IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs April 24, 2018

STATE OF TENNESSEE v. MICHAEL C. CARTER

Appeal from the Criminal Court for Sullivan County

No. S66911, S67168 R. Jerry Beck, Judge

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No. E2017-01292-CCA-R3-CD

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Defendant, Michael C. Carter, was charged via presentment with one count of failure to 

appear, one count of being a habitual traffic offender, one count of failure to provide law 

enforcement evidence of financial responsibility, one count of operating a motor vehicle 

on a public road with a false registration, and one count of failure to dim headlights 

within 500 feet of an oncoming vehicle. Defendant pled guilty and was sentenced to an 

effective sentence of four years in incarceration. Defendant appeals to this Court, 

arguing that the trial court improperly denied alternative sentencing. After a complete 

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

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

TIMOTHY L. EASTER, J., delivered the opinion of the court, in which ALAN E. GLENN and 

ROBERT H. MONTGOMERY, JR., JJ., joined.

Stephen M. Wallace, District Public Defender; M. Tyler Harrison, Assistant District 

Public Defender, for the appellant, Michael C. Carter.

Herbert H. Slatery III, Attorney General and Reporter; Ruth Anne Thompson, Senior 

Counsel; Barry P. Staubus, District Attorney General; and Mitchell B. Watson, Assistant 

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

OPINION

In September of 2016, Defendant was charged by the Sullivan County Grand Jury 

with one count of felony failure to appear. In November of 2016, the Sullivan County 

Grand Jury returned a four-count presentment charging Defendant with one count of 

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being a habitual traffic offender, one count of failure to provide law enforcement 

evidence of financial responsibility, one count of operating a motor vehicle on a public 

road with a false registration, and one count of failure to dim headlights within 500 feet 

of an oncoming vehicle. On April 7, 2017, Defendant entered guilty pleas to all five 

counts, leaving the manner of service and length of the sentence for the determination of 

the trial court. The transcript of the guilty plea hearing does not appear in the record on 

appeal.

At a sentencing hearing, Defendant sought an alternative sentence. Defendant 

testified that he was sixty-three years of age and that it had been six years since he had a 

criminal conviction. Defendant admitted that he used to have a problem “drinking beer” 

but that he quit drinking because it “tormented everybody [he] was associated with . . . 

disrupted [his family], [and] cost [him] money” as well as “jail time.” Defendant 

admitted that he had a significant criminal history and that he failed to complete a 

probationary sentence in the past because his wife was having surgery and he missed a 

weekend in jail.1 As a result of the violation, Defendant served 128 days in incarceration. 

Defendant explained that he was plagued by a bevy of health problems, including one 

herniated disc in his neck, two herniated discs in his lower back, a bad hip, restless leg 

syndrome, high blood pressure, and heart problems. Defendant had open heart surgery 

seven years prior to the sentencing hearing. Defendant admitted that he experimented 

with marijuana in high school but that he did not like it so he discontinued using it. 

Defendant asked the trial court for a “chance” to prove “that [he] can do right and [he’s] 

been doing right.” Defendant admitted that he picked up a charge for failure to appear in 

court while the charges were pending because he “wrote [the date] down on the calendar 

wrong.” 

The trial court acknowledged that Defendant had a “long record” coupled with a 

“long history of his own admission of beer use” and that Defendant continued to 

accumulate more convictions as he aged. The trial court commented that Defendant was 

definitely getting older but it did not appear he was getting “much wiser.” The trial court 

noted Defendant had three prior felonies including a grand larceny, a failure to appear, 

and a conviction for being a habitual traffic offender. However, the trial court noted that 

the plea agreement called for Defendant to be sentenced as a Range I offender. The trial 

court noted that the failure to appear and habitual traffic offender sentences were 

mandatorily consecutive and ordered Defendant to serve his effective four-year sentence 

in incarceration. The trial court commented it was difficult to “be confident that 

[Defendant] would not be in further trouble” and that Defendant presented a “danger” to

the community.

 

1 Apparently, at the time of his wife’s surgery, Defendant was serving “30 weekends” in jail. 
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Defendant filed a timely notice of appeal.

Analysis

On appeal, Defendant challenges the trial court’s denial of an alternative sentence. 

Specifically, Defendant claims the trial court abused its discretion by failing to properly 

apply the purposes and principles of the Sentencing Act. The State disagrees.

A trial court’s decision regarding the length and manner of service of a sentence is 

reviewed for abuse of discretion, with a presumption of reasonableness granted to withinrange sentences reflecting a proper application of the purposes and principles of the 

Sentencing Act. State v. Bise, 380 S.W.3d 682, 707 (Tenn. 2012). Under Bise, 

“sentences should be upheld so long as the statutory purposes and principles, along with 

any applicable enhancement and mitigating factors, have been properly addressed.” Id. at 

706. A sentence within the appropriate range will be upheld so long as “there are other 

reasons consistent with the purposes and principles of sentencing.” Id. The Tennessee 

Supreme Court explicitly applied the abuse of discretion standard of review in Bise to 

alternative sentencing in Caudle. 388 S.W.3d at 278-79 (“[T]he abuse of discretion 

standard, accompanied by a presumption of reasonableness, applies to within-range 

sentences that reflect a decision based upon the purposes and principles of sentencing, 

including the questions related to probation or any other alternative sentence.”).

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 rehabilitation or treatment. See T.C.A. '' 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 T.C.A. ' 40-35-401, Sentencing 

Comm’n Cmts.

Tennessee Code Annotated section 40-35-104 authorizes alternative sentences, 

which may include a sentence of confinement that is suspended upon a term of probation 

or a sentence of continuous or periodic confinement in conjunction with a term of 

probation. T.C.A. ' 40-35-104(c)(3), (4), (5). A defendant is eligible for probation if the 

sentence imposed is ten years or less. T.C.A. ' 40-35-303(a). Although “probation shall 

be automatically considered by the court as a sentencing alternative for eligible 

defendants,” the defendant bears the burden of “establishing suitability” for probation. 
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T.C.A. ' 40-35-303(b). “This burden includes demonstrating that probation will 

‘subserve the ends of justice and the best interest of both the public and the defendant.’” 

State v. Carter, 254 S.W.3d 335, 347 (Tenn. 2008) (quoting State v. Housewright, 982 

S.W.2d 354, 357 (Tenn. Crim. App. 1997)).

A defendant who is sentenced as an especially mitigated or standard offender and 

who has committed a Class C, D, or E felony should be “considered as a favorable 

candidate for alternative sentencing options” if certain conditions are met. T.C.A. ' 40-

35-102(5), (6)(A). The guideline regarding favorable candidates is advisory. T.C.A. '

40-35-102(6)(D). In this case, Defendant was convicted of two Class E felonies and 

three Class C misdemeanors and was sentenced to an effective sentence of ten years or 

less. Therefore he was a favorable candidate for alternative sentencing. 

Tennessee Code Annotated section 40-35-103 requires that sentences involving 

confinement be based on the following considerations:

(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). 

The trial court in this case relied on subsections (A) and (C) of Tennessee Code 

Annotated section 40-35-103(1). In ordering Defendant to serve his sentence in 

incarceration, the trial court specifically noted Defendant’s criminal history in addition to 

the five offenses at issue and the fact that Defendant was previously granted “either 

partial suspended sentences or totally suspended sentences,” and the potential for 

Defendant to be a “danger.” The trial court herein acted consistently with the purposes

and principles of the Sentencing Act. We conclude that the trial court did not abuse its 

discretion in denying alternative sentencing.

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TIMOTHY L. EASTER, JUDGE