                                                                                      01/19/2018
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                          Assigned on Briefs May 17, 2017

             STATE OF TENNESSEE v. CHRISTOPHER JONES

                Appeal from the Criminal Court for Sullivan County
                      No. S64928 James F. Goodwin, Judge
                     ___________________________________

                           No. E2016-00769-CCA-R3-CD
                       ___________________________________

Defendant, Christopher Jones, appeals the trial court’s order requiring him to serve in
confinement his effective two-year sentence resulting from his guilty pleas to reckless
aggravated assault, reckless endangerment, driving under the influence of an intoxicant
(DUI), simple possession of buprenophine (a Schedule III drug), and simple possession
of marijuana (a Schedule VI drug). Upon reviewing the 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

THOMAS T. WOODALL, P.J., delivered the opinion of the court, in which JOHN EVERETT
WILLIAMS and ROBERT W. WEDEMEYER, JJ., joined.

Ricky A.W. Curtis, Blountville, Tennessee, for the appellant, Christopher Jones.

Herbert H. Slatery III, Attorney General and Reporter; Clark B. Thornton, Senior
Counsel; Barry Staubus, District Attorney General; and Benjamin Rowe, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                       OPINION

Background

      Guilty Pleas

       At the guilty plea hearing the State and Defendant stipulated that the summary of
the facts contained in the presentence report, as taken from the narrative/case notes of
Officer K. Frederick of the Bristol Police Department, was accurate and sufficient to
provide a factual basis for the offenses of reckless aggravated assault, reckless
endangerment, driving under the influence (DUI), simple possession of buprenorphine, a
Schedule III drug, simple possession of marijuana, and failure to exercise due care while
driving a motor vehicle:

        On 9/28/14 at 6:00 p.m. I, Officer Frederick, responded with Officer Joe
        Newman to Highway 394 at White Top[] Rd. in reference to a traffic
        accident. Upon arrival, I saw a black Chevrolet pickup truck with the
        NC registration of BZ2597 on the shoulder of the west bound lane.
        Underneath the front of the pickup truck was a white Suzuki motorcycle
        with the TN registration of 63ZK00 belonging to [Defendant]. The
        driver of the Chevy pickup was identified as Amy Thompson. Her
        husband, Brandon Lee Thompson, was in the front seat passenger seat
        while their 12[-] year old son was in the back[] seat on the driver-side of
        the vehicle. None of the occupants of the Chevy pickup reported having
        injuries. [Defendant] was standing on the hillside on the other side of
        the guardrail at the right side passenger door of the pickup smoking a
        cigarette. A female who later identified herself as Angela Whitaker was
        on the ground behind and to the right of the vehicle. The fire department
        was already on the scene and was tending to a female. It was determined
        that [Defendant] was driving a Suzuki motorcycle while Angela
        Whitaker was on the back of the motorcycle. There was significant
        debris from the motorcycle that was scattered at the scene. I tried to
        speak to [Defendant] but he seemed to be in a daze and was unable to
        state what happened. He did not express any concern for the female who
        had been his passenger. It was unknown at that time if his condition was
        due to the accident or if he was under the influence of alcohol/or drugs.
        Even the first responders with the fire department believed his behavior
        was odd and not common with somebody involved in a accident.
        [Defendant] was transported to BRMC by Rescue 2. Officer Bush
        responded to the emergency room to follow up with [Defendant] who
        refused to submit willingly to a blood test. Officers had spoken to
        [Defendant] when he had responded to the scene of a motorcycle
        accident at 2010 Weaver Pike the night before to pick up the motorcycle
        which was involved in that accident (OCAC2014006339). The owner of
        the motorcycle, Steven Bryant, was found to be in possession of
        methamphetamine, and a small amount of green plant like substance that
        had the appearance and smell of marijuana. The family of [Defendant]
        remained on the scene after he was transported to the hospital and kept
        asking about getting the motorcycle and his personal belongings. Due to
        his suspicious circumstances, Sgt. Matthew Cousins then requested that
        officer Chesney Griffin respond to the scene to have K9 Ruger conduct
        an open air sniff of the area. At the request of Sgt. Still I transported the
        driver of the Chevy, Amy Thompson, to the hospital for a voluntary
        blood draw. The blood was collected and I escorted her back to the

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        scene. When I arrived back on the scene Officer Griffin had already had
        K9 Ruger conduct an open air sniff of the area. She reported K[]9 Ruger
        alerted on the back seat of the motorcycle. As well as, the area near
        where [Defendant] was standing. During a search of the area, Officer
        Keese located what appeared to be a “Joint” which was a green plant like
        substance that had the appearance and odor of marijuana rolled up in
        rolling paper. Officer Griffin also reported that K[]9 Ruger was trying to
        get into the area between the guardrail and the truck. Upon checking this
        area, Officer Griffin located a cellophane cigarette wrapper that
        contained three whole pills and one half of a pill all of which were the
        same in appearance. The round white pills with inscription 54 411 had
        the appearance identical with that of Suboxone (Schedule III). These
        items were collected as evidence and are being sent to the TBI Lab for
        identification. An accident report was also completed.

        Sentencing Hearing

      Trial counsel indicated that the presentence report had been filed and that he had
reviewed it with Defendant. He also stated that Defendant agreed to proceed
immediately to sentencing. Trial counsel then entered into evidence two letters from
Defendant’s present employer, “Crosswhite AC Services.”

        Katheryn Strouth, Defendant’s mother, acknowledged that Defendant had been
sentenced to the Department of Correction for previous offenses and was released in
2012. Other than the present offenses, Defendant had not had any further legal
difficulties. Ms. Strouth testified that she has had constant contact with Defendant since
his release from prison, and he lived in Bristol with his two sons, ages 10 and 2. She said
that Defendant was both the “primary residential parent” and the “full legal custodian” of
the two children. Ms. Strouth testified that the children would be “devastated” if
Defendant were to be incarcerated, and she felt that they would become “wards of the
state” due to the lack of family resources to care for them. She said that employees of the
Department of Children’s Services and various members of law enforcement had stopped
by Defendant’s house for welfare checks on the children, and they had never found
anything improper during their search. On cross-examination, Ms. Strouth testified that
she had not witnessed any drug use by Defendant since 2012.

Analysis

        Defendant argues that the trial court erred in ordering him to serve his effective
two-year sentence in confinement. The State responds that the trial court did not abuse
its discretion in ordering Defendant to serve his sentence in confinement. We agree with
the State.


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       The trial court has broad discretion to impose a sentence anywhere within the
applicable range, regardless of the presence or absence of enhancement or mitigating
factors, and “sentences should be upheld so long as the statutory purposes and principles,
along with any enhancement and mitigating factors, have been properly addressed.”
State v. Bise, 380 S.W.3d 682, 706 (Tenn. 2012). Accordingly, we review a trial court’s
sentencing determinations under an abuse of discretion standard, “granting a presumption
of reasonableness to within-range sentencing decisions that reflect a proper application of
the purposes and principles of our Sentencing Act.” Id. at 707. In State v. Caudle, our
Supreme Court clarified that 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.” 388 S.W.3d 273, 278-79 (Tenn. 2012).
Under the 2005 amendments to the Sentencing Act, trial courts are to consider the
following factors when determining a defendant’s sentence and the appropriate
combination of sentencing alternatives:

        (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 the mitigating and
        enhancement factors set out in §§ 40-35-113 and 40-35-114;
        (6) Any statistical information provided by the administrative office of
        the courts as to sentencing practices for similar offenses in Tennessee;
        and
        (7) Any statement the defendant wishes to make in the defendant’s own
        behalf about sentencing.

Tenn. Code Ann. § 40-35-210(b).

       The trial court must state on the record the factors it considered and the reasons for
the ordered sentence. Tenn. Code Ann. § 40-35-210(e); Bise, 380 S.W.3d at 706. “Mere
inadequacy in the articulation of the reasons for imposing a particular sentence . . . should
not negate the presumption [of reasonableness].” Bise, 380 S.W.3d at 705-06. The party
challenging the sentence on appeal bears the burden of establishing that the sentence was
improper. Tenn. Code Ann. § 40-35-401, Sentencing Comm’n Cmts.

       Under the revised Tennessee sentencing statutes, a defendant is no longer
presumed to be a favorable candidate for alternative sentencing. State v. Carter, 254
S.W.3d 335, 347 (Tenn. 2008) (citing Tenn. Code Ann. § 40-35-102(6)). Instead, the
“advisory” sentencing guidelines provide that a defendant “who is an especially mitigated
or standard offender convicted of a Class C, D or E felony, should be considered as a

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favorable candidate for alternative sentencing options in the absence of evidence to the
contrary.” Tenn. Code Ann. § 40-35-102(6). 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). Instead, the defendant bears the burden of proving his or her
suitability for alternative sentencing options. Carter, 254 S.W.3d at 347 (citing Tenn.
Code Ann. § 40-35-303(b)). The defendant must show that the alternative sentencing
option imposed “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).

      When imposing a sentence of full confinement, 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). In addition, the sentence imposed should be (1)
“no greater than that deserved for the offense committed,” and (2) “the least severe
measure necessary to achieve the purposes for which the sentence is imposed.” Tenn.
Code Ann. § 40-35-103(2),(4).

      Defendant pled guilty to reckless aggravated assault, a Class D felony, reckless
endangerment, a Class E felony, DUI, a Class A misdemeanor, possession of a Schedule
III drug, a Class A misdemeanor, simple possession of marijuana, a Class A
misdemeanor, and failure to exercise due care, a Class C misdemeanor. Defendant’s
conviction for failure to exercise due care was merged with his conviction for reckless
aggravated assault, and he was sentenced as a Range I, standard offender to an effective
two-year sentence. As a standard offender convicted of Class D and Class E felonies,
Defendant is eligible for alternative sentencing. See Tenn. Code Ann. § 40-35-102(6).

       Defendant concedes that that trial court considered the appropriate sentencing
factors and the principles of sentencing, and the record supports this determination. In
finding that Defendant’s sentence should be served in confinement, the trial court said:

        So [Defendant’s] prior criminal history starts on page 6 and as [defense
        counsel] pointed out most everything happened before 2012 but there’s a
        lot that happened before 2012. The Court notes that [Defendant] is
        currently a 29[-] year old male. He has numerous felony convictions out

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of the Commonwealth of Virginia, a grand larceny. Any case that’s been
dismissed, [defense counsel], I’m not going to consider; manufacture of
a controlled substance, possession of a gun while selling a pound of
marijuana, aggravated burglary, that’s in Sullivan County. I think that’s
the sentence that he had to serve in the department of correction[]. The
theft went along with that aggravated burglary. The criminal history on
page 9, his criminal history started on page 6, it goes through page 9. It
shows that he had - - his history of supervision that he has had a
violation of probation in the past which is because of the Sullivan
County aggravated burglary that he had to serve in the department of
correction[] and he was positive for drugs is what caused him to have to
serve that. It looks like also on page 9 that he has cases in Washington
County Virginia Circuit Court that he’s on an appeal bond for which are
a series of animal violation cases which I don’t know what animal
violation is but - - is he aware of those or - -

*    *      *

Beginning on page 10 [Defendant] recounts his alcohol and drug use
specifically with regard to marijuana. He states that he started using
marijuana at age 21. He describes his use as daily, last use into 2015,
morphine, Lortab and Percocet. He reported his last illegal use - - he
reports that he became addicted after an accident. Last reported illegal
use was in January of this year, 2016. Methamphetamine, he reports that
he started taking methamphetamine at age 21. He says his last use was
in August of 2015. He has received some treatment for his addiction to
pain medication, basically gone to a Suboxone clinic. He is employed
with Crosswhite AC Sales and Services and we have a letter from Mr.
Crosswhite and the Crosswhite family on his behalf. [Defense counsel]
this isn’t the normal crash case that comes before the Court, I grant you
that, but he had pled guilty and in his statement, [Defendant’s] statement
at page 5 he recites that he was sitting at a stop sign while on White Top
Extension, that he was struck by a truck heading down 394; says he was
sitting at the stop sign when the truck turned down White Top Road,
eased out of the traffic to look around the truck when the driver of the
truck “thought I was going to try and beat her and so she corrected into
me.” He admitted he had no license or insurance at the time and that
was January 14th, 2016 when he made that statement so he had taken
responsibility and I give him credit for that. He has a lengthy prior
record. He has felony convictions in excess of what would take to make
a Range I offense so he pled as a Range I offender. Probation had been
tried unsuccessfully in the past. He has continued using drugs while on
bond in this case and according to his statement - - well, according to his

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        reporting on pages 10 and 11 he’s continued to use marijuana, morphine,
        Lortab, Percocet, methamphetamine while he was on bond while this
        case was pending. We sent him and had him drug tested back in
        September of last year and it was positive for all those things that he’s
        admitted to. Based on all those findings he’s going to have to serve his 2
        year sentence at 30%. He will come out on determinate release. When
        he does come out on determinate release the conditions of the plea that I
        read in, those will all apply and I want him to be evaluated for drug and
        alcohol and have - - complete whatever treatment to try to get him off of
        drugs. If we don’t get him off the drugs he might as well not come out
        and I hope that, he’s 29 years old and he’s got two kids who are
        absolutely going to be dependent on him when he gets out so I’m hoping
        that he’ll realize that.

        The record supports the trial court’s findings. Initially, the State asserts that
although Defendant is eligible for probation, he not considered a favorable candidate for
probation. “[A] Defendant who is being sentenced for a third or subsequent felony
conviction involving separate periods of incarceration or supervision shall not be
considered a favorable candidate for alternative sentencing.” T.C.A. § 40-35-102(6)(A).
“Separate periods of incarceration or supervision” have been defined to mean “that the
defendant serves and is released or discharged from a period of incarceration or
supervision for the commission of a felony prior to committing another felony. T.C.A. §
40-35-102(6)(B)(emphasis added). Defendant was convicted on November 13, 2007, in
Tennessee of aggravated burglary and theft, and he received a three-year suspended
sentence. He was found on January 11, 2008, to having violated his probation.
Defendant was also charged in Virginia with two counts of manufacturing a controlled
substance and possession of a gun during the sale of marijuana. The presentence report
reflects that the date for the offenses was January 23, 2009. Defendant also committed
the offense of grand larceny in Virginia on June 8, 2010. The two sets of offenses were
disposed of on November 8, 2010. Defendant received concurrent five-year sentences
that were suspended with two years on probation. The present offenses, Defendant’s third
set of offenses, were committed on September 28, 2014. Although Defendant committed
three sets of offenses, we cannot determine from the presentence report that Defendant
had been released from supervision from his Tennessee offenses of aggravated burglary
and theft when he committed the Virginia offenses of two counts of manufacturing a
controlled substance and possession of a gun during the sale of marijuana on January 23,
2009. Defendant also committed the offense of grand larceny in Virginia on June 8,
2010. The two sets of offenses were disposed of on November 8, 2010. Therefore,
Defendant is considered a favorable candidate for probation.

       In any event, Defendant’s extensive criminal history and his lack of success while
on probation for previous offenses justify the denial of alternative sentencing. The 29-
year-old Defendant has prior convictions for aggravated burglary, theft, two counts of

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manufacturing a controlled substance, possession of a gun during the sale of marijuana,
and grand larceny, and Defendant violated his probation on the aggravated burglary and
theft convictions. The trial court also stated: “We sent him and had him drug tested back
in September of last year and it was positive for all those things that he’s admitted to.” In
this case, we do not have to, and thus have not, relied on Defendant’s admissions to using
drugs to justify the denial of alternative sentencing. Defendant is not entitled to relief in
this appeal.

                                        Conclusion

       For the foregoing reasons, we affirm the judgment of the trial court.


                                   ____________________________________________
                                   THOMAS T. WOODALL, PRESIDING JUDGE




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