### IN THE CO URT OF CR IMINAL APPEALS OF T ENN ESSEE AT NASHVILL E Ass ig ne d o n B rie fs May 21, 2 00 8

STATE OF TENNESS EE v

. KENNET H RAY KIL PATRICK a nd CARRIE FAY KILPATRI CK

Direc t Appeal from the Circ uit Court for Lewi s County Nos. 6670, 6689 Jeff rey S. Bivins, Ju dge

No. M2007- 02082-CCA -R3-C D - F iled Jun e 29, 2009

De fe n dant, Kenne th Ray Kilpatrick, enter ed a plea of g uilty in case no. 6670 to one count o f manufa cturing marijuana in an amount not less than twenty plants nor more than ninety -nine plants,

a Class C felony ; one count of fac ilitation of possession wi t h i n t en t to manufa cture marijuana
, a Class D f e lo ny ; a n d o n e count of possession of unlawful drug para pherna lia, a Class A misdemeanor. Following a sentenc ing hear ing, the trial court sentenc ed Def endant Kenne th Kilpatrick as a Rang e I I
, multipl e offe nder, to concur rent sentences o f six y ear s for his Class C felony conviction, four
y ear s for his Class D felony conviction, and eleve n months, twenty nine day s for his misdemea nor conviction, for an eff

ective sentenc e of six y ear s. Def endant, Carrie Fa

y Kilpatrick, enter ed a plea of g uilty in case no. 6670 to one count of fac ilitation of possession with intent to manufa cture marijuana
, a Class D f

e lo ny , a n d p o s s ession of unlawful drug para pherna lia, a Class A misdemeanor. I n case no. 6689, Def

endan t C ar ri e Kilpatrick enter ed a plea of g uilty to one count of simple
posses s i o n o f marijuana
, a Class A misdemeanor, and one count of possession of unlawful drug
para pherna lia, a Class A misdemeanor. The trial court sentenc ed Def endant Carrie Kilpatrick as a Rang e I
, standard offe nder, to three y ear s for her Class D felony conviction, and eleve n months, twenty -nine day s for eac h misdemeanor convicti o n

. The trial court order ed Def endant Carrie Kilpatrick to serve her sentenc es in case nos. 6670 and 6689 concur rently for an eff

ective sentenc e of three y ear s. On appea l, both Def endants arg

ue that the trial court err ed in denying their respe ctive

re q uests for alterna tive sentenc ing and order ing eac h Def endant to serve his or her sentenc e i n confine ment. Def

endant Kenne th Kilpatrick also contends that the trial court err ed in its application of enhanc ement fac tors in deter mining the leng th of his sentenc e. After a thoroug h revie w, we aff irm the judg ments of the trial c ourt.

Tenn. R. App . P . 3 Appeal as of Right; Judgme nts of

the Circ uit Court Aff

irm ed

J O H N E V E R E T T W I L L I A M S , J
, delivere d the opinion of the court, in which J E R R Y L

. S M I T H , J
., joined. T H O M A S T. W O O D A L L , J ., not participating

.

L arr y J oe Hinson, J r., Hohenwa ld, T ennesse e, for Appellant, Kenne th Ra y Kilpatrick; and J ohn P. Cauley , Fr anklin, Tenne ssee, f or Appe llant, Carrie F ay

Kilpatrick.Robert E. Cooper, J r. , A tt o r n e y G e n e r a l a

n d Reporter ; L acy Wil ber, Assistant Attorney Gene ral; Kim Helper , District Attorney

Gene ral; and Stacey

Edmonson, Assistant District Attorney Gene ral, for the appe llee, the State of

Tenne ssee.

OP INION

I. Background

At the commence ment of the sentenc ing hear ing, both Def endants agr ee d to stipulate that they would not be able to pass a drug scre en test that d ay i f o n e wa s administered. Presentenc e repor ts for both Def

endant s wer e entered as exhibi ts without objection at the s entenc ing hear ing. Al t h o u gh the transcr ipt of the g uilty plea submissi on hear ing is not included in the rec ord, the “off icial ver sion” in case no. 6670 contained in the pr esente nce r eport states tha t:

On J anuar

y 7, 2006, Deputy Richie Weatherly of the L ewis County Sheriff’ s Depa rtment went to Kenne th and Carrie Kilpatrick’s residenc e to issue a sear ch

war rant to locate Stoney [si c] Kilpatrick, Kenne th and Carrie ’s son. Whil e at the residenc e, the office r noticed a small amount of marijuana i n plain view. He obtained another sear ch war rant to search the house for drug s. Offic ers located

numerous mar ijuana plants, see ds, and g rowing equipment.

A nar rative r eport pre pare d by

Deputy Weatherly

further stated that:

[U] pon executing the second sear ch war rant, marijuana was found throug hout the house in sever al differ ent ty pes of container s. Two g row rooms wer e located upstairs containing 47 marijuan a p lants. Grow lamps, fans, heating
, water ing supplies, fer t[ i] liz er and potting soil and timers wer e all found upstairs. Also confiscated was a Mar lin .17 rifle, seria l #96605623, with a 3x 9 scope attached.

Acc ording to Def

endant Carrie Kilpatrick’s prese ntence repor t, Offic er Kevin Carroll’s

narr ative re g arding case no. 6689 stated:

On [Decembe r 31, 2005], I was patrolling on 412 East when I noticed a v ehicle behind me g oing slow. I slowed down to about 20 m.p.h. and the vehicle finally
caug ht up to me. I followed the vehicle out 412 East and the vehicle then made a quick left hand turn. When the vehicle made this turn it ran completely over the curb

on the rig ht side of t he roadway

. I g ave dispatch the t ag [num ber] and st opped the vehicle on Gra

y Road. The driver was then found to be C ar rie Kilpatrick. I asked [Ms .] K il p a

trick for her [driver’s license], insurance and reg istration and told her why I stopped her. She then told me the rea son she ran over the curb was beca use J anice

was telling her wher e to turn and she did not know wher e they wer e g oing. [Ms .] Kilpatrick then told me that she did not have her [driver’s license] on her. As I was talking to [Ms .] Kilpatrick, Offic er Randal Hankins asked for consent to sear ch and

-2-she ref used. As I was filling out her citations for no [ d ri v er ’s license] in her possession, an d fi n an cial responsibility [,] Offic er Hankins ran his K9 dog and it aler ted on the vehicle. She was then advised that the dog had aler ted on the vehicle[,] and Of fice r Ha nkins and Serg eant Hinson sear ched the vehicle. I nside the vehic le, inside a purse[,] a g lass pipe was found that had some white residue in it and it wa s b u rn t on the end. [Ms .] Kilpatrick claimed the purse was hers. Also there [we re three ] roaches found in the ashtray that field t ested posit ive for marijuana . Offic er Hankins went throug h J anice Sharp’s purse and found [t wo] straws with white residue in them[,] and a small bag with white res i d ue in it. Both of them admitted
to using Meth in the past and J anice admitted to smoking it the nig ht before . Both

wer e cited and rele ased for drug para pherna lia[,] and Carrie Kilpatrick was also cited for simple possession of mar ijuana.

Acc ording to the prese ntence repor t, Def endant Carrie Kilpatrick was forty -five y ear s old at the time of the sentenc ing hear in g. S h e l eft high school afte r completing the ninth g rade and
repor ted a sporadic employ

ment history

. Ms. Kilpatrick stated in the repor t that she and her husband, Def endant Kenne th Kilpatrick, wer e self-e mploy ed, but she acknow ledg ed that they had not worke d for a pproxi mately

three months.

Ms. Kilpatrick descr ibed her phy sical health as poor stating that she had a “bulg ing disc” with eig hty -five perc ent nerve damag e on her left side. Ms. Kilpatrick stated that she had been presc ribed various medications for her back pain including loratab, phener g an, and morphine, but “they strung h er out,” and she stopped taking her medication. Ms. Kilpatrick stated in the repor t that s h e fi rs t started using marijuana “two or three times a day ” when she was eig hteen y ear s old. Ms. Kilpatrick

s ai d
, “I t helps the pain in my back. I t makes me eat and at night, if I have a joint, I ca n s l ee p

. ” During her interview, M s

. Ki l patrick told the probation office r that “drug testing [would] be an issue” as a condition of probation. Ms. Kilpatrick, howeve r, expressed her willingness to try other options for the mana g ement of he r bac k pain.

Acc ording to the prese ntence repor t, M s

. Ki l p atrick has three prior felony convictions for possession of marijuana
, one prior misdemeanor mari j u an a possession conviction, and one conviction for unlawful possession of drug para pherna lia. Renee Gamber
, an employ ee with PSI Probation, testified at the s entenc ing hear ing that she served as Ms. Ki l p atrick’ s probation officer afte r Ms. Kilpatrick was sentenc ed for unlawful possession of drug para pherna lia. Ms. Gamber said that Ms. Kilpatrick violated her probation on two separ ate occa sions for rec eiving new char g es, testing po s i tive on drug scre ens, not repor ting, and not paying her fines and court costs. Ms. Kilpatrick’s probation was revoke d, and the trial court order ed her confine d in the county jail until her fines and court costs wer e paid in full. Ms. Gamber said that Ms. Kilpatrick complied with the trial court’ s order

and wa s relea sed fr om jail.

Acc ording to his prese ntence repor t, D efe ndant Kenne th K ilpatrick was forty -six y ear s old
at the time of the sentenc ing hear ing and had completed the n i n t h gra d e i n high school. Mr.

-3-Kilpatrick repor ted that he had worke d for I vie’s Auto Repair in Columbi a from 1996 to 2005 when he re signe d. Mr. Kilpatrick state d that he is curr ently self-e mploy ed.

The prese ntence repor

t ref lects that Mr. Kilpatrick has two misdemeanor convictions for simple possession o f m ar i j u an a, five felony convictions for possession of marijuana
, and one conviction for driving under the influence

. Mr. Kilpatrick stated that he has smoked marijuana since he was six teen y ear s ol d “w h enever he could g et it.” Mr. Kilpatrick told his probation office r, “I don’t see h o w [ m ar i

juana] harms me in any way and it may help in many way s as for pain.”

Mary L ou J ordan, Def

endant Kenne th Kilpatrick ’ s mo th e r , te s ti f ied that she depende d on Mr. Kilpatrick to take his fathe r to doctor appointments and to drive her when she neede d to do err ands. Ms. J ordan stated that s h e wa s willing to support Mr. Kilpatrick in any way she could if he wer e place d on probation. Ms. J ordan said that Mr. Ki l p at ri ck had not been in “trouble” for the past thirteen or f

ourtee n y ear s.

Ms. J ordan stated that she had known Def endant Carri e Kilpatrick for thirty y ear s. Ms. J ordan said that Ms. Kilpatrick suffe red from back pain. Ms. J ordan st at ed that Ms. Kilpatrick stopped g oing to the pain clinic afte r she beca me addicted to her presc ribed medication. Ms. J ordan testified that Ms. Kilpatrick now used marijuana to control her back pain. Ms. J ordan descr ibed Ms. Kilpatrick a s “pea cef

ul,” and “ a g ood person.”

On cross-e x amination, Ms. J ordan acknow ledg ed that Mr. Kilpatrick’s fathe r had other children who could drive him to t h e d o ct o r’ s office

. Ms. J ordan said that she was awa re that Mr. Ki lpatrick had been convicted of driving under the influence in 2002, and simple poss es s i o n o f marijuana in 2000. Ms. J ordan explained that she meant on direc t examination that Mr. Kilpatrick had not bee n incar cer ated dur ing the past thirteen or fourtee n y ear s as a r esult of his convictions.

Def endant Kenne th Kilpatrick testified on his own behalf at the sentenc ing h ea ri n g

. He acknow ledg ed that he had violated the law and took responsibility for the offe nses. Mr. Kilpatrick said that he had held sever al long- term jobs since leaving high school. Mr. Kilpatrick stated that he resig ned from h i s l as t j o b at I vie’s Auto Repair beca use the chemica ls from the paint and paint thinner g ave him “massive heada ches.” Mr. Kilpatrick said that he was curr ently assisting his fathe rin-law in the ope ning of

a new flea marke t.

Mr. Kilpatrick acknow ledg ed that he had been incar cer ated in the L ewis County Workhouse in 1994 or 1995. He w as re lease d on parole afte r ser ving te n months, but he viol ated the terms of his parole whe n he fa iled to pass a drugscre en test. Mr. Kilpatric k said that he wa s parole d ag ain afte r serving an additional four months in confine ment, and he was able to succe ssfully complete his parole

. Mr. Kilpatrick said that afte r he serve d this sentenc e, he was subsequently place d on probation on four separ ate occa sion s an d was never found in violation of any of his probate d
sentenc es.

-4-Mr. Kilpatrick explained that he rea d about the medicinal value of marijuana in a mag azine.

At that time, Mr. Kilpatrick said that his wife was suffe ring from back pain and had become “strung out” on pain medica

tion. Mr. Kilpatrick aske d Ms. Kilpatrick if he g rewmarijuana for he r, and if the marijuana controlled her pain, would she stop taking her presc ri p t i o n pain medicine. Mr. Kilpatrick stated, “ and it worke d.”

When asked why he would smoke marijuana prior to the sentenc ing hear ing, Mr. Kilpatrick replied, “I g uess I ’m stupid, I don’t know, I – its hard to brea k old habits.” Mr. Kilpatrick, howeve r, said that he was willing to attend a drug reha bilitation prog ram as a condition of probation, and he believed tha t he could succ essfully complete the pr og ram.

On cross-e x amination, Mr. Kilpatrick acknow ledg ed that his was a close family

. Mr. Kilpatrick confirme d that he spoke to Ba rry Carroll in the Distri ct Attorney ’s Offic e prior to the
g uilty plea submission hearing . Mr. Kilpatrick sa id that he told Mr. Carroll that:

[M] y wife and my son did not know nothing [si c] about the g row ro o m , and that sounds far fetc hed, but I have a big house. My wife h as a b ad back, we have an upstairs, and it’s an attic-ty pe stairs. She didn’t g o upstairs and she didn’t know what
was g oing on up there

. I told her I had a litt le workshop up ther e. . . . You know, I did it, it ’s my

responsibility

.

Mr. Kilpatrick acknow ledg ed that he told his wife that he was g oing to g row marijuana
, but he said that he never told her wher e he was g oing to do so. Mr. Kilpatrick explained his conce rn with random drug scre ens as a condition of probation as f ollows:

Be cause ever

y body has a differ ent outlook in life; my outlook is that pot’s g ood for
y ou. I t should be leg al. I t’s the key to saving the world.

Mr. Kilpatrick said that he understood th a t possession of marijuana was curr ently illega l. Mr. Kilpatrick stated that he had forty -seve n marijuana plants in his house when he was arr ested, and he smoked marijuana ever

y day if the drug was available

. Mr. Kilpatrick acknow ledg ed that he smoked three j oints on the night befor e the sentenc ing hear ing. Mr. Kilpatrick ag ree d that other family members could assist his pare nts if he wer e incar cer ated, but it was more convenie nt f or him to do

so.

At the conc lusion of the sentenc ing he aring , the trial cour t initi ally observe d:

[T] hat this case prese nts a diffic u l t ca s e for this Court. We seem to have a family here that – well, no assuming about the fac t that they clea rly car e and love eac h other, and they appea

r t o have a

g ood family

rela tionship. But we have a situation where al l t h ree members of the family continue to, in essenc e, thumb their nose at t h e justice sy stem time and time ag ain.

-5-The trial court also found that Mr. Kilpatrick’s testimony that M s

. Ki lpatrick and Stony

Kilpatrick did not know that Mr. Kilpatrick was g rowing marijuana in their home was not cre dible.

Wit h respe ct to Def

endant Ke nneth Kil patrick, the trial court placed subst antial weight on the fa ct that he had prior criminal convictions in addition to those nece ssary to qualify him as a Rang e I I offe nder for sentenc ing purposes. See T.C.A. § 40-35-114( 1). The trial court also found that Mr. Kil patrick w as a le ader in the commission of t he offenses because he essentially testified that he was the primary actor in deciding to g row marijuana

. See id. § 40-35-114( 2). The trial court, howeve r, did not assig n this enhance ment fac tor much we ight.

I n m itigation, the trial court found that Mr. Kilpatrick’s conduct did not cause or t h re at en

s er i o u s bodily injury but assig ned rela tively littl e weig ht to this consideration. See id. § 4 0 -3 5

- 113(1). The trial court acknow ledg ed that Mr. Kilpatrick acc epted responsibility for his conduct and noted that the rec ord established that Mr. Kilpatrick took g ood car e of his pare nts. See id. § 40-35- 13(13).

A f te r c o n s id e r in g the applicable enhanc ement and mitigating fac tors, the trial co u r t s e n te n c e d Mr. Kilpatrick to six y ear s for his C l as s C felony conviction, four y ear s for his Class D felony conviction, and e leven months, twenty -nine da y s for his misdemeanor

conviction.

I n deter mining the manner of service of the sentenc es, t h e t ri al co urt noted those fac tors favor ing some form of alterna tive sentenc ing. The trial court did not find that it was necessa ry to protec t society ag ainst Mr. Kilpatrick’s conduct despite his prior criminal history
, and that there was

no evidenc e that Mr. Kilpatrick’s confine ment would be a deter renc e to others. The trial court also observe d that althoug h Mr. Kilpatrick had violated parole once, this violation was not a rec ent event.

Nonethele ss, the trial court f ound that there was “re ally [no] chanc e of re habilitation,” and that “the likelihood of another crime happening during the probationar y period [was] quite high.” The trial court also found that in light of Mr. Kilpatrick’s prior conduct, “a sentenc e of full probation would unduly depre ciate the seriousness of [t he] offe nses.” Ba sed on the fore g oing, the trial court denied Def

endant Kenne th Kilpatrick’s reque st for alterna tive sentenc ing and order ed him to serve his sentence s in confinement.

Wit h respe ct to Def

endant Carrie Kilpatrick, the trial court place d substantial weig ht on Ms. Kilpatrick’s prior criminal history

. See T.C.A. § 40-35-114( 1). The trial court also found that Ms. Ki l p at rick had failed to comply with the conditions of a sentenc e involving rele ase into t h e community for prior offe nses, and that she was on probation when the offe nses in case no. 6670 wer e committed. See id. §§ 40-35-114( 8), (13)

.

I n mitigation, the trial court found that Ms. Kilpatrick’s conduct did cause or threa ten serious bodily injury
, and that, with respe ct to the fac ilitation conviction, Ms. Kilpatrick play ed a minor role in the commission of the offe nses. See id. §§ 40-35- 113(1), ( 4).

-6-After weig hing the applicable enhanc ement and mitigation fac tors, the trial court sentenc ed

Ms. Kilpatrick as a Rang e I
, standard offe nder, to concur rent sentenc es of three y ear s for her Class D fe lony conviction, and e leven months, twenty nine day s for e ach misdeme anor c onviction.

I n deter mining the manner of service of Ms. Kilpatrick’s sentenc es, the trial court found that Ms. Kilpatrick’s criminal history was not sufficie nt, by itself, to eliminate i ts consideration of her
reque st for alternative s en t en cing. The trial court found, howeve r, that there was conce rn that an alterna tive sentenc e would depre ciate the seriousness of the fac ilitation offe nse. The trial court also found that the rec ord, including Ms. Kilpatrick’s statements in her prese ntence repor t, showed there did n o t ap p ea r to be “much, if any , chanc e of reha bilitation,” and that the risk of Ms. Kilpatrick committing another offe nse was “e x t reme ly high.” The trial court thus denied Ms. Kilpatrick’s
reque st for alternative sentenc ing, and order ed Ms. Kilpatrick to serve her sentenc es in confine ment.

II. Stand ard of Review

On ap p ea l
, t h e party challeng ing the sentenc e im posed by the t rial court has t he burden of establishing that the sentenc e is improper. See T.C.A. § 40-35-401, Sentencing Comm'n Comments;

see also State v. Arne tt

, 49 S.W .3d 250, 257 (Tenn. 2001). When a defe ndant challeng es the leng th,
rang e, or manner of service of a sentenc e, it is the duty of this Court to conduct a de novo revie w on the record with a presumption that the determinations made by the cour t form which the a

ppeal is taken are corr ect. T

. C. A. § 40-35-401( d). This presumption of corr ection, howeve r, “‘is conditioned
upon the aff

irmative showing in the rec ord that the trial court considere d the sentenc ing principles and all re levant fa cts and c ircumstance s.’” State v. Carter
, 254 S.W .3d 335, 344-45 (Te nn. 2008) (quoting State v. Ashby
, 823 S.W

. 2 d 166, 169 Tenn. 1991)). “I f, howeve r, the trial court applies inappropria te mitigating and/or enhanc ement fac tors or otherwise fails to follow the Sentencing Act, the presumption of corr ectne ss fails,” and our revie w is de novo. Carter
, 254 S.W .3d at 345 (quoting State v. Shelton, 854 S.W.2d 116, 123 (Tenn. Crim. App. 1992); State v. Pierce
, 138 S.W .3d 820, 827 (Tenn. 2004) ).

A t ri al court is mandated by the S entenc ing Act t o “impose a sentenc e withi n the rang e of punishment.” T.C.A. § 40-35-210( c). A trial court, howeve r, “is no longe r require d to be g in w ith

a presumptive sentenc e subject to incre ase and decr ease on the basis of enhanc ement and mitigating fac tors.” Carter
, 254 S.W

. 3 d at 3 4 6

. There fore
, an appellate court is “bound by a trial court’s decision as to the leng th of the sentenc e imposed so long as it is imposed in a manner consistent with the purposes a

nd principles set out in sections -102 a nd -103 of the Sente ncing Act.” I d.

I n conducting a de novo revie w of a sentenc e, this Court must consider (a) the evidenc e adduce d at the trial and the sentenc ing hear ing; (b) the prese ntence repor t ; (c) the principles of
sentenc ing and arg uments as to sentenc ing alternatives; (d ) the nature and char acte ristics of the criminal conduct involved; (e) evidenc e and information offe red by the parties on the enhanc ement and mitigating fac tors set forth in Tenne ssee Code Annotated sections 40-35-113 and 40-35-114; (f) any statistical inf

ormation provided by the Administrative Offic e of the Courts a s to T ennesse e sentenc ing prac tices for simil ar offe nses; and (g ) any statement the defe ndant wishes to make in the

-7-defe ndant’s own behalf about s entenc ing. T.C.A. § 40-35-210( b ); s ee also Carter

, 254 S.W .3d at 343; State v. I mfeld

, 70 S.W .3d 698, 704 (Tenn. 2002)

.

I n the case sub judice
, we note that althoug h the trial cour t and the par

ties on appea l spoke in terms of a presumption of elig ibilit y fo r alterna tive sentenc ing, eff

ective J une 7, 2005, our leg islature amende d Tenne ssee Code Annotated section 40-35-102( 6) by deleting the statutory presumption that a defe ndant who is convicted of a C l as s C
, D, o r E felony
, as a mitigated or standard offe nder, is a favor abl e candida te for alternative sentenc ing. Our sentenc ing law now provides that a defe ndant who does not possess a crimi n al h i s tory showing a clea r disreg ard for society ' s laws and morals, who has not failed past reha bilitation eff

orts, and who “ is an espec ially mitigated or standard offe nder convicted of a Class C, D or E felony
, should be considere d as a favor able candida te for alterna tive sentenc ing options in the absenc e of evidenc e to the contra ry

. T.C.A. § 40-35-102( 5), (6) (empha sis added)

. Addit ionally
, a trial court is “not bound” by the advisory sentenc ing g uidelines; rathe r it “shall consider” them. I d. § 40- 3 5

- 1 0 2 ( 6 ) ( e mp h a s is added)

.

No longe r, there fore
, is any defe ndant entitled to a presumption that he or she is a favor able candida te for probation. Carter

, 254 S.W .3d at 3 4 7

. Generally
, defe ndants classified as Rang e I I or R ang e I I I offe nders are not to be considered a s favor able c andidates f or alter native sente ncing

. T

. C

. A. § 4 0 -3 5 -102(6)

. I f a defe ndant seeks probation, then he or she bear s the burden o f “esta blishing suitabilit y .” I d. § 40-35-303( b). As the Sentencing Commi ssion po i n t s o u t , “eve n though pr obation must be automatically considere d as a sentenc ing option for elig ible defe ndants, the defe ndant is not automatically entitled to probation as a matter o f law.” I d. § 40-35-303, Sentencing Comm’n Cm ts.

The following considerations provide g uidance reg arding what constitutes “evide nce to the
contra ry :”

(A) Confinement is ne cessa ry to pr otect society by restra ining a defe ndant who has a long history

of cr iminal conduct;

(B ) Confinement is nece ssary to avoid depre ciating the seriousness of the offe nse or confine ment is particula

rly suited to provide an eff ective deter

renc e to others likely to commit si milar offe nses; or

(C) Measur es l ess restric tive than confine ment have fre quently or rec ently been applied unsucc essfully

to the defe ndant. . . .

T.C.A. § 40-35-103(1 ); s ee al s o Carter
, 254 S.W .3d at 347. Additionally
, the principles of
sentenc ing ref

lect that the sentenc e should be no g rea ter than that deser

ved for the offe nse committed and should be the least sever e measure nece ssary to achie ve the purposes for which the sentenc e is imposed. T.C.A. § 40-35-103( 2), (4). The court should a lso c onsider the defe ndant' s potential for reha bilitation or treatment in deter mining the a

ppropriate sentenc e.

-8-III. Analysi s

As previously

noted, a tra

nscript of the g uilty

plea submission hearing

was not included in the rec ord and thus the nature and circ umstances of the criminal conduct for case nos. 6670 and 6689
may be g leane d only from the brief “off icial versions” and narr ative repor t contained in the
prese ntence repor

ts and the testimony at the sentenc ing hear ing. Def endants’ failure to include the
transcr ipt of the g uilty plea hear ing in the rec ord prec ludes this Court from conducting a full de novo revie w of the sentenc e under Tenne ssee Code Annotated section 40-35-210( b). See State v. Be nnett, 798 S.W .2d 783, 789 (Tenn. Crim. App. 1990); State v. Shatha L itisser J ones, No. W2002-02697- CCA-R3-CD, 2003 WL 21644345, at *3 (Tenn. Crim. App. at J ackson, J uly 14, 2003), no perm. to appea l filed. Nonethele ss, based on our revie w, we find no err or in the trial court’s sentenc ing deter minations.

A. Enhanc ement F actor s

Def endant Kenne th Kilpatrick does not challeng e the trial court’s considera tion of his prior criminal hi story

in deter mining the leng th of hi s sentenc es for his felony convictions. See T.C.A. § 40-35-114( 1). He arg

ues, howeve r, that the trial court err ed in f inding as an enhanc ement fac tor that he was a leade r in the commission of the offe nses. I d. § 40-35-114( 2). Mr. Kilpatrick submits that there was no evidenc e that he direc t ed o r expected Ms. Kilpatrick to participa te in the commission of t he offenses. Mr. Kil patrick contends t hat whil e knowledge of t he co m mission of

an offe nse in her house may have supported Ms. Kilpatrick’s fac ilitation conviction, such knowledg e is not sufficient to show that she par ticipated in the off

ense.

As a Rang e I I
, multipl e offe nder, Mr. Kilpatrick was subject to a sentenc e of betwee n six and ten y ear s for his Class C felony conviction, and a

sentenc e of be tween f

our and eig ht y ear s for his Class D felony conviction. T.C.A. § 40-35-112( b)(3)
, (4). At the sentenc ing hear ing, the trial court found that:

[T] the proof does support applica tion of enhanc ement fa ctor number two as to Mr. Kenne th Kilpatrick. This is a matter in which Mr. Kilpatrick, himself, has indicated that he was the primary acto r wi t h re gard to the char g es from J anuar y 7, 2006, forming the basi s o f the charg es i n [case no.] 6670, and has indicated, in fac t, he’s tried to indicate that neither Mrs. Kilpatrick nor Mr. Stony Kilpatrick had any knowledg e of what was happening

. Acc ording ly
, the court finds fac tor number two to be applica

ble, but does not place a g reat deal of w eig ht on that particular fac tor.

Enhanc ement fac tor (2) permits enhanc ement of a defe ndant’s sentenc e if the defe ndant was a leader in the com m i s s i o n of an offe nse i nvolving two or m ore criminal actor s. T.C.A. § 40-35- 114(2). Mr. Kilpatrick testified that he devised a plan to g row marijuana in his home afte r rea ding about the drug ’s possible medicinal benef its in a mag azine. Mr. Kilpatrick told Ms. Kilpatrick, who suffe red from back pain, that he would g row marijuana for her if Ms. K ilpatrick would quit taking her presc ription medicine. Mr. Kilpatrick testified at the sentenc ing hear ing that “it worke d.” Ms.

-9-Kilpatrick acknow ledg ed in her prese ntence repor t that she had stopped taking her medication, and that marijuana helped the pain in her back. The trial court found that Mr. Kilpatrick’s testimony that Ms. Kilpatrick did not know he wa s g rowing marijuana in the house less than c redible.

Ba sed on our revie w, we conclude that the trial court did not err in its cons i d er at i o n of enhanc ement fac tor (2). Nonethele ss, even if it made this deter mination in err or, the trial court sentenc ed Mr. Kilpatrick to the m inimum sentenc es in the ra ng e for both his Cl ass C and C lass D felony convictions notwithstanding Mr. Kilpatrick’s leng thy prior criminal record. Def endant Kenne th Kilpatrick is not entitled to relief on this issue.

B. D enial of D efe ndants’ Reque sts for Alternative Sentencing

Mr. Kilpatrick arg

ues that the trial court’s finding that his reque st for alternative sentenc ing should be denied based on the s eriousness of the offense was err oneous. Mr. Kil patrick contends that the offe nses wer e not sufficie nt l y re p re h en sible or offe nsive to require incar cer ation. Mr. Kilpatrick also arg ues that the trial court err ed in its finding that he was not a succe ssful candida te for reha bilitation. Mr. Kilpatrick submits that althoug h he had one parole violation, he was ultimately able to succe ssfully complete his parole for that offe nse. Mr. Kilpatrick also testified at the sentenc ing hear in g th a t h e s to p p ed drinking afte r he was convicted of driving under the influence

. Mr. Kilpatrick arg ues that these fac tors, as well as his succe ssful completion of probation for other offe nses, indicate his suitability to reha bilitation.

As a Rang e I I
, multipl e offe nder, Mr. Kilpatrick is not considere d a favor able candida te for altern at i v e sentenc ing. See T.C.A. § 40-35-102( 6). Nonethele ss, he rema ins elig ible for an alterna tive sentenc e beca

use his sentenc es wer e ten y ear s or less and the offe nses for which he was convicted a

re not spec ifically

excluded by

statute. T.C.A. §§ 40-35-102( 6), -303( a).

The lack of an adequat e re co rd o n appeal makes particula rly difficult a revie w of the trial court’s relianc e on the nature and circ umstances of the offe nses as one of the basis for denying both Def endants’ reque sts for alterna tive sentenc ing. As for Mr. Kilpatrick, the trial court briefly noted
at the conclusion of the sentenc ing hear ing “that a sentenc e of full probation would unduly depre ciate the seriousness of this offe nse, particula rly in light of the past conduct,” without further explanation.

When the “ser iousness of the offe nse” fac tor forms the basis for d en y ing alterna tive
sentenc ing, “‘the circ umstances of the offe nse as committed must be espec ially violent, horrify ing, shocking
, repr ehensible, offe nsive or otherwise o f an ex agg era ted deg ree ,’ and the nature of the offe nse must outweig h all fac tors favor ing a sentenc e other than confine ment.” State v. Grissom, 956 S.W .2d 514, 520 (Tenn. Crim. App. 1997) (citations omitted).

Nonethele ss, the nature and cir cumstance s of the off enses wer e only

one basis for

deny ing Mr. Kilpatrick’s reque st for an alterna tive sentenc e. Of particula r signific ance to the trial court was Mr. Kil patrick’ s lack of amena bility to reha

bilitation and the likelihood that he would re offe nd as evidenc ed by Mr. Kilpatrick’s testimony at the sentenc ing hear i n g an d h i s statements in the

-10-prese ntence repor t. The trial court acknow ledg ed Mr. Kilpatrick’s acc eptanc e of responsibility for his offe nses, his candor during the sentenc ing hear ing, and his testimony on direc t examination that he would participa te in a drug reha bilitation prog ram if it was a condition of probation. The trial court obser

ved, howe ver,

[H] e then t urned around on cross examination, and in very candid testimony
, admitted that he would smoke pot ever y day if he had it available to him, and that he felt strong ly that marijuana should be leg alized and that marijuana was g ood for y ou.

The trial court also found that if was diffi cu lt to acc ept Mr. Kilpatrick’s testimony “as truthful and whole, particula rly with reg ard to whether Ms. Carrie Kilpatrick knew about the
opera tion in the attic.”

Mr. Kil p at ri ck st ipulated at the s entenc ing hear ing that he could not pass a drug scre ening
test beca use he had smoked three joints of marijuana the night befor e. Mr. Kilpatrick attributed his decision to smoke marijuana
, notwithstanding his sentenc ing hear ing the next day
, to the difficulty in “bre ak[ing] old habits.” Mr. Kilpatrick also told the probation office r that “drug testing [would] be an issue” if made a condition of probation beca use he believed that marijuana did not cause him
any harm. Mr. Kilpatrick has numerous prior misdemea nor and f elony convictions for possession of marijuana

.

The trial judge is in the best position to assess a d ef en d an t 's cr edibility and potential for rehabilitation. State v. Nunley
, 22 S.W .3d 282, 289 (Tenn. Crim. App. 1999). Fur thermore
, “[ a] felon’1s reha

bilita t i o n potential and the risk of repe ating criminal conduct are fundame ntal in deter mining whether he or she is suited for alternative sentenc ing.” State v. Kee n, 996 S.W .2d 842, 844 (Tenn. Crim. App. 1999). Ba sed on our r eview of the re cord, w e conc lude t hat t he trial court did not err in deny ing Mr . Kilpatrick’s r equest for full probation or some other form of alterna tive
sentenc ing. D efe ndant Kenne th Kilpatrick is not entitled to relief on this issue.

Def endant Carrie Kilpatrick also appea ls the trial court’s denial of her reque st for alterna tive
sentenc ing, arg uing that full confine ment was not the “lea st sever e measure nece ssary to achie ve the
purposes for which the sentenc e is imposed.” Ms. Kilpatrick, as a Rang e I
, standard offe nder, convicted of a Class D felony
, is considere d a favor able candida te for alterna tive sentenc ing. T.C.A. § 40-35-102( 6). The trial court stated that althoug h Ms. Kilpatrick had an extensive prior criminal history
, it did not find th at t h i s fa ct or was strong enoug h to disqualify her as a candida te for alterna tiv e s en t encing. Howeve r, the trial court found that Ms. Kilpatrick’s statements in the
prese ntence rep o rt “c lear ly indicated that drug testing would be a problem for her with reg ard to potential conditions of probation,” a nd that she admitted that she would not be a ble to pass a drug

s cr ee n test on the day of the sentenc ing hear ing. The trial court found that “just based upon t h e offe nse, itself, the fac ilitation to manufa cture the drug
, that there is a conce rn about depre ciating the seriousness of that offe nse.” Ba sed on a consideration of the totality of the circ umstances, the trial court de nied Ms. Kilpatrick’s r equest for alternative sentenc ing.

-11-I n her pr esente nce r eport, Ms. Kilpatrick sta ted:

Drug testing [as a condition of probation] will be an issue. Ismoke a joint for pa in and to eat and sleep. I was g oing to a pain clinic. They would not let me do phy sical thera py other than walking

. The medication I was on strung me out. Itook my self off of it.

Ms. Kilpatrick informed the probation office r that she has used marijuana two or three times a day since she was eig hteen y ear s old and stipulated at the sentenc ing hear ing that she would test positive for mar ijuana if a dminist ere d a drugscre en test that day

.

As noted above, the trial court is in the best position to assess a defe ndant’s po t en tial for reha bilitation. Nunley
, 22 S.W .3d at 289. Ba sed on our revie w, we conclude that the trial court did
not err in deny ing Ms. Kilpatrick’s reque st for alternative sentenc ing. Def endant Carrie Kilpatrick is not entitl ed to re lief on this issue.

CONCLUSION

After a thoroug h revie w, we a ffirm the judg ments of the trial c ourt.

___________________________________ J OHN EV ERETT WI L L I AMS, J UDGE

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