        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                  Assigned on Briefs at Knoxville October 15, 2013

                  STATE OF TENNESSEE v. CURTIS WORD

                   Appeal from the Circuit Court for Moore County
                         No. 1254     Robert Crigler, Judge


              No. M2013-01282-CCA-R3-CD - Filed February 20, 2014


The Defendant, Curtis Word, challenges the trial court’s sentence of incarceration, alleging
that nothing in the record overcame the presumption that he was a favorable candidate for
alternative sentencing and requesting that this court place him on probation or community
corrections. Upon consideration of the applicable authorities and the record, we affirm the
judgment of the trial court.

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

D. K ELLY T HOMAS, J R., J., delivered the opinion of the court, in which C AMILLE R.
M CM ULLEN and J EFFREY S. B IVINS, JJ., joined.

Donna Orr Hargrove, District Public Defender; and Andrew Jackson Dearing, Assistant
Public Defender, for the appellant, Curtis Word.

Robert E. Cooper, Jr., Attorney General and Reporter; Tracy L. Bradshaw, Assistant
Attorney General; Robert Carter, District Attorney General; and Hollynn Eubanks, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                    OPINION
                              FACTUAL BACKGROUND

       The record reflects that the Defendant was indicted on October 25, 2012, for
alternative counts of knowingly selling or delivering Alprazolam, a Schedule IV controlled
substance, which is a Class D felony. See Tenn. Code Ann. § 39-17-417. The Defendant
entered an open guilty plea on February 22, 2013, to knowingly selling a Schedule IV
controlled substance with the sentence to be determined at a later sentencing hearing; the
alternative delivery count was dismissed.
       At the guilty plea hearing, the State offered the following factual basis for the plea:

             Special Agent Larry Campbell of the Moore County Sheriff’s
       Department was running a drug operation, done in the manner that most of
       them are done, although he had an additional factor in this one.

                In the normal and usual thing he has a CI that makes contact. However,
       it is not merely just the undercover civilian that goes but he had a CI who is an
       undercover police officer who actually was the other side of this transaction.

             On October 16, 2011, conducting this type of undercover operation, that
       undercover police officer purchased six small pills from Mr. Word here in
       Moore County, Tennessee, in return for cash.

              Those pills were sent to the Tennessee Bureau of Investigation’s lab
       where they were analyzed and determined to be [A]lprazolam, a Schedule IV
       controlled substance.

      The Defendant agreed that the proffered factual basis adequately described what
happened in the case and that it was his decision to plead guilty.

       On April 19, 2013, the Defendant’s sentencing hearing was held, and the following
evidence adduced. As a preliminary matter, the State submitted the guilty plea hearing
transcript, the Defendant’s presentence report, and the judgments of prior convictions as
evidence at the sentencing hearing.

       The Defendant testified that he was forty-eight years old, that he had severe physical
health issues, and that he had been suffering with pain daily since his involvement in a near-
death car accident in 1989. The Defendant explained that he had sustained the following
injuries in that 1989 accident and was not initially expected to live: crushed both of his hips,
knees, and jaws; lost his left eye; had a heart attack; and died twice.

        In 2000, the Defendant was involved in a second accident in which he broke his neck
and was paralyzed from the neck down for approximately thirty-seven months and eleven
days. The Defendant testified that he currently wore an ankle brace due to a crushed ankle,
was in the third stage of kidney failure, and had pancreatitis and diabetes. As a result, he had
been prescribed five to six medications, one of which was hydrocodone, and took
approximately thirteen pills per day. He testified that was being monitored by three doctors,
all in Nashville; that there was nothing his doctors could do about his pancreatitis, his kidney
failure, or his joint pain; and that his doctors believed that he was deteriorating quickly.

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        The Defendant testified that he received a social security check, but that it does not
pay all of his bills, and that he has money issues. He further testified that, in the past, he had
used drugs that he had not been prescribed to alleviate his pain because he could not pay for
his prescriptions. On cross-examination, the Defendant admitted that he received TennCare
and that it covered some of the costs of his prescriptions, but not all of them. He further
admitted that he had a criminal history involving drugs that spanned over twenty years.
Turning to the specific facts of the case at bar, the Defendant also admitted that he received
the alprazolam he was convicted of selling from a friend. He explained that “a girl” kept
calling him and asking for “Xanax,” that he told her that he did not have any drugs, and that
he only sought out the drugs because the girl was persistent.

        In rebuttal, the State called Moore County Sheriff Mark Logan who testified that he
had been in law enforcement in Moore County for thirty-five years, twenty-seven of which
as the sheriff. He further testified that Moore County employed a full-time narcotics officer,
the arresting officer in the Defendant’s case, and that the narcotics officer was needed in the
small county because they have a serious drug problem. Sheriff Logan explained that most
drug users ended up in jail because they committed theft to support their drug habit. On
cross-examination, Sheriff Logan testified that he had known the Defendant all of his life and
corroborated the Defendant’s testimony that he had been involved in a near-death accident
and was “really lucky to be alive.” He admitted that it was possible that he had requested that
the Defendant’s bond be lowered so that the county would not have to pay his medical
expenses.

        After reviewing the evidence and hearing the arguments, the trial court sentenced the
Defendant as a Range II, multiple offender, to serve five years in the Department of
Correction (DOC), explaining that the light sentence was giving some consideration to the
Defendant’s medical issues. The trial court found the following mitigating factors
applicable: (1) that the conduct neither caused nor threatened serious bodily injury and (13),
the catchall factor, that the Defendant pleaded guilty and spared the taxpayers and the State
the expense of a trial. See Tenn. Code Ann. § 40-35-113 (1), (13). The trial court also found
the following enhancement factors applicable: (1) that the Defendant had a previous history
criminal convictions or criminal behavior in addition to those necessary to establish the
appropriate range, explaining that the Defendant had four prior felony convictions, when
only two were required for Range II classification, as well as convictions for driving under
the influence and simple assault; and (8) that the Defendant had previously failed to comply
with conditions of a sentence involving release into the community, explaining that the
Defendant had a total of three probation violations in the past. See Tenn. Code Ann. § 40-35-
114 (1), (8). Denying alternative sentencing, the trial court stated,

                      Confinement is needed to provide an effective deterrent to

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       people likely to commit these offenses. With this kind of record it sends the
       wrong message.

                      Confinement is needed to protect society by restraining a
       defendant who has a long history of criminal conduct. These things stretch out
       over the entirety of his lifetime.

                     Also he has been on probation unsuccessfully in the past. All of
       this trouble with the law in the past didn’t stop him from committing the
       charge that we are here in court on today.

See Tenn. Code Ann. § 40-35-103.

       This appeal followed.


                                         ANALYSIS

       The Defendant contends that the trial court improperly denied alternative sentencing,
because he does not fall within the parameters of Tennessee Code Annotated section 40-35-
102(5) and nothing in the record overcomes the presumption that the Defendant is a
favorable candidate for alternative sentencing. On appeal, he implores this court to place him
on probation or community corrections so that he can take care of his outstanding debts and
not burden the State of Tennessee with those costs. The State responds that all forms of
alternative sentencing were properly denied because of the Defendant’s criminal history and
the ineffectiveness of previous probationary sentences. We agree with the State.

       Before a trial court imposes a sentence upon a convicted criminal defendant, it must
consider: (a) the evidence adduced at the trial and the sentencing hearing; (b) the presentence
report; (c) the principles of sentencing and arguments as to sentencing alternatives; (d) the
nature and characteristics of the criminal conduct involved; (e) evidence and information
offered by the parties on the enhancement and mitigating factors set forth in Tennessee Code
Annotated sections 40-35-113 and 40-35-114; (f) any statistical information provided by the
Administrative Office of the Courts as to Tennessee sentencing practices for similar offenses;
and (g) any statement the defendant wishes to make in the defendant’s own behalf about
sentencing. Tenn. Code Ann. § 40-35-210(b). 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


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273, 278-79 (Tenn. 2012). If a trial court misapplies an enhancing or mitigating factor, the
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 State v. Carter, 254 S.W.3d 335, 346 (Tenn. 2008).
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 (2010), Sentencing Comm’n
Cmts.; State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).

       A defendant 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). Following the June
7, 2005 amendments to our Sentencing Act, no longer is any defendant entitled to a
presumption that he or she is a favorable candidate for alternative sentencing. State v. Carter,
254 S.W.3d 335, 347 (Tenn. 2008). Further, Tennessee Code Annotated section 40-35-102(6)
is only advisory. See Tenn. Code Ann. § 40-35-102(6)(D).

       In determining a defendant’s suitability for alternative sentencing, the trial court
should consider whether

       (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)(A)-(C). A trial court should also consider a defendant’s
potential or lack of potential for rehabilitation when determining if an alternative sentence
would be appropriate. Tenn. Code Ann. § 40-35-103(5); State v. Boston, 938 S.W.2d 435,
438 (Tenn. Crim. App. 1996). Ultimately, in sentencing a defendant, a trial court should
impose a sentence that is “no greater than that deserved for the offense committed” and is
“the least severe measure necessary to achieve the purposes for which the sentence is
imposed.” Tenn. Code Ann. § 40-35-103(2), (4).



                                              -5-
       Preliminarily, we note that, contrary to the Defendant’s argument, after the 2005
amendments to our Sentencing Act, he was no longer entitled to a presumption that he was
a favorable candidate for alternative sentencing. See Carter, 254 S.W.3d at 347. Further,
because the Defendant’s prior convictions classified him as a Range II, multiple offender,
he was not even to be considered a favorable candidate for alternative sentencing. The
Defendant was, however, eligible for probation because the “sentence actually imposed upon
[him was] ten (10) years or less.” Tenn. Code Ann. § 40-35-303(a), (b). Thus, the trial court
was required to consider probation as a sentencing option. Tenn. Code Ann. § 40-35-303(b).
However, no criminal defendant is automatically entitled to probation as a matter of
law. State v. Davis, 940 S.W.2d 558, 559 (Tenn. 1997). The defendant has the burden of
establishing his or her suitability for full probation. See Carter, 254 S.W.3d at
347 (citing Tenn. Code Ann. § 40-35-303(b)). A defendant must demonstrate 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)). 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).

        The Defendant also contends that he is eligible for community corrections pursuant
to Tennessee Code Annotated section 40-36-106 (a) and (c). The Community Corrections
Act was meant to provide an alternative means of punishment for “selected, nonviolent
felony offenders . . . , thereby reserving secure confinement facilities for violent felony
offenders.” Tenn. Code Ann. § 40-36-103(1); see also State v. Samuels, 44 S.W.3d 489, 492
(Tenn. 2001). Pursuant to statute, persons who satisfy all of the following minimum criteria
are eligible for participation in a community corrections program:

       (A) Persons who, without this option, would be incarcerated in a correctional
       institution;

       (B) Persons who are convicted of property-related or drug-or alcohol-related
       felony offenses or other felony offenses not involving crimes against the
       person as provided in title 39, chapter 13, parts 1-5;

       (C) Persons who are convicted of nonviolent felony offenses;

       (D) Persons who are convicted of felony offenses in which the use or
       possession of a weapon was not involved;




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       (E) Persons who do not demonstrate a present or past pattern of behavior
       indicating violence; and

       (F) Persons who do not demonstrate a pattern of committing violent offenses.

Tenn. Code Ann. § 40-36-106(a)(1).

        The Defendant does meet the statutory requirements for eligibility in the Community
Corrections Program. However, even though an offender meets the requirements for
eligibility, he or she is not automatically entitled to participation in a community corrections
program. See State v. Ball, 973 S.W.2d 288, 294 (Tenn. Crim. App. 1998); State v. Taylor,
744 S.W.2d 919, 922 (Tenn. Crim. App. 1987). Rather, the Act provides that the criteria
shall be interpreted as minimum standards to guide a trial court’s determination of whether
that offender is eligible for community corrections. See Tenn. Code Ann. § 40-36-106(d).

        The Defendant, by reference, also alleges that he is eligible for community corrections
under the “special needs” provision of Tennessee Code Annotated section 40-36-106(c)
because he is addicted to pain medication. A defendant may rely on the special needs criteria
for eligibility in a community based program, however, only if he or she does not qualify
under subsection (a). See Tenn. Code Ann. § 40-36-106(c); State v. Andrea Nichole Bean,
No. M2011-02767-CCA-R3-CD, 2012 WL 6698060, at *5 (Tenn. Crim. App. Dec. 26, 2012)
(citing State v. Marcus Conner, No. M2007-02514-CCA-R3-CD, 2008 WL 4830726, at *4
(Tenn. Crim. App. Nov. 6, 2008)) (internal quotations omitted). Nevertheless, subsection (c)
does not provide the Defendant any relief because he qualified for eligibility under
subsection (a). See Tenn. Code Ann. § 40-36-106. Further, the Defendant has demonstrated
no proof that he currently suffers from drug abuse; the Defendant testified that his prescribed
pain medications are necessary to mitigate the pain but that he could function, although with
some difficulty, without them.

        As a preliminary matter, the Defendant suggests that his sentence of confinement is
not in the best interests of himself or the public because he has a limited life expectancy and
because his medical costs will be a burden on the state. However, the Defendant testified
that his TennCare medical insurance did not always cover the costs of his many medications,
that his social security check did not cover all of his living expenses, and that he often needed
more money for food. A sentence of incarceration would remedy those issues. Further,
addressing the burden on the state, as the aforementioned illustrates, the Defendant is already
on government assistance; thus, his incarceration will not impose a markedly additional
burden on the state, just provide support in another medium. We also note that our statutes
favor sentences of incarceration for felons committing the most severe offenses as well as



                                               -7-
felons with criminal histories indicating a disregard for the law and past failure of
rehabilitative efforts, and the Defendant meets the last two criteria.

        After reviewing the record and the applicable authorities, we conclude that the trial
court did not abuse its discretion in denying probation and alternative sentencing. The trial
court found that the Defendant had a long history of criminal conduct, spanning most of the
Defendant’s lifetime, that involved drugs. The trial court also found that the Defendant had
three probation revocations in the past, and this had not deterred his continued criminal
activity. Further, the trial court determined that incarceration was necessary to deter others
from committing this crime and to protect society from a defendant who had devoted his life
to criminal activity. The record supports these findings. As there is no evidence to rebut the
presumption of reasonableness afforded the trial court in its sentencing determinations, the
Defendant is not entitled to relief on this issue.


                                          CONCLUSION

        Based on our review of the record and the applicable law, we affirm the judgment of
the trial court.

                                                   _________________________________
                                                   D. KELLY THOMAS, JR., JUDGE




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