       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                              Assigned on Briefs April 8, 2008

               STATE OF TENNESSEE v. JOSEPH BLOODGOOD

                  Direct Appeal from the Criminal Court for Shelby County
                         No. 06-02005 James M. Lammey, Jr., Judge




                     No. W2007-01090-CCA-R3-CD - Filed July 11, 2008



The appellant, Joseph Bloodgood, pled guilty to facilitation of aggravated burglary and received a
sentence of two years. The trial court denied the appellant alternative sentencing, and the appellant
now appeals. Upon our review of the record and the parties’ briefs, we affirm the judgment of the
trial court.

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

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS and
J.C. MCLIN , JJ., joined.

Leslie I. Ballin (at trial and on appeal) and Gray W. Bartlett (on appeal), Memphis, Tennessee, for
the appellant, Joseph Bloodgood.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Betsy Carnesale and Greg Gilbert, Assistant
District Attorneys General, for the appellee, State of Tennessee.

                                            OPINION

                                     I. Factual Background

       In February 2006, a Shelby County Grand Jury returned an indictment charging the appellant
in count one with aggravated burglary and in count two with theft of property over $10,000.
Subsequently, on February 14, 2007, the appellant entered a guilty plea in count one to the amended
charge of facilitation of aggravated burglary with an agreement that count two would be nolle
prossed. As part of the plea agreement, the State recommended a sentence of two years as a standard
Range I offender, a $500 fine, and restitution in the amount of $2000. The agreement provided that
the appellant would seek probation.
       At the guilty plea hearing, the State recited the following factual basis for the plea:

                 September 28th, 2005, Kenneth Clark’s residence located at 3587
                 Morning Light was burglarized. Approximately $18,000 in cash was
                 taken. And investigation revealed that several different suspects had
                 been doing work at the home, and one of the witnesses heard a
                 conversation between a Nikita Hood and Dwayne Wilson regarding
                 burglarizing the residence.1 These are the co-defendants of the
                 [appellant].

                         [The appellant] was contacted to see if he knew if anyone was
                 home at the Clark residence on a certain date; and when they
                 discovered no one was home at the location, they – Nikita Hood and
                 Dwayne Wilson went in and took $18,000 in cash from the home.
                 [The appellant] received $2,000 from the home. He was a personal
                 friend of the victim.

        At the sentencing hearing, the victim, Kenneth Clark, testified that the appellant had been
a friend of his son and had been in the Clark household numerous times to have dinner or spend the
night. Clark did not know any of the other parties involved in the burglary. When Clark learned of
the appellant’s involvement in the crime, he was hurt because he had treated the appellant as a family
friend.

        Clark stated that prior to the offense, Hood and Wilson called the Clark household in an
attempt to ascertain whether anyone was home. Clark recalled that the money had been locked in
a drawer in his bedroom. Clark said that he felt betrayed by the appellant, and his children felt bad
about bringing the appellant into their home. Clark said that after the offense, he had problems with
his children because he thought they might be involved.

       The appellant testified that he was twenty-two years old, had recently married, and had a ten-
month-old daughter. The appellant stated that he had received his GED. He said that when he was
eighteen, he was convicted of misdemeanor drug possession. He received judicial diversion for the
offense, and the conviction was expunged from his record after he successfully completed eleven
months and twenty-nine days on probation.

         The appellant said that in order to pay restitution, he had saved $600 and he could pay the
balance in three monthly payments of $465. He stated that he would earn the money by working
construction, maintaining that he had been guaranteed forty hours of work per week. The appellant
said that he and his wife were living with his mother-in-law to save money so he could pay
restitution.


       1
           In the indictment, W ilson’s first name is spelled “Duane.”

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         The appellant said that co-defendant Wilson is his father-in-law and that co-defendant Hood
is the son of Wilson’s girlfriend. The appellant said that he had learned from David Phillips, a friend
of two of Clark’s children, that Clark kept money in his home. The appellant testified that he did
not know specifically where the money was located because he did not get that information from
Phillips. The appellant told Hood and Wilson about the money, and Hood “hatched the plan” to
burglarize the home. Hood told the appellant that if he would disclose where the money was, Hood
would “go get it.” Eventually, the appellant provided the information. Additionally, he gave
directions to Clark’s home, Clark’s telephone number, and approximate times when people would
be in the home.

        The appellant said, “I really don’t know why I did that.” He acknowledged that even though
he did not need money, he “let the thought of money come before friendship.” The appellant said
that Hood called him after the burglary and told the appellant to meet him at a gas station. Hood
paid the appellant $2,000 for providing information about the money. Afterward, the appellant drove
Hood home. The appellant used about half of the burglary proceeds to pay a truck note and an
insurance bill. Two days later, while the appellant was at work, he was robbed at gunpoint. The
robber took $1,100 that the appellant had left from the burglary proceeds. The appellant reported
the robbery to police. The appellant said that he was sorry for his involvement in the crime,
maintaining that betraying the Clarks “hurt me more than anything.”

         The appellant’s presentence report reflects that “[o]n 12/4/2006, Wilson pled guilty to
facilitation of aggravated burglary. He was sentenced to 2 years (suspended) and placed on 2 years
probation. On 11/30/2006, Hood pled guilty as charged and was sentenced to 3 years (suspended)
and placed on three years probation.” The appellant’s counsel argued, “[W]e just don’t understand
how the principals could be granted [suspended sentences] with bad records and [the appellant] is
without a bad record.” The trial court commented that “for me, it all boils down to the violation of
trust.”

        At the conclusion of the sentencing hearing, the trial court stated that it was troubled that the
appellant had violated the Clarks’ trust. The court said that the crime was “deplorable,” especially
because Clark’s victim impact statement indicated that the cash stolen was, in part, the family’s
Christmas money. The court noted that the appellant had previously been given diversion and “had
an opportunity to make his life right.” The court said that it did not believe the appellant had good
potential for rehabilitation because, despite past opportunity to reform, the appellant did not do so.
On appeal, the appellant challenges the trial court’s denial of alternative sentencing.

                                             II. Analysis

        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) (2006). The appellant’s sentence meets this criteria.
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


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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 standard Range I offender convicted of a Class E felony;
therefore, he is considered to be a favorable candidate for alternative sentencing. However, the trial
court said that “the nature and the circumstances of this . . . particular offense weighs against”
granting alternative sentencing, noting that if someone had been home when the offense was carried
out, the offense “ha[d] the potential of being a very, very, very awful situation. Somebody could
have died.” Additionally, the court opined that “probation at all would really depreciate the
seriousness of the offense,” particularly in light of the appellant’s violation of a trust in order to get
money to “pay[] a car note and some insurance or something.” Further, the court stated that it did
not believe the appellant had good potential for rehabilitation. The court noted that the appellant had
a previous conviction, for which he received judicial diversion. Despite receiving diversion, the
appellant again committed a crime, indicating that the appellant was resistant to reform. As this
court has said, “[a] felon’s rehabilitation potential and the risk of repeating criminal conduct are
fundamental in determining whether he or she is suited for alternative sentencing.” State v. Keen,
996 S.W.2d 842, 844 (Tenn. Crim. App. 1999). We find no error in the trial court’s denial of
alternative sentencing.

                                           III. Conclusion

        Based upon the foregoing, we affirm the judgment of the trial court.



                                                         ___________________________________
                                                         NORMA McGEE OGLE, JUDGE




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