        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                          Assigned on Briefs May 13, 2015


           STATE OF TENNESSEE v. MATTHEW ALTON KING

              Appeal from the Circuit Court for Williamson County
            No. II-CR087458, II-CR087459     Timothy L. Easter, Judge




                 No. M2014-01280-CCA-R3-CD – Filed June 4, 2015




Matthew Alton King (“the Defendant”) entered guilty pleas in case number CR087458
and CR087459 with the length of sentence and manner of service to be determined by the
trial court. After the sentencing hearing, the trial court sentenced the Defendant to an
effective sixteen years‟ incarceration. On appeal, the Defendant challenges both the
length of his sentences and the 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 Circuit Court Affirmed

ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the Court, in which JAMES
CURWOOD WITT, JR., and ROBERT H. MONTGOMERY, JR., JJ., joined.

Vanessa Pettigrew Bryan, District Public Defender; Benjamin C. Singer (on appeal) and
Robert W. Jones (at trial), Assistant District Public Defenders, Franklin, Tennessee, for
the Appellant, Matthew Alton King.

Herbert H. Slatery III, Attorney General and Reporter; Renee W. Turner, Senior Counsel;
Kim Helper, District Attorney General; and Jessica Borne, Assistant District Attorney
General, for the Appellee, State of Tennessee.
                                        OPINION

                          Factual and Procedural Background

       In case number CR087458, the Defendant was indicted with two counts of
aggravated assault and one count of domestic assault. In case number CR087459, the
Defendant was indicted with one count each of aggravated assault; domestic assault;
evading arrest; driving with a suspended, cancelled, or revoked license; initiating the
process to manufacture methamphetamine; and possession of drug paraphernalia. The
Defendant entered guilty pleas to all charges, with the sentence length and manner of
service to be determined by the trial court after a hearing.

       At the sentencing hearing, Williamson County Deputy Steve Mitchell testified that
he was the arresting officer in case number CR087458. Deputy Mitchell was dispatched
to the Defendant‟s mother‟s house for a possible domestic disturbance. After Deputy
Mitchell knocked on the front door several times, the Defendant opened the front door.
Deputy Mitchell asked the Defendant what was going on, and the Defendant said
“nothing.” The Defendant allowed Deputy Mitchell to enter the home, where Deputy
Mitchell found the girlfriend of the Defendant, Ariella Berlin. Ms. Berlin did not say
anything in the presence of the Defendant, but when additional officers arrived on the
scene, Deputy Mitchell was able to speak to Ms. Berlin outside. Ms. Berlin informed
him that she and the Defendant had gotten into an argument and that the Defendant
became physical, pulled her hair, and choked her. Ms. Berlin was able to run outside, but
the Defendant followed her and dragged her back into the house by her hair. Once inside
the house, the Defendant began to poke Ms. Berlin‟s leg with a baseball bat. Deputy
Mitchell reported that Ms. Berlin had hand marks around her neck and on her arm.

        Deputy Mitchell described Ms. Berlin as “visibly frightened.” When he first
arrived at the scene, Ms. Berlin was in the fetal position on the couch “almost to the point
of trembling” and appeared to have been crying. Additionally, Ms. Berlin was in her
third trimester of pregnancy.

        After speaking with Ms. Berlin, Deputy Mitchell attempted to speak with the
Defendant. However, the Defendant became “somewhat belligerent” and refused to obey
commands. The Defendant appeared to be under the influence, but the Defendant denied
consuming drugs or alcohol. Deputy Mitchell placed the Defendant under arrest.
Initially the Defendant resisted being placed into the patrol car, however, once inside the
patrol car, the Defendant became emotional and said that he “was less of a man for what
he had done.” Later, Deputy Mitchell listened to a recording of phone calls the
Defendant had made to his mother from the jail. In those calls, the Defendant admitted

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that, on the three consecutive days before his arrest on these charges, he had “hit [Ms.
Berlin] like a man.”

       Deputy Mitchell reported that he was familiar with the Defendant because he had
“had dealings” with the Defendant since he was a juvenile. The Defendant was
associated with various methamphetamine labs and had been arrested at his father‟s
house on more than one occasion. As far as Deputy Mitchell knew, the Defendant was
not employed.

        Williamson County Deputy Aaron Ferguson testified that he responded to the
911 call in case number CR087459. The incident took place at the Defendant‟s mother
and step-father‟s home. Angela Smith, the Defendant‟s mother, reported to police that
the Defendant had waited until his step-father left and then entered Mrs. Smith‟s home
looking for money. An argument ensued between the Defendant and Mrs. Smith, and the
Defendant began “tearing up the house” and threatening to steal things. Mrs. Smith told
the Defendant to leave several times, but the argument became more heated. Eventually,
the Defendant grabbed a baseball bat and used it to strike Mrs. Smith in the back of the
head. Mrs. Smith locked herself in the bathroom and called 911. When officers arrived,
the Defendant had already left the scene.

       Based on past experience with the Defendant, Deputy Ferguson believed that the
Defendant was headed toward the Leiper‟s Fork area. Officers were dispatched to the
area to look for the Defendant. Officers eventually found the Defendant‟s vehicle and
attempted to pull the vehicle over. The Defendant did not stop but continued to drive in
the center of the road, occasionally crossing into the oncoming traffic lane. The officers
pursued the Defendant. When the Defendant crossed into Maury County, a Maury
County patrol vehicle joined the chase, but the Defendant forced the vehicle off the road
and into a ditch. The Maury County officer was able to bring his vehicle back onto the
road and “ram[med]” the Defendant‟s vehicle with the patrol car in order to bring the
Defendant to a stop. The Defendant was then taken into custody.

       Deputy Ferguson had been dispatched to the Defendant‟s mother‟s house at least
four or five times prior to the events in case number CR087459. On one occasion in
2012, Deputy Ferguson responded to a domestic disturbance call at the residence. The
Defendant had come to the residence with his brother and their girlfriends. Roger Smith
told them that they were not allowed on the property. However, the Defendant and his
companions continued to beat on the doors until Mr. Smith eventually let them in to
prevent them from kicking in the door. Once the Defendant was inside the home, an
argument ensued. The Defendant found either a shirt or a towel, soaked it in paint
thinner, lit it on fire, and threatened to kill everyone in the house. Mr. Smith kicked the
burning cloth out of the house and told the Defendant to leave. However, the Defendant
continued to use the paint thinner to light items in the house on fire. Eventually, the
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Defendant went outside, where he took a hammer and “smashed out” the front and back
windows of Mr. Smith‟s car. The Defendant then got into the car, drove donuts through
the front yard, tried to run over Mr. Smith, and ran over the mailbox. The Defendant left
the scene before officers arrived.

       Williamson County Deputy Brad Fann testified that he assisted with the search of
the Defendant‟s car in case number CR087459.               In his search, he found
methamphetamine as well as numerous items used to produce methamphetamine. Based
on the items he found, Deputy Fann concluded that the Defendant had all the components
necessary to manufacture methamphetamine. Prior to this case, Deputy Fann had
investigated the Defendant in connection with another methamphetamine lab.

       Mrs. Smith testified that, as a child, the Defendant could be very happy one
minute and then “just blow a gasket the very next minute.” He began to have trouble in
school around fifth or sixth grade. The Defendant had been diagnosed with attention
deficit disorder (“ADD”) as well as oppositional defiant disorder (“ODD”) and was
prescribed medicine for both. The Defendant took the ADD medication but would not
take the ODD medication. Later, the Defendant was diagnosed with bi-polar disorder
and anxiety, but he did not receive treatment for those conditions.

        The Defendant completed tenth grade in a traditional school environment.
However, when the Defendant continued to get into trouble at school, Mrs. Smith
withdrew him to be home-schooled. She estimated that the Defendant had an eleventh
grade education, and she reported that he did not have his GED. Mrs. Smith stated that
she first noticed the Defendant using drugs and alcohol when he was sixteen or seventeen
years old.

       Mrs. Smith stated that she did not call the police in case number CR087459 but
claimed her father did. She testified that the Defendant was laying on his bed in her
house and “all of a sudden” became “irate” over the fact that Mrs. Smith would not give
him twenty dollars. The Defendant knocked things off the wall, turned over furniture,
and punched the wall. Mrs. Smith grabbed a baseball bat and tried to chase the
Defendant out of the house, but before Mrs. Smith was able to force the Defendant out of
the house, he began to calm down. Mrs. Smith relaxed her grip on the bat, and the
Defendant grabbed the bat. When Mrs. Smith “snatched” the bat back, the bat hit her in
the side of the head. Realizing the Defendant was still angry, Mrs. Smith confined
herself in the bathroom. She claimed that, at that point, the police contacted her. Mrs.
Smith reported that the Defendant was “all messed up on drugs” during this encounter.

      Mrs. Smith tried to get the Defendant treatment a number of times at the
Defendant‟s request. However, she could not afford the treatment. She stated that the

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Defendant was prone to making irrational choices. Mrs. Smith said the Defendant was
welcome to live with her should he be released.

       On cross-examination, Mrs. Smith stated that the Defendant had a daughter and
that, during the first few months of his daughter‟s life, the Defendant cared for her while
her mother was working.1 The Defendant had since separated from his daughter‟s
mother, but he still visited the child. Mrs. Smith was aware that the Defendant had been
convicted of phone harassment of the child‟s mother. The Defendant had lived with the
child‟s mother during 2009-2010. At all other times, the Defendant lived with Mrs.
Smith.

       The Defendant testified that he had been diagnosed with various mental disorders
and reported that that he did not take the prescribed medication. He started
experimenting with marijuana and alcohol when he was thirteen years old. At age
sixteen, he began taking other drugs, specifically methamphetamine. Since that time, the
Defendant‟s life had gone “downhill.”

       The Defendant reported that he and Ms. Berlin “fought all the time.” In case
number CR087458, Ms. Berlin had tried to leave, and the Defendant admitted that he
prevented Ms. Berlin from leaving the home and “poked her in the knee with a bat.” In
case number CR087459, the Defendant reported that his mother had “come at [him] with
the baseball bat,” and when he tried to take it from her, it caused “a big commotion.” He
admitted that the police had chased him and found methamphetamine in his car.

        The Defendant reported that he had sought help for his drug problem. He stated,
“I was just—I was out of my mind. I didn‟t care about anything or anybody really. I was
just worried about smoking dope.” The Defendant had applied to Drug Court, but his
application was denied. After he was arrested, the Defendant had received “write-ups” in
the jail for flooding his cell and other incidents where he was “just acting stupid.” The
Defendant stated that he wanted to get help for his drug addiction and to complete his
GED.

       On cross-examination, the Defendant stated that, at the time of the offense in case
number CR087458, he knew Ms. Berlin was six or seven months pregnant and he
believed the child was his. He claimed that both he and Ms. Berlin were “strung out” at
the time he choked her. The Defendant stated that he did not recall telling his mother on
the phone that he had hit Ms. Berlin “like a man” in the days leading up to his arrest, but
he would not deny making such a statement.

      The Defendant admitted that he was arrested on five different occasions when he
was eighteen years old. He was also arrested for drug charges when he was nineteen
      1
          Ms. Berlin is not the mother of the Defendant‟s daughter.
                                                   -5-
years old. Additionally, the Defendant was arrested for the current charges, as well as the
incident where he threatened to set his mother‟s house on fire when he was twenty years
old.

        The Defendant described his actions as “acting stupid” and explained, “I was
messed up and I done a bunch of dumb things.” The Defendant confirmed that he
continued to use methamphetamine after his multiple arrests; every time he got out of
jail, he immediately started to use drugs again. He stated that, when he was caring for his
daughter, he did not smoke methamphetamine. However, in the past two years, he had
started smoking methamphetamine every day. He stated that he decided to seek help for
his drug addiction when he no longer cared about anything other than drugs. The
Defendant stated that the eleven months he had been in jail for these charges had allowed
him to reflect on his life and that he had decided to “change [himself] as best [he] can[.]”

       In argument, the Defendant agreed that the sentences for each indictment must run
consecutively to each other because the Defendant committed the offense in case number
CR087459 while released on bond in case number CR087458. However, the Defendant
asked that he be sentenced to the minimum sentence for each conviction and that the trial
court sentence him to split confinement.

       The trial court noted that it had considered the evidence received at the sentencing
hearing, the principles of sentencing, the presentence report, arguments of counsel, the
nature and characteristics of the criminal conduct involved, enhancing and mitigating
factors, statistical information provided by the Administrative Office of the Courts, and
the Defendant‟s testimony in setting the sentences. In case number CR087458, the trial
court merged both counts of aggravated assault. The trial court then turned to
consideration of enhancement factors.

       As to the felony convictions in CR087459, the trial court found that, at the time of
the offenses, the Defendant was released on “some type of bail” for offenses for which he
was later convicted. See Tenn. Code Ann. § 40-35-114(13)(A) (2010). As to all of the
felony convictions in both case numbers, the trial court found that the Defendant had a
significant history of criminal behavior in addition to that necessary to establish the
appropriate range of the offense and that the Defendant had previously failed to comply
with conditions of a sentence that involved released into the community. See Tenn. Code
Ann. § 40-35-114(1), (8) (2010).

        Upon consideration of the mitigating factors, the trial court found that “the
Defendant, because of youth or old aged, lacked substantial judgment in committ[ing] the
offense.” See Tenn. Code Ann. § 40-35-113(6) (2010). Additionally, the trial court
stated, “[T]here is some legitimacy to the argument that [the Defendant] was rip-roaring
high when he committed these offenses.”
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      The trial court sentenced the Defendant as follows:

Case Number                       Conviction                           Sentence
 CR087458                    Aggravated Assault                         5 years
 CR087458                     Domestic Assault                     11 months 29 days
 CR087459                    Aggravated Assault                         5 years
 CR087459                     Domestic Assault                     11 months 29 days
 CR087459                       Evading Arrest                          2 years
 CR087459         Driving with a Suspended, Cancelled, or              6 months
                              Revoked License
  CR087459        Initiation of the Process to Manufacture              11 years
                              Methamphetamine
  CR087459           Possession of Drug Paraphernalia              11 months 29 days


Within each respective case number, the sentences were set to run concurrently with each
other. Pursuant to Tennessee Rule of Criminal Procedure 32(c)(3)(C), case number
CR087459 was ordered to run consecutively to case number CR087458. Consequently,
the Defendant received an effective sixteen-year sentence.

       After a review of the confinement considerations, the trial court ordered the
Defendant to serve his sentence in confinement. Specifically, the trial court found that
confinement was necessary to protect society from a defendant who had a long history of
criminal conduct; confinement was necessary to avoid depreciation of the seriousness of
the offense; and that measures less restrictive than confinement had been frequently or
recently been applied unsuccessfully to the Defendant. As to the question of Drug Court
or other alternative sentencing, the trial court found that the Defendant was not an
appropriate candidate. This timely appeal followed.

                                        Analysis

       It is unclear from the Defendant‟s brief, but he appears to challenge both the
length of his sentence and the denial of alternative sentencing. Therefore, we will
address both in this opinion.

        When the record establishes that the trial court imposed a sentence within the
appropriate range that reflects a “proper application of the purposes and principles of our
Sentencing Act,” this court reviews the trial court‟s sentencing decision under an abuse of
discretion standard with a presumption of reasonableness. State v. Bise, 380 S.W.3d 682,
707 (Tenn. 2012). A court only abuses its discretion when it “applie[s] an incorrect legal
standard, or reache[s] a decision which is against logic or reasoning that cause[s] an
injustice to the party complaining.” State v. Kyto Sihapanya, __ S.W.3d __, ____No.
                                           -7-
W2012-00716-SC-R11-CD, 2014 WL 2466054, at *2 (Tenn. Apr. 30, 2014) (quoting
State v. Shuck, 953 S.W.2d 662, 669 (Tenn. 1997)). “[A] trial court‟s misapplication of
an enhancement or mitigating factor does not remove the presumption of reasonableness
from its sentencing determination.” Bise 380 S.W.3d at 709. Moreover, this court may
not disturb the sentence even if it had preferred a different result. See State v. Carter, 254
S.W.3d 335, 346 (Tenn. 2008). The same standard applies when a defendant challenges
the denial of probation or other alternative sentence. State v. Candle, 388 S.W.3d 273,
278-79 (Tenn. 2012).

        To facilitate meaningful appellate review, the trial court must state on the record
the factors it considered and the reasons for imposing the sentence chosen. Tenn. Code
Ann. § 40-35-210(e) (2010); Bise, 380 S.W.3d at 706. However, “[m]ere 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 appealing the
sentence has the burden of demonstrating its impropriety. Tenn. Code Ann. § 40-35-401
(2010), Sent‟g Comm‟n Cmts.; see also State v. Ashby, 823 S.W.2d 166, 169 (Tenn.
1991).

        In determining the proper sentence, the trial court must consider: (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 Tennessee Code
Annotated sections 40-35-113 and -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 made in the defendant‟s own behalf
about sentencing. See Tenn. Code Ann. § 40-35-210(b) (2010); State v. Taylor, 63
S.W.3d 400, 411 (Tenn. Crim. App. 2001). The trial court should also consider the
potential or lack of potential for rehabilitation or treatment of the defendant in
determining the sentence alternative or length of a term to be imposed. Tenn. Code Ann.
§ 40-35-103(5) (2010).

      In determining a specific sentence within a range of punishment, the trial court
should consider, but is not bound by, the following advisory guidelines:

       (1) The minimum sentence within the range of punishment is the sentence
       that should be imposed, because the general assembly set the minimum
       length of sentence for each felony class to reflect the relative seriousness of
       each criminal offense in the felony classifications; and



                                             -8-
       (2) The sentence length within the range should be adjusted, as appropriate,
       by the presence or absence of mitigating and enhancement factors set out in
       §§ 40-35-113 and 40-35-114.

Tenn. Code Ann. § 40-35-210(c) (2010).

        Although the trial court should also consider enhancement and mitigating factors,
the statutory enhancement factors are advisory only. See Tenn. Code Ann. § 40-35-114
(2010 & Supp. 2013); see also Bise, 380 S.W.3d at 699 n. 33, 704; Carter, 254 S.W.3d at
343. We note that “a trial court‟s weighing of various mitigating and enhancement
factors [is] left to the trial court‟s sound discretion.” Carter, 254 S.W.3d at 345. In other
words, “the trial court is free to select any sentence within the applicable range so long as
the length of the sentence is „consistent with the purposes and principles of [the
Sentencing Act].‟” Id. at 343. “[Appellate courts are] bound by a trial court‟s decision as
to the length of the sentence imposed so long as it is imposed in a manner consistent with
the purposes and principles set out in sections -102 and -103 of the Sentencing Act.”
Carter, 254 S.W.3d at 346.

       In recognition of the limited resources of the state prisons, sentences of
confinement are limited to “convicted felons committing the most severe offenses,
possessing criminal histories evincing a clear disregard for the laws and morals of
society[,] and evincing failure of past efforts at rehabilitation[.]” Tenn. Code Ann. § 40-
35-102(5) (2010). Defendants who do not fall within one of these categories and who are
especially mitigated or standard offenders convicted of a Class C, D, or E felony are
considered to be favorable candidates for alternative sentencing, absent evidence to the
contrary. Tenn. Code Ann. § 40-35-102(6)(A) (2010); see State v. Ashby, 823 S.W.2d
166, 169 (Tenn. 1991). A trial court must consider, but is not bound by, this advisory
sentencing guideline. Tenn. Code Ann. § 40-35-102(6)(D) (2010).

        “Guidance as to what will constitute “evidence to the contrary” is found in
[Tennessee Code Annotated section] 40-35-103(1).” Ashby, 823 S.W.2d at 169; see also
State v. Hooper, 29 S.W.3d 1, 5 (Tenn. 2000). Tennessee Code Annotated section 40-35-
103(1) states that the trial court may order confinement when:

       (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



                                            -9-
       (C) Measures less restrictive than confinement have frequently or recently
       been applied unsuccessfully to the defendant[.]

Tenn. Code Ann. § 40-35-103(1) (2010).

       In this case, the trial court properly applied the principles and purposes of
sentencing and explained its reasoning on the record. As such, we review the trial court‟s
sentencing decision for an abuse of discretion with a presumption of reasonableness.

       The record supports the trial court‟s application of enhancement factors in setting
the length of sentence. It is clear from the presentence report, as well as the testimony
presented at the sentencing hearing, that the Defendant had a long history of illegal drug
use and had previously been arrested for various felony charges, including several
charges related to his methamphetamine use. See Tenn. Code Ann. § 40-35-114(1)
(2010). Additionally, the presentence report indicates that the Defendant has two prior
violations of probation. See Tenn. Code Ann. § 40-35-114(8) (2010). Finally, the
Defendant admitted that he committed the offenses in case number CR08459 while he
was released on bond for case number CR087458. See Tenn. Code Ann. § 40-35-
114(13) (2010). While it is admirable that the Defendant wishes to seek treatment for his
drug addiction, we do not believe such desire is sufficient to show that the trial court did
not properly consider the Defendant‟s potential for rehabilitation when determining the
length of his sentence. The Defendant admitted during the sentencing hearing that he had
previously been in jail and had immediately resumed his drug use upon release. As such,
we conclude that the Defendant has failed to prove that the trial court abused its
discretion when imposing an effective sixteen-year sentence. See Tenn. Code Ann. § 40-
35-401 (2010), Sent‟g Comm‟n Cmts.; Ashby, 823 S.W.2d at 169.

       We next turn to whether the trial court abused its discretion when it ordered the
Defendant to serve his sentence in confinement. At the sentencing hearing, the
Defendant asked that he be sentenced to split confinement. Split confinement is a form
of probation. See Tenn. Code Ann. § 40-35-306 (2010). In order to be eligible for
probation, the Defendant‟s sentence cannot exceed ten years. See Tenn. Code Ann. § 40-
35-303(a) (Supp. 2013). Therefore, because the Defendant was sentenced to eleven years
for initiating the process to manufacture methamphetamine, he is not eligible for
probation in case number CR087459.

       With regard to case number CR087458, we do not believe the trial court abused its
discretion in denying alternative sentencing. The Defendant pled guilty, as a Range I
standard offender, to aggravated assault, a Class C felony. As such, he is considered a
favorable candidate for alternative sentencing under the relevant advisory sentencing
guideline. See Tenn. Code Ann. § 40-35-102(6)(A) (2010). However, the trial court
specifically found confinement was necessary to protect society because the Defendant
                                           - 10 -
had a long history of criminal conduct; and was necessary to avoid depreciating the
seriousness of the offense and that measures less restrictive than confinement had
frequently or recently been applied unsuccessfully to the Defendant. See Tenn. Code
Ann. § 40-35-103(1)(A)-(C) (2010). The record supports these findings. Consequently,
we conclude that the Defendant has failed to prove that the trial court abused its
discretion when it denied alternative sentencing. See Tenn. Code Ann. § 40-35-401
(2010), Sent‟g Comm‟n Cmts.; Ashby, 823 S.W.2d at 169.

                                         Conclusion

      For the aforementioned reasons, we affirm the judgments of the trial court.


                                                  _________________________________
                                                  ROBERT L. HOLLOWAY, JR., JUDGE




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