IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs February 3, 2004

STATE OF TENNESSEE v. SHAUN DAVID PIERCE

Direct Appeal from the Circuit Court for Marshall County

Nos. 15276, 15308, 15309, 15310 Charles Lee, Judge

No. M2003-01076-CCA-R3-CD - Filed February 19, 2004

The Defendant, Shaun David Pierce, pled guilty to four counts of burglary of an automobile, a Class

E felony, two counts of theft over one-thousand dollars, a Class D felony, two counts of theft over

five-hundred dollars, a Class E felony, four counts of theft under five-hundred dollars, a Class A

misdemeanor, and two counts of vandalism under five-hundred dollars, a Class A misdemeanor. The

Defendant received an effective sentence of sixteen years. The sole issue in this direct appeal is

whether the trial court erred by not allowing the Defendant to serve his sentence in the community

corrections program. We affirm the judgments of the trial court.

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

DAVID H. WELLES,J., delivered the opinion of the court, in which JERRY L. SMITH and THOMAS T.

WOODALL, JJ., joined.

Andrew Jackson Dearing, Lewisburg, Tennessee, for the appellant, Shaun Pierce.

Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; Mike

McCown, District Attorney General; and Weakley E. Barnard, Assistant District Attorney General,

for the appellee, State of Tennessee.

OPINION

The Defendant pled guilty to the aforementioned assortment of crimes on February 7, 2003.

The Defendant admitted to breaking into four cars and stealing objects inside in an effort to fund his

drug habit. The trial court sentenced him as a Range II offender, a classification the Defendant does

not contest, to an effective sentence of sixteen years, which the Defendant does not contest. The

Defendant’s sole issue is whether the trial court should have allowed him to serve his sentences in

the community corrections program.
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When an accused challenges the length, range, or manner of service of a sentence, this Court

has a duty to conduct a de novo review of the sentence with a presumption that the determinations

made by the trial court are correct. See Tenn. Code Ann. § 40-35-401(d). This presumption is

“conditioned upon the affirmative showing in the record that the trial court considered the sentencing

principles and all relevant facts and circumstances.” State v. Ashby, 823 S.W.2d 166, 169 (Tenn.

1991).

When conducting a de novo review of a sentence, this Court must consider: (a) the evidence,

if any, received at the trial and sentencing hearing; (b) the presentence report; (c) the principles of

sentencing and arguments as to sentencing alternatives; (d) the nature and characteristics of the

criminal conduct involved; (e) any statutory mitigating or enhancement factors; (f) any statement

made by the defendant regarding sentencing; and (g) the potential or lack of potential for

rehabilitation or treatment. See Tenn. Code Ann. §§ 40-35-102, -103, -210; State v. Brewer, 875

S.W.2d 298, 302 (Tenn. Crim. App. 1993); State v. Thomas, 755 S.W.2d 838, 844 (Tenn. Crim.

App. 1988).

If our review reflects that the trial court followed the statutory sentencing procedure, that the

court imposed a lawful sentence after having given due consideration and proper weight to the

factors and principles set out under the sentencing law, and that the trial court’s findings of fact are

adequately supported by the record, then we may not modify the sentence even if we would have

preferred a different result. See State v. Pike, 978 S.W.2d 904, 926-27 (Tenn. 1998); State v.

Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).

A defendant who “is an especially mitigated or standard offender convicted of a Class C, D,

or E felony is presumed to be a favorable candidate for alternative sentencing options in the absence

of evidence to the contrary.” Tenn. Code Ann. § 40-35-102(6); State v. Fields, 40 S.W.3d 435, 440

(Tenn. 2001). Guidance regarding what constitutes “evidence to the contrary” which would rebut

the presumption of alternative sentencing can be found in Tennessee Code Annotated section 40-35-

103(1), which sets forth 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[.]

See id.; State v. Hooper, 29 S.W.3d 1, 5 (Tenn. 2000); Ashby, 823 S.W.2d at 170. 

Additionally, the principles of sentencing reflect that the sentence should be no greater than

that deserved for the offense committed and should be the least severe measure necessary to achieve

the purposes for which the sentence is imposed. See Tenn. Code Ann. § 40-35-103(2), (4). The
At the sentencing hearing, the Defendant maintained that the presentence report incorrectly listed his birth year

1

as 1972, when it was, in fact, 1973, making him twenty-nine years old.

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court should also consider the potential for rehabilitation or treatment of the defendant in

determining the appropriate sentence. See id. § 40-35-103(5).

The Community Corrections Act was meant to provide an alternative means of punishment

for “selected, nonviolent felony offenders . . . , thereby reserving secure confinement facilities for

violent felony offenders.” Tenn. Code Ann. § 40-36-103(1); see also State v. Samuels, 44 S.W.3d

489, 492 (Tenn. 2001). Pursuant to statute, persons who satisfy all of the following minimum

criteria are eligible for participation in a community corrections program:

(1) Persons who, without this option, would be incarcerated in a correctional

institution;

(2) Persons who are convicted of property-related, or drug/alcohol-related felony

offenses or other felony offenses not involving crimes against the person as provided

in title 39, chapter 13, parts 1-5;

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

(4) Persons who are convicted of felony offenses in which the use or possession of

a weapon was not involved;

(5) Persons who do not demonstrate a present or past pattern of behavior indicating

violence; [and]

(6) Persons who do not demonstrate a pattern of committing violent offenses[.]

Tenn. Code Ann. § 40-36-106(a). However, persons who are sentenced to incarceration or who are

on escape at the time of consideration will not be eligible, even if they meet these criteria. See id.

Persons who do not otherwise satisfy the minimum criteria and who would usually be

considered unfit for probation due to histories of chronic alcohol abuse, drug abuse, or mental health

problems, but whose special needs are treatable and could be served best in the community may be

considered eligible for participation in a community corrections program. Id. § 40-36-106(c).

Even though an offender meets the requirements for eligibility, he or she is not automatically

entitled to participation in a communitycorrections program. See State v. Ball, 973 S.W.2d 288, 294

(Tenn. Crim. App. 1998); State v. Taylor, 744 S.W.2d 919, 922 (Tenn. Crim. App. 1987). Rather,

the Act provides that the criteria shall be interpreted as minimum standards to guide a trial court’s

determination of whether that offender is eligible for community corrections. See Tenn. Code Ann.

§ 40-36-106(d).

The Defendant apparently argues that he should have been allowed to serve his sentences in

Community Corrections under the “special needs” category. See Tenn. Code Ann. § 40-36-106(c).

The presentence report reflects that the Defendant is thirty years old, married with three children, 1

and has received his GED. He has no long-term employment history. His criminal history is quite
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extensive. It dates back to 1991 and includes ten burglary convictions, one conviction for possession

of marijuana, a robbery conviction, and several misdemeanors.

At the sentencing hearing, the Defendant admitted that he was guilty of all the instant

offenses. He explained that he became addicted to cocaine while he was in prison, and he was

nursing a habit that cost between three-hundred and fifty and five-hundred dollars per day. He broke

into and stole items out of cars to buy drugs. He testified that he knew what he had done was wrong,

but that he was unable to fight his addiction. He asked the trial court to be lenient and help him

battle his drug problem.

As the trial court correctly noted, the Defendant was not entitled to the presumption that he

was a favorable candidate for alternative sentencing because he was not “an especially mitigated or

standard offender.” Tenn. Code Ann. § 40-35-102(6). However, due to the nonviolent nature of the

crimes he committed, he was eligible to serve his sentence in the community corrections program.

See id. § 40-36-106(a). As we have already noted, although an offender may be eligible to

participate in the program, he or she is not automatically entitled to it. See Ball, 973 S.W.2d at 294.

The trial court denied the Defendant any form of alternative sentence based on the

Defendant’s lengthy criminal history and his unwillingness to comply with measures less restrictive

than confinement. See Tenn. Code Ann. § 40-35-103(1)(A), (C). Without question the Defendant’s

criminal history is extensive. Many of his crimes involve stealing or damaging the property of others

in an attempt to support his cocaine habit. Indeed, at the sentencing hearing, the Defendant told the

trial court, “If I could leave right now and walk out that door, I would find the nearest place to get

some cocaine, and which will be probably close by.” Clearly confinement is necessary in this case

to protect the public from the Defendant, who has a long history of criminal activity. See id. § 40-

35-103(1)(a).

Furthermore, the record shows that, in 1993, the Defendant’s probation was revoked because

he was convicted of robbery and evading arrest. In March of 1999, the Defendant was allowed to

serve his four-year sentence in the community corrections program, but in 2001 he was convicted

of possession of marijuana, in 2002 he was convicted of driving on a suspended license, and in

February of 2003 he was convicted of the instant offenses. Thus, it appears that the Defendant was

serving a community corrections sentence when he committed the instant offenses. Obviously,

measures less restrictive than confinement have been unsuccessful with the Defendant. See id. § 40-

35-103(1)(C). Therefore the trial court did not err by refusing to allow the Defendant to serve his

sentences in the community corrections program.

The judgments of the trial court are affirmed.

 

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DAVID H. WELLES, JUDGE