IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

January 14, 2003 Session

STATE OF TENNESSEE v. KEVIN MARTIN

 Direct Appeal from the Circuit Court for Williamson County

Nos. I-012-011, I-102-012 & I-70-207 Donald P. Harris, Judge

No. M2002-01496-CCA-R3-CD - Filed February 26, 2003

The Defendant, Kevin Martin, pled guilty to one count of obtaining prescription drugs by fraud, one

count of possession of drug paraphernalia, two counts of forgery, one count of telephone harassment,

one count of reckless endangerment, and one count of assault. The negotiated plea agreement

resulted in an effective sentence of five years and six months. Pursuant to the agreement, service

of two of the years was suspended, and the manner of service for the remaining three and one-half

years was to be determined by the trial court. Following a sentencing hearing, the trial court ordered

the Defendant to serve the sentences totaling three and one-half years in confinement. It is from this

order that the Defendant now appeals as of right. We affirm the judgment of the trial court.

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

DAVID H. WELLES, J., delivered the opinion of the court, in which THOMAS T. WOODALL and

ROBERT W. WEDEMEYER, JJ., joined.

Richard McGee and James O. Martin, III, Nashville, Tennessee, for the appellant, Kevin Martin.

Paul G. Summers, Attorney General and Reporter; Renee W. Turner, Assistant Attorney General;

Ron Davis, District Attorney General; and Mary Katherine White, Assistant District Attorney

General, for the appellee, State of Tennessee.

OPINION

On April 1, 2002, the Defendant pled guilty to obtaining prescription drugs by fraud, a Class

D felony; possession of drug paraphernalia, a Class A misdemeanor; reckless endangerment, a Class

E felony; assault, a Class A misdemeanor; two counts of forgery, each a Class E felony; and

telephone harassment, a Class A misdemeanor. Pursuant to his plea agreement, the Defendant was

sentenced as a Range I standard offender to an effective sentence of five and one-half years. Service

of two years was suspended in accordance with the plea agreement. The manner of service for the

remaining three and one-half years was to be determined by the trial court. After a sentencing
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hearing, the trial court ordered the Defendant to serve the sentences totaling three and one-half years

in confinement. In this direct appeal, the Defendant argues that the trial court erred by ordering him

to serve three and one-half years in confinement.

The Defendant’s convictions for drug fraud and possession of drug paraphernalia stem from

an episode that occurred at a WalMart pharmacy on March 22, 2001. Vanderbilt Health Services

had issued a prescription to the Defendant for ten tablets of xanax. However, the prescription

presented to the WalMart pharmacy by the Defendant had been altered to read one-hundred tablets.

When the employees of the WalMart pharmacy noticed the alteration, they called the police. An

officer was sent to the pharmacy, where he located the Defendant. The officer found a job

application that the Defendant had been filling out on the ground next to the Defendant. Under the

application, the officer found a coin purse that contained a mirror, a razor, a metal scope, and a small

yellow straw with white powder residue on it.

The facts underlying the Defendant’s convictions for assault and reckless endangerment

begin on September 23, 2001, when the Defendant and a man named Jonathan Kirkland had an

argument. When Mr. Kirkland attempted to leave, the Defendant grabbed him and threw him to the

ground. The Defendant then threw a cordless telephone at Mr. Kirkland, hitting him in the head and

causing him to bleed. The Defendant then offered to take Mr. Kirkland to the hospital. However,

as they rode together, Mr. Kirkland became upset because the Defendant was not driving in the

correct direction. When the Defendant explained that he was driving to the hospital in Murfreesboro,

Mr. Kirkland requested that the Defendant pull over. Mr. Kirkland told the Defendant that if he did

not get to hospital quickly he would die, as he was bleeding profusely. The Defendant replied that

if Mr. Kirkland were going to die, then they both would die. The Defendant then began weaving in

the road and caused the vehicle to flip over. Mr. Kirkland suffered a lumbar sprain and a sprained

wrist, and he required stitches in his arm.

The Defendant’s two forgery convictions originated on October 22, 2001, when the

Defendant presented a check for payment at the Country Corner Market. The check was drawn on

his grandmother’s account in the amount of ninety dollars. The Defendant did not have his

grandmother’s permission to present the check for payment. On October 29, 2001, the Defendant

committed a second act of forgery. He presented another check drawn on his grandmother’s account

for payment without her permission. The amount of this check was forty dollars. At some point,

the Defendant attempted to present a third check to the Country Corner Market, but the employees

at the market refused to give the Defendant money. The Defendant became very angry and started

calling Ronnie Waters, one of the employees at the market, on the telephone. The Defendant called

Mr. Waters approximately four times, threatening to “pop him.” Mr. Waters believed this to be a

threat of bodily harm. This conduct led to the Defendant being indicted for and pleading guilty to

telephone harassment.

The presentence report reflects that, at the time of sentencing, the Defendant was nineteen

years old and single. He attended public school until the eleventh grade when he began a home

school program. He has neither a high school diploma nor a GED. The Defendant has no known
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prior convictions, aside from juvenile petitions for unruly behavior and a minor traffic offense in

juvenile court. According to the presentence report, the Defendant characterizes his mental health

as poor. The Defendant stated that he had been diagnosed with bi-polar disorder, an anxiety

disorder, a panic disorder, and depression. The report lists the following as prescription medications

presently taken by the Defendant: zyprexa, risperdal, diazepam, celexa, seroquel, and depekote. The

Defendant reported an extensive history of substance abuse. The presentence report reflects that the

Defendant admitted to using the following illegal drugs at one time or another: marijuana, cocaine

(powder form and crack), lsd, pcp, ghp, mescalin, methamphetamine, and ecstacy. The Defendant

also reported an addiction to prescription pain medication, including demerol, oxycontin,

hydrocodeine, and other opiates.

The presentence report indicates that the Defendant had recently completed an inpatient

detoxification program at Vanderbilt University Medical Center. At the time of sentencing, the

Defendant was going to a methadone clinic in Nashville. In addition, the Defendant received

treatment for his mental health problems from Dr. Bryan Bell at the Cool Springs Psychiatric Group.

At the sentencing hearing, Teresa Gentry, the Defendant’s mother, testified that the

Defendant has mental health problems and substance abuse problems. At the time of sentencing,

the Defendant had recently been a patient at Vanderbilt University Medical Center and had been a

patient twice at Parthenon Pavilion. Ms. Gentry testified that her son had been treated by Dr. Bell,

but Dr. Bell terminated the treatment because the Defendant had not been truthful.

Ms. Gentry also explained that her mother, Ms. Taylor, was the victim of the forgeries to

which the Defendant pled guilty. At the time, the Defendant was living with Ms. Taylor, his

maternal grandmother. Not only did the Defendant steal money from Ms. Taylor, he also stole her

prescription pain medication while he was out on bond. Ms. Gentry stated that, if the Defendant

were granted an alternative sentence, he would live with Ms. Taylor. Ms. Gentry also testified that

the Defendant stole pain medication from his younger brother, who had recently had surgery to

remove his wisdom teeth.

About three weeks prior to the sentencing hearing, the Defendant began treatment at a

methadone clinic. Ms. Gentry testified that during that time, the Defendant had been involved in two

traffic accidents. Ms. Gentry said that when her son returns from his treatment at the methadone

clinic, he is “belligerent,” “drunk big time,” and “wasted.” She said he does not need to drive in that

condition. According to Ms. Gentry, the longest period of time that the Defendant has been in an

inpatient program is ten days. When the district attorney general asked Ms. Gentry whether she

believed her son is capable of following the rules of probation, she replied, “No...I think the only

help for Kevin is he needs to be locked up somewhere to help with his mental problems and his

substance abuse, bottom line.” 

David Pratt, an officer with theDepartment of Probation and Parole, testified that he prepared

the Defendant’s presentence report. Mr. Pratt stated that he did not find the Defendant to be honest

and forthcoming regarding the types of drugs he had used. Mr. Pratt also spoke with Dr. Bell, who,
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at the time, was treating the Defendant. Dr. Bell told Mr. Pratt that he did not believe the Defendant

was amenable to correction because the Defendant was unwilling to be honest even with the doctors

who were prescribing medication for him. On cross-examination, Mr. Pratt stated that Dr. Bell

diagnosed the Defendant as having bipolar disorder, a social phobia, a panic disorder, a personality

disorder, and a poly-substance abuse problem. When asked what programs the State offers to treat

a person who has problems like the Defendant’s, Mr. Pratt explained that both the Middle Tennessee

Health Institute and the Special Needs Facility of the Department of Correction could treat the

Defendant.

The Defendant also testified at the sentencing hearing. He stated that he suffered from

bipolar disorder and had a drug problem. The Defendant explained that he began attending the

methadone clinic approximately three weeks before the sentencing hearing. He told the court that

the methadone treatment had helped him significantly and that he had not taken any illegal drugs

during the three weeks he had been in the program. Furthermore, the Defendant testified that he was

taking three prescription medications, two for anxiety and one mood stabilizer. He admitted that he

needed help, and he stated that he wanted to obtain his GED and get a job. The Defendant admitted

that he was guilty of the charges to which he pled guilty. He also acknowledged that he had been

involved in four traffic accidents as a result of being drowsy from his medication. At the conclusion

of the sentencing hearing, the trial court ordered the Defendant to serve three and one-half years in

confinement. It is from this sentencing order that the Defendant appeals.

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

has a duty to conduct a de novo review of the sentence with a presumption that the determinations

made by the trial court are correct. See Tenn. Code Ann. § 40-35-401(d). This presumption is

“conditioned upon the affirmative showing in the record that the trial court considered the sentencing

principles and all relevant facts and circumstances.” State v. Ashby, 823 S.W.2d 166, 169 (Tenn.

1991).

When conducting a de novo review of a sentence, this Court must consider: (a) the evidence,

if any, received at the trial and sentencing hearing; (b) the presentence report; (c) the principles of

sentencing and arguments as to sentencing alternatives; (d) the nature and characteristics of the

criminal conduct involved; (e) any statutory mitigating or enhancement factors; (f) any statement

made by the defendant regarding sentencing; and (g) the potential or lack of potential for

rehabilitation or treatment. See Tenn. Code Ann. §§ 40-35-102, -103, -210; State v. Brewer, 875

S.W.2d 298, 302 (Tenn. Crim. App. 1993); State v. Thomas, 755 S.W.2d 838, 844 (Tenn. Crim.

App. 1988).

If our review reflects that the trial court followed the statutory sentencing procedure, that the

court imposed a lawful sentence after having given due consideration and proper weight to the

factors and principles set out under the sentencing law, and that the trial court’s findings of fact are

adequately supported by the record, then we may not modify the sentence even if we would have

preferred a different result. See State v. Pike, 978 S.W.2d 904, 926-27 (Tenn. 1998); State v.

Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).
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A defendant who “is an especially mitigated or standard offender convicted of a Class C, D,

or E felony is presumed to be a favorable candidate for alternative sentencing options in the absence

of evidence to the contrary.” Tenn. Code Ann. § 40-35-102(6); State v. Lane, 3 S.W.3d 456, 462

(Tenn. 1999). Guidance regarding what constitutes “evidence to the contrary” which would rebut

the presumption of alternative sentencing can be found in Tennessee Code Annotated section 40-35-

103(1), which sets forth the following considerations:

(A) Confinement is necessary to protect society by restraining a defendant who has

a long history of criminal conduct;

(B) Confinement is necessary to avoid depreciating the seriousness of the offense or

confinement is particularly suited to provide an effective deterrence to others likely

to commit similar offenses; or 

(C) Measures less restrictive than confinement have frequently or recently been

applied unsuccessfully to the defendant[.]

See State v. Hooper, 29 S.W.3d 1, 5 (Tenn. 2000); State v. Ashby, 823 S.W.2d 166, 170 (Tenn.

1991). 

Additionally, the principles of sentencing reflect that the sentence should be no greater than

that deserved for the offense committed and should be the least severe measure necessary to achieve

the purposes for which the sentence is imposed. See Tenn. Code Ann. § 40-35-103(2), (4). The

court should also consider the potential for rehabilitation or treatment of the defendant in

determining the appropriate sentence. See id. § 40-35-103(5).

Because the Defendant is a standard offender convicted of one class D felony, three class E

felonies, and three class A misdemeanors, he was entitled to a presumption that he was a favorable

candidate for alternative sentencing in the absence of evidence to the contrary. See Tenn. Code Ann.

§ 40-35-102(6); State v. Lane, 3 S.W.3d at 462. The trial judge found that the presumption had been

rebutted by testimony by the Defendant’s mother, Teresa Gentry, and the Defendant’s probation

officer, David Pratt, that the Defendant was unlikely to comply with the conditions of an alternative

sentence. The trial judge also found that the Defendant’s dishonesty regarding the drugs he has used

weighed against the presumption that he was a favorable candidate for alternative sentencing. The

trial court stated that it did not believe the Defendant when he testified that he had taken no

medication on the day of the sentencing hearing. The court described the Defendant as having

slurred speech and almost falling asleep during his mother’s testimony. The trial court concluded

that the Defendant would be “better off in jail than out there popping pills as fast as he can get some

druggist to give them to him.”

The Defendant contends that the trial court did not properly consider the sentencing

principles set out in Tennessee Code Annotated section 40-35-103(1), which are listed above.

However, the trial court did properly consider the testimony of the Defendant’s mother that he could

not comply with the conditions of an alternative sentence. Ms. Gentry also testified that the victim

of the Defendant’s forgeries was her mother, with whom the Defendant would live if he were granted
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an alternative sentence. Also, the court heard the testimony of the Defendant’s probation officer,

who, along with Dr. Bell, did not perceive the Defendant to be amenable to rehabilitation. The

potential or lack of potential for rehabilitation of a defendant should be considered in determining

whether he or she should be granted an alternative sentence. See Tenn. Code Ann. § 40-35-103(5).

Furthermore, the probation officer testified that the Defendant had been untruthful about the variety

of drugs that he had used, and the trial court expressed its doubts about the Defendant’s honesty

regarding his use of medication on the day of the sentencing hearing. A defendant’s credibility or

lack thereof is germane to his or her rehabilitative potential. See State v. Zeolia, 928 S.W.2d 457,

463 (Tenn. Crim. App. 1996); State v. Dowdy, 894 S.W.2d 301, 306 (Tenn. Crim. App. 1994). 

Although the Defendant had no prior convictions, at the time he was sentenced he had seven

convictions, representing significant criminal behavior. See State v. Cummings, 868 S.W.2d 661,

667 (Tenn. Crim. App. 1992). His longtime use of illegal drugs is further evidence of his previous

history of criminal behavior. Therefore, we believe that the presumption that the Defendant is a

favorable candidate for alternative sentencing has been rebutted by the evidence of his lack of

potential for rehabilitation and long history of criminal conduct. Accordingly, we are unable to

conclude that the trial judge erred or abused his discretion in denying the Defendant an alternative

sentence.

The judgment of the trial court is affirmed. 

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DAVID H. WELLES, JUDGE