### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON November 7, 2000 Session STATE OF TENNESSEE v. CLARENCE BRADDOCK, JR.
Appeal from the Circuit Court for Hardeman County No. 6351 Jon Kerry Blackwood, Judge

No. W2000-00383-CCA-R3-CD - Filed December 20, 2000

The Defendant, Clarence Braddock, Jr., entered a g uil ty plea to the offense of introduction of contraband

into a penal institution, a Class C felony. After a sentenci ng hea ring, he was denied alternative sentencing and was sentenced to

three years incarceration. I n this appeal as of

right, the Defendant

asserts that the trial court erred b y denying him alter native sent encing. We hold that the Defendant

was properly denied alternative sentencing; thus, we affirm th e judgment of the trial court. Tenn. R. App. P. 3 Appe al as of Right; Judgme

nt of the Circuit Cour

t Affirmed.

D AVID H. W ELLES , 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. Jeannie Kaess, for the appellant, Clarence Braddock, Jr.

Paul G. Summers, Attorney General and Reporter; Mark E.Davidson, Assistant Attorney Ge

neral; Elizabeth Rice, District Attorney General; and J. Walter Freeland, J r., Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION

The Defendant was a prison guard at the Corrections Corporationof America (CCA) prison facility in Whiteville, Tenne

ssee when anothe

r prison guard a

pproached him ab

out m aking some extramoney. That guard asked the Defendant to bring some

drugs into the facility the next day. The two arranged to meet at an Amoco station, where the other guar d gave the Def

endant marijuana

to bring into the facility

. The Defendant

was instructed to

place the marijua

na in a trash

can in the staff bathroom, where the other guard would pick it up. The Defendant testified that he did as he was asked, but around 6:00 p.m., he discovered that theother guard had been terminated. Around 10:00 p.m., the Defendant removed the marijuana from the tra sh c an t o ta ke i t ou t of the faci lit y. However, he was approached by

a senior officer who asked to search the Defendant for drugs. The Def endant confessed to possessing dr

ugs, a nd he was arrested. He was found to be in possession of approximately

five ounces of

marijuana. The Defendant was taken to the police station, where he-2-

cooperated

with the police and answered all of their qu estions. He was subsequently released on bond. Later, the Defendant borrowed a friend’s car and went back to the police station to talk to a Tennessee Bureau of I

nvestigation ag

ent, at the agent’s request. The Defendant identified the person who gave him the marijuana.

The presentence report reflects that at the time of sentencing, the Defendant was thirty-five yearsold, married, alth

ough separate

d from his wife, and had two children. He has two prior convictions: one for burglary and one for attempted forgery . Both

convictions are over eleven years old. At the hearing, the Defendant testified that he served ten months of his four year sentence for burglary in jail, and he did not serve any jail time for the attempted forgery . He told the court that his prior convictions were the result of an alcohol problem that he had at the time. The Defendant completedan alcohol treatment program, and he reported that he had not consumedany alcohol since 1994. In the statement he gave to the probation officer, the Defenda nt stated,
[Officer Rivers] told me to put the drugs in my shoes and carry [them] in. I know it is wrong for what

I did and I know I

have to pay

for what I

did, but I have never tried to denie [sic] or lie about what I did and I am very sorry for w

hat I did & I have hurt
a lot of people, but I will cooperate with the court and I promise I will better my life and I do thank you for giving me a chance to tell how I

came to be involve

d in this charge. After hearing

the testimony

and the argume

nt of counsel, the t

rial court ruled a

s follows: The Court finds the Def endant has a prio

r history of criminal convictions and criminal behavior [in additio n to those necessary

to establish the] appropriate range. And the Defendant abused the position [of private] trust as a guard for the CCA by bringing in con

traband into the f

acility of hi

s employment

. These enhancement factors outweigh the mitigating factor that

he’s admitted his guilt and that he has assisted the authority in apprehending others involved in the crime.

The Court sentences D efendant to a $2,

000 fine and th

re e years in the Department

of Corrections and assigns the Defendant to serve 30 percent before he’s eligible for re

lease. Defenda

nt will report her

e on February

15th at 5:00 p.m.

And then in recognizing the Defendant will be presum e d eligible or a favorable candidate

for an alternat

ive sentencing , the Court denies s amebased upon the prior record of the Defendant.

The Defendan t now argues t hat he shou ld have been granted alte rnative sen tencing.

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 thesentence with a presumption that the determinations-3-

made by the trial court are correc t. Tenn. Code Ann. § 40-35-401( d). This presumptio

n is “conditionedupon the affirmative showing in the record that the trial court considere d 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 sent ence, this Courtmust consider: (a) the evidence, if any, received

at the trial and sentencing hearing; (b) the presentence report; (c) the principles of sentencing and arguments a s to sentencing a

lternatives; (d)

the nature and c

haracte risti cs of the crimina l conduct involved; (e) any statutory mitigating or enhancement factors; (f) any statement made by the defe

ndant reg arding sentencing; and (g) the potential or lack of potential for rehabilitation or treatment. State v. Thomas , 755 S.W.2d 838, 844 (T enn. Crim. App. 1988); Tenn. Code Ann. §§ 40-35-102, -103, -210.

If our review reflects that the trial court followed the statutory sentencing procedure, that the court imposed a lawful sentence after having given due consider ation a nd 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 se ntence even if we would have preferred a different result. State v. Fletcher , 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).

A defendant who “is an especially mitigated or standard off ender 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). Our sentencing law also provides that “convicted felons committing the most severe offenses,possessing criminal histories evincing
a clear d isregard for the laws and morals of society, and evincing failure of past efforts at rehabilitation shall be given fi rst priority

regarding sentencing involving incarceration.” Id. § 40-35- 102(5). However, the act does not provide that all offenders who meet the criteria ar e entitled to such relief; rather, it requires that sentencing issues be det ermined by the facts and circumstances presented in each case. See State v. Taylor , 744 S.W.2d 919, 922 (Tenn. Crim. App. 1987) (citing State v. Moss , 727 S.W.2d 228, 235 (Tenn. 1986)).

Bec ause the Defendant was convicted of a Class C felony as a standard of fe nder, he i s presumedto be a favorable candidate for a

n alternative se

ntence, unless

sufficient evidence

rebuts that presumption. See Tenn. Code A nn. § 4 0-35- 102(6 ). In denying the Defendant an alternative sentence, the trial court me rely stated

that it “denies sa

m e based upon the prior record of the Defendant.” Thus, it does notaffirmatively appear on the record that the trial court considered the appropriate

principles of sentencing. See Ashby , 823 S.W.2d at 169. Accordingly, our review of the Defendant's sentence is de novo without a presumpti on of correctne

ss.
Guidance regarding what constitutes “evidence to the contrary ” whi ch wou ld rebut the presumption of alternative sentencing can be found in Tennessee Code Annotated § 40-35-103(1), which sets forth th

e following cons

iderations:-4-

(A) Confineme nt is neces sary to protect society by restrai ning a defendant who has a long history

of criminal condu

ct. (B) Confinement

is necessary to avoid depreciating the seriousness of the offense or confinement

is particularly

suited to provide a

n effective det

errence to othe

rs likely to commit similar offenses; or (C) Measures less restrictive than confinement have frequently or r e cently been applied unsucce

ssfully to the

defendant.

See al so Ashby , 823 S.W.2d at 170; State v. Neely , 1 S.W.3d 679, 685 (Tenn. Crim. App. 1999). Add iti ona lly, the principles of sentencing reflect that the sentence should be no greater tha n that deserved for the offense committed and should be the least severe measure necessary to achieve

the purposes for which the sentence is imposed. Tenn. Cod

e Ann. § 40-35-103 (3)-(4). The c ourt should also consider the potential for rehabilitation or treatme nt of the defendant in determining the sentence alternative. Id. § 40-35-103(5).

Based on our de novo review, we conclude that the presumption of alternative sentencing has been rebutted. We b ase o ur conclusion on the Defendant’s history of criminal conduct and our findings that confinement is necessary

to avoid depreciating the seriousness of the offense and that
measures less restrictive

than confinement

have frequently

been applie

d unsuc cessfully to the Defendant. In State v. Bingham , 910 S.W.2d 448 (Tenn. Crim. App. 1995), we stated,

In order to deny an alternative sentence based on the seriousness of the offense, “the circumstances of the offense a s committed must be e

speciall y violent, h orrifying, shocking, reprehensible,

offensive, or oth

erw ise of an excessive or exaggerated degree,” and the nature of the offense

must outw eigh all fact ors favorin g a sentence other than confin

ement.
Id. at 454 (quo ting State v. Hartley , 818 S.W.2d 370, 374-75 (Tenn. Crim. App. 1991)). The circumstances of this offense are especially reprehensible because the Defendant abused his position of trust as a prison guard in committing the offense. He was well aware of the consequences of criminal activity, a

s he saw them every da

y he worked. He was entrusted with the protection and supervision of prison inmates. Yet, the Defend

ant a greed to

bri ng dr ugs i nto the pri son faci lit y, knowing that his actions we re wrong and ill

egal. While the Defenda

nt did cooperate w

ith the police and take responsibility for his actions, we believe that the nature of the offense outwe ighs the se factors which wo

uld favor a sente

nce other than c

onfinement.

We also recognize the Defendant’s prior criminal history. Altho ugh the Defendant’s convictions are over eleve n years old , he does have two felony convictions. He did not serve any jail tim e for the att emp ted for gery, and he serv ed t en m ont hs o f a fo ur yea r se nte nce f or b urgl ary. While the Defendant went many ye ars without acquiring another offens e, i t is apparent that h is rehabilitation was not a success. When he did commit another offense, he abused

his position as a prison guard to bring

drugs into the pri

son. Thus, we conc

lude that measure

s less restrictiv

e t han confinement

have proved unsu

ccessful. In order to facilitate the Defendant’s rehabilitation an

d to-5-

impose the least severe measure necessary to ac hieve the pu rposes of the sentence, we believe a
sen ten ce of con fin eme nt i s ne cess ary. The judgment of the trial court is affirmed.

___________________________________ DAVID H. WELLES, JUDGE