IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs April 23, 2014

STATE OF TENNESSEE v. HEATHER LEE LANE

Appeal from the Circuit Court for Sullivan County

No. S61151 R. Jerry Beck, Judge

No. E2013-01855-CCA-R3-CD-FILED-SEPTEMBER 10, 2014

Defendant, Heather Lee Lane, pleaded guilty to violation of a habitual traffic offender order,

a Class E felony, with an agreed upon sentence of two years as a Range II multiple offender

with the trial court to determine manner of service of the sentence. The trial court ordered

Defendant to serve her two-year sentence in confinement. On appeal, Defendant contends

the trial court erred by denying her alternative sentencing. We conclude the trial court did not

abuse its discretion in sentencing Defendant. Accordingly, we affirm the judgment of the trial

court.

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

THOMAS T. WOODALL, J., delivered the opinion of the Court, in which ALAN E. GLENN and

ROGER A. PAGE, JJ., joined.

Stephen M. Wallace, District Public Defender; and Joseph H. Harrison, Assistant Public

Defender, Blountville, Tennessee, for the appellant, Heather Lee Lane.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney

General; Barry P. Staubus, District Attorney General; and Josh Parsons, Assistant District

Attorney General, for the appellee, the State of Tennessee.

OPINION

I. Background

At the guilty plea submission hearing, Defendant stipulated to the following facts

contained in the Affidavit of Complaint by Officer William A. Clane, III:
I, the affiant named below, after being sworn, state under oath that on or

about April 29, 2012 at 8:53 PM, in Sullivan County Tennessee, Heather L

Lane committed the offense(s) of violation(s) of TCA Driving While Restr.

In Effect (Habitual Traffic Offender) (T.C.A. 55-10-616)

I further state under oath that the essential facts constituting the offense(s),

the sources of my information and the reasons why this information is

believable and reliable are as follows:

On 04/29/2012 at 2053 hours, I was dispatched to Farragut Avenue in

reference to a blue Chevrolet Lumina with Virginia tags being driven by

[Defendant]. Central Dispatch advised that [Defendant] is unlicensed and

a Habitual Traffic Offender. I observed a vehicle matching Central

Dispatch’s description drive past me at the intersection of Farragut Ave and

Lafayette Circle.

I initiated a traffic stop on the blue Chevrolet Lumina, VA tag XAP-8758,

and identified the driver as [Defendant].

I confirmed that [Defendant] is a Habitual Traffic Offender.

Sentencing Hearing

At the sentencing hearing the presentence report was admitted into evidence. The trial

court made the following findings concerning Defendant’s prior criminal record:

At age 31 [Defendant] was convicted of vandalism, [Class]

A[]misdemeanor, in the General Session Court at Kingsport, 11-29

suspended. Disorderly conduct at age 31; 30 days in jail; $25 fine.

Probably suspended. At age 31, public intoxication; 30 days.

I’d point out the first three entry occurred [sic] on the same - three entries

occurred on the same day.

She has an escape from prison out of the Washington County Criminal

Court, I believe that’s in Tennessee, which was to run consecutive to a

Sullivan County Case.

She has a conviction for criminal impersonation at age 28; six months

suspended except 30 days. Also at age 28 on a different day, shoplifting;

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11 months, 29 days suspended but ten days. At age 28 on a different day

she was convicted of criminal trespass, [Class] C[]misdemeanor; 30 days

suspended.

At age 27, criminal impersonation; six months; fined $50. Doesn’t show

whether it was suspended or not. Has a - on . . .

At age 27, automobile burglary out of the Sullivan County Criminal Court;

180 days jail; the rest suspended. Arising on the same day, another

automobile burglary; age 27; two years; serve 180 days.

Then a bunch of automobile burglaries at Page 7: first entry, second entry,

third entry, fourth entry, fifth entry, and sixth entry charging automobile

burglary and theft. Bunch of felonies.

Misdemeanor theft at age 27; unlawful drug paraphernalia at age 27; all

convictions. Evading arrest, risk of death; three years.

* * *

Has an assault at age 24, 40 - all suspended but 45 days. She has an assault

at age 24 on a police officer. Of course, the law’s the same, I guess,

whether you’re a police officer or not. Eleven (11) months and 29 days; 45

days to serve.

* * *

That brings us down to the last entry on Page 9, a conviction for DUI; 11

months suspended except for 90 days; go to DUI school.

At age 24, driving on a revoked license; six months; fined $25. Improper

use of vehicle registration; 30 days; $25 fine; [Class] C[]misdemeanor. No

insurance; fine of $100 at age 24.

At age 23, looks like a - a theft. And I take it it was a shoplifting. She was

banned from Proffitt’s [Department Store].

* * *

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Public possession of intoxicating liquor by a person under 21 at age 19; 11

months and 29 days; suspended except two days.

The trial court also noted from the presentence report that Defendant had completed

high school and had obtained a certificate in building trades and carpentry from the

Tennessee Prison for Women, which was a “favorable factor.” The court stated that

Defendant’s physical health was poor due to a liver disease, and her mental health was fair.

Defendant had admitted to the heavy use of alcohol, and she began smoking marijuana at the

age of eighteen. She smoked it from 1995 until 1998. Defendant also began using cocaine

at the age of eighteen, and she tried LSD mushrooms in 2001. The trial court noted that

Defendant began using morphine intravenously in 2004, and her last use was in 2007. She

began using heroin intravenously in 2004 and would drive to Richmond, Virginia, to make

the purchases which totaled $400 to $500 per month. Defendant began receiving alcohol and

drug treatment in 2012. The trial court noted that Defendant planned to reside with her exhusband if released. The court also reviewed Defendant’s sparse employment history.

The thirty-four-year-old Defendant testified that she lived with her ex-husband, their

fourteen-year-old daughter, and her ex-husband’s mother in Gate City, Virginia. Defendant

said that she also stayed with her mother sometimes. Defendant admitted that she had been

unemployed for the past two years. She further admitted that she had an extensive history

of drug abuse. Defendant testified that her main problem was with morphine or heroin that

she used intravenously. At one point, she was using $100 worth of morphine per day.

Defendant admitted thatshe had used marijuana within two weeks of the sentencing hearing.

Defendant testified that she was enrolled in a Drug Treatment Program at Crossroads

Treatment Center in Weaverville, North Carolina, at the time of the sentencing hearing. She

wasrequired to attend counseling sessions once per month at the treatment center. Defendant

told the court that on July 19, 2011, she had pleaded guilty to vandalism, disorderly conduct,

and public intoxication, and she was placed on probation. She was later found guilty of

violating that probation and ordered to serve seventy-five days. The present offenses

occurred on April 29, 2012. When asked why the trial court should grant probation or

alternative sentencing, Defendant replied: “Because I’m really trying now to do better and

to be a better mom[.]”

II. Analysis

On appeal, Defendant contends the trial court erred by denying her some form of

alternative sentencing. Defendant asserts that the trial court “erroneously interpreted and

applied applicable law” in denying “all forms of alternative sentencing.” We disagree.

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As interpreted by the Tennessee Supreme Court, sentences imposed by a trial court

within the appropriate statutory range are to be reviewed under an abuse of discretion

standard with a “presumption of reasonableness.” State v. Bise, 380 S.W.3d 682, 708 (Tenn.

2012). This standard of review extends to alternative sentences as well. State v. Caudle, 388

S.W.3d 273, 278-79 (Tenn. 2012)(“[T]he abuse of discretion standard, accompanied by a

presumption of reasonableness, appliesto within-range sentencesthat reflect a decision based

upon the purposes and principles of sentencing, including the questions related to probation

or any other alternative sentence.”). When the trial court follows the statutory sentencing

procedure and gives due consideration to the factors and principles relevant to sentencing,

this court may not disturb the sentence even if we had preferred a different result. See State

v. Carter, 254 S.W.3d 335, 344-46 (Tenn. 2008).

In determining “the specific sentence and the appropriate combination of sentencing

alternatives,” the trial court must consider: (1) the evidence 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 applicable mitigating and

enhancement factors; (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 wishes to make in the defendant’s own behalf about sentencing. Tenn. Code.

Ann. § 40-35-210(b).

Our sentencing law provides that a defendant who does not possess a criminal history

showing a clear disregard forsociety’slaws and morals, who has not failed past rehabilitation

efforts, and who is an especially mitigated or standard offender convicted of a Class C, D or

E felony, should be considered as a favorable candidate for alternative sentencing options in

the absence of evidence to the contrary. T.C.A. § 40-35-102(5), (6). Additionally, a trial

court is “not bound” by the advisory sentencing guidelines; rather, it “shall consider” them.

Id. § 40-35-102(6)(D). We note that “the determination of whether the [defendant] is entitled

to an alternative sentence and whether the [defendant] is entitled to full probation are

different inquiries.” State v. Boggs, 932 S.W.2d 467, 477 (Tenn. Crim. App. 1996). The

defendant has the burden of establishing his or her suitability for full probation, even if the

defendant should be considered a favorable candidate for alternative sentencing. T.C.A. §

40-35-303(b); Boggs, 932 S.W.2d at 477. In determining whether to grant probation, the

court must consider the nature and circumstances of the offense; the defendant’s criminal

record; his or her background and social history; his or her present condition, both physical

and mental; the deterrent effect on the defendant; and the defendant’s potential for

rehabilitation or treatment. State v. Souder, 105 S.W.3d 602, 607 (Tenn. Crim. App. 2002).

In determining whether incarceration is appropriate, the trial court must consider if:

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(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); see also Carter, 254 S.W.3d at 347.

Defendant was an eligible candidate for probation. See Tenn. Code Ann. § 40-35-

102(6)(A). Because she was convicted of a Class E felony, Defendant was also considered

a favorable candidate for probation. Tenn. Code Ann. §§ 39-14-105(5); 40-35-102(6)(A).

In considering Defendant’s sentence in this case, the trial court found that the

“unfavorable factors heavily outweigh any favorable factor on everything we’ve gone over.”

Under the abuse of discretion standard with a “presumption of reasonableness” set forth in

Bise, we cannot say that the trial court erred by ordering Defendant to serve two-year

sentence in confinement. The trial court followed statutory sentencing procedures and gave

due consideration to the factors and principles relevant to sentencing Defendant. The trial

court properly considered the purposes and principles of the Sentencing Act. The manner in

which the trial court ordered Defendant serve her sentence was not arbitrary or capricious

and fully accords with statutory law. Accordingly, Defendant is not entitled to relief.

Based on our review of the record and applicable case law, we affirm the judgment

of the trial court.

___________________________________

THOMAS T. WOODALL, JUDGE

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