### IN THE CO URT OF CR IMINAL APPEALS OF T ENN ESSEE AT NASHVILL E Ass ig ne d o n B rie fs Feb ru ary 17 , 20 10

STATE OF TENNESS EE v . STEVI E LEO NARD KELLY

D i r e c t A p p e a l f

r o m t h e C i r c u i t C o u r t f o r M o n t g o m e r y C o u n t y N o s . 4 0 2 0 0 6 9 1 , 4 0 3 0 0 3 3 7 , 4 0 3 0 0 5 8 5 , 4 0 6 0 1 2 9 4 , 4 0 7 0 0 5 6 7 J o h n H

. G a s a w a y , J u d g e

N o . M 2 0 0 9

- 0 1 2 6 9

- C C A

- R 3

- C D

- F i l e d A p r i l 1 4 , 2 0 1 0

The defenda

nt, Stevie L eonar d Kelly , appea ls the sentenc ing decision of t he Mont g omery County C ircuit Court. The defe ndant pled g uilty to one count of possession of a Schedule I I cont ro l l ed substance and two counts of evading arr est. He was subsequently sentenc ed to concur rent sentenc es of ten y ear s for the drug conviction and five y ear s for eac h evad i ng arr est. The trial court further order ed that the eff

ective ten-y ear sentenc e be serve d in the Depa rtment of Correc tion c onsecutive
to sentenc es for which t h e d efendant was found to be in violation of probation. On appea l, the defe ndan t ch alleng es the sentenc es, specific ally contending that: (1) the trial court improperly weig hed the enhanc ing and mit i gating fac tors in deter mining the sentenc e leng ths; (2) the court

err ed in order ing tha t the sentenc es be se rved in c onfinement; and (3) consecutive sentencing was improperly imposed. Following revie w of the rec ord, we conclude that: (1) a challeng e based upon the weig hing of enhanc ement or mitigating fac tors is no longe r a g round for appea l; (2) no abuse of discretion resulted from the court’s decision that confine ment was nece ssary beca use measure s less restric tive than confine ment had rec ently been applied; and (3) no abuse of discretion resulted from the court’s decision to impose consec utive sentenc ing based upon the fac t that the defe ndant was on probation at the time the offe nses wer e committed. Acc o rd i n gl y , we aff irm the sentenc es as imposed.

T e n n . R

. A p p . P

. 3 A p p e a l a s o f R i g h t ; J u d g m e n t s o f t h e C i r c u i t C o u r t A f f i r m e d

J O H N E V E R E T T W ILL IA M S , J

. , d e l i v e r e d t h e o p i n i o n o f t h e C o u r t , i n w h i c h D A V ID H

. W E LLE S

a n d T H O M A S T

. W O O D A LL , J J

. , j o i n e d

.

S

. W a y n e C l e m o n s , J r

. , C l a r k s v i l l e , T e n n e s s e e , f o r t h e a p p e l l a n t , S t e v i e L e o n a r d K e l l y

.

R o b e r t E

. C o o p e r , J r

. , A t t o r n e y G e n e r a l a n d R e p o r t e r ; L i n d s y P

. S t e m p e l
, A s s i s t a n t A t t o r n e y G e n e r a l ; J o h n W e s l e y C a r n e y , J r

. , D i s t r i c t A t t o r n e y G e n e r a l ; a n d J o h n E

. F i n k l e a , A s s i s t a n t D i s t r i c t A t t o r n e y G e n e r a l
, f o r t h e a p p e l l e e , S t a t e o f T e n n e s s e e

.O P I N I O N

F a c t u a l B a c k g r o u n d

I n three separ ate case s in 2005, the defe ndant pled g uilty to manufa cture of a counter feit

con t ro lled substance, possession of more than .5 g rams of coca ine with intent to rese ll, and two counts of joy riding

. As a result, he rec eived an eff ective sentenc e of eig ht y ear s, eleve n months, and twenty -nine day s, which was suspended to probation. I n 2006, whi l e s t i l l on probation, the defe ndant incurre d new char g es for possession of a Schedule I I controlled substance with intent to sell or deliver , tampering with evidence , theft of pr operty betwee n $1000 and $10,000, drivingon

a re voked license , and two counts of e vading arr est.

At a September 5, 2008 hear ing, the defe ndant admitted all violations of probation an d waived a hear ing in those case s. At the same time, h e als o enter ed open pleas to possession of a controlled substance with intent to sell or deliver as a Rang e I offe nder and to two counts of evading

arr est as a Rang e I I offe nder. The rema ining char g es wer e dis m i s s ed

. At the conclusion of the hear ing, the trial court order ed the defe ndant to attend a one-hundr ed-a nd-eig hty -day reha

bilitation
prog ram a

nd postponed sentenc ing in a ll case s until the defendant had been g iven the opportunity to complete the pr og ram.

A subsequent sentenc ing hear ing was conducte d o n M ay 28, 2009, at which the State introduced the prese ntence repor t, as well as a letter from the reha bilitation prog ram indicating that
t h e defe ndant had voluntarily left the prog ram beca use he could not comply with the rules o f t h e prog ram. The prese ntence repor t indicated that the defe ndant had three prior felony convictions and four prior misdemeanor convictions. The report also noted that the defendant had incurre d a new char g e for

criminal trespa ss two months prior to the instant hearing

.

The defe ndant also testified at the hear ing. He testified that he h ad b ee n actively participa ting in the reha

bilitation prog ram, which require d him to be able to work Monday throug h Fr iday of each week. Acc ording to the defendant, he was unable to comply with this requirement beca use he had epileptic seizures for which he had to visit the doctor. He fu rt h er related that the head of the prog ram told him that he had to work even if he was sick and that, if he could not work, he could not remain in the prog ram. The defe ndant testified that he did not voluntarily leave the
prog ram but, ra

ther, fe lt he was “ kicked out.”

After hear ing the evidenc e prese nted, the trial court order ed t h at the defe ndant serve the balanc e of his previously suspended se ntence s in the Depa rtment of Corre ction. Additionally , the
court sentenc ed the defe ndant to concur rent sentenc es of ten y ear s for the possession conviction and of five y ear s for each evading arr est conviction. The court further ordered that the new sentenc es

wer e to be serve d in the Depa rtment of Correc tion consec utive to the prior sentenc es imposed. The defe ndant now timely

appea ls the sentencing decision.

-2-Analysis

On appea l, the defe ndant appea ls the sentenc es imposed in his later convictions. He does not challeng e the revoc ation of his probation or sentenc es imposed in those case s. On appe al
, he specific ally asser

ts that: (1) the trial co u rt improperly weig hed the enhanc ement and mitigating fac tors in deter

mining the sentenc e leng ths; (2) the trial court err ed in order ing that the sentenc es be

serve d in confineme nt; and (3) the tr ial court e rre d in ordering consec utive sentenc ing.

When an acc used challeng es the leng th, rang e, or manner of service of a sentenc e, this court has a duty to conduct a de novo revie w of the sentenc e with a presumption that the deter minations made by the trial court are corr ect. T.C.A. § 40-35-401( d) (2006); State v. Ashby
, 823 S.W .2d 166, 169 (Tenn.1991)

. This presumption is “conditioned upon the aff irmative showing in the rec ord that the trial court considere d the sentenc ing principles and all rele vant fac ts and circ umstances.” Ashby
, 823 S.W .2d at 169. The burden is on th e d ef en d an t t o show that the sentenc ing was improper. T.C.A. §40-35-401, Sentenc ing Comm’n Cmts.

W h en co n ducting a de novo revi ew o f t h e s en t en ce , t h i s co u rt m u s t co n s i d er : (a ) t h e evidenc e, if any , rec eived 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 alterna tives; (d) the nature and char acte ristics of the criminal conduct involved; (e) any statutory mitigating or enhanc ement fac tors; (f) any statement that the defe ndant made on his own behalf ; and (g ) the potential or lack of potential for reha bilitation or trea tment. T.C.A. §§ 40-35-102, -103, -210 (2006); Ashby
, 823 S.W .2d at 168. Fur thermore
, we emphasize that fac ts rele vant to sentenc ing must be established by a preponde ranc e of t he evidence and not bey ond a re asonable doubt. State v. W infield , 23 S.W .3d 279, 283 (Tenn. 2000) (c iting State v. Poole , 945 S.W .2d 93, 96 (Tenn. 1997) ).

I. Length of

Sentences

First, the defe ndant arg ues t hat “because the t rial court improperly weig hed the enhanc ing and mitigating fa ct o rs , the sentenc es wer e excessive

. . . and inconsistent with the purposes of
sentenc ing.” As previously noted, t he defenda nt was sentenced as a R ang e I offe nder to ten y ear s for the drug conviction and to five y ear s for eac h evading arr est conviction as a Rang e I I offe nder. I n imposing the ten-y ear sentenc e, t h e court found two enhanc ement fac tors applicable
, that the defe ndant had a previous history of criminal convictions and that the defe ndant was on probation at the time the offe nse was committed. The court also applied two mitigating fac tors, that the criminal conduct involved neither cause d or threa tened serious bodily injury and the catc hall fac tor beca use the g uilty plea obviate d the nec essity of having a jury

trial which save d time, effor t, and expense. I n imposing t he five-y ear sentenc es, t he court applied one mitigating fac tor and one enhanc eme n t fac tor, that the defe ndant had been rele ased on probation at the time the offe nses wer e committed. The court ag ain applied the catc hall mitigating fac tor, based upon the saving s incurre d as a result of the plea. The defe ndant does not contest the application of these fac tors; he complains only that the
court err ed by “improper ly g iving the enhanc ing fac tors more weig ht tha n the mitigating fac tors.”

-3-The defe ndant’s criminal conduct, which is the subject of this a ppeal, occur

red subsequent to the enac tment of t he 2005 Amendments t o the S entenc ing Act, which beca me ef fec tive J une 7, 2005. The amende d statute no longe r imposes a presumptive sentenc e. State v. Stacey Joe Carter
, 254 S.W .3d 335, 343 (Tenn. 2008) . As furthe r explained by our supre me cour

t in Carter
,

the trial court is fre e to selec t any sentenc e within the applicable rang e so long as the leng th of the sentenc e is “consistent wit h t h e p urposes and principles of [t he Sentencing Act].” Those purposes an d p rinciples include “the imposit ion of a sentenc e justly deser

ved in rela tion to the seriousness of the offe nse,” a punishment sufficie nt “to preve nt crime a nd promote re spect for

the law,” and conside ration of a def endant’ s “potential or lac k of potential for . . . reha bilitation[ .]”

Id

. (citations and footnote omitted). The 2005 Amendment further deleted appellate revie w of the weig hing of the enhanc ement and mitigating fac tors, as it rende red these fac tors mere ly advisory and nonbinding in the sentenc ing deter mination. Under curr ent sentenc ing law, the trial court is, nonetheless, require d to “conside r” an advisory sentenc ing g uideline that is r e le v a n t to th e s e n te ncing deter mination, including the application of enhanc ing and mitigating fac tors. Id

. at 344. Howeve r, the trial court’s weig hing of various mitigating and enhanc ing fac tors is now left to the trial court’s sound discretion. Id

. at 344. Moreove r, err or in the application of enhanc ing fac tor or fac tors will
not nece ssarily require modification of the sentenc e if the s en t en cing rec ord ref lects that in deter mining the specific sentenc e leng th, the trial court considere d the provisions of Tenne ssee Code Annotated section 40-35-210( b)(1) -(7)

. Under these g uidelines, we proce ed to re v iew the defe ndant’s ar g ument.

As stated above, the defe ndant’s arg ument is misplaced under the applicable law. I n Carter
, our supreme court specific ally stated that under the 2005 amendments, a claim that the trial court did
not proper ly weig h the enhanc ement and mitigating fac tors is no longe r a g round for appea l. Id

. at 344. The rec ord ref

lects that in deter

mining the specific sentenc e leng ths, the trial court considere d the provisions of Tenne ssee Code Annotated section 40-35-210, as well as all the require d principles of sentencing

. As such, t he determination of t he sentence le ng ths was left to the s ound discretion of the trial c ourt, and we find no err or in the cour t’s exercise of

its discretion.

II. Alter native Sentencing

Next, the defe ndant complains that the trial court err ed in deny ing his reque st for alterna tive
sentenc ing, s p ecifically probation, beca use the finding that “conf inement was nece ssary was an abuse of the court’s discretion.” Specifica lly
, he cont en d s that in making its deter mination that

measure s less restric tive than confine ment had fre quently or rec ently been applied to the defe ndant, the court failed to g ive sufficie nt weig ht to the defe ndant’s testimony that his rec ent attempt at reha bilitation had been unsucc essful bec ause the defe ndant was preve nted from complying due to his epilepsy

.

A defe ndant who does not possess a criminal history showing a clea r disreg ard for society ’s

-4-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 absence of evidenc e to t he contr ary .” T.C.A. § 40-35-102( 6). The following considerations provide g uidance reg arding what constitutes “evide nce to the contra

ry ”:

(A) Confinement i s nece ssary to protec t 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

o r co n fi nement 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 less restric tive than confine ment have fre quently or rec ently been applied unsucc essfully

to the defe ndant. . . .

T.C.A. § 40-35-1 0 3 (1 ); see also State v. Hooper
, 29 S.W .3d 1, 5 (Tenn. 2000). Additionally
, the principles of sentenc ing ref lect that the sentenc e should be no g rea t er t h an t h at deser ved for the offe nse committed and should be the l east sever e measure nece ssary to achie ve the purposes for which the sentenc e is i m p o s ed

. T.C.A. § 40-35-103( 2), (4). The court should also consider the defe ndant’s potential for reha bilitation or trea tment in deter mining the appropr iate sentenc e. T.C.A. § 40-35-103( 5).

A defe ndant is elig ible for probation if the actua l sentenc e imposed upon the defe ndant is ten
y ear s or les s an d the offe nse for which the defe ndant is sentenc ed is not specific ally excluded by
statute. T.C.A. § 40-35-303( a) ( 2006). The tr ial court shall automatica lly consider pr obation as a sentenc ing alterna tive for e ligible de fenda nts; however, the defe ndant bear s the burden of proving his or her suitabilit y for probation. T.C.A. § 40-35-303( b). No criminal defe ndant is automatically entitled to probation as a

matter of la

w. T.C .A. § 40-35-303( b), S entenc ing Comm ’n C mts; State

v. Davis
, 940 S.W .2d 558, 559 (Tenn. 1997). Rather, the defe ndant must demonstrate that probation would serve the ends of justice and the best interests of both the public and the defe ndant. State v. Souder
, 105 S.W .3d 602, 607 (Tenn. Crim. App. 2002). I n deter mining whether to g rant probation, the court must consider the nature and circ umstances of the offe nse; the defe ndant’s criminal rec ord; his or her backg round and social history ; his or her prese nt condition, both phy sical and mental; the deter rent e ffe ct on the def

endant; and the defe ndant’s potential for reha bilitation or treatment. Id

.

Whil e the defe ndant was elig ible for a sentenc e of probation based upon his sentenc e leng th, it is appar ent from t h e re co rd t h at the trial court did not find the defe ndant to be an appropr iate candida te for a probationar y sentenc e. The defe ndant’s arg ument essentially asks this court to

rew eig h his testimony reg arding why he was unable to comply with the reha bilitation prog ram’s require ments. Howeve r, that is not the province of this court. By his own admission, the defe ndant

co u ld not complete the prog ram. The trial court hear d the defe ndant’s asser tions as t o wh y an d
, based upon its ruling
, implicitl y reje cted them. Review of the rec ord befor e us reve als that the trial

-5-court considere d the requisite fac tors in making its deter mination that the defe ndant was not entitled
to an alterna tive sentenc e based upon the fact that measure s less restric tive than confine ment had

re ce ntly been applied unsucce ssfully

. The rec ord supports this. A letter was admitted from t h e reha bilitation ce nter stating that the def endant “ voluntarily ” lef

t the prog ram be cause he could not comply with the rules. T h e re cord further indicates that the defe ndant has an extensive criminal history and was on probation when he committed the instant offe nses. Moreove r, the defe ndant was

arr ested for

criminal trespa ss just prior to his s entenc ing he aring . We conclude tha t the trial court did not err in rea ching its conclusion that the defe ndant failed to car ry his burden of establishing his suitabilit y for a n alterna tive sentenc e.

III. Consecutive Sentencing

Finally
, the defe ndant contends that the t ri al court err ed in order ing that the sentenc es imposed in case numbers 40200691, 40300337, and 40300585, be serve d consec utively

. The defe ndant asser

ts that the court’s decision should be revie wed de n o vo with no presumption of

corr ectne ss beca

use, in addition to finding that the offe nses wer e committed while on probation, the
court c onsidered the inappropria te criter ia of the de fenda

nt’s failure to complete the r ehabilitation
prog ram.

Tenne ssee Code Ann o t at ed section 40-35-115 g overns the imposit ion of consec utive
sentenc ing. Under the statute, a trial court may order sentenc es to run consec utively if it finds by a preponde ranc e of the evidenc e that:

(1) The defe ndant is a profe ssional criminal who has k nowing ly devoted such defe ndant’s life to c riminal acts as a major sourc e of livelihood;

(2) The defe ndant is an off ender whose re cord of

criminal ac tivity

is ex tensive;

(3) The defe ndant is a dang erous menta lly abnorma l person . . . ;

(4) The defe ndant is a dang erous offe nd er whose behavior indicates littl e or no reg ard f or human life, a

nd no hesitation about committing a crime in w hich the risk to human life is high;

(5) The defe ndant is convicted of two (2) or more statutory offe nses involving sexual abuse of a minor . . . ;

(6) The defe ndant is sentence d for a n offe nse committed while on proba tion; or

(7) The defe ndant is sentence d for c riminal contempt.

T.C.A. § 40-35-115( b) (2006). The trial court has the discretion to order consec utive sentenc ing if it finds that one or more of the require d statutory criter ia exis ts. State v. Black
, 924 S.W .2d 912, 917

-6-(Tenn. Crim. App. 1995). Howeve r, the prese nce of any single fac tor is enoug h to just i fy t h e

imposit ion of conse cu t i v e sentenc es. Id

. Whether sentenc es are to be serve d concur rently or

consec utively is a matter addres s ed t o the s ound discretion of the t rial court. State v. Adams
, 973 S.W .2d 224, 230-31 (Te nn. Crim. App. 1997).

I n order ing tha t the sentenc es be se rved c onsecutively , the trial cour t stated as follows:

Under the B( 6) portion the Court is justified if in its discretion it believes sentenc es should be serve d consec utively beca use the De fe ndant is being sentenc ed for an offe nse that is committed while on probation.

The Court has also considere d that not only was [t he defe ndant] on a rele ase status and s ubject to the conditi ons and rules and reg ulations

. . . , he was g iven an opportunity

by the Court to eng ag e in a r ehabilitation prog ram.

As noted, the defe ndant does not dispute the fac t that he was on probation when the instant offe nses wer e committed. He only arg ues that the trial court’s decision should not be revie wed with

a presumption of corr ectne ss a s the court considere d criter ia, namely the defe ndant’s unsucce ssful participa tion in the reha

bilitation prog ram, not specific ally enumer ated in the statute. This arg ument is mispla ced. The recor d clea rly indicates that the defendant was on probation whil e the offe nses in this case wer e committed. Only a finding of one criter ion is require d to impose consec utive
sentenc ing. T here was no a buse of discr etion in the trial court’ s determination.

CONCLUSION

Ba sed upon the for eg oing, the sentenc es ar e af firmed a s imposed.

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ J O H N E V E R E T T W I L L I A M S
, J U D G E

-7-