        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                          Assigned on Briefs March 12, 2014

         STATE OF TENNESSEE v. CURTEIS BENJAMIN ARZON

           Direct Appeal from the Circuit Court for Montgomery County
               Nos. 41201061, 41201077     John H. Gasaway, Judge




                 No. M2013-01664-CCA-R3-CD - Filed April 15, 2014


The appellant, Curteis Benjamin Arzon, pled guilty in the Montgomery County Circuit Court
to two counts of aggravated burglary. The trial court sentenced the appellant to four years
in the Tennessee Department of Correction for each offense. On appeal, the appellant
challenges the trial court’s denial of alternative sentencing. Upon review, we affirm the
judgments of the trial court.

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

N ORMA M CG EE O GLE, J., delivered the opinion of the court, in which J ERRY L. S MITH and
J OHN E VERETT W ILLIAMS, JJ., joined.

Michael T. Pugh, Clarksville, Tennessee, for the appellant, Curteis Benjamin Arzon.

Robert E. Cooper, Jr., Attorney General and Reporter; Meredith DeVault, Senior Counsel;
John Wesley Carney, Jr., District Attorney General; and Tim Peters, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                        OPINION

                                 I. Factual Background

       On October 1, 2012, the Montgomery County Grand Jury returned indictment number
4121077, charging the appellant with aggravated burglary and theft of property valued more
than $1,000 but less than $10,000. On October 2, the grand jury returned indictment number
41201061, charging the appellant with aggravated burglary and theft of property valued more
than $10,000 but less than $60,000.
       On March 28, 2013, the appellant pled guilty to two counts of aggravated burglary in
exchange for the dismissal of the theft charges. The plea agreement provided that the
appellant would be sentenced as a Range I, standard offender but that the trial court would
determine the length and manner of service of the sentences. As a factual basis for the pleas,
the State maintained that

              [in case number 41201061], on August 18th, 2012, the
              [appellant] entered the home of a Mr. Garcia here in Clarksville,
              Tennessee, after Mr. Garcia left. A computer, guitar, jewelry
              and coins were stolen from the property[.] Later[, the appellant]
              gave a detailed description on how he went in and burglarized
              the house.

                      In case [number 4121077], between June 23rd and July
              – the date listed in the indic[t]ment, Your Honor, I apologize.
              [The appellant] entered his grandfather’s home and took gift
              cards . . . and other items. Later, when he was confronted by the
              police, he confessed to taking those items.

        On June 13, 2013, a sentencing hearing was held. The twenty-two-year-old appellant
testified that after he was released on probation on February 2, he lived with his mother.
Approximately one month later, on her birthday, she drank alcohol and used cocaine then
hanged herself in the bathroom. Thereafter, the appellant lived with his uncle and began
using drugs and alcohol. The appellant drove while under the influence and had an accident,
during which he ruptured his Achilles tendon. When he went to the emergency room, he was
prescribed pain pills. Afterward, the appellant took the pain pills along with other drugs and
alcohol. A couple of weeks later, he took pain medicine and fell asleep in his car. The police
found him and charged him with driving under the influence (DUI). The appellant
immediately reported the arrest to his probation officer, Mr. Lucas, and expressed a desire
to find a rehabilitation program.

       The appellant said that his grandmother took him to the Lighthouse and that he was
accepted into that program. When the appellant informed Mr. Lucas of his acceptance to the
Lighthouse, Mr. Lucas told the appellant to postpone entering rehabilitation until he went to
court on the DUI.

       The appellant said that he subsequently missed a court date on the DUI charge. When
he “came back to Court on a blue motion,” he was rearrested and was later released. A
couple of weeks later, he



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              decided that I didn’t know what to do and I was scared I was
              going to go back to prison because I couldn’t get help and I was
              on drugs really bad and I decided not to go to Court and then I
              started stealing things because I couldn’t go to work anymore,
              because I had a warrant out, so I started stealing things, which
              led to me stealing from my family as well as Mr. Garcia.

       The appellant said that he wrote letters of apology to the victims because he regretted
hurting them. He said that he took full responsibility for his actions, that he committed
crimes because of drugs, and that he wanted to get help for his addiction. After the
appellant’s incarceration, he contacted Sober Living and was accepted into a residential
rehabilitation facility for an eighteen-month program.

       The appellant said:

              I know [the trial court] released me last time and I was supposed
              to do right, I honestly tried to do what I was supposed to do and
              when I messed up, I did go to the people I was supposed to and
              ask them for help and I realize that I was wrong for getting on
              the drugs in the first place, but I do have an addiction. I have
              had it since I was really young and I really want to change my
              life and get help, I don’t want to end up back here and going to
              prison my whole life, you know, like my mother and my father
              have always been on drugs. Some other people in my family as
              well. I don’t want my life to end up like that . . . . I have two
              sisters that I really love and I really want to be there for them
              because my Mom is no longer here for them. And like my
              grandmother, I do not want her last memories of me to be from
              the penitentiary. So I am sorry . . . [and] I need help.

        Linda McArthur, the appellant’s grandmother, testified that the appellant’s mother
hanged herself on her fortieth birthday. The appellant saw his mother shortly after she was
discovered. McArthur said that his mother’s death “really affected him[,] . . . and it was just
really hard for us to cope at that time.” Afterward, the appellant’s attitude was negatively
affected; he became angry and used drugs. McArthur said that before his mother’s suicide,
the appellant was looking for a job and taking general equivalency diploma (GED) classes.
McArthur verified that the appellant had visited and been accepted into the Lighthouse
program.

       The court accredited the appellant’s testimony regarding the death of his mother and

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his claim that he had been addicted to drugs “‘since [he] was young.’” The court also
accredited the appellant’s claims of remorse. See Tenn. Code Ann. § 40-35-113(13). As the
sole statutory mitigating factor, the court found that the appellant’s conduct neither caused
nor threatened serious bodily injury. See id. at (1). As enhancement factors, the court found
that the appellant had a history of criminal convictions in addition to those necessary to
establish the appropriate range; that the appellant failed to comply with the conditions of a
sentence involving release into the community; and that the appellant committed the
aggravated burglaries while serving a probationary sentence. See Tenn. Code Ann. § 40-35-
114(1), (8), (13)(C).

       The court stated that the appellant did not have a long history of criminal conduct.
See Tenn. Code Ann. § 40-35-103(1)(A). Nevertheless, the court found a need for deterrence
“given [the appellant’s] history of what he has done in the length of time that he has done it,
there should be a deterrence to others who are likely to follow in his footsteps.” See id. at
(1)(B). Additionally, the court found that measures less restrictive than confinement have
frequently or recently been applied unsuccessfully to the appellant, noting that the appellant
was on probation at the time he committed the instant offenses and that he had violated
probation on two other occasions. See id. at (1)(C). Accordingly, the court found that the
appellant’s potential for rehabilitation was poor and denied alternative sentencing.

       Based upon those findings, the trial court imposed two concurrent sentences of four
years for the aggravated burglary convictions. On appeal, the appellant challenges the trial
court’s denial of alternative sentencing.

                                         II. Analysis

       Our supreme court has held that “sentences imposed by the trial court within the
appropriate statutory range are to be reviewed under an abuse of discretion standard with a
‘presumption of reasonableness.’” State v. Bise, 380 S.W.3d 682, 708 (Tenn. 2012).
Additionally, the court has held “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.” State v. Caudle, 388 S.W.3d 273, 278-79 (Tenn. 2012).
In conducting its review, this court considers 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
enhancement and mitigating 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 by the appellant in his own behalf; and (8) the potential for

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rehabilitation or treatment. See Tenn. Code Ann. §§ 40-35-102, -103, -210; see also Bise,
380 S.W.3d at 697-98. The burden is on the appellant to demonstrate the impropriety of his
sentence. See Tenn. Code Ann. § 40-35-401, Sentencing Comm’n Cmts.

       An appellant is eligible for alternative sentencing if the sentence actually imposed is
ten years or less. See Tenn. Code Ann. § 40-35-303(a). The appellant’s sentences meet this
requirement. Moreover, an appellant who is an especially mitigated or standard offender
convicted of a Class C, D, or E felony should be considered a favorable candidate for
alternative sentencing absent evidence to the contrary. See Tenn. Code Ann. § 40-35-102(6).
The following sentencing considerations, set forth in Tennessee Code Annotated section 40-
35-103(1), may constitute “evidence to the contrary”:

              (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.

State v. Zeolia, 928 S.W.2d 457, 461 (Tenn. Crim. App. 1996). Additionally, a court should
consider the defendant’s potential or lack of potential for rehabilitation when determining
if an alternative sentence would be appropriate. See Tenn. Code Ann. § 40-35-103(5).

       In the instant case, the appellant is a Range I, standard offender convicted of Class C
felonies; therefore, he is considered to be a favorable candidate for alternative sentencing.
However, the trial court found that alternative sentencing should be denied because of the
need for deterrence and because measures less restrictive than confinement have frequently
or recently been applied unsuccessfully to the appellant. Tenn. Code Ann. § 40-35-103(1)(B)
and (C).

        On appeal, the appellant contends that the trial court failed to comply with the
requirements of State v. Hooper, 29 S.W.3d 1 (Tenn. 2000). In Hooper, our supreme court
specifically noted five factors for consideration when denying probation on the basis of
deterrence. Id. at 10-12. The appellant complains that during the sentencing hearing, the
trial court addressed only the fifth factor, namely that the appellant “has previously engaged
in criminal conduct of the same type as the offense in question, irrespective of whether such

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conduct resulted in previous arrests or convictions.” Id. at 12.

       Our supreme court recognized in Hooper “that any enumeration of factors in this
nebulous area is imperfect” and specifically stated that the listed “factors are meant to serve
only as a guide.” Id. Therefore, the court held that a sentencing “court need not find that all
of these factors are present before ordering incarceration based on a need to deter similar
crimes.” Id. The trial court found a need for deterrence based upon the appellant’s “history
of what he has done in the length of time that he has done it.” The record reflects that within
a span of a few years, the appellant repeatedly turned to burglary and theft to support his drug
habit. Therefore, we conclude that the trial court did not abuse its discretion by finding a
need for specific deterrence. See State v. Vanda Watkins, No. W2006-01209-CCA-R3-CD,
2007 WL 2284817, at *5 (Tenn. Crim. App. at Jackson, Aug. 7, 2007).

       Moreover, although ignored by the appellant on appeal, the trial court also found that
alternative sentencing should be denied because of the appellant’s failure to comply with the
terms of probation. The record reflects that within a period of three years, the appellant
violated his probation at least three times, including committing the instant offenses while
serving a probationary sentence. As the trial court found, this demonstrates poor
rehabilitative potential. Accordingly, we conclude that the trial court did not abuse its
discretion by denying alternative sentencing.

                                       III. Conclusion

       Upon review, we affirm the judgments of the trial court.


                                                    _________________________________
                                                    NORMA McGEE OGLE, JUDGE




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