IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

May 22, 2018 Session

STATE OF TENNESSEE v. KENTRELL LEBRON LINDSEY

Appeal from the Criminal Court for Bradley County

No. 16-CR-371 Sandra Donaghy, Judge

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No. E2017-01542-CCA-R3-CD

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The Defendant, Kentrell Lebron Lindsey, appeals the trial court’s order requiring him to 

serve in confinement his effective six-year sentence for his guilty-pleaded convictions of

possession of dihydrocodeinone, a Schedule III controlled substance, with the intent to 

sell or deliver; possession of oxycodone, a Schedule II controlled substance, with the 

intent to sell or deliver; and possession of a firearm with the intent to go armed during the 

commission of a dangerous felony. The trial court found that Tennessee Code Annotated 

section 39-17-1324(e), which required that the Defendant serve his three-year sentence 

for the firearm conviction in confinement and consecutively to his sentences for the drug 

convictions, rendered the Defendant statutorily ineligible for probation for his drug 

convictions. We conclude, and the State concedes, that the trial court erred in finding the 

Defendant statutorily ineligible for probation for his drug convictions. Accordingly, we 

reverse the trial court’s denial of probation for the drug convictions and remand the case 

for the trial court to consider the Defendant’s suitability for probation on his three-year 

sentences for the drug convictions. The trial court’s judgments are otherwise affirmed. 

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

in Part, Reversed in Part, and Remanded

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which THOMAS T.

WOODALL, P.J., and ROBERT W. WEDEMEYER, J., joined.

Philip L. Duval, Chattanooga, Tennessee, for the appellant, Kentrell Lebron Lindsey.

Herbert H. Slatery III, Attorney General and Reporter; Benjamin A. Ball, Senior Counsel;

Stephen D. Crump, District Attorney General; and Andrew Watts, Assistant District 

Attorney General, for the appellee, State of Tennessee.

06/20/2018
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OPINION

FACTUAL AND PROCEDURAL HISTORY

The Defendant was charged with possession of dihydrocodeinone with the intent 

to sell or deliver, possession of oxycodone with the intent to sell or deliver, possession of 

a firearm with the intent to go armed during the commission of a dangerous felony, 

possession of less than one-half ounce of marijuana, driving on a cancelled, suspended, or

revoked license, and speeding. The Defendant entered into a plea agreement whereby he 

pleaded guilty to the dihydrocodeinone, oxycodone, and firearm charges, and the 

remaining charges were dismissed. Pursuant to the plea agreement, the Defendant 

received a three-year sentence as a Range I offender for each conviction, and his 

sentences for the drug convictions were to run concurrently with each other and 

consecutively to his sentence for the firearm conviction. The trial court was to determine 

the manner of service of the sentences. The trial court entered an order accepting the 

Defendant’s guilty plea.

The transcript of the plea hearing is not included in the appellate record. 

According to the affidavit of complaint, a deputy with the Bradley County Sheriff’s 

Department conducted a traffic stop after the Defendant was traveling thirty-nine miles 

per hour in a thirty-mile-per-hour zone. The deputy checked the Defendant’s driver’s 

license and learned that it was suspended. While speaking to the Defendant, the deputy 

smelled what he believed to be marijuana coming from the Defendant’s vehicle. The 

Defendant granted the deputy consent to search the vehicle. The deputy asked the 

Defendant whether he had any drugs on his person, and the Defendant told the deputy 

that he had marijuana in his pocket. The deputy patted the Defendant down and found a 

baggie containing thirty-seven hydrocodone pills, nine oxycodone pills, a small baggie of 

marijuana, and cigarillos in the front pocket of the Defendant’s cargo shorts. While 

searching the Defendant’s vehicle, the deputy found a .380 firearm and an additional

magazine in the center console. The deputy advised the Defendant of his rights and 

asked the Defendant what he was planning to do with the pills. The Defendant admitted 

that he planned to sell the pills.

During the sentencing hearing, the State entered the Defendant’s presentence 

report into evidence, and the witnesses who testified included the Defendant, his mother, 

and a probation officer. At the conclusion of the sentencing hearing, the trial court made 

extensive findings based upon the nature and circumstances of the offenses, the 

Defendant’s education, his employment history, his social history, his criminal history, 

his potential for rehabilitation, and the applicable enhancement and mitigating factors. 

The trial court recognized that the Defendant’s three-year sentence for the firearm 

conviction was the mandatory minimum sentence and that he was not eligible for 
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probation for that conviction. See T.C.A. § 39-17-1324(a), (e)(2), (g)(1). The trial court 

also recognized that Tennessee Code Annotated section 39-17-1324(e)(1) required that 

the Defendant serve his sentence for the firearm conviction consecutively to his sentences 

for the drug convictions, which were the underlying dangerous felonies upon which the 

firearm conviction was based. The trial court stated that it was initially inclined to grant 

the Defendant probation for the drug convictions. However, the trial court found that it 

was prohibited from doing so based upon its reading of section 39-17-1324(e). 

Accordingly, the trial court ordered the Defendant to serve his effective six-year sentence 

in confinement.

ANALYSIS

The Defendant contends that the trial court erred in finding that it did not have the 

authority to order him to serve his sentences for the drug convictions on probation. The 

State concedes error, and we agree.

A trial court’s decision regarding alternative sentencing is reviewed for abuse of 

discretion, accompanied by a presumption of reasonableness for a sentence that falls 

within the appropriate range and reflects that a decision was based on the purposes and 

principles of sentencing. State v. Caudle, 388 S.W.3d 273, 278-79 (Tenn. 2012). A trial 

court’s decision regarding probation will only be invalidated if the court “wholly 

departed from the relevant statutory considerations in reaching its determination.” State 

v. Sihapanya, 516 S.W.3d 473, 476 (Tenn. 2014) (order) (per curiam). Under an abuse of 

discretion standard, an appellate court may not substitute its judgment for that of the trial 

court. Id. at 475.

The trial court should consider “[t]he potential or lack of potential for the 

rehabilitation or treatment of the defendant” in determining whether alternative 

sentencing should be granted. T.C.A. § 40-35-103(5). A trial court may deny alternative 

sentencing when:

(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.
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T.C.A. § 40-35-103(1). “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. Brian Allen Cathey, No. E2015-01284-CCA-R3-CD, 

2016 WL 2641766, at *3 (Tenn. Crim. App. May 6, 2016) (citations omitted). The court 

should also consider the defendant’s truthfulness. State v. Bunch, 646 S.W.2d 158, 160 

(Tenn. 1983). The defendant bears the burden of establishing his suitability for 

probation. T.C.A. § 40-35-303(b).

The Defendant was convicted of possession of dihydrocodeinone, a Schedule III 

controlled substance, with the intent to sell or deliver, a Class D felony, and possession of 

oxycodone, a Schedule II controlled substance, with the intent to sell or deliver, a Class C 

felony. See T.C.A. § 39-17-417(a)(4), (c)(2)(A), (d)(1). The Defendant also was 

convicted of possession of a firearm with the intent to go armed during the commission 

of a dangerous felony, a Class D felony with a mandatory minimum sentence of three 

years. See T.C.A. § 39-17-1324(a), (g)(1). As noted by the trial court, the Defendant is 

ineligible for probation by statute for his firearm conviction. See T.C.A. § 39-17-

1324(e)(2). Furthermore, the sentence imposed for the firearm conviction “shall be 

served consecutive to any other sentence the person ... is sentenced to serve for 

conviction of the underlying dangerous felony.” T.C.A. § 39-17-1324(e)(1). 

The trial court found that section 39-17-1324(e) also rendered the Defendant 

ineligible for probation for the drug convictions and the underlying dangerous felonies. 

However, section 39-17-1324(e) limits the trial court’s discretion to grant probation only 

for convictions resulting from a violation of that statute and does not limit the trial court’s 

discretion to grant probation for the underlying dangerous felonies. Rather, the 

Defendant, who was sentenced to three years each for the drugs convictions, was eligible 

for probation for those convictions. See T.C.A. § 40-35-303(a) (proving that a defendant 

is eligible for probation if the sentence actually imposed is ten years or less, and the 

offense is not specifically excluded from probation consideration). Accordingly, we 

remand the case for the trial court to consider the Defendant’s suitability for probation for 

his three-year sentences for the drug convictions. See State v. Curtis Moore, No. W2013-

00179-CCA-R3-CD, 2014 WL 465751, at *12 (Tenn. Crim. App. Feb. 4, 2014) (holding 

that although the defendant was statutorily ineligible for probation for his firearm 

conviction pursuant to 35-17-1324(e), he was eligible for probation for his eight-year 

sentence for attempted second degree murder, which was the underlying dangerous 

felony).
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CONCLUSION

We affirm the trial court’s denial of probation with regard to the Defendant’s 

three-year sentence for possession of a firearm with the intent to go armed during the 

commission of a dangerous felony. We reverse the trial court’s denial of probation with 

regard to the Defendant’s two drug convictions and remand the case to the trial court to 

consider the Defendant’s suitability for probation for the two drug convictions.

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JOHN EVERETT WILLIAMS, JUDGE