### IN THE CO URT OF CRIMINAL APPEALS OF T ENN ESSEE

AT NASHVILL E A ssi gn ed on Briefs Octo be r 8, 2 01 3

STATE OF TENNESS EE v . DANTE DEVON OMAR TRUI TT

Appeal f romthe Cr im inal Cou rt for Davidson Coun ty No. 2012-C- 2397Cheryl Blackbu rn, Judge

No. M2013- 00606-CCA -R3-C D F iled October 16, 2013

The Def endant, Dante De von Omar Truitt, pled guilty to explos ive wea pon possession with an agree d eig ht-y ear sentenc e as a Rang e I , standard offe nder. At a subsequent sentenc ing hear ing, the trial court sentenc ed the Def endant to serve the eig ht-year sentenc e in the Tenne ssee Depa rtment of Correc tion. T h e De fendant appea ls, asser ting that the trial court err ed when it denied alterna tive
s en t encing. After a thoroug h revie w of the record and applicable law, we find no err or i n the t ri al court’s judg ment.
Tenn. R. App . 3 Appeal as of Right; Judgme nt of th e Cr im inal Cou rt A ff irm ed

R O B E R T W. W E D E M E Y E R , J ., delivere d the opinion of the Court, in which J A M E S C U R W O O D W I T T , J R ., and R O G E R A. P A G E , J J ., joined.

Emma Rae Te nnent (on a ppeal) and Sara

h King(at he aring ), Na shville, Tennessee , for the appellant, Da

nte Devon O mar Tr

uitt.
RobertE.Cooper,Jr.,AttorneyGene ral a nd Reporter ; Jeffr ey

D. Z entner ,Assistant A ttorney Gene ral; Victor S. J ohnson, I I I , District Attorney Gene ral; and Meg an King , Assista n t District Attorney Gene ral for

the appe llee, State of Te nnessee

.

OP INION

This c ase arises from police of fice rs discover ing a

pipe duct-tape d to a propane tank in the Def endant’ s car

. As a result, a Davidson County g rand jury indicted the Def endant for possession, manufa cture , transport, repa ir, or sale of an explos ive wea pon. The Def

endant was also indicted for unlawful possession of a

handgun.

On November 29, 2012, the Def endant pled guilty to possession of an explos ive wea pon and

1agree d to an eig ht-y ear sentenc e as a Rang e I , standard offe nder, with the trial court to deter mine the
manner of service of the sentenc e. At the guilty plea submissi on hearing, the State offe red the followingfac tual basis for the tr ial court’s a cceptance of the De fenda nt’s guilty

plea:
[O] n Marc h the 24 , 2012, police we re c alled to re spond to a reside nce, which t h was he re in Da

vidson County . I t was the re sidence of the [D]efendant a nd his wife. While trave ling to the sc ene the y g ot an update that the [D] efe ndant possibly had a bomb a

nd a gun. They

saw the [D]efenda

nt driving. The y

pulled him over. L ocate d in the backse at was a propane tank with a pipe a nd duck [sic] tape tape d to it, which was in the re ar dr iver’s side f loorboard. T he man wa s established who - - on the suspicious pa ckag e and the surroundingare a wa s evac uated. The bomb squad wa s called a

nd responde d to the scene . They wer e able to dismantle the bomb.

On J anuar

y 25,2013, the trial court held a sentenc ing hear i n g t o d eter mine the manner of service of the Def

endant’ s eig ht-y ear sentenc e. At the hearing, the parties prese nted the following evidenc e: Matt Silvey , a licensed clinical social worke r, testified that he was employ ed with the Nashville Public Def

ender ’s office. He said thathis job included assisting clients with treatment plans, seeking mental health or medical treatment, and assi sting with investigative duties on the defe nse teams. Mr. Silvey

testified that he ha d met the Def endant through his work in the public defe nder’ s office . He de scribed the Def endant a s “an intellig ent guy , relatively high f unctioning [ ] wit h a g ood work e thic and . . . strongfee lings of r esponsibility towards his family .” Mr. Silvey said that he a lso believed that the D efe ndant was e x perie ncing“some leve l of depre ssion” which manifested thr oug h “incr ease d levels of irr itability ” and “ ang er r esponses.” Mr. Silvey descr ibed this behavior as “ a bit of a pattern for [t he De fenda

nt] .”

Mr. Silvey testified that the Def endant had littl e or no relationship with his biologica l fathe r and wa s primarily

raised by his mother. The De fenda nt completed high school and then moved t o Nashville in an at t em p t to make a connec tion with his fathe r; howeve r, the relationship with his fathe r beca

me “ver y volatile.” Mr. S i l v ey o pined that this failed attempt at a relationship with his fathe r was “dee ply painful” causing the Def endant to respond to difficult situations by “isolating and becomingangry .”

Mr. Silvey testified that he believed the Def endant would benef

it signific antly from a mental health assessment and treatment. Although the Def endant did not curr ently have insurance , Mr. Silvey stated that the Def

endant could seek help at one of the community health cente rs throug h the state’s B ehavior

Hea lth Safety

Net program.

Ver laine Truitt, the Defenda nt’s wife, testified that she believed th at t he Defenda nt would benef it from counseling

. She said that counseling would help the Def endant lear

n how to handle his

2ang er in a better way

. Ms. Truitt said that the Def endant was not abusive when he beca me upset but rathe r “holds a lot of things inside.” She said that the behavior underly ing the Def

endant’ s conviction was not ty

pical and that she had ne ver se en the De fenda nt with a bomb before

.
M s

. Truitt testified that she and the Def endant had three sons and one daugh t er

. S h e d escr ibed t he Defenda

nt as “a very g ood fathe r.” She said that she and the children we re s h o ck ed by the Def endant’ s actions resulting in this arr est. Ms.Truittsaid that the Def endant has expressed
remorse over this incident to her , and she believed that he would be succe ssful in serving out a probation sentenc e.

The Def endant testified that he g raduated from high school and was a licensed cer tified nurse technicia n (“CNT” ). He stated that he worke d either as a CNT or i n “s ec u ri t y .” The Def endant denied suffe ring from any ty pe of mental illness. He furthe r d en i ed an y substance abuse or disabiliti es. The Def

endant acknow ledg ed a prior rec kless driving conviction and stated that he had
never serve d a probation sentence

.
The Def endantde scribed himself as “ver yinvolved”withhis children who wer e eig ht, seven, three , and two year s old. He said that, if he wer e g rante d an alternative sentenc e, he would live with his wife and children. The Def endant said that he believed he would b enef it from counseling and would comply with any conditions of probati o n a s s ig n ed by the trial court. The Def endant introduced
a letter from his mother and a letter from his aunt stating that he was a g oo d fa t h er an d a g ood candidate for a

probation sentenc e.

On cross-e x amination, the Def endant testified that, on the day police found the bomb in his
car , he was driving to the home of “Ms. Rice,” a woman he claimed had stolen money from him. The Def endant stated that he was unawa re there was a bomb in the truck until police found it in the back seat. The Def

endant denied making the bomb but ad m i t t ed placing the bomb in his truck. The Def endant would not disclose the sour ce of the bomb beca

use he w as “in fe ar f

or [his] life.”
Upon further questioning by the trial court, the Def endant agree d that he had possession of the bomb since J uly 4, 2011. Fr om the time he acquir ed it until police found the bomb on Marc h 24, 2012, the Def

endant said that he stored the bomb “somewhe re that it was just an okay spot.” The Def endant said that he had the bomb beca use “they told me it was like a b i g fire cra cker .” He explained that he expected to se t it of f on the Four

th of J uly but did not ha

ve the opportunity to do so. The De fenda

nt denied any

knowledg e that the bomb would cr eate shrapne l.

After hear ing this evidenc e, the trial court stated that it was consi d er i n g ar guments as to sentenc ing alternatives, the evidenc e prese nted at the sentenc ing hear ing, the prese ntence repor t, the nature and char acte ristics of the crime, enhanc ement and mitigating fac tors, the Def endant’ s statement, cr iminal hist ory , and potential for reha bilitation. The trial court, in consideringfac tors perta ining to conf

inement, went on to find:

3[T] he only one that re ally

would apply

is whether it’s ne cessa

ry to avoid depre ciatingthe seriousne ss of the off ense or is particular ly

suited to provide an eff ective de terre nce to other s likely to commit si milar offe nses. And whe n you do this based solely

on this factor, the offe nse must be espe cially violent, horrify

ing, shocking , or re prehe nsible, offe nsive or to an e x ag g era ted degree . And it must outweig h all the other f

actor s favor ing pr obation. And kee ping in mind also it is up to the [D] efe ndant to convince me that probation would be appropr iate in this
case . And I ’ve he ard - - I

listened to the preliminary hearing. We ha d a bond hear ing, a nd then we ha

ve the pr esente nce r eport. I guess in all this - - Ithink this does qualify

as a shoc king, r epre hensible - - Imean, we ’re talking a bout a pipe bomb in a car . Now, his wife te lls me that the door handles w ere not on the car alre ady . So even thoug h to the police it might have seeme d that it would force somebody

to open the bac k door, appa rently that car was a lrea dy

that way . And she hadn’ t seen the bomb. B ut acc ordingto [ the Def endant’ s] t estimony

he had had that bomb for some time. He g ets mad, and he g oes over there . Now, he sa

y s he doesn’ t think he has the bomb with him, but, Imean, it’s pre tty hard to miss. The police office r could see it from outside the ca r. The point is this is a pretty horrify ing thing . And he’ s - - he ’s in the middle of the nig ht, and then he ha s a gun on him. This is

• plus [t he Def

endant] is not cre dible whatsoeve r on this issue. He has not convince d
me. He’ s willing to have counseling , but I ’m not sure for what other than his ang er. I appre ciate that he has a family that he takes car e of, but I ’m afr aid I ’m g oing to have to impose the sentenc e, [t he Def endant], based on the fac t of the seriousness of this and to avoid depr eciating the se riousness of the of fense

.
I t is from this judgment that the De fenda nt now appea ls.
II. Analysi s
The De fenda

nt argues that the trial c ourt err ed whe n it denied him alternative

sentenc ing. T he State re sponds that the trial court c onsidered a lternative se ntencingand prope rly sentenc ed the De fenda

nt to confinement ba sed upon the ser iousness of the off ense. We a g ree with the State.

In State v. Bise , the Tenne ssee Supre me Court revie wed c hang es in sentenc ing la w and the impact on appe llate re view of se ntencingdecisions. The Te nnessee Supreme Court
announce d that “sente nces imposed by the trial cour

t within the appropriate statutory rang e ar e to be re viewed unde r an a

buse of discr etion standard w ith a ‘pre sumption of reasona bleness.’” State v. Bise , 380 S.W .3d 682 (Tenn. 2012) . A findingof abuse of discre tion “‘re flec ts that the trial court’s log ic and r easoningwas improper when view ed in lightof

the fa ctualcir cumstance s andre levantleg alprinciples involved in a pa rticularc ase.’ ” State v. Shaffer , 45 S.W .3d 553, 555

4(Tenn. 2001) (quoting State v. Moore , 6 S.W .3d 235, 242 (Tenn. 1999) ). To find a n abuse of discretion, the r ecor d must be void of any substantial evidence that would support the trial court’s de cision. Id .; State v. Gre ar , 568 S.W .2d 285, 286 (Tenn. 1978) ; State v. De lp , 614 S.W .2d 395, 398 (Tenn. Crim. App. 1980) . The re viewingcourt should uphold the sentenc e “so long a s it is wit hin the appropr iate ra ng e and the rec ord demonstrates that the sentenc e is otherwise in c ompliance with the pur poses and pr inciples listed by statute.” Bise , 380 S.W .3d at 709-10. So long a s the trial cour t sentence s within the appropriate ra ng e and pr operly

applies the purposes a

nd principles of the SentencingAct, its decision will be g rante d a pre sumption of
rea sonablene ss. Id. at 707.

Rece ntly , our Supreme Court extended the Bise standard to appellate revie w of the manner of service of the sentenc e. The Court expli ci t l y h el d that “the abuse of discretion standard,a ccompa

nie d b ya p r e s u mp ti o n o f r e a s o n a

b le n e s s , a p p li e s to w it

h in

- r a n g e s e nte n c e s th a

t ref lect
a decision based upon the purposes and principles of sentenc ing, including the questions related to probation or anyother alternative sentenc e.” Caudle ,388 S.W .3d at27879. We are to also rec og nize that the defe ndant bear s “the burden of demonstrating that the sentenc e is improper.” State v. Ashby , 823 S.W .2d 166, 169 (Tenn. 1991)

.
In deter mining the proper sentenc e, the trial court must consider: (1) the evidenc e, i f any , rec eived at the trial an d the sentenc ing hear ing; (2) the prese ntence repor t; (3) the principles of sentenc ing and ar gu m ents as to sentenc ing alternatives; (4) the nature and char acte ristics of the criminal conduct involved; (5) evidenc e and information offe red by the parties on the mitigating and enhanc ement fac tors set out in Tenne ssee Code Annotated sections 40-35-113 an d -114; (6) any statistical information provided by the administrative office of the courts as to sentenc ing prac tices for simil ar offe nses in Tenne ssee; and (7) any statement the defe ndant made in the defe ndant’s own behalf about sentenc ing. See T.C.A. § 40-35-210 (2010); State v. Taylor , 63 S.W .3d 400, 411 (Tenn. Crim. App. 2001). The trial court must als o co n s i d er the potential or lack of potential for reha bilitation or treatment of the defe ndant in deter mining the sentenc e al t er n at i v e or leng th of a term to be imposed.
T.C.A. § 40-35-103 ( 2010).

Wit h reg ard to a lternative se ntencing , Tenne ssee Code Annotated sec tion 40-35102(5) provides as f

ollows:

In rec og nition that st ate pr ison c apac ities a nd the funds to build and maintain them
are limit ed, convicted felons co m m i t t i ng the most sever e offe nses, possessing crim i nalhistories evincing a clea rdisreg ard forthe lawsand morals of society , and evincing failure of past eff orts at reha

bilitation shall be g iven first priority reg arding sentenc ing involvingincar cer ation.

A def endant who doe s not fall within this class of of fende rs, “a

nd who is an espe cially

mitigated

5offe nder or standard of

fende r convic ted of a

Class C, D or E felony , should be consider ed as a favor able c andidate f

or alter native sente ncingoptions in t he abse nce of evidenc e to the contr ary .” T.C.A. § 40-35-102( 6)(2010) . Gene rally , defe ndants classified a s Rang e I Ior Rang e I I Ioffe nders
are not to be considere d as fa vorable candidates for a lternative se ntencing . T.C.A. § 40-35-102( 6) (2010) . Additionally , we note that a trial cour t is “not bound” by

the advisory sentenc ing guidelines; rather , it “shall consider ” them. T.C.A.§ 40-35- 102(6) ( 2010) (e mphasis added)

.
Even if a defe ndant is a favor able candidate for alternative sentenc ing under Tenne ssee Code Annotated se ction 40-35-102( 6), a tria l court may deny an alter native sente nce be cause : (A) Confine ment is nece ssary to protect socie ty

by restra ining a

defe ndant who has a longhistory

of cr iminal conduct;
(B ) Confinement is nece ssary to avoid depre ciating the seriousness of the offe nse or confine ment is particular ly suited to provide an eff ective de terre nce to other s likely to commit si milar offe nses; or (C) Mea sures less re strictive than conf inement have fre quently

or re cently

been applied unsucc essfully

to the defe ndant.
T.C.A. § 40-35-103 ( 2010).

In this case , the trial court proper ly considere d the rele vant sentenc ing fac tors. The trial court conclude d that the Def

endant did not have a long history of criminal conduct or that less restric tive
measure s than confine ment had fre quently or rec ently been applied. T h e trial court did, howeve r, deny an alternative sentenc e based upon the seriousness of the offe nse. The evidenc e shows that the Def endant acquir ed a pipe bomb and stored it for a period of at least eig ht months. The Def endant, angry at an acqua intance, put the bomb inside his vehicle and proce eded to a residential are a wher e police stopped the Def

endant and found the bomb inside the vehicle. The res i d en t i al area was evac uated and a bomb squad di s ab l ed the bomb, diffusing the threat to the local residents. At the
s en t en cing hear ing, the Def endant failed to be forthcoming about the source of the bomb an d downplayed the se riousness of the de structive potential of suc h an item.

In sentenc ing matters we a re to a ffor d the trialcour

ta pre sumption of reasona bleness. I n so doing, w e ca

n not conclude in this ca se that the trial c ourt’s log ic and r easoningwas improper when view ed in light of

the fa ctual cir cumstance s. The De fenda nt possessed an e x plosive device , capa ble of c ausingdevastating injury and dama g e. The device was possesse d in a re sidential
are a. It is withi n the trial cour t’s discretion to cha

rac terize this conduct as “ espec ially violent, horrify ing, shoc king, r epre hensible, off ensive, or othe rwise of

an excessive or

exagg erated degree .” State v. Zeolia , 928 S.W .2d 457, 462 (Tenn. Crim. App.1996) . Acc ording ly ,the trial court did notabuse its discre tion bydenying a n alternative sentenc e in this case. T he De fenda nt is

6not entitled to relief.

III. Conclusi on

Ba sed upon the for eg oing a nd the re cord a s a whole, w e af firm the judg ments of the trial court.

_________________________________ ROBERT W. WEDEMEYER, J UDGE

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