IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs March 12, 2014

STATE OF TENNESSEE v. CURTEIS BENJAMIN ARZON

Direct Appeal from the Circuit Court for Montgomery County

Nos. 41201061, 41201077 John H. Gasaway, Judge

No. M2013-01664-CCA-R3-CD - Filed April 15, 2014

The appellant, Curteis Benjamin Arzon, pled guilty in the Montgomery County Circuit Court

to two counts of aggravated burglary. The trial court sentenced the appellant to four years

in the Tennessee Department of Correction for each offense. On appeal, the appellant

challenges the trial court’s denial of alternative sentencing. Upon review, we affirm the

judgments of the trial court.

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

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which JERRY L. SMITH and

JOHN EVERETT WILLIAMS, JJ., joined.

Michael T. Pugh, Clarksville, Tennessee, for the appellant, Curteis Benjamin Arzon.

Robert E. Cooper, Jr., Attorney General and Reporter; Meredith DeVault, Senior Counsel;

John Wesley Carney, Jr., District Attorney General; and Tim Peters, Assistant District

Attorney General, for the appellee, State of Tennessee.

OPINION

I. Factual Background

On October 1, 2012, the Montgomery County Grand Jury returned indictment number

4121077, charging the appellant with aggravated burglary and theft of property valued more

than $1,000 but less than $10,000. On October 2, the grand jury returned indictment number

41201061, charging the appellant with aggravated burglary and theft of property valued more

than $10,000 but less than $60,000.
On March 28, 2013, the appellant pled guilty to two counts of aggravated burglary in

exchange for the dismissal of the theft charges. The plea agreement provided that the

appellant would be sentenced as a Range I, standard offender but that the trial court would

determine the length and manner of service of the sentences. As a factual basis for the pleas,

the State maintained that

[in case number 41201061], on August 18th, 2012, the

[appellant] entered the home of a Mr. Garcia here in Clarksville,

Tennessee, after Mr. Garcia left. A computer, guitar, jewelry

and coins were stolen from the property[.] Later[, the appellant]

gave a detailed description on how he went in and burglarized

the house.

In case [number 4121077], between June 23rd and July

– the date listed in the indic[t]ment, Your Honor, I apologize.

[The appellant] entered his grandfather’s home and took gift

cards . . . and other items. Later, when he was confronted by the

police, he confessed to taking those items.

On June 13, 2013, a sentencing hearing was held. The twenty-two-year-old appellant

testified that after he was released on probation on February 2, he lived with his mother.

Approximately one month later, on her birthday, she drank alcohol and used cocaine then

hanged herself in the bathroom. Thereafter, the appellant lived with his uncle and began

using drugs and alcohol. The appellant drove while under the influence and had an accident,

during which he ruptured his Achilles tendon. When he went to the emergency room, he was

prescribed pain pills. Afterward, the appellant took the pain pills along with other drugs and

alcohol. A couple of weeks later, he took pain medicine and fell asleep in his car. The police

found him and charged him with driving under the influence (DUI). The appellant

immediately reported the arrest to his probation officer, Mr. Lucas, and expressed a desire

to find a rehabilitation program.

The appellant said that his grandmother took him to the Lighthouse and that he was

accepted into that program. When the appellant informed Mr. Lucas of his acceptance to the

Lighthouse, Mr. Lucas told the appellant to postpone entering rehabilitation until he went to

court on the DUI.

The appellant said that he subsequently missed a court date on the DUI charge. When

he “came back to Court on a blue motion,” he was rearrested and was later released. A

couple of weeks later, he

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decided that I didn’t know what to do and I was scared I was

going to go back to prison because I couldn’t get help and I was

on drugs really bad and I decided not to go to Court and then I

started stealing things because I couldn’t go to work anymore,

because I had a warrant out, so I started stealing things, which

led to me stealing from my family as well as Mr. Garcia.

The appellant said that he wrote letters of apology to the victims because he regretted

hurting them. He said that he took full responsibility for his actions, that he committed

crimes because of drugs, and that he wanted to get help for his addiction. After the

appellant’s incarceration, he contacted Sober Living and was accepted into a residential

rehabilitation facility for an eighteen-month program.

The appellant said:

I know [the trial court] released me last time and I was supposed

to do right, I honestly tried to do what I was supposed to do and

when I messed up, I did go to the people I was supposed to and

ask them for help and I realize that I was wrong for getting on

the drugs in the first place, but I do have an addiction. I have

had it since I was really young and I really want to change my

life and get help, I don’t want to end up back here and going to

prison my whole life, you know, like my mother and my father

have always been on drugs. Some other people in my family as

well. I don’t want my life to end up like that . . . . I have two

sisters that I really love and I really want to be there for them

because my Mom is no longer here for them. And like my

grandmother, I do not want her last memories of me to be from

the penitentiary. So I am sorry . . . [and] I need help.

Linda McArthur, the appellant’s grandmother, testified that the appellant’s mother

hanged herself on her fortieth birthday. The appellant saw his mother shortly after she was

discovered. McArthur said that his mother’s death “really affected him[,] . . . and it was just

really hard for us to cope at that time.” Afterward, the appellant’s attitude was negatively

affected; he became angry and used drugs. McArthur said that before his mother’s suicide,

the appellant was looking for a job and taking general equivalency diploma (GED) classes.

McArthur verified that the appellant had visited and been accepted into the Lighthouse

program.

The court accredited the appellant’s testimony regarding the death of his mother and

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his claim that he had been addicted to drugs “‘since [he] was young.’” The court also

accredited the appellant’s claims of remorse. See Tenn. Code Ann. § 40-35-113(13). As the

sole statutory mitigating factor, the court found that the appellant’s conduct neither caused

nor threatened serious bodily injury. See id. at (1). As enhancement factors, the court found

that the appellant had a history of criminal convictions in addition to those necessary to

establish the appropriate range; that the appellant failed to comply with the conditions of a

sentence involving release into the community; and that the appellant committed the

aggravated burglaries while serving a probationary sentence. See Tenn. Code Ann. § 40-35-

114(1), (8), (13)(C).

The court stated that the appellant did not have a long history of criminal conduct.

See Tenn. Code Ann. § 40-35-103(1)(A). Nevertheless, the court found a need for deterrence

“given [the appellant’s] history of what he has done in the length of time that he has done it,

there should be a deterrence to others who are likely to follow in his footsteps.” See id. at

(1)(B). Additionally, the court found that measures less restrictive than confinement have

frequently or recently been applied unsuccessfully to the appellant, noting that the appellant

was on probation at the time he committed the instant offenses and that he had violated

probation on two other occasions. See id. at (1)(C). Accordingly, the court found that the

appellant’s potential for rehabilitation was poor and denied alternative sentencing.

Based upon those findings, the trial court imposed two concurrent sentences of four

years for the aggravated burglary convictions. On appeal, the appellant challenges the trial

court’s denial of alternative sentencing.

II. Analysis

Our supreme court has held that “sentences imposed by the 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).

Additionally, the court has held “the 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.” State v. Caudle, 388 S.W.3d 273, 278-79 (Tenn. 2012).

In conducting its review, this court considers the following factors: (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

enhancement and mitigating factors; (6) any statistical information provided by the

administrative office of the courts as to sentencing practices for similar offenses in

Tennessee; (7) any statement by the appellant in his own behalf; and (8) the potential for

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rehabilitation or treatment. See Tenn. Code Ann. §§ 40-35-102, -103, -210; see also Bise,

380 S.W.3d at 697-98. The burden is on the appellant to demonstrate the impropriety of his

sentence. See Tenn. Code Ann. § 40-35-401, Sentencing Comm’n Cmts.

An appellant is eligible for alternative sentencing if the sentence actually imposed is

ten years or less. See Tenn. Code Ann. § 40-35-303(a). The appellant’s sentences meet this

requirement. Moreover, an appellant who is an especially mitigated or standard offender

convicted of a Class C, D, or E felony should be considered a favorable candidate for

alternative sentencing absent evidence to the contrary. See Tenn. Code Ann. § 40-35-102(6).

The following sentencing considerations, set forth in Tennessee Code Annotated section 40-

35-103(1), may constitute “evidence to the contrary”:

(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.

State v. Zeolia, 928 S.W.2d 457, 461 (Tenn. Crim. App. 1996). Additionally, a court should

consider the defendant’s potential or lack of potential for rehabilitation when determining

if an alternative sentence would be appropriate. See Tenn. Code Ann. § 40-35-103(5).

In the instant case, the appellant is a Range I, standard offender convicted of Class C

felonies; therefore, he is considered to be a favorable candidate for alternative sentencing.

However, the trial court found that alternative sentencing should be denied because of the

need for deterrence and because measures less restrictive than confinement have frequently

or recently been applied unsuccessfully to the appellant. Tenn. Code Ann. § 40-35-103(1)(B)

and (C).

On appeal, the appellant contends that the trial court failed to comply with the

requirements of State v. Hooper, 29 S.W.3d 1 (Tenn. 2000). In Hooper, our supreme court

specifically noted five factors for consideration when denying probation on the basis of

deterrence. Id. at 10-12. The appellant complains that during the sentencing hearing, the

trial court addressed only the fifth factor, namely that the appellant “has previously engaged

in criminal conduct of the same type as the offense in question, irrespective of whether such

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conduct resulted in previous arrests or convictions.” Id. at 12.

Our supreme court recognized in Hooper “that any enumeration of factors in this

nebulous area is imperfect” and specifically stated that the listed “factors are meant to serve

only as a guide.” Id. Therefore, the court held that a sentencing “court need not find that all

of these factors are present before ordering incarceration based on a need to deter similar

crimes.” Id. The trial court found a need for deterrence based upon the appellant’s “history

of what he has done in the length of time that he has done it.” The record reflects that within

a span of a few years, the appellant repeatedly turned to burglary and theft to support his drug

habit. Therefore, we conclude that the trial court did not abuse its discretion by finding a

need for specific deterrence. See State v. Vanda Watkins, No. W2006-01209-CCA-R3-CD,

2007 WL 2284817, at *5 (Tenn. Crim. App. at Jackson, Aug. 7, 2007).

Moreover, although ignored by the appellant on appeal, the trial court also found that

alternative sentencing should be denied because of the appellant’s failure to comply with the

terms of probation. The record reflects that within a period of three years, the appellant

violated his probation at least three times, including committing the instant offenses while

serving a probationary sentence. As the trial court found, this demonstrates poor

rehabilitative potential. Accordingly, we conclude that the trial court did not abuse its

discretion by denying alternative sentencing.

III. Conclusion

Upon review, we affirm the judgments of the trial court.

_________________________________

NORMA McGEE OGLE, JUDGE

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