prior alternative sentence without being revoked, that fact alone is
insufficient to demonstrate appellant’s suitability for probation. It is apparent that appellant
lacks the potential for rehabilitation due to her proclivity to commit drug-related offenses
even while on bond for a criminal offense. Id. § 40-35-103(5).

       The trial court correctly concluded that confinement in this case is necessary to protect
society due to the appellant’s long history of criminal conduct, much of which involves
controlled substances. Id. § 40-35-103(1)(A). Clearly, confinement is also necessary to
avoid depreciating the seriousness of the offense. Id. § 40-35-103(1)(B). Appellant’s actions
endangered the lives of everyone on the road at that time. Finally, appellant participated in
an outpatient drug treatment program in 2006, was hospitalized twice due to mental
breakdowns brought about by her “huffing,” and attended counseling for her mental health
disorders once per month, all obviously to no avail. It is clear that her multiple reprieves
from incarceration have failed to sufficiently motivate appellant to conform her conduct to
the law. The trial court did not abuse its discretion in this case.

                                       CONCLUSION

       Based on our review of the record, the briefs of the parties, and the applicable legal
authorities, we affirm the judgments of the trial court.


                                                    _________________________________
                                                    ROGER A. PAGE, JUDGE




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