        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                            Assigned on Briefs May 13, 2014

            STATE OF TENNESSEE v. JEFFREY WAYNE ROWE

               Appeal from the Circuit Court for Marshall County
    Nos. 2013-CR-22, 2013-CR-23, 2013-CR-24,     Forest A. Durand, Jr., Judge
                  2013-CR-25, 2013-CR-26


                  No. M2013-02341-CCA-R3-CD - Filed June 11, 2014


The defendant, Jeffrey Wayne Rowe, pleaded guilty to four counts of aggravated burglary,
one count of attempted aggravated burglary, one count of vandalism, and two counts of
misdemeanor theft, and the Marshall County Circuit Court sentenced him as a Range I,
standard offender to a term of 10 years’ imprisonment. On appeal, the defendant challenges
the manner of service of his sentence. Discerning no error, we affirm.

             Tenn. R. App. P. 3; Judgments of the Circuit Court Affirmed

J AMES C URWOOD W ITT, J R., J., delivered the opinion of the Court, in which JOHN E VERETT
W ILLIAMS and R OGER A. P AGE, JJ., joined.

William J. Harold, Assistant District Public Defender, for the appellant, Jeffrey Wayne
Rowe.

Robert E. Cooper, Jr., Attorney General and Reporter; Ahmed A. Safeeullah, Assistant
Attorney General; Robert Carter, District Attorney General; and Weakley E. Barnard,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                          OPINION

               In February 2013, the Marshall County grand jury charged the defendant, in
five separate indictments, with multiple burglary-related offenses, all occurring within a nine-
week time period in the summer of 2012. In case numbers 2013-CR-22, -24, -25, and -26,
the defendant was charged with one count each of aggravated burglary and two counts each
of misdemeanor theft, and in case number 2013-CR-23, the defendant was charged with one
count of attempted aggravated burglary and one count of vandalism. On August 21, 2013,
the defendant entered open and best-interests pleas of guilty to the following: in case number
2013-CR-22, aggravated burglary; in case number 2013-CR-23, attempted aggravated
burglary and vandalism; in case number 2013-CR-24, aggravated burglary; in case number
2013-CR-25, aggravated burglary and one count of misdemeanor theft; and in case number
2013-CR-26, aggravated burglary and one count of misdemeanor theft. The trial court
dismissed the remaining theft charges, and the plea agreement left sentencing to the trial
court’s discretion.

               At the plea submission hearing, the State offered the following facts in support
of the plea:

                      Starting with case number 13-CR-22.

                      The offense date is June 25, 2012. That was the
               residence of Jason and Lisa Crabtree located . . . here in
               Marshall County.

                     They discovered that their home had been broken into
               and some items taken.      It was principally prescription
               medication and a small amount of money that was taken from a
               UT piggy bank.

                      The defendant and the victim Jason Crabtree are cousins.

                       A neighbor was interviewed and observed a small green
               car at the residence.

                     Later on law enforcement actually got a picture of the
               defendant’s car which was a green Geo Metro. The neighbor
               was shown that picture and said that is the car.

                      Of course the Crabtrees would say they did not give
               permission for their home to be broken into or their items to be
               taken.

                       [In] case number 13-CR-23, that offense date is August
               22nd, 2012. This is the attempted aggravated [burglary] and
               vandalism. I believe there was some damage done to a door.
               This is the residence owned or occupied by Thomas McLean .
               . . here in Lewisburg.



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       The defendant lived nearby.

        Once law enforcement investigated this matter they
actually observed foot prints in the yard which appeared to be
going from the victim’s residence back to the defendant’s
residence. He was ultimately interviewed and gave a written
statement admitting going to the residence and attempting to
enter in and was about to enter it and I believe observed head
lights and so he went back home without taking anything. He
said that the purpose for going in there was to get money or
something that he could convert to money.

      Case number 13-CR-24, that offense date is August 27,
2012. This was the home of Clarissa Carter . . . here in
Lewisburg.

      There was – the home was broken into without
permission and prescription medicine was taken.

       Once the police department investigated this matter they
ultimately took the defendant with them and he pointed out
several residences that he admitted that he had entered without
permission taking items and this was one of them that he pointed
out.

      Case number 13-CR-25, that offense date is also August
27, 2012. Same offense date as case number 24. That is the
home of Pamela Cooper . . . . The home was broken into
without permission and the main item taken was a stove.

       This is another house that law enforcement would testify
the defendant pointed out as one he broke into and took items
without permission.

        Lastly, case number 13-CR-26, the same offense date of
August 27, 2012. This is the home of June Fuller located . . .
here in Lewisburg. It was broken into and a microwave was
taken. This is yet another home that the defendant pointed out
is one that he broke into.



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                     I will say all of these homes, except for the Crabtree
              home, the defendant’s cousin, were in close proximity to the
              residence that the defendant was staying at.

                      I think most people would say easy walking distance.

              At the October 9, 2013 sentencing hearing, the State entered into evidence the
defendant’s presentence report, which listed three prior misdemeanor convictions: a 2006
conviction of domestic violence; a 2007 conviction of misdemeanor theft; and a 2011
conviction of shoplifting. The defendant was twice charged with violating his probation,
most recently in November 2012, when the defendant was charged in the underlying cases.

               Crystal Gray with the Tennessee Board of Probation and Parole testified that
she prepared the defendant’s presentence report. In preparing her report, Ms. Gray took a
statement from the defendant, in which he denied committing any of the crimes to which he
had pleaded guilty. Ms. Gray confirmed that the defendant had a previous history of criminal
convictions, that he had previously failed to comply with the conditions of probation, and that
he was on probation when he committed the offenses at issue.

               Jason Crabtree testified that, following the burglary at his residence, he and his
wife visited the defendant at his home to inquire whether the defendant had any knowledge
of the burglary. While at the defendant’s residence, Mr. Crabtree photographed the
defendant’s vehicle and later showed those photographs to a neighbor, who identified the car
in the photographs as the one the neighbor had seen parked in the Crabtrees’ driveway on the
day of the burglary. Mr. Crabtree testified that his eight-year-old child had trouble sleeping
after the burglary and that he “had to put in a security system, security cameras and guard
dogs” to ensure that his child can sleep.

               Virginia Gowan, the defendant’s mother, testified for the defense. Ms. Gowan
stated that her son had “always been a good worker” and that he had worked in a factory
before being laid off from work. Ms. Gowan testified that, approximately four or five years
ago, her son was injured at work and became dependent on pain medication. Ms. Gowan
stated that, because the defendant had been unable to access the medication while
incarcerated, she had seen positive changes in him. Ms. Gowan verified that the defendant
would be able to work and would have a place to live if he were released from incarceration.

              The defendant testified that, in 2009, he suffered “major head trauma” in a
work-related incident, causing “a major concussion, knocked [his] teeth out, [and] messed
[his] sinus cavity up.” The defendant was prescribed increasingly higher doses of pain
medication to control his migraine headaches, and he was eventually prescribed Xanax to aid

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him in sleeping. The defendant admitted that he had become addicted to the medication.
The defendant testified that he had been in jail for 370 days and that he had recently
celebrated one year of sobriety. The defendant testified that he had contacted rehabilitation
facilities and that he had completed substance abuse programs while incarcerated. The
defendant admitted that he had battled depression and had attempted suicide in the past.

              On cross-examination, the defendant denied committing all of the crimes to
which he had pleaded guilty. The defendant admitted that, before his most recent arrest, he
was spending “at least $140 a week” purchasing pain pills on the street. If the defendant did
not have enough money to purchase 30 pills a day, he would resort to taking 30 to 40 Tylenol
pills each day.

               In determining the defendant’s sentence, the trial court found that the defendant
was a Range I offender and that three enhancement factors were primarily applicable: the
defendant had a previous history of criminal convictions; the defendant before sentencing
failed to comply with the conditions of sentencing involving release into the community; and
the defendant was on probation at the time of the commission of the crimes. See T.C.A. §
40-35-114(1), (8), and (13). In addition, the court gave “a little bit of weight” to factor 10,
that the crime was committed when the risk to human life was high, based on the defendant’s
attempt to burglarize the residence in case number 2013-CR-23. See T.C.A. § 40-35-
114(10). The trial court considered as mitigation that the defendant’s “criminal conduct
neither caused nor threatened serious bodily injury.” See T.C.A. § 40-35-113(1). Taking
these factors into consideration, the trial court imposed the following sentences: in case
number 2013-CR-22, four years for the aggravated burglary conviction; in case number
2013-CR-23, three years for attempted aggravated burglary and 11 months, 29 days to be
served at 75 percent for vandalism and to be served concurrently to the three-year sentence;
in case number 2013-CR-24, five years for aggravated burglary; in case number 2013-CR-25,
five and one-half years for aggravated burglary and 11 months, 29 days to be served at 75
percent for theft and to be served concurrently to the five and one-half year sentence; and in
case number 2013-CR-26, six years for aggravated burglary and 11 months, 29 days for theft
to be served concurrently to the six year sentence. The trial court ordered that case numbers
2013-CR-22 and -23 be served concurrently to one another and that case numbers 13-CR-24,
-25, and -26 be served concurrently to one another but consecutively to case numbers 13-CR-
22 and -23 for a total effective sentence of 10 years.

              With respect to the manner of service of the sentence, the trial court found as
follows:

              I will tell you this weighs heavy on the Court’s mind, is we’ve
              had two prior probation revocations and we should have had a

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             third. Granted, they were misdemeanors, but that tends to
             indicate that he is not acceptable of what gift the Court gave
             him, and he is unable to comply with the conditions of even
             misdemeanor probation. And frankly, if you can walk and chew
             gum, you should be able to get through with that. So, therefore,
             I don’t think probation is appropriate for him.

                    And I have considered everything that he’s had to say
             today. I’ve also considered the pre-sentence report. And the
             pre-sentence report, I was concerned because he stood up here
             and he pled guilty, and then, he tells his pre-sentence officer that
             he didn’t commit some of these and he waffles on some of the,
             some of the others. Which, you know, candor, in my mind, is a
             big thing to show that one may be successful or unsuccessful in
             any type of community release and that you take responsibility
             for what you have done.

                    To sit up here and plead guilty, whether it’s a best interest
             plea or not, the end result is the same. And so, at some point,
             he’s not being totally candid with the Court.

                    Now, having said that, I think the defendant’s testimony
             read better than the pre-sentence report did. I mean, the pre-
             sentence report did not read well in my mind. His testimony
             was, was better I thought. And I understand the nature of the
             addiction, having clients that have been through the same
             processes. But it’s not a justification, in the Court’s mind, for
             breaking into people’s houses. I feel there has been other
             measures less restrictive that has been, other than confinement,
             that has been applied to this defendant and they’ve been
             unsuccessful.

                    I think that also given the nature of the criminal activity
             here, that to give probation or alternative sentencing would
             depreciate the seriousness of the offense. And I think the
             sentence ought to be served in the Tennessee Department of
             Corrections.

             On appeal, the defendant argues that the trial court abused its discretion by
sentencing him to 10 years’ imprisonment rather than considering alternative sentencing.

                                             -6-
Specifically, the defendant contends that, because his criminal record contains only
misdemeanor convictions, the “‘totality of the circumstances’ was such that this was no crime
of such huge dimensions that justice would demand such a sentence imposed on the
defendant.” The State argues that the record fully supports the trial court’s sentencing
decision in this case.

               “[A]lthough the statutory language continues to describe appellate review as
de novo with a presumption of correctness,” the 2005 revisions to the Sentencing Act
“effectively abrogated the de novo standard of appellate review.” State v. Bise, 380 S.W.3d
682, 707 (Tenn. 2012). Observing that a change in our standard of review was necessary to
comport with the holdings of the United States Supreme Court, our supreme court “adopt[ed]
an abuse of discretion standard of review, 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.

               Despite the new standard of review, trial courts must still consider the
principles of sentencing enumerated in Code section 40-35-210(b), see Bise, 380 S.W.3d at
698 n.33 (citing T.C.A. § 40-35-210(b)), 706 n.41, and must, as required by statute, consider
“[t]he potential or lack of potential for the rehabilitation or treatment of the defendant . . . in
determining the sentence alternative or length of a term to be imposed.” Id. § 40-35-103(5).
The court cautioned that, despite the wide discretion afforded the trial court under the revised
Sentencing Act, trial courts are “still required under the 2005 amendments to ‘place on the
record, either orally or in writing, what enhancement or mitigating factors were considered,
if any, as well as the reasons for the sentence, in order to ensure fair and consistent
sentencing.’” Bise, 380 S.W.3d at 706 n.41 (citing T.C.A. § 40-35-210(e)).

               The imposition of a 10-year sentence in this case mandated the trial court’s
considering probation as a sentencing option. See T.C.A. § 40-35-303(a), (b). Traditionally,
however, the defendant has born the burden of establishing his “suitability for full
probation.” State v. Mounger, 7 S.W.3d 70, 78 (Tenn. Crim. App. 1999); see T.C.A. §
40-35-303(b). Such a showing required the defendant to demonstrate that full probation
would “‘subserve the ends of justice and the best interest[s] of both the public and the
defendant.’” State v. Dykes, 803 S.W.2d 250, 259 (Tenn. Crim. App. 1990) (quoting Hooper
v. State, 297 S.W.2d 78, 81 (1956)), overruled on other grounds by State v. Hooper, 29
S.W.3d 1, 9-10 (Tenn. 2000). Recently, however, the supreme court expanded the holding
in Bise to the trial court’s decision regarding probation eligibility, ruling “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.”
State v. Caudle, 388 S.W.3d 273, 278-79 (Tenn. 2012).

                                                -7-
              In the instant case, the record reflects that the trial court based its sentencing
decision on the considerations set forth in Code section 40-35-103(1), which provides:

              (1) Sentences involving confinement should 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; . . . .


Id. The trial court specifically found, under subsections (B) and (C), that the nature of the
criminal activity was such that alternative sentencing “would depreciate the seriousness of
the offense” and that measures less restrictive than confinement “have been applied to this
defendant and they’ve been unsuccessful.” Taking all of this into consideration, we find no
abuse of discretion in the trial court’s decision to order the defendant to serve his sentence
in confinement.

              Accordingly, the judgments of the circuit court are affirmed.


                                                    _________________________________
                                                    JAMES CURWOOD WITT, JR., JUDGE




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