IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs September 24, 2013

STATE OF TENNESSEE v. DAVID WAYNE GROSS

Direct Appeal from the Criminal Court for Sullivan County

Nos. S59567, S59963 R. Jerry Beck, Judge

No. E2013-00589-CCA-R3-CD - Filed December 23, 2013

The defendant, David Wayne Gross, appeals the sentencing decision denying him an

alternative sentence. The defendant pled guilty to violating a habitual traffic offender order,

two counts of theft over $1000, two counts of identity theft, two counts of forgery, and theft

under $500. Pursuant to the plea agreement, the defendant received an effective four-year

sentence and was allowed to petition the court for an alternative sentence. A hearing was

held, after which the trial court ordered that the sentence be served in incarceration. After

review of the record, we affirm the denial of alternative sentencing.

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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the Court, in which NORMA MCGEE

OGLE and ROBERT W. WEDEMEYER, JJ., joined.

Stephen M. Wallace, District Public Defender;Joseph F.Harrison, Assistant Public Defender,

for the appellant, David Wayne Gross.

Robert E. Cooper,Jr., Attorney General and Reporter;Jeffrey D. Zentner, Assistant Attorney

General; Barry Staubus, District Attorney General; and James Goodwin, Assistant District

Attorney General, for the appellee, State of Tennessee.

OPINION

Procedural History

The present appeal before this court involves two separate cases in which the

defendant entered guilty pleas in the Sullivan County Criminal Court. The facts underlying

the defendant’s multiple convictions were set forth in the affidavits of complaint. At the

guilty plea hearing, the defendant and the State stipulated that those facts were accurate and
supported the convictions. In case number S59567, the complaint read:

On 5/27/2011, I Officer Matthew Harkleroad, was traveling north on

Volunteer Parkway and had just past [sic] the intersection of Century Blvd.

and observed a vehicle attempting to exit the upper entrance only to Wal-Mart.

I turned around to stop the vehicle before it entered into traffic causing a crash

and to make sure that the driver was o.k. As I approached the vehicle I

activated my emergency lights in front of the vehicle. My cruise[r] was placed

in the slow lane of the south bound lane of travel. At that time I made contact

with the driver and asked why he was exiting from the entrance only access.

The driver now known as [the defendant] by the Tennessee identification he

produced upon request and was checked and returned with a revoked habitual

traffic offender status. [The defendant] advised he was going to back up

however, I made contact with him before he could do so.

[The defendant] was arrested and charged with T.C.A. 55-10-616

driving while restricted habitual traffic offender and transported to the Sullivan

County Jail without incident.

In case number S59963, the complaint states the underlying facts as follows:

On Aug. 9, 2011 I, Inv. Brian Hess, was assigned a case of theft of

jewelry from 1104 Carolina Ave. The complainant, Kenny Gross, told me he

thought his step-son, [the defendant], was who took his jewelry while he was

living at Kenneth’s residence and the amount totaled over $1000.

On Sept. 1, 2011 Vinnie Gross reported to the police dept. that her son

[the defendant] had stolen her check book and wrote three checks without her

permission. Two checks were wrote in Bristol Tn. and one in Bristol Va.

On September 19, 2011 I spoke with [the defendant]. [He] admitted to

me that he had taken some of Kenneth’s jewelry and pawned it and he had also

used two of his mother’s checks without her permission. [The defendant] told

me he used one check at Belmont Package to purchase liquor. [He] told me

that he signed his mothers name on both checks in Bristol, Tn.

Based upon these actions, a Sullivan County grand jury indicted the defendant for: (1)

violating a habitual traffic offender order; (2) two counts of identity theft; (3) two counts of

theft over $1000; (4) two counts of forgery; and (5) theft under $500. The defendant pled

guilty to all offenses as indicted and received an effective sentence of four years, fines of

-2-
$1000, and restitution. The agreement specifically provided that he would be able to request

an alternative sentence, which was to be determined by the trial court following a sentencing

hearing.

A sentencing hearing was held on February 25, 2013, during which the trial court

extensively reviewed the defendant’s pre-sentence report, which was admitted into evidence.

The court noted the defendant’s prior criminal history, noting that it would not be considering

some of the offenses, and that the defendant had twice had alternative sentences revoked.

The court also reviewed the statements made by the defendant with regard to his physical and

mental health, as well as his assertions of childhood abuse and molestation. The court also

noted the defendant’s extensive history with alcohol and multiple drugs, as well as his

employment and family history.

The defendant also testified at the hearing. He stated that he was thirty-nine years old

and currently resided with his parents, his fiancé, and their three-year old child. The

defendant also related that he had three other children that he supported with what he could

and saw very frequently. He further testified that he left school after the ninth grade, but he

did receive his GED and attend a technical college. The defendant also acknowledged that

he had not been formally employed by anyone since 2009, but he testified that he worked for

himself doing small construction jobs, roofing, or lawn care.

The defendantstated that his physical health was not good because he had been unable

to obtain the treatment he needed following two car accidents. He testified that he had

problems with his neck, lower back, and teeth. The defendant acknowledged that he had

attended mental health counseling to aid him in dealing with the abuse and molestation he

suffered as a child. However, he acknowledged that he had voluntarily stopped attending

because he did not feel like he was being helped.

The defendant also candidly acknowledged his history of drug and alcohol abuse. He

stated he began drinking at age 14 and that alcohol had played a role in the majority of his

prior criminal convictions. However, he also testified that he stopped drinking alcohol at

least one year prior to the sentencing hearing. The defendant also acknowledged that he

began using marijuana at age 11, and he later used cocaine, LSD, mushrooms, and morphine

thereafter. He denied that he had recently taken any of these narcotics and stated that his

drug of choice was suboxone. The defendant explained that this drug was obtained legally

at various pain management clinics in the area. However, it became so expensive that he was

unable to continue the treatment. Before he stopped treatment, the defendant had tried to cut

the strips of suboxone in half and retain some for later usage. He acknowledged that he had

taken some suboxone within one month of the sentencing hearing.

-3-
The defendant ended his testimony by noting that he was “done with alcohol.” He

further expressed remorse for the crimes he had committed and noted that he had never

previously been charged with a crime involving theft or dishonesty. An addendum was

added to the sentencing proof, which stated that when the defendant had been questioned by

police in the case that he had been cooperative and provided information.

After hearing the evidence presented, the trial court concluded that: “The Defendant’s

presentence report is almost entirely negative. The unfavorable factors heavily outweigh any

potential favorable factors.” As a result, the trial court ordered that the sentence be served

in incarceration. The defendant now appeals that decision.

Analysis

On appeal, the defendant contends that the trial court “erroneously interpreted and

applied applicable law in denying [him] all forms of alternative sentencing.” We disagree.

As an initial matter, we must note two errors which will require remand only for entry

of corrected judgment forms. Two errors appear in the record, more specifically upon the

judgments of convictions, entered by the trial court. In case number S59567 the judgment

of conviction reads that the trial court imposed a one-year sentence, which was suspended

to probation, for the violation of the habitual traffic offender order. In case number S59963,

specifically Count 6, it reflects a conviction for forgery and a sentence of three years.

Our reading of the transcript of the sentencing hearing reveals a conflict with the

information on those forms. The trial court was quite clear in its ruling that any form of

alternative sentencing was being denied in both cases. Likewise, in case S59963 every

indication in the record, from the guilty plea to the indictment to the transcript itself, all

indicate that Count 6 was for theft of property over $1000, not forgery. The judgment does

reflect the correct sentence; however, it denotes the wrong crime. Generally, when there is

a conflict between the judgments of conviction and the transcript of the proceedings, the

transcript controls. State v. Crowe, 168 S.W.3d 731, 735 n.1 (Tenn. 2005). As such, we

must remand the case for entry of correct judgments of conviction to reflect the proper

convictions and sentences.

Again, the only issue raised by the defendant is the denial of an alternative sentence.

When an accused challenges the length, range, or manner of service of a sentence, this court

will review the trial court’s decision under an abuse of discretion standard with a

presumption of reasonableness. State v. Bise, 380 S.W.3d 683, 707 (Tenn. 2012). This

presumption of reasonableness is granted to “within range sentencing decisions that reflect

a proper application of the purposes and principles of our Sentencing Act.” Id. The standard

-4-
is also applicable to probation and alternative sentencing decisions. State v. Caudle, 388

S.W.3d 273, 278-79 (Tenn. 2012).

In determining a defendant’s specific sentence and the appropriate applicable

sentencing alternatives, trial courts must consider the following:

(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 the mitigating and

enhancement factors set out in §§ 40-35-113 and 40-35-114;

(6) Any statistical information provided by the administrative office of the

courts as to sentencing practices for similar offenses in Tennessee; and

(7) Any statement the defendant wishes to make in the defendant’s own behalf

about sentencing.

T.C.A. § 40-35-210(b) (2010). The defendant has the burden of showing the impropriety of

the sentence on appeal. T.C.A. § 40-35-401(d), Sentencing Comm’n Cmts. Because the

2005 amendments to the Sentencing Act gave trial courts broad discretion in sentencing,

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

applicable enhancement and mitigating factors, have been properly addressed.” Bise, 380

S.W.3d at 706. “Mere inadequacy in the articulation of the reasons for imposing a particular

sentence . . . should not negate the presumption” of reasonableness in the trial court’s

sentencing decision. Id. at 705-06. “So long as there are other reasons consistent with the

purposes and principles of sentencing, as provided by statute, a sentence imposed by the trial

court within the appropriate range should be upheld.” Id.

Any sentence that does not involve complete confinement is an alternative sentence.

State v. Fields, 40 S.W.3d 435 (Tenn. 2001). Tennessee Code Annotated section 40-35-

102(6)(A) states that a defendant who does not require confinement under subsection (5) and

“who is an especially mitigated or standard offender convicted of a Class C, D, or E felony,

should be considered as a favorable candidate for alternative sentencing options in the

absence of evidence to the contrary[.]”

In determining whether to deny alternative sentencing and impose a sentence of total

confinement, the trial court must consider if:

(A) Confinement is necessary to protectsociety by restraining a defendant who

has a long history of criminal conduct;

-5-
(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[.]

§ 40-35-103(1)(A)-(C). The principles of sentencing require the sentence to be “no greater

than that deserved for the offense committed” and “the least severe measure necessary to

achieve the purposes for which the sentence is imposed.” T.C.A. § 40-35-103(2), (4). In

addition, “[t]he potential or lack of potential for the rehabilitation or treatment of the

defendant should be considered in determining the sentence alternative or length of a term

to be imposed[,]” and “[t]he length of a term of probation may reflect the length of a

treatment or rehabilitation program in which participation is a condition of the sentence [.]”

T.C.A. § 40-35-103(5).

A trial court’s determination of whether a defendant is entitled to an alternative

sentence and whether a defendant is a suitable candidate for full probation are different

inquires with different burdens of proof. State v. Boggs, 932 S.W.2d 467, 477 (Tenn. Crim.

App. 1996). Defendants convicted of crimes not specifically excluded by statute and

receiving sentences of ten years or less are eligible for probation. T.C.A. § 40-35-303(a).

However, no criminal defendant is automatically entitled to probation as a matter of law.

State v. Davis, 940 S.W.2d 558, 559 (Tenn. 1997). Indeed, the defendant has the burden of

establishing his or her suitability for full probation. State v. Carter, 254 S.W.3d 335, 347

(Tenn. 2008). To do so, a defendant must demonstrate that probation will “subserve the ends

of justice and the best interests of the public and the defendant.” Id. at 347. 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. Kendrick,

10 S.W.3d 650, 656 (Tenn. Crim. App. 1999) (citing State v. Grear, 568 S.W.2d 285, 286

(Tenn. 1978). Moreover, the Tennessee Supreme Court has held that truthfulness is a factor

which the court may consider in deciding whether to grant or deny probation. State v. Bunch,

646 S.W.2d 158, 160 (Tenn. 1983).

Again, the defendant argues that the trial court abused its discretion by denying him

all forms of alternative sentencing. He contends that the trial court “gave no weight to any

evidence presented other than the [defendant’s] record of prior convictions.” In support of

his argument, he points out the positive factors in his life such as his supportive relationship

with his children and his obtaining his GED, that his record was mostly driving offenses, and

his abstinence from alcohol. The defendant argues that it is not necessary that he be

-6-
restrained to protect society and that no evidence was presented to show his confinement

would be a deterrent to others.

After reviewing the record, we disagree with the defendant’s contention that the trial

court relied exclusively upon his prior record in reaching the decision to deny an alternative

sentence. Our reading of the court’s statements reflect that the trial court said that the

“presentence report is almost entirely negative. The unfavorable factors heavily outweigh

any potential favorable factors.” Granted the defendant’s prior criminal history is one of

those factors contained in the report; however, it is not the only factor. The report contained

the circumstances of the offense, the defendant’s social history, health questions, admitted

drug abuse, prior revocations of probation, and other pertinent information. The trial court

reviewed the report on the record, noting items from each section, and the favorableness or

lack there of with regard to each. Additionally, the court clearly heard testimony from the

defendant regarding the information contained in the report.

We conclude that no abuse of discretion occurred in the court’s decision to deny the

defendant an alternative sentence. The defendant has previously violated the conditions of

an alternative sentence which he was given, has an extensive criminal history of prior

convictions and admitted behavior, and committed crimes against his parents. Based upon

all the facts contained within the record, we reject the defendant’s contention to conclude that

the trial court erred in reaching its sentencing decision.

CONCLUSION

Based upon the foregoing, the denial of alternative sentencing is affirmed.

_________________________________

JOHN EVERETT WILLIAMS, JUDGE

-7-