### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE Assigned on Briefs J

uly 25, 2001

STATE OF TENNESSEE v. SHARON RHEA

Direct Appeal from the Circuit Court for Blount County No. C12730 & 12767 D. Kelly Thomas, Jr., Judge

No. E2000-02617-CCA-R3-CD September 10, 2001

The Defendant pled g

uilty to two counts of introduction of drugs into a penal institution. Her plea agreement

required her to serve two con current six-year sentences for the offenses, but left the

manner of service to the discretion of the trial court. Following a sentencing hearing, the trial court ordered the Defendant to serve her sent ences in t he Tennessee Department of Correction. The Defendant

appeals this decision, arguing that the trial court erred by not ordering an alternative
sentence. Be cause we co nclude that the record in this case supports the denial of alternative sentencing, we

affirm the judg

ment of the trial c

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

R OBERT W. W EDEMEYER , J., delivered the opinion of the court, in which T HOMAS T. W OODALL and J AMES C URWOOD W ITT , J R ., JJ., joined.

Julie A. Rice (on appea l), Knoxville, Ten

nessee; and Mac

k Garner, Assista

nt D i strict Public Defender (at trial), Maryville, Tennessee, for the Appellant, Sharon Rhea.

Paul G. Summers, Attorney General and Reporter ; Mark A. Fulks, Assis tant Attorney Gen

eral; Michael L. Flynn, District At torney General ; and William R eed, Assistant D istrict Attorney G eneral, for the Appellee, State of Tennessee.

OPINION

On September 5, 2000, the Defendant, Sharon Rhea, pled guilty to t wo counts of introduction of drugs into a penal institution. Pursuant to her plea agreement, the Defendant agreed totwo sixyear sent ences to be serv

ed concurrent to

one another but c

onsecutive to the s

entence sh

e wa s serving at the time of the of fenses in this case. The plea agreement left the manner of service of the
sentence to the discretion o f the trial court.

Following a sentencing hearing conducted on October 16, 2000, the trial court ordered that the sentences impose

d for the charge

s in this case be se

rved in the Tennessee Depa

rtment of Correc

tion. In this appea

l a s of right, the Defendant argues that the-2-

trial court erred by denying her alternative sentencing. Having reviewed the record, we affirm the judgment of the tria

l court.

At her sentencing hearing, the Defend ant testified that she was thirty-six years old. She stated that she was married and had three children, ages twenty-one, seventeen and eight years old. She stated that her mother was raising her youngest child. Th e Defen dant testified that she was manic depressive, that

she had Hepatitis C , and that she was a recovering alc

oholic. She also testified that she was prone to anxiety and panic attacks.

The Defendant testified that at the time of the offenses in this case, she was serving a sentence for armed robbery. She reported that after initially serving two and a half years, she was placed on parole in 1990. However, after being on parole for approx imately ten years, she was arrested for driving under the influence (DUI). Based upon her pa role vi olation, she was a gain incarcerated

in March 2000. She stated that her sentence for

armed robbery was to expire in 2002.

With regard to the off

enses in this

case, the Defendant candidly admitted that she possessed bothKlono pi n and Valium while i ncarcerated.

She explained tha

t she had been pre

scribed these medications while on parole a nd had been taking

th em for approximately three years when she became incarcerated. She stated that the medications were pre scribed for manic depressive and suicidal tendencies. In addition, the Defendant informed the court that while she was on parole, she

was also taking sleeping medication, Trazodone, and Zoloft, an anxiety medication. She stated that she had been taking these medications since approximately 1990.

The Defendant state

d that when she bec

ame incarcera

ted, she was allow

ed to continue to take her prescription medication for only a couple of weeks before the doctor at the prison where she was incarcerated

told her that she no longer needed the medications and took her off of them. The Defendant

maintained that thi

s caused her to ha

ve “a lot of panic

and anxiety attac

ks” and to become “real nervous and anxio

us.” She stated tha

t she therefore

ask ed two fellow inmates, who were leaving the prison daily for work release, to smuggle the medications into jail. She admitted that she knew she was not su

pposed to have the

medications.

The Defendant reported that if she were to be released from prison, she would live with her husband next door to her parents. She testified that her husband was employed by her parents, who owned a plumbing business, and she stated that if released, she planned to

also work for her

parents. The Defendant also r

eported th at she was receiving disability payments for her psychological disorders. She maintained tha t if she were to be released, she would attend an inpatient treatment program for thirty days and then attend Alcoholics Anonymous meetings on a regular basis. She stated, “I would just like to be home with my childre n and have a cha

nce to get my

life straight.”

On cross-examination, the Defendant admitted that prisonofficials discovered the smuggled medications when she “overdosed.” She stated that she ha

d ninety-six

Klonopins in her possession; however, she explained that when she was on parole, she had been taking four Klonopins a day. The Defendant

further admitted that she had had problems with drugs and alcohol since her early teens.-3-

She testified that when she was young, she took “mostly speed and just stuff like that,” but “then .

. . started taking Va

liums” and “nerve medication” prescribed for her at “an early age.” She admitted that she had been addicted to Valium and reported that she had recently been through two drug and alcohol programs, which lasted approximately four days each. The Defendant also reported that she received inpatient treatment in 1999 f or seven days and in 1994 for twenty-eight days. She explained, “I’ve had a real serious problem and I do good for about 90 days and then mess up.”

The Defendant testified that she had received three convictions for armed robbery, for w hich she was incarcerated at the time of the offenses in this case. The Defendant further admitted that she

was arrested several times for DUI while on p arole. The Defe

ndant admitted tha

t in addition to

her DUI convictions,

she h ad received two public intoxication convictions, an assault conviction, a conviction for leaving the scene of an accident, and a conviction for driving on a suspended license.

Carolyn Payne, the Defendant’s mother, testified on her daughter’s behalf. She reported that she kept in close contact with the Defendant and wished to help her as much as possible. She further testified that

she had had custody of the Defendant’s nine-year-old daughter for approximately a year, and she reported that she had adopted the Defendant’s oldest chi ld. She s tated that she had taken care of each o

f the Defendant

’ s children since birth. Payne maintained that even if her daughter were to be released fr

om prison, she inten

ded to continue raising the Defendant’s children.

Payne testified that the Defendant had “always had a problem” with drugs and depression. She reported that the Defendant had a prescription for Klonopin at the time she became

incarcerated. She stated that the Defendant “started out when she was sixteen with drugs.” She reported that the Defendant

had tried to commit suicide “many” times by overdosing on her prescription medication. She stated that the

Defendant also s

uffered from ma

nic depression, a

bipolar disorder, with which she had been diagnosed for a few years. Payne testified that when the Defendant becomes depressed, she “sit[s] for days and don’t talk, don’t call nobody. She’s quiet.” She stated, “I don’t think she bothers anybody . . . .” She testified that the Defendant “definitely needs help.”

Payne stated that if the Defendant were to be released, the Defendant could work in the family plumbing business. Sh

e explained that t

he Defendant ha

d previously

done so, “cutting pipe and soldering.” Payne also testified that she and her h usband had b uilt a house next doo r to their

own home fo r the Defenda nt so that they “could keep an eye on [the Defendant]” because of the Defendant’s seizures. Payne stated that the Defendant could move back into the house upo n her release.

Payne also maintained tha t if the Defendant were to be released, she could help the Defendant complywith the condit

ions of her probation. She stated that she would help ensure that the Defendant

took her medicine

properly and visit

ed the doctor reg

ularly. Payne test

ifie d that she believed the Defendant would be able to comply with the conditions of probation, stating “I think she’s had enough.”-4-

The Defendant now contends that the trial court erred by ordering her to serve her sentences in the Tennessee D

epartment of Corr

ection. She argue

s that the trial cou

rt failed to “ade

quately consider[] an d weigh [] the circumsta nces surrounding

these offenses a

s mitigating against incarceration.” She also

argues that the tr

ial court “place

d undue emphasis

on her prior opportunities
at treatment in denigrating her potential for rehabilitation.” She requests that this Court “modify her
sentence to split confinement followed by release to an in-patient drug progra m followed by residence in a halfway house coupled with intensive probation.”

When a criminal defendant challenges the length, range, or manner of service of a sentence, the reviewing court must conduct a de novo review of the sentence with a presumption that the determinations made by the trial court are correct. Ten n. Code Ann. § 40-35-401(d). T his presumption, however, “is conditioned upon the affirmative showing in the record that the trial court considered

the sentencing pr

inciples and all re

levant facts

and circumstances.” State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). Int he event that the record fails to show such consideration, the review of the sentence is purely de novo

. State v. Shelton , 854 S.W.2d 116, 123 (Tenn. Crim. App. 1992). Because the tria

l court in this case

made an affirma

tive showing on th

e recordthat it considered

all relevant

facts, circumstances, and sentencing princ

iples in sentencin

g the Defendant, our review of the

Defendant’s se

ntences is de novo with a presumption of correctness.

In making its sentenc

ing determination,

the trial court, a

t the conclu sion of the sentencing hearing, determines the range of sentence and then de termines the spec ific sentence a

nd the propriety of sentencing alter

nati ves by considering (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 cr iminal con duct involved, (5) evidence and information offered by the parties on the enhancement and mitigating factors, (6) any
statements the defe ndant wishes to make in the defendant's behalf about sentencing, and (7) the potential for rehabilitation or treatment. Tenn. Code A nn. §§ 40-35-210( a), (b), -103(5 ); State v. Williams
, 920 S.W.2d 247, 258 (Tenn. Crim. App. 1995). The sentence imposed must be ade quately supported by the record and comply with the purposes and principles of the 1989 Sentencing Reform Act. State v. Moss , 727 S.W.2d 229, 237 (Tenn. 1986).

When imposing a sentenc e, the trial cour

t must make specifi

c findings of

fact on the record supporting the sentence. Tenn. Code Ann. § 40-35-209(c). The record should also include any enhancement

or mitigating factors applied by the trial court. Id. § 40-35-210(f). Thus, if the trial court wishes to

enhance a sentence, the court must state its reasons on the record. The purpose of recording the co urt’s reasoning i s to guarantee the

preparation of a

proper record

for appellate review. State v. Ervin , 939 S.W.2d 581, 584 (Tenn. Crim. App. 1996).

If our review reflects that the trial court followed the statutory sentencing procedure, that the
court imposed a la wful 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." State v. Fletcher , 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991). The-5-

defendant bears the burden of showing the impropriety of the sentence imposed. Ashby , 823 S.W.2d at 169.

The Defendant argues that she should have been granted a form of alternative sentencing. Tennessee Code A

nnotated § 40-35- 102(5) provides a s follows: In recognition that state prison capacities and the funds to build and maintain them

are limited, convicted felons committing the most severe offenses, posses sin g criminal histories evincing a clear disregard for the laws and morals of society, and evincing failure of

past efforts at rehabilitation shall be given first priority regarding sentencing involving incarceration . . . . A defendant who do

es not fall within thi

s class of offend

ers “and who is an

especially

mi tigated offender or standard offe

nder convicted o

f a Class C, D, or E felony is presumed to be a favorable candidate for alternative sentencing in the absence of evidence to the contrary.” Id. § 40-35-102(6). Furthermore, unless sufficient evidence rebuts the presumption, “[t]he trial court must presume that

a defendant sentenced to eight years or less and not an offender

for whom incarc

eration is a

priority is subject to alterna

tive sentencing a

nd that a sentence

other than incar

cerati on wou ld result in successful rehabilitation . . . .” State v. Byrd , 861 S.W.2d 377, 379-80 (Tenn. Crim. A pp. 1993); see also Tenn. Code Ann. § 40-35-303(a). The Defendant, as a Range I standard offender convicted of
two Class C felonies, see id. § 39-16-201(b), is presumed to be a favorable candidate for alternative sentencing.

However, all offenders who meet the criteria are not entitled to relief; instead, sentencing issues must be determined by the facts and circumstances of each case. See State v. T aylor
, 744 S.W.2d 919, 922 (Tenn. Crim. App. 1987) ( citing Sta te v. Moss , 727 S.W.2d 229, 235 (Tenn. 1986)). Even if a defend

ant is presumed to

be a favorable candidate for alternative sentencing under Tennessee Code Ann otated § 40-35-1 02(6), the statutory presumption of an alternative sentence may be overcome if

(A) [c]onfinement is necessary to protect society by restraining a defendant who has a long histor

y of criminal cond

uct; (B) [c]onfinement is necessary to avoid d epr eciating the seriousness of the offense or confinement is particularly s u ited to provide an e ffective deter

rence to others likely to commit similar offenses; or (C) [m]easures less restrictive than confinement

have frequently

or recently been applied unsuccessfully to the defendant . . . . Tenn. Code Ann. § 40-35-103(1)(A)-(C). In choosing among possible sentencing alternatives, the trial court should also consider Tennessee Code Annotated § 40-35-103(5), which states, in pertinent part, “The potential or lack of potentialfor the rehabilitation or treatment of a defendant should be considered

in determining the sentence alternative or length of a term to be imposed.” Id. § 40-35- 103(5); State v. Dowdy , 894 S.W.2d 301, 305 (Tenn. Crim. App. 1994).

The Defendant argues specifically that as part of her alternative sentence, the trial court sh ould have granted he

r probation. “Alth

ough probation ‘mu

st be automaticall

y considered as a sentencing option for eligible defendants, the defendant is not automatically

entitled to probation as-6-

a matter of law.’” State v. Davis , 940 S.W.2d 558, 559 (Tenn. 1997) (citing Tenn. Code Ann. § 40- 35-303(b) sentencing comm’n cmts). In determining whether to grant or deny probation, the trial court may consider

the circumstances of the offense; the defendant’s criminal record, background and social history; the defendant’s physical and mental health; the deterrent effect on other criminal activity; and the likelihood t hat probation is in th

e best interests of

both the public and

the defendant. Statev. Parker , 932 S.W.2d 945, 958 (Tenn. Crim. App. 1996). The defendant bears the burden of establishing suitability for pro bation. Tenn. Code

Ann. § 40-35-303(

b); Ashby , 823 S.W.2d at 169.

Although the trial court denied alternative sentencing, it considered a s miti gation the D efendant’s “emotional situati on, [and] mental h

ealth problems.”

However, the tri

al c ourt als o considered

the Defendant’s “lengthy histor y of crimin al convictions and behavior” and that the Defendant

had “violated the conditions of sentences involving release into the community

on many occasions.” With regard to the likelihood of rehabilitation, the court made the following

comments: I’ve reviewed [the Defendant’s] testimony, [her] mother’s testimony and th e presentencereport. I think [the] likelihood of

rehabilitation is not good. There has been treatment before. And I think confinement in this case is necessary to protect the public from

[the Defendant]. Not

from [her] willfully dangerous acts, although [she does] have a history of armed robbery, which is very dang erous, but that was years ago. But driving under th e influence is jus

t as dangerous.

And [the Defendant has] been convicted

of that offense one, two, three, four, five times since [she w

as] paroledin 1990. And leaving the scene of an accident and some public into

xications. The court also noted that “it’s a very serious offense to have someone bring controlled substances into a jail.”

Based upon these consideration s, the trial court o rdered the Defendant to serve her concurrent six-year senten

ces in the Tennessee Department of Correction. However, the court recommended that she be placed in the SpecialNeeds Unit because of her “mental health history and . . . substance abuse.” The trial court con cluded, “I do feel that treatment is necessary, but I don’t think that treatment in the community is indicated or safe for [the Defendant] or the community.”

We conclude that the record in this case supports the trial court’s denial of al ter native sentencing. The Defendant does have a long record of criminal conduct. See Tenn. Code. Ann. § 40-35-103(1)(A). We also note that the Defendant, by her own admission, violated her par ole for armedrobbery several times by driving while intoxicated, for which s he received a total of five convictions while on parole, and we note that her parole was ultimately revoked based upon a DUI conviction. Additionally, the Defendant was convicted of other criminal offenses while on parole. Parole is a “measure less restrictive than confinement,” and it was applied u nsuccessfull

y to the Defendant. See id. § 40-35-103(1)(C). The Defendant has demonstrated an inability to comply w

ith conditions for release into the community. Finally, we recognize the trial court’s co ncern that confinement

in this case is “necessary to avoid depreciating the seriousness of the offense[s].” Id. § 40-35-103(1)(B).-7-

Accordingly, we AFFIRM the judgment of the trial court.

___________________________________ ROBERT W. WEDEMEYER, JUDGE