                                                                                      05/05/2017




       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                        AT NASHVILLE
                         Assigned on Briefs April 19, 2017

                  STATE OF TENNESSEE v. BOBBY E. LEE

                  Appeal from the Criminal Court for Clay County
                    No. 2014-CR-27 Gary McKenzie, Judge
                     ___________________________________

                          No. M2016-02084-CCA-R3-CD
                      ___________________________________


The Defendant, Bobby E. Lee, appeals his sentence of confinement after being convicted
of two counts of delivery of Oxycodone, a Schedule II controlled substance. The trial
court sentenced the Defendant to eleven months, twenty-nine days at seventy-five percent
release eligibility. The Defendant argues that the trial court abused its discretion in
imposing the maximum sentence and a term of incarceration. After thorough review of
the record and applicable law, we affirm the judgments of the trial court.

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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which JAMES
CURWOOD WITT, JR., and CAMILLE R. MCMULLEN, JJ., joined.

Bruce E. Myers (on appeal), John Philip Parsons (at trial), and Hershel Lacy (at the
sentencing hearing), Livingston, Tennessee, for the appellant, Bobby E. Lee.

Herbert H. Slatery III, Attorney General and Reporter; Renee W. Turner, Senior Counsel;
Bryant C. Dunaway, District Attorney General; and Mark Gore, Assistant District
Attorney General, for the appellee, State of Tennessee.


                                      OPINION

                    FACTUAL AND PROCEDURAL HISTORY

       In June 2014, a Clay County grand jury indicted the Defendant on two counts of
delivery of Oxycodone, a Schedule II controlled substance. At a jury trial, the evidence
established that the Defendant sold Oxycodone pills to a confidential informant on
September 7 and October 2, 2013. The confidential informant gave the pills to law
enforcement officers after both purchases. The six recovered pills tested positive for
Oxycodone. Following the conclusion of the proof, the jury found the Defendant guilty
as charged.

        At the sentencing hearing, Ms. Casey Dewayne Brown, a probation officer with
Community Probation Services, testified that she was responsible for creating the
Defendant’s presentence report, which was admitted into evidence. She stated that the
Defendant had a prior conviction for violation of the open container law, a prior
conviction for violation of the implied consent law, a dismissed charge for possession of
a handgun while under the influence of an intoxicant, a dismissed charge for using
worthless checks, and a prior conviction for storing high explosives not in conformity
with United States Treasury regulations for which he was sentenced to probation. Ms.
Brown testified that while on probation for the storing high explosives conviction, the
Defendant violated his probation because he was found to be using illegal drugs. The
trial court did not revoke his probation in light of his then-current drug treatment
program. Ms. Brown stated that the Defendant violated his probation again because he
was arrested for possession of a controlled substance. She also stated that the trial court
subsequently revoked his probation and ordered him to serve four months in
confinement. She confirmed that the Defendant had pending charges for driving under
the influence and simple possession of a controlled substance.

       Ms. Brown testified that the Defendant did not have verified employment but that
the Defendant reported working in construction for twenty-five years before receiving
disability insurance in 2010. She also testified that although the Defendant tested
positive for Oxycodone during a January 9, 2016, drug screening that was a condition of
probation, he had a valid prescription for Oxycodone and tested negative for all other
drugs. She stated that the Defendant had a tenth grade education.

       On cross-examination, Ms. Brown testified that the Defendant could read and
write because she witnessed him complete the presentence report form. She stated that
she believed the Defendant was married and had one child. She also stated that she
recommended in the presentence report that the Defendant be placed on probation.

       At the conclusion of the sentencing hearing, the trial court noted that although the
instant case involved misdemeanor sentencing, it would use guidance from felony
sentencing statutes to reach a decision. The trial court found that consecutive sentencing
was inappropriate for the Defendant’s ultimate sentence because he was not a dangerous
offender with an extensive criminal history. The trial court also found as enhancement
factors that the Defendant had a previous history of criminal convictions and behavior,
was the leader of the offense involving his co-defendant, and had failed to comply with
previous conditions of probation. T.C.A. § 40-35-114(1), (2), (8) (2012). The trial court
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stressed that it was placing “great weight” on those enhancement factors. The trial court
stated that the Defendant’s two prior violations of probation were “real troubling”
because both violations involved the Defendant’s illegal use of controlled substances.
The trial court stressed that the Defendant’s instant misdemeanor convictions involved
not “one criminal episode” but “two independent criminal offenses.” In addressing the
Defendant’s prior criminal history, the trial court found that the Defendant had prior
criminal convictions. The trial court also noted that the Defendant’s last conviction was
in 2005 but that he also had previous violations of probation. The trial court noted that it
would not give weight to whether the Defendant’s conduct caused or threatened serious
bodily injury because there was an argument as to whether selling narcotics qualified
under this factor. Id. § 40-35-113(1). The trial court found that the Defendant had
disability and health issues, putting some weight to that mitigating factor. Id. § 40-35-
113(8).

       The trial court next considered whether confinement was necessary. See id. § 40-
35-103(1). The trial court found that despite his previous convictions, the Defendant did
not have a “long history of criminal conduct.” Id. § 40-35-103(1)(A). The trial court did
find, however, that incarcerating the Defendant was “necessary to avoid the depreciation
of the seriousness of the crime” because it would help deter the Defendant from future
criminal activity and that the local community was struggling with drug use and would
benefit from the deterrence of the Defendant’s confinement. Id. § 40-35-103(1)(B). The
trial court also found that “[m]easures less restrictive than confinement have been
frequently or recently applied and have been unsuccessful,” citing the Defendant’s two
violations of probation and stating that it would assess “great weight” to this
consideration. Id. § 40-35-103(1)(C). The trial court then ordered the Defendant to serve
eleven months and twenty-nine days at seventy-five percent in prison for each conviction,
to be served concurrently.

                                       ANALYSIS

        On appeal, the Defendant argues that the length of his sentence is excessive and
that the trial court erroneously ordered incarceration on the basis of deterrence. The State
argues that the trial court did not abuse its discretion and that the Defendant’s sentence is
proper. We agree with the State.

        In misdemeanor sentencing, a separate sentencing hearing is not mandatory but the
trial court is required to provide the defendant with a reasonable opportunity to be heard
as to the length and manner of service of the sentence. T.C.A. § 40-35-302(a).
Misdemeanor sentencing is controlled by Tennessee Code Annotated section 40-35-302,
which provides that the trial court shall impose a specific sentence consistent with the
purposes and principles of the 1989 Criminal Sentencing Reform Act. State v.
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Palmer, 902 S.W.2d 391, 394 (Tenn. 1995). The misdemeanor offender must be
sentenced to an authorized determinate sentence with a percentage of that sentence
designated for eligibility for rehabilitative programs. T.C.A. § 40-35-302(d). Generally,
a percentage of not greater than seventy-five percent of the sentence should be fixed for a
misdemeanor offender. Palmer, 902 S.W.2d at 393-94. In determining the percentage of
the sentence, the trial court must consider the legislative purposes and principles related
to sentencing. Id. There is no requirement for the trial court to make a finding on the
record when setting the percentage of the sentence to be served. State v. Troutman, 979
S.W.2d 271, 274 (Tenn. 1998).
        A trial court’s sentencing decisions are generally reviewed for abuse of discretion,
with a presumption of reasonableness granted to within-range sentences that reflect a
proper      application    of     the    purposes     and     principles   of     sentencing.
State v. Bise, 380 S.W.3d 682, 707 (Tenn. 2012). A trial court abuses its discretion when
it applies an incorrect legal standard, reaches an illogical conclusion, bases its decision on
a clearly erroneous assessment of the evidence, or employs reasoning that causes an
injustice to the party complaining. State v. Herron, 461 S.W.3d 890, 904 (Tenn. 2015).

       Although the Tennessee Supreme Court has not specifically held whether the Bise
standard of review applies to misdemeanor sentencing, our supreme court held that “the
abuse of discretion standard of appellate review accompanied by a presumption of
reasonableness applies to all sentencing decisions.” State v. King, 432 S.W.3d 316, 324
(Tenn. 2014) (citing State v. Pollard, 432 S.W.3d 851, 864 (Tenn. 2013)). Accordingly,
we hold, as other panels of this court have held, that the Bise standard is the appropriate
standard of review in misdemeanor sentencing cases. See State v. Clifford Eric Marsh,
No. M2015-00803-CCA-R3-CD, 2016 WL 349928, at *3 (Tenn. Crim. App. Jan. 28,
2016); State v. Christopher Dewayne Henson, No. M2013-01285-CCA-R3-CD, 2015
WL 3473468, at *5 (Tenn. Crim. App. June 2, 2015), perm. app. denied (Tenn. Sept. 17,
2015); State v. Sue Ann Christopher, No. E2012-01090-CCA-R3-CD, 2013 WL
1088341, at *7 (Tenn. Crim. App. Mar. 14, 2013).

       The appealing party bears the burden of proving that the sentence was improper.
State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991); see T.C.A. § 40-35-401(d),
Sentencing Commission Comments. Likewise, a criminal defendant seeking full
probation bears the burden on appeal of showing the sentence actually imposed is
improper and that full probation will be in the best interest of both the defendant and the
public. State v. Bingham, 910 S.W.2d 448, 456 (Tenn. Crim. App. 1995).

       Although the Defendant suggests his sentence should be more akin to three
months, we note that misdemeanor sentencing does not include ranges and that trial
courts have a great deal of flexibility in imposing the length of a misdemeanor sentence
up to eleven months and twenty-nine days. Palmer, 902 S.W.2d at 393; State v.
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Boyd, 925 S.W.2d 237, 244 (Tenn. 1995). We hold that the Defendant failed to meet his
burden showing that he is entitled to an alternative sentence because he did not present
proof as to why confinement is improper and probation is in his and the public’s the best
interest. Bingham, 910 S.W.2d at 456. Additionally, we note that the Defendant argues
that the trial court based its deterrence finding, at least in part, on evidence not contained
in the record, including that the local community faced a drug problem. Nevertheless, the
trial court properly found, based on evidence presented at the sentencing hearing and in
the presentence report, that the Defendant had two previous violations of probation. See
T.C.A. § 40-35-103(1)(C) (confinement is permissible if “[m]easures less restrictive than
confinement have frequently or recently been applied unsuccessfully to the defendant”).
Accordingly, we hold that the trial court did not abuse its discretion in sentencing the
Defendant to eleven months and twenty-nine days at seventy-five percent in confinement.

                                      CONCLUSION

       Based on the foregoing analysis, we affirm the judgment of trial court.



                                            ____________________________________
                                           JOHN EVERETT WILLIAMS, JUDGE




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