        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                         Assigned on Briefs September 9, 2014

          STATE OF TENNESSEE v. ROBERT ALLEN LESTER, JR.

               Appeal from the Circuit Court for DeKalb County
 Nos. 2013-CR-115, 2013-CR-116, 2013-CR-117, 2013-CR-118, 2013-CR-119, 2013-
  CR-120, 2013-CR-121, 2013-CR-122, 2013-CR-123, 2013-CR-124, 2013-CR-125,
                    2013-CR-126, 2013-CR-127, 2013-CR-128
                          David A. Patterson, Judge




             No. M2014-00225-CCA-R3-CD           - Filed October 31, 2014



Defendant, Robert Allen Lester, Jr., was indicted by the Dekalb County Grand Jury in
fourteen separate cases for thirteen counts of burglary of a motor vehicle, one count of
aggravated burglary, four counts of burglary, eleven counts of theft of property valued under
$500, one count of theft of property valued over $500, and six counts of theft of property
valued over $1,000. Subsequently, Defendant entered into negotiated guilty pleas to eleven
counts of burglary of a motor vehicle, one count of aggravated burglary, and two counts of
burglary. The plea agreement called for an effective sentence of eight years, the manner of
service of the sentence to be determined by the trial court at a sentencing hearing. At the
hearing, the trial court denied alternative sentencing and ordered Defendant to serve the
sentence in incarceration. He appeals, challenging the denial of an alternative sentence.
After our review of the record and applicable authorities, we determine that the judgment
form in Case Number 2013-CR-127 should be corrected to reflect a conviction and sentence
for burglary rather than auto burglary. Further, the matter is remanded to the trial court to
resolve inconsistencies between the plea provisions and the corresponding judgments in order
to yield an effective eight-year sentence and to correct any other clerical errors which may
exist. We determine that the trial court did not abuse its discretion in denying an alternative
sentence to Defendant due to his extensive criminal history, because measures less restrictive
had been applied to Defendant in the past, and in order to avoid depreciating the seriousness
of the offenses. Accordingly, the matter is affirmed in part and remanded in part.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Trial Court is Affirmed in
                           part and Remanded in part.
T IMOTHY L. E ASTER, J., delivered the opinion of the court, in which J AMES C URWOOD W ITT,
J R., and D. K ELLY T HOMAS, J R., JJ., joined.

David Brady, Public Defender; and Allison Rasbury West, Assistant Public Defender;
Cookeville, Tennessee, for the appellant, Robert Allen Lester, Jr.

Robert E. Cooper, Jr., Attorney General and Reporter; Clark B. Thornton, Assistant Attorney
General; Randy York, District Attorney General; and Greg Strong, Assistant District
Attorney General, for the appellee, State of Tennessee.



                                               OPINION

                                          Factual Background

       Defendant was indicted in July of 2013 by the Dekalb County Grand Jury in fourteen
separate cases as follows:1

 Case Number                                          Indicted Offense
 Case No. 2013-CR-115                                 one count of auto burglary
                                                      one count of theft of property valued under
                                                      $500
 Case No. 2013-CR-116                                 one count of auto burglary
                                                      one count of theft of property valued under
                                                      $500
 Case No. 2013-CR-117                                 one count of auto burglary
                                                      one count of theft of property valued over
                                                      $1,000
 Case No. 2013-CR-118                                 one count of burglary
                                                      one count of theft of property valued over
                                                      $500



        1
          Due to the sheer number of cases and corresponding indictments, we have found it necessary to
organize the charges and convictions in table format. Additionally, the cover sheet for Case Number 2013-
CR-128 indicates that the individual counts in the indictment were for two counts of auto burglary, one count
of theft of property valued over $1,000, and one count of theft of property valued over $500. The text of the
individual counts, however, reveal Defendant was indicted for two counts of auto burglary and two counts
of theft of property valued over $1,000.

                                                    -2-
 Case No. 2013-CR-119                        one count of aggravated burglary
                                             one count of theft of property valued over
                                             $1,000
 Case No. 2013-CR-120                        one count of auto burglary
                                             one count of theft of property valued under
                                             $500
 Case No. 2013-CR-121                        one count of auto burglary
                                             one count of theft of property valued under
                                             $500
 Case No. 2013-CR-122                        one count of auto burglary
                                             one count of theft of property valued under
                                             $500
 Case No. 2013-CR-123                        one count of auto burglary
                                             one count of theft of property valued over
                                             $1,000
 Case No. 2013-CR-124                        one count of auto burglary
                                             one count of theft of property valued under
                                             $500
 Case No. 2013-CR-125                        one count of auto burglary
                                             one count of burglary
                                             one count of theft or property valued over
                                             $1,000
                                             one count of theft of property valued under
                                             $500
 Case No. 2013-CR-126                        two counts of auto burglary
                                             one count of burglary
                                             three counts of theft of property valued
                                             under $500
 Case No. 2013-CR-127                        one count of burglary
                                             one count of theft of property valued under
                                             $500
 Case No. 2013-CR-128                        two counts of auto burglary
                                             two counts of theft of property valued over
                                             $1,000

       The charges stemmed from various incidents in Dekalb County. From the sentencing
hearing, we gleaned that in one instance, Defendant was caught in the act by Janice Ward as
he attempted to steal two cases of Mountain Dew from the deck of her home. She later
discovered that both her garage and car were burglarized. Additionally, Defendant broke into
the home of Sharon Turner, stealing rings given to her by her deceased husband. Both

                                            -3-
victims felt unsafe in their own homes as long as one year after the incidents.

        After the indictments were issued in each case, Defendant entered into a negotiated
plea agreement, pleading as a standard Range I offender to fourteen felonies, specifying the
length of sentence for each offense and the total effective sentence. The manner of service
of the sentence was to be determined by the trial court at a sentencing hearing. The record
does not contain the transcript of the plea hearing but contains plea submission forms
indicating Defendant was to receive an effective eight-year sentence with the following
individual case dispositions:

Case Number                Plea Offense      Sentence     Alignment
Case No. 2013-CR-115       Auto burglary     1 year       concurrent with -127
Case No. 2013-CR-116       Auto burglary     1 year       concurrent with -127
Case No. 2013-CR-117       Auto burglary     1 year       concurrent with -127
Case No. 2013-CR-118       Burglary          2 years      consecutive to -119, -126, -127
Case No. 2013-CR-119       Aggravated        3 years      consecutive to -118, -126, -127
                           burglary
Case   No. 2013-CR-120     Auto burglary     1   year     concurrent with -127
Case   No. 2013-CR-121     Auto burglary     1   year     concurrent with -127
Case   No. 2013-CR-122     Auto burglary     1   year     concurrent with -127
Case   No. 2013-CR-123     Auto burglary     1   year     concurrent with -127
Case   No. 2013-CR-124     Auto burglary     1   year     concurrent with -127
Case   No. 2013-CR-125     Auto burglary     1   year     concurrent with -127
Case   No. 2013-CR-126     Burglary          2   years    consecutive to -118, -119, -127
Case   No. 2013-CR-127     Auto burglary     1   year     consecutive to -118, -119, -126
Case   No. 2013-CR-128     Auto burglary     1   year     consecutive to -118, -119, -126;
                                                          concurrent to -127


        At the sentencing hearing, the State informed the trial court that “the agreement that
the State entered into with [Defendant] was that he would plead guilty and take an eight-year
sentence and that we would have the sentencing hearing . . . to determine how that sentence
was to be served.” The remaining counts of the indictments were dismissed upon payment
of restitution to the victims.

       After hearing testimony from several of the victims, as well as testimony from
Defendant’s prior employer and mother, Defendant read a statement of regret about his
involvement in the crimes. At the conclusion of the hearing, the trial court acknowledged
Defendant’s work history and ability to keep his job should he receive a sentence of
probation. The trial court expressed concern over the “indication” that Defendant had a

                                             -4-
“drug related [sic] past” but considered the fact that Defendant had a “year of sobriety while
he [sat] in the jail.” The trial court was greatly concerned by the fact that Defendant was not
“a first time offender” and, in fact, pled to multiple offenses. As a result, the trial court
deemed Defendant unlikely to “improve his behaviors.” The trial court determined that
confinement was necessary in order to avoid depreciating the seriousness of the offenses, that
Defendant had a “long criminal history,” and that a sentence of incarceration would provide
an effective deterrence to others likely to commit similar offenses. As a result, the trial court
determined Defendant would “serve” an eight-year sentence. The judgment forms reflect the
following:

Case Number                 Judgment             Sentence      Alignment
                            Offense
Case No. 2013-CR-115        Auto burglary        1 year        concurrent with -116, -117,
                                                               and -119 through -124
Case No. 2013-CR-116        Auto burglary        1 year        concurrent with -115, -117,
                                                               and -119 through -124
Case No. 2013-CR-117        Auto burglary        1 year        concurrent with -115, -116,
                                                               and -119 through -124
Case No. 2013-CR-118        Burglary             2 years       consecutive to -115 through -
                                                               117 , and -119 through -124
Case No. 2013-CR-119        Aggravated           3 years       concurrent with -115 through
                            burglary                           -117 and -120 through -124
Case No. 2013-CR-120        Auto burglary        1 year        concurrent with -115 through
                                                               -117 and -119 through -124
Case No. 2013-CR-121        Auto burglary        1 year        concurrent with -115 through
                                                               -117, and -119 through -124
Case No. 2013-CR-122        Auto burglary        1 year        concurrent with -115 through
                                                               -117, and -119 through -124
Case No. 2013-CR-123        Auto burglary        1 year        concurrent with -115 through
                                                               -117, and -119 through -124
Case No. 2013-CR-124        Auto burglary        1 year        concurrent with -115, -116, -
                                                               117, -119 through -124
Case   No. 2013-CR-125      Auto burglary        1   year      consecutive to -118
Case   No. 2013-CR-126      Burglary             2   years     consecutive to -125
Case   No. 2013-CR-127      Burglary             1   year      consecutive to -126
Case   No. 2013-CR-128      Auto burglary        1   year      consecutive to -127

The remaining counts of the indictments were dismissed.

        Defendant appeals, challenging the denial of an alternative sentence.

                                               -5-
                                            Analysis

        On appeal, Defendant insists that the trial court improperly denied alternative
sentencing. Specifically, he argues that confinement was not necessary to protect society
because Defendant had not been convicted of a misdemeanor since 2008 and had
successfully completed probation in the past. Additionally, Defendant points to the fact that
he expressed remorse for his actions and acknowledges that he made bad choices because he
had a “serious” drug problem. The State, on the other hand, argues that Defendant has
waived the issues on appeal for failure to include the transcript from the guilty plea hearing.
In the alternative, the State submits that the sentences should be affirmed upon correction of
several errors on the judgment forms.

                                      Length of Sentence

       Prior to reviewing the denial of an alternative sentence, we note that there is at least
one clerical error on the judgment form for Case Number 2013-CR-127 which requires a
remand for correction. The plea submission forms and the transcript of the sentencing
hearing indicate that Defendant pled guilty in Case Number 2013-CR-127 to a one-year
sentence for auto burglary. Defendant was indicted in Case Number 2013-CR-127 for the
class D felony of burglarizing the non-habitation of Keith Farler. The judgment form
indicates that Defendant did in fact plead guilty to burglary in Case Number 2013-CR-127
in exchange for a one-year sentence, a sentence out of range for a class D felony such as
burglary.

        After reviewing the record, it is clear that the trial court marking burglary rather than
auto burglary in Case Number 2013-CR-127 is merely a clerical error because the trial court
at the sentencing hearing stated that the sentence imposed in Case Number 2013-CR-127 was
one year for auto burglary. Pursuant to Rule 36 of the Tennessee Rules of Criminal
Procedure, “the court may at any time correct clerical mistakes in judgments.” Tenn. R.
Crim. P. 36. Therefore, we remand this case to the trial court for entry of a corrected
judgment reflecting Defendant’s one-year sentence in Case Number 2013-CR-127 for the
conviction of auto burglary.

       As noted in the charts above, on the plea submission forms, the sentences were
reflected as follows: Case Numbers 2013-CR-115 through -117 were ordered to be served
concurrently with Case Number 2013-CR-127; Case Number 2013-CR-118 was ordered to
be served consecutively to Case Numbers 2013-CR-119, -126, and -127; Case Numbers
2013-CR-120 through -125 were ordered to be served concurrently with Case Number 2013-
CR-127; Case Number 2013-CR-127 was ordered to be served consecutively to Case

                                               -6-
Numbers 2013-CR-118, -119, and -126; and Case Number 2013-CR-128 was ordered to be
served consecutively to Case Numbers 2013-CR-118, -119, and -126, and concurrently with
Case Number 2013-CR-127. At the sentencing hearing, however, the trial court announced
that Defendant was receiving an effective sentence of eight years, ordering the one-year
sentences in Case Numbers 2013-CR-115 through -117, -122 through -125, and -128 to be
served concurrently; the two-year sentence in Case Number 2013-CR-118 to be served
consecutively; the two-year sentence in Case Number 2013-CR-126 to be served
consecutively; and the one-year sentence in Case Number 2013-CR-127 to be served
consecutively. The sentences from both the plea submission forms and the judgments both
result in an effective eight-year sentence even though the manner of service of the sentence
is different. Additionally, the trial court did not announce a sentence for aggravated burglary
in Case Number 2013-CR-119 or for auto burglary in Case Numbers 2013-CR-120, and -121
at the sentencing hearing. Further, the trial court did not discuss whether those sentences
were to be served concurrently or consecutively to the remaining sentences. It is clear,
however, from all the of the information before this Court on appeal, that the parties and the
trial court intended an effective eight-year sentence. On remand, the trial court shall amend
the judgments as necessary to reflect the plea agreement and to yield an effective sentence
of eight years.
                               Denial of Alternative Sentencing

       A trial court’s decision regarding the length and manner of service of a sentence is
reviewed for abuse of discretion, with a presumption of reasonableness granted to within-
range sentences reflecting a proper application of the purposes and principles of the
Sentencing Act. State v. Bise, 380 S.W.3d 682, 707 (Tenn. 2012). Under Bise, “sentences
should be upheld so long as the statutory purposes and principles, along with any applicable
enhancement and mitigating factors, have been properly addressed.” Id. at 706. A sentence
within the appropriate range will be upheld so long as “there are other reasons consistent
with the purposes and principles of sentencing.” Id. The Tennessee Supreme Court
explicitly applied the abuse of discretion standard of review in Bise to alternative sentencing
in Caudle. 388 S.W.3d at 278-79 (“[T]he 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.”).

        In conducting its review, this Court considers the following factors: (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 enhancement and mitigating factors; (6) any statistical information provided by the
administrative office of the courts as to sentencing practices for similar offenses in

                                              -7-
Tennessee; (7) any statement by the appellant in his own behalf; and (8) the potential for
rehabilitation or treatment. See T.C.A. §§ 40-35-102, -103, -210; see also Bise, 380 S.W.3d
at 697-98. The burden is on the appellant to demonstrate the impropriety of his sentence.
See T.C.A. § 40-35-401, Sentencing Comm’n Cmts.

       Tennessee Code Annotated section 40-35-104 authorizes alternative sentences, which
may include a sentence of confinement that is suspended upon a term of probation or a
sentence of continuous or periodic confinement in conjunction with a term of probation.
T.C.A. § 40-35-104(c)(3), (4), (5). A defendant is eligible for probation if the sentence
imposed is ten years or less. T.C.A. § 40-35-303(a). Although “probation shall be
automatically considered by the court as a sentencing alternative for eligible defendants,” the
defendant bears the burden of “establishing suitability” for probation. T.C.A. § 40-35-
303(b). “This burden includes demonstrating that probation will ‘subserve the ends of justice
and the best interest of both the public and the defendant.’” State v. Carter, 254 S.W.3d 335,
347 (Tenn. 2008) (quoting State v. Housewright, 982 S.W.2d 354, 357 (Tenn. Crim. App.
1997)).

       A defendant who is sentenced as an especially mitigated or standard offender and who
has committed a Class C, D, or E felony should be “considered as a favorable candidate for
alternative sentencing options” if certain conditions are met. T.C.A. § 40-35-102(5), (6)(A).
The guideline regarding favorable candidates is advisory. T.C.A. § 40-35-102(6)(D). In this
case, Defendant was convicted of Class C, D, and E felonies and was sentenced to an
effective sentence of ten years or less. Therefore he was a favorable candidate for alternative
sentencing.

      Tennessee Code Annotated section 40-35-103 requires that sentences involving
confinement be based on the following considerations:

       (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;

T.C.A. § 40-35-103(1).



                                              -8-
        In State v. Hooper, the court held “that a trial judge may sentence a defendant to a
term of incarceration based solely on a need for deterrence when the record contains
evidence which would enable a reasonable person to conclude that (1) deterrence is needed
in the community, jurisdiction, or state; and (2) the defendant's incarceration may rationally
serve as a deterrent to others similarly situated and likely to commit similar crimes.” 29
S.W.3d 1, 14 (Tenn. 2000). Similarly, in State v. Trotter, the court noted that when “the
seriousness of the offense forms the basis for the denial of alternative sentencing, . . . the
circumstances of the offense as committed must be especially violent, horrifying, shocking,
reprehensible, offensive or otherwise of an excessive or exaggerated degree, and the nature
of the offense must outweigh all factors favoring a sentence other than confinement.” 201
S.W.3d 651, 654 (Tenn. 2006) (quoting State v. Grissom, 956 S.W.2d 514, 520 (Tenn. Crim.
App. 1997)). Recently, in State v. Kyoto Sihapanya, the Tennessee Supreme Court reviewed
a denial of probation based on both a need to avoid depreciating the seriousness of the
offense and a need for deterrence considering the nature and circumstances of the offense.
___S.W.3d ___, No. W2012-00716-SC-R11-CD,2014 WL 2466054, at *3 (Tenn. April 30,
2014). The court held that “the heightened standard of review [announced in Hooper] that
applies to cases in which the trial court denies probation based on only one of these factors
is inapplicable in this case.” Id. In other words, under Hooper and Trotter, if only one factor
found in Tennessee Code Annotated section 40-35-103(1) is utilized by the trial court, the
trial court must make additional findings. If, however, the trial court bases the denial of
alternative sentencing on more than one factor, we review the denial to determine if the trial
court abused its discretion. State v. Kyoto Sihapanya, 2014 WL 2466054, at *3.

        The trial court in this case relied on subsections (A), (B), and (C) of Tennessee Code
Annotated section 40-35-103(1). In ordering Defendant to serve his sentence in
incarceration, the trial court specifically noted Defendant’s criminal history in addition to the
fourteen separate cases at issue, the fact that Defendant was previously sentenced to
probation, and the need for deterrence. The trial court herein acted consistently with the
purposes and principles of the Sentencing Act. We conclude that the trial court did not abuse
its discretion in denying alternative sentencing.

                                          Conclusion

       For the foregoing reasons, we determine that the judgment form in Case Number
2013-CR-127 should be corrected to reflect a conviction for auto burglary rather than
burglary. Additionally, because the record contains inconsistent between the plea submission
forms and the corresponding judgments, the matter is remanded to the trial court to determine
the proper length and service of the sentence for each remaining conviction in order to yield
the effective eight-year sentence and to correct any clerical errors which may exist. See
Tenn. R. Crim. P. 36. Finally, we determine the trial court did not abuse its discretion in

                                               -9-
denying an alternative sentence. Consequently, the matter is affirmed in part and remanded
in part.


                                                  _________________________________
                                                  TIMOTHY L. EASTER, JUDGE




                                           -10-
