IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

October 10, 2017 Session

STATE OF TENNESSEE v. SIDNEY B. RAY

Appeal from the Criminal Court for Knox County

No. 108994 Bobby R. McGee, Judge

___________________________________

No. E2017-00228-CCA-R3-CD

___________________________________

Pursuant to a plea agreement, the Defendant, Sidney B. Ray, entered a guilty plea to ten 

felonies and one misdemeanor and received an effective sentence of fourteen years, with 

the manner of service to be determined by the trial court. Following a sentencing 

hearing, the trial court denied the Defendant’s request for an alternative sentence and 

ordered his sentence to be served in confinement. In this appeal, the Defendant contends 

that the trial court erred in determining the manner of service of his sentence. Upon 

review, we affirm the judgments of the trial court.

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

CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which JAMES 

CURWOOD WITT, JR., and ROBERT L. HOLLOWAY, JR., JJ., joined.

Forrest L. Wallace, Knoxville, Tennessee, for the Defendant, Sidney Brian Ray.

Herbert H. Slatery III, Attorney General and Reporter; Katherine C. Redding, Assistant 

Attorney General; Charme P. Allen, District Attorney General; and Nate Ogle, Assistant 

District Attorney General, for the Appellee, State of Tennessee.

OPINION

Between April 19 and May 25, 2016, the Defendant engaged in a crime spree 

involving the following offenses: aggravated burglary by entering Jennifer Ray Gregg’s 

residence and taking property valued over $20,000 (count one); theft by entering his 

parents’ residence and taking property valued over $11,000 (count two); theft by having 

his father pawn a previously rented Stihl leaf blower and Stihl chainsaw (count three); 

burglary of a vehicle by taking Janice Edwards’s wallet while she was pumping gas 

(count four); theft by pawning to Payday Express Pawn $230 worth of items purchased 

on a closed bank account (count five); forgery by writing his father’s name on a check 

03/02/2018
- 2 -

from a closed bank account to purchase a ring, valued at $4,895, from Rick Terry Jewelry 

Design (count six); theft by taking Christine Cotton’s purse, valued at $690, from her 

shopping cart at Kroger (count seven); identity theft by using Cotton’s credit cards to 

make purchases, valued at $773.09, at various locations (count eight); and evading arrest 

and reckless endangerment by refusing to comply with an officer’s command to exit his 

car and fleeing at high speed through a crowded parking lot (counts nine and ten). Count 

11 was a misdemeanor, for which the State did not offer any supporting facts.

In his December 30, 2016 Sentencing Memorandum, the Defendant requested

probation “with any additional conditions the Court[ ] deems necessary for [him] to be 

supervised in the community.” Further, the Defendant asserted that “a sentence on 

probation coupled with a halfway house and continued treatment, would provide the least

severe measure necessary to comport with the Sentencing Act.” No mitigating or 

enhancement factors were identified by Defendant’s counsel or the State. 

A sentencing hearing was conducted on January 20, 2017, at which time the State

introduced a presentence investigation report (“presentence report”), a report from the 

Board of Probation and Parole regarding the Defendant’s suitability for Enhanced 

Probation with Conditions (“Enhanced Report”), and a Community Alternatives to Prison 

Program (“CAPP”) Report. Significantly, all of the alternative sentencing agencies had

declined to accept the Defendant as an appropriate candidate for their programs. The 

presentence report showed that the Defendant had a criminal history consisting of 

multiple thefts, forgery, multiple assaults, and reckless driving. He had been previously 

placed on probation which was twice revoked. The Defendant had also previously 

entered two different drug treatment programs and failed to complete them. Finally, the 

Defendant completed a local drug court program. 

Cynthia Turner Ray, the Defendant’s mother, testified that the Defendant began to 

use marijuana in the sixth grade and progressed to OxyContin and codeine. She wanted 

to have social contact with the Defendant but did not want him in her home. She 

confirmed that the Defendant was receiving treatment for Attention Deficit Disorder 

(“ADD”) and depression in jail. However, she did not think prison programs were very 

helpful to drug addicts because they were too short and did not provide addicts the help 

they needed. She said that an outpatient or inpatient program would be more beneficial 

for the Defendant to integrate back into society. Ray acknowledged that the Defendant’s 

prior probation had been revoked. She was not aware of the ten-month substance abuse 

program in which he participated while in prison or that he failed to complete some 

treatment programs. She also acknowledged that the Defendant had relapsed after 

receiving drug treatment. 
- 3 -

The State recognized that, since June, the Defendant had completed the Intensive 

Treatment Program (“ITP”) provided by the sheriff’s office, and the ITP completion

certificate was introduced as exhibit 4. Defense counsel argued that the Defendant 

committed these crimes over the course of sixty days due to addiction, debt, depression, 

and anxiety. Additionally, defense counsel noted that since the Defendant was receiving 

medication at the detention facility, his mental health issues had “sort of righted.” 

Defense counsel acknowledged that the Defendant’s probation had been revoked 

previously but nevertheless requested the court to sentence the Defendant to a year of 

split confinement or to allow him to stay in custody and transfer to a halfway house at a 

later time. 

The State argued against probation or split confinement due to the nature and 

circumstances of the offenses and the Defendant’s extensive criminal history. At the 

conclusion of the hearing and following the arguments of counsel, the trial court imposed 

a sentence of confinement. The Defendant then filed a timely appeal.

ANALYSIS

On appeal, the Defendant argues that the trial court abused its discretion in 

denying his request for probation or alternative sentencing. He asserts that the trial 

court’s imposition of a sentence of incarceration was both excessive and inconsistent with 

the purposes of sentencing. Specifically, he contends that (1) the trial court misapplied 

enhancement factor one by failing to address its merits when sentencing the Defendant; 

(2) the trial court failed to apply mitigating factor thirteen by not giving weight to the 

Defendant’s acceptance of responsibility, his mother’s continued support, his efforts at 

rehabilitation, and his allocution statement; and (3) the trial court failed to impose a 

community corrections sentence under the special needs exception. The State responds, 

and we agree, that the trial court properly denied probation or alternative sentence.

“[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 questions related to probation or any 

other alternative sentence.” State v. Caudle, 388 S.W.3d 273, 278-79 (Tenn. 2012). A 

trial court must consider the following when determining a defendant’s specific 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 sections 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 
- 4 -

the defendant wishes to make in the defendant’s own behalf about sentencing. T.C.A. §

40-35-210(b)(1)-(7). In addition, “[t]he potential or lack of potential for the rehabilitation 

or treatment of the defendant should be considered in determining the sentence 

alternative or length of a term to be imposed.” Id. § 40-35-103(5). The court must 

impose a sentence “no greater than that deserved for the offense committed” and “the 

least severe measure necessary to achieve the purposes for which the sentence is 

imposed.” Id. § 40-35-103(2), (4).

A defendant is eligible for probation if the actual sentence imposed upon the 

defendant is ten years or less and the offense for which the defendant is sentenced is not 

specifically excluded by statute. T.C.A. § 40-35-303(a). When considering probation, 

the trial court should consider the nature and circumstances of the offense, the 

defendant’s criminal record, the defendant’s background and social history, the 

defendant’s present condition, including physical and mental condition, the deterrent 

effect on the defendant, and the best interests of the defendant and the public. State v.

Kendrick, 10 S.W.3d 650, 656 (Tenn. Crim. App. 1999) (citing State v. Grear, 568 

S.W.2d 285, 286 (Tenn. 1978)). “[A] trial court’s decision to grant or deny probation 

will not be invalidated unless the trial court wholly departed from the relevant statutory 

considerations in reaching its determination.” State v. Sihapanya, 516 S.W.3d 473, 476 

(Tenn. 2014).

Finally, in determining whether to deny alternative sentencing and impose a 

sentence of total confinement, the trial court must consider if:

(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. §§ 40-35-103(1)(A)-(C); see State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). 

In denying probation and imposing confinement, the trial court reasoned as 

follows:
- 5 -

All right. All right. These are difficult cases. The Court has 

reviewed the Presentence Investigation. It does find the defendant to be a 

high risk for probation, for release into the community.

I’ve reviewed the Enhanced Probation report. They find that he’s

not appropriate for their program. And I’ve reviewed the CAPP Report.

They also find that he’s not appropriate for their program. All three reports 

are based on, actually, many of the same factors. 

He has an extensive criminal history. He’s been given multiple 

opportunities to succeed on probation, on community release. He, so far, 

has always relapsed. He has -- I believe he has already served time in 

prison; is that right?

. . .

So he’s been to prison; he’s been confronted with the reality of 

going to prison. When he got out, he still went right back to the drugs.

I agree with his mother, 90 days is not enough time to be cured from 

drug addiction. This Court has attended conferences and heard experts 

medical and clinical experts tell us that -- to be -- to be, what you put in any 

sense, called, cured – to be cured from an addiction, a hard-core addiction 

to opiates and opioids, it is a process that requires something like five 

years. You know, 90 days is not going to do it. Three months is not going 

to do it.

And what that means is, that the programs we do have and can offer 

are often simply not going to cure the problem for the hard-core opiate and 

opioid addict. There’s some people and some addictions that do respond to 

shorter periods of time. 

What Mr. Ray has demonstrated repeatedly that he will--given his 

freedom, he will start – go back to the bad decisions. He’ll find the drugs 

and then we will have a trail of victims again.

Now, this Court does have a policy, if any of our probation agencies 

indicate to the Court that they find that there’s a reasonable probability that 

he can be successful on probation, then I will make a placement, even 

though, many times, over strenuous objection by the State.

But concomitantly, when all three agencies are telling me that he’s 

simply not able to be trusted, then the Court has to -- has to face its own 
- 6 -

responsibility to the public. There are many – in Mr. Ray’s record, there 

are many victims, and this Court has to be concerned about the next victim.

This is not a question about whether Mr. Ray is a good person or 

not. He seems to be quite sincere and I believe he means every word he 

said, but the Court has to go by the evidence. And the evidence is, he 

cannot straighten up. He cannot get away from the drugs.

And at this point, the Court would have to find that if would be 

irresponsible to place Mr. Ray in any -- on any program back out into the 

community---release to the community. This Court takes no pleasure in 

denying anyone probation, but in this case, the circumstances are 

compelling.

And, accordingly, the Court does deny probation and does sentence 

Mr. Ray to serve a total effective sentence of 14 years in the custody of the 

Tennessee Department of Corrections.

Although the Defendant correctly observes that the trial court did not explicitly 

reference any of the enhancement or mitigating factors, the record shows that the trial 

court properly considered the sentencing principles and relevant facts and circumstances. 

The Defendant’s “concern” that the trial court improperly considered his pending charges 

when ordering confinement is simply not borne out by the record. The record also belies 

the Defendant’s claim that the trial court failed to consider his “remorsefulness for 

committing these crimes, his ready admission of guilt, his attempts to assist law 

enforcement, rehabilitation following commission of these crimes, and his accepting 

responsibility for his actions.” The trial court properly considered the Defendant’s 

allocution statement and acceptance of responsibility in conjunction with the Defendant’s

history of offenses, probation, and treatment. Because the record clearly shows that the 

Defendant had a long history of criminal conduct and measures less restrictive than 

confinement had frequently been applied unsuccessfully to him, the trial court properly 

denied the Defendant’s request for probation.

Next, the Defendant contends that the trial court erred by denying his request for

some other alternative sentence. He specifically takes issue with the trial court’s failure 

to explicitly mention in its ruling his application for community corrections or his request 

to be considered under the special needs exception.1 To be clear, the extent of the 

 

1 A defendant may qualify for community corrections based upon the special needs provision 

found at Tennessee Code Annotated section 40-36-106(c), which provides, in pertinent part:

Felony offenders not otherwise eligible under subsection (a), and who would be 

usually considered unfit for probation due to histories of chronic alcohol or drug abuse, 
- 7 -

Defendant’s request for an alternative sentence was a single sentence in his memorandum

which did not explicitly request any relief under the Community Corrections Act. 

Nevertheless, our review of the record supports the trial court’s denial of community 

corrections. As an initial matter, the Defendant’s convictions for reckless endangerment 

and aggravated burglary are crimes against a person, and he is therefore statutorily 

ineligible for community corrections. T.C.A § 40-36-106(a)(1)(B)(2006). The remaining 

property related convictions do not foreclose the Defendant from consideration for 

community corrections. State v. Boston, 938 S.W.2d 435, 438 (Tenn. Crim. App. 1996). 

Although the record established that the Defendant struggled with a history of chronic 

drug abuse that reasonably related to or contributed to his criminal conduct, it does not 

establish that his drug abuse was treatable in the community rather than in a correctional 

institution.2 The Defendant had been given multiple opportunities to address his 

addiction, all of which failed. Because none of the programs available in the community 

to treat the Defendant recommended him for enhanced probation, the trial court 

determined, and we agree, that he was not an appropriate candidate for release on 

community corrections under the special needs exception. Accordingly, the record 

supports the trial court’s imposition of a sentence of confinement, and the Defendant is 

not entitled to relief.

CONCLUSION

Based on the aforementioned authorities and reasoning, the judgments of the trial 

court are affirmed.

____________________________________

 CAMILLE R. MCMULLEN, JUDGE

 

or mental health problems, but whose special needs are treatable and could be served best 

in the community rather than in a correctional institution, may be considered eligible for 

punishment in the community under this chapter.

2 Under Boston, the trial court was required to determine whether: (1) the offender has a history 

of chronic alcohol, drug abuse, or mental health problems, (2) these factors were reasonably related to and 

contributed to the offender’s criminal conduct, (3) the identifiable special need (or needs) are treatable, 

and (4) the treatment of the special need could be served best in the community rather than in a 

correctional institution. 938 S.W.2d at 439.