                                                                                         06/15/2020
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                          Assigned on Briefs April 29, 2020

              STATE OF TENNESSEE v. EARL HAROLD CRISP

                  Appeal from the Criminal Court for Knox County
                         No. 114159 G. Scott Green, Judge
                     ___________________________________

                           No. E2019-01223-CCA-R3-CD
                       ___________________________________


After presenting with a criminal record that consists of 21 prior felony convictions and 16
prior misdemeanor convictions, Defendant, Earl Harold Crisp, appeals the trial court’s
refusal to grant an alternative sentence despite his eligibility for probation. Because the
trial court did not abuse its discretion, we affirm the judgment of the trial court.

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

TIMOTHY L. EASTER, J., delivered the opinion of the court, in which NORMA MCGEE
OGLE and J. ROSS DYER, JJ., joined.

Eric Lutton, District Public Defender; and John Halstead, Assistant Public Defender, for
the appellant, Earl Harold Crisp.

Herbert H. Slatery III, Attorney General and Reporter; Renee Turner, Senior Assistant
Attorney General; Charme P. Allen, District Attorney General; and Ashley McDermott,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                       OPINION

       In October of 2018, Defendant was indicted by a Knox County grand jury of two
counts of burglary and two counts of theft. Defendant pled guilty to the charges with an
agreed upon sentence of eight years, as a Range III, Persistent Offender, for each
burglary conviction and eleven months and twenty-nine days for each of the theft
convictions. The plea agreement provided that all sentences were to be served
concurrently, for a total effective sentence of eight years. The manner of service of the
sentences was to be determined by the trial court at a sentencing hearing.
       At the guilty plea hearing, Defendant agreed that he and a codefendant burglarized
Young Williams Animal Shelter by breaking out a glass door and stealing an iPad and
cash from donation jars. Defendant also agreed that he and a codefendant burglarized the
Humane Society of the Tennessee Valley by breaking out a glass window and stealing
cash, a donation box of cash, and two laptops.

        At the sentencing hearing, a representative from the animal shelter read to the trial
court a victim-impact statement detailing the impact of Defendant’s actions on the
nonprofit organization and the animals at the shelter where the break-in took place. The
trial court noted that Defendant, who was 42 years old, had 21 prior felony convictions
and 16 prior misdemeanor convictions, including violations of probation. Defendant was
classified as “moderate risk” by State Probation but was found not to be an appropriate
candidate for an alternative sentence by “Enhanced” probation and the Community
Alternatives to Prison Program (“CAPP”). Defendant also had a history of drug use,
including “meth.” Counsel for Defendant acknowledged Defendant’s extensive criminal
history but explained that Defendant was “attempting hard at the age of 42 to change his
behavior and not commit crimes anymore.” Counsel explained that Defendant’s fiancée
was present at the hearing and that she was supportive of Defendant’s efforts at
rehabilitation.

       Defendant, without being placed under oath and subjected to cross examination by
the State, explained to the trial court that he “did 20 years” in prison, going in “as a kid.”
He admitted that he had a “hard transition coming out after doing 20 years in that place”
but claimed that he had “been clean for months, and [had] a good foundation.”
Defendant was about to get married, had his son in his life, and had a grandchild. He
expressed remorse for his actions and a desire “to make it right.”

       The trial court noted the majority of Defendant’s prior felony convictions seemed
to stem from the “bad habit of finding other people’s property before it’s lost.” The trial
court denied an alternative sentence. Defendant filed a timely notice of appeal.

                                          Analysis

       On appeal, Defendant complains that the trial court abused its discretion by
denying him an alternative sentence, focusing primarily on his prior record. The State
disagrees.

       Although the trial court is required to automatically consider probation as a
sentencing option, see Tennessee Code Annotated section 40-35-303(b), no criminal
defendant is automatically entitled to probation as a matter of law, see State v. Davis, 940
S.W.2d 558, 559 (Tenn. 1997). It is the defendant’s burden to establish his or her
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suitability for full probation. See State v. Carter, 254 S.W.3d 335, 345-347 (Tenn. 2008)
(citing T.C.A. § 40-35-303(b)). The defendant must demonstrate that probation 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). Among the factors applicable to probation
consideration are the circumstances of the offense; the defendant’s criminal record, social
history, and present condition; the deterrent effect upon the defendant; and the best
interests of the defendant and the public. State v. Grear, 568 S.W.2d 285, 286 (Tenn.
1978). Tennessee Code Annotated section 40-35-103(1) sets forth the following
sentencing considerations, which are utilized in determining the appropriateness of
alternative sentencing:


       (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.


See also State v. Zeolia, 928 S.W.2d 457, 461 (Tenn. Crim. App. 1996). Additionally,
“[t]he potential or lack of potential for the rehabilitation or treatment of the defendant
should be considered in determining the sentence alternative or length of a term to be
imposed.” T.C.A. § 40-35-103(5). A defendant with a long history of criminal conduct
and “evincing failure of past efforts at rehabilitation” is presumed unsuitable for
alternative sentencing. T.C.A. § 40-35-102(5). Our supreme court has specifically held
that the abuse of discretion standard, with a presumption of reasonableness, also applies
to a review of a denial of alternative sentencing. State v. Caudle, 388 S.W.3d 273, 278-
79 (Tenn. 2012).

       Here, the trial court determined that Defendant had a long history of criminal
conduct. Defendant has been unsuccessful in completing an alternative sentence multiple
times. Despite Defendant’s desire to make his life better and promises that he would
abide by the terms of a probationary sentence, the trial court did not abuse its discretion
in denying an alternative sentence. Defendant is not entitled to relief.

                                       Conclusion
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For the foregoing reasons, the judgment of the trial court is affirmed.



                                       ____________________________________
                                       TIMOTHY L. EASTER, JUDGE




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