### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE January 14, 2003 Se ssion
STATE O F TENN ESSEE v. KEVIN M ARTIN
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 - F iled 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 haras sment,
one count of r

eckless endang erment, and one c ount of as sault. The negotia ted plea ag reement resulted in an effective sentence of five y ear s and s ix months. Pursuant to the agreement, service of two of the yea

rs was suspended, and

the manner of service

for the r emaining three a nd one-h alf yearswas to be determined by the trial court. F

ollowing a sentencing hearing, the trial court ordered the Defend ant to ser

ve the se ntencestotaling

three a nd one-h alf

ye ars in co nfineme

nt. It is from this order th at the Defendant

now appe als as of

right. We

affirm t he judg ment of the

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

D AV ID H. W ELLES , J., delivered the opinion of the court, in which T HOM AS T. W OODA LL and R OBER T W. W EDEMEYER , JJ., joined.
Richard McGee and James O. Martin, I II , Nashville, Tennessee, for the appellant, Kevin Mar tin.

Paul G. Summ

ers, Attorney Gene

ral and Reporter; Renee W. Turner, Assistant Attorney Genera l; Ron Davi s, Dis tric t Atto rney Gene ral; and M ary

Kath erin e Wh i te, Assistant District Attorney General, for the appellee, State of Te nnessee.
OPINION

On April 1, 2002, the Defendant pled guilty to obtaining prescription drugs by fraud, a Class D fe lo ny; possession of drug paraphe rnalia, a Class A mi sdemean or; rec kless end anger ment, a Cla ss E fel ony; assault, a Class A misdemeanor; two c ounts of forgery , each a Class E felony ; and telephone harassment, a

Class A misd

emeanor . Pursuan

t to his plea agreement, the Defe ndant was sentenced as a Range I

standardoffender to an effective sente nce of five and one-half y

ears. Service of two years w as suspendedin accor dance w ith the ple a agreement. The manner of service for the remaining three and one- half yea rs was to be determined by the trial court. After a sentencing-2-

hearin g, the trial court ordered the Defendant to serve the sentences totaling three and one-half y

ears in confine ment. In this direct appeal, the De fendant argues that the tr

ial cour t erred by o rdering him to serve three a nd one-h alf years in c onfineme nt.

The Defendant’s convictions for drug fraud and possession of drug pa raphernalia stem from
an episode that occurred

at a WalMart pharmacy

on March 22, 2001. Vanderbilt Health Services had iss ued a pre scription to the Defendant for ten tablets of xanax. However, the presc ription presented to the WalMart pharmacy by the Defendant had been

altered to read o ne-hund

red tabl ets. When the emplo ye es of the WalMart ph armacy

noticed t he alter ation, the y c all e d the police. An officer was sent

to the pharmacy , where he located the Defenda nt. 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 purs e that co ntained a mirror, a razor, a metal sco pe, and a small ye llow stra w with whit

e powder residue on it.

The facts under lying t h e Defendant’s convictions for assault and rec kless endangerment begin on September 23, 2001, when the Defendant and a man na med Jonathan Kirkland had an argume nt. When Mr. Kirkland attempted to leave, the Defe ndant g rabbed h im and thre

w 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 offere d to take Mr. Kirkland to the hospital. However,
as they rode tog ether, Mr. Kirkland became upset beca use the Defendant was not driving in the correct direction. W hen the Defendant explained that he was driving to the hospital in Murfreesboro, Mr. Kirkland requested that the Defendant pull over. Mr. Kir kland told the Defend ant that if he did notget to hospital quickly he w ould die, as he was bleeding profusely . The Defendant replied that if Mr. Kirkland were going to die, then they both would die. The Def endant th en beg an weaving in the road and caused the vehicle to flip over. Mr. Kirkla nd suffered a lumbar sprain and a spraine d wrist, an d he requ

ired stitc hes in his a

rm.
The De fendant’s two forgery convictions originated on October 22, 2001, when the Defendant

presented a check for

payment at

the Country Corner Mar

ket. The check was drawn on his grand mother’saccoun

t in the amo

unt of ninety

dollars. The Def

endant di d not have

his grandmother’s permission to present the check for payment. On Oc tober 29, 2001, the Defendant committed a second

ac t o f f or ge ry. He presented another check dr awn on his grandmother’s account for payment without her per mission. The amount of this check was forty dollar s. At some poi nt, the Defendant attempted to present a third check to the Country Corner Marke

t, 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 Defe ndant called Mr. Waters approximately four times, thr

eatenin g to “pop him.” Mr. Waters believed this to be a threat of bodily harm. Thi s conduc t led to the Defend ant being

indicted for and p leading

guilty to telephone haras sment.

The present

ence re port ref lects that, at the time of

sentencing, the Defendant was nineteen yearsold and single. He at tended pu blic scho ol until the

elevent h grad e when he

began a home school program. He has neither a high school diploma nor a GED. The Defendant has no known-3-

prior c onvictions, aside fr

om juvenile

petitions f

or unruly behavior and a mino

r traff ic offe nse in juvenile court. According to the presentence r eport, the Defend ant char acterize s his menta

l health
as poor. The Defendant stated that he had bee n diagnosed with bi-p olar diso rder, a n anxiety disorder, a panic

disorder, and depression. The report lists the following as prescription medications present ly taken by the De

fendant: zyprexa, risperda l, diazepam, celexa, seroquel, and depekote. The Defendant

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

admit ted to usin g the fo llow ing il legal d rugs at one time or another: marijuana, cocaine (powder form and crack), lsd, pcp, ghp, mesca lin, methamphetamine, and ecstacy . The Defendant also reported

an addiction to prescription pain medication, including demerol, oxycontin, hyd rocodeine, and o ther opia tes.

The present

ence re port indic ates tha

t the Def endant ha d recen tly c omp leted an i npatient detoxification progra

m at Vande

rbilt Univ ersity

Me dical Center . At the time of sentencing, the Defendant

was going to a methadone clinic in Nashville. I n addition , the Defe ndant received treatment for his me

ntal hea lth problems from

Dr. Bry an Bell at the Cool Springs Psyc hiatric Group.

At the sente

ncing hearing , Teresa

Gentry , the Def

endant’ s mother, testifie d th at the Defendant has mental healt h prob lems a nd sub stanc e abus e prob lems. At th e tim e of sen tenci ng, the Defendant had recently been a patient at

Vanderbilt University Me dical Center and had been a patient twice at Parthe

non Pavilio n. Ms. Gen

try testifie d that her

son had be en trea

ted by Dr. Bell, but Dr. B ell termin ated the treatme nt becau se the De

fendant had not be en truthf

ul.

Ms. Gentry also e

xplained that her mother, Ms. Taylor, wa s the victim o f the for gerie s to which the Defendant pled guilty . At the time, the D efenda nt was l iving wit

h Ms. Tay

lor, his maternal grandmother. Not only did the Defendant steal money from Ms. Taylor, he

also stole her prescription pain me di cation while he was out on bond. Ms. Gentry stated that, if the Defendant
were grante d an alte

rnative sentenc e, he would live with Ms. Taylor. Ms. Gentry also testified that the Defend ant st ole pain med ication f rom his y ounger brother , who had r

ecently had surg ery

to remove his wisdom teeth.

A boutthree weeks prior to the sentencing he aring, the Defendant beg an tre atment at a methadone clinic. Ms. Gentry testified that dur ing that time, the Defendant had been involved in two traffic accidents. Ms. Ge ntry

said th at when her son returns from his treatment at the methadone clinic, he is “belligerent,” “drunk big time,” a nd “wasted.” She said he does not need to drive in that condition. According to Ms. Gentry, the long est period of time that the Defendant has been in an inpatient progr am is ten days. When the district attorney general asked Ms. Gentry whether she believedher son is capable of following the rule s of proba tion, she r

eplied, “ No...I think the o nly help for Kevin is he needs to be locked up somewhere to he lp with his mental pro blems and hi s substance abuse, bottom line.”

David Pratt, an officer with the Depar tment of Probation and Parole, testified that he prepared the Defendant’s presentence re port. Mr. Pratt stated that he did not find the Defe

ndant to be

honest and forthcoming regarding the types of

drugs he had used. Mr. Pratt also spoke with Dr. Be ll, who,-4-

at the time, was treating the Defendant. Dr . Bell told Mr. Pratt that he did not believe the Defendant
was amenabl e to correction beca use the D efenda

nt was unw illing to b e honest even with the doctors who were pr

escribing medic ati on for him . On cros s-examina tion, Mr. Pr

att state d that Dr. Bell diagnosed

the Defendant as having bipolar disorder, a social phobia, a panic dis order, a

persona lity disorder, and a poly-substanc e abuse problem. When asked what programs the State offers to treat
a person w ho has pro blems like

the Defe ndant’s, Mr. Pratt

explained

that both th

e Middle Tennessee Health Institute and the Special Needs F acility of the Depa rtment of Correction could treat the Defend ant.

The Defendant also testified at the sentencing he aring. He stated t h at he suffered from bipolar disorder and had a

drug pr oblem. The

Defend ant expla ined that he began attending the methadone clinic a

pproximate

ly three weeks before the sentenc ing hearing. He told the court that the methadone treatmen t had hel ped hi m sign ifica ntly and t hat he had no t take n any ill egal dru gs during the three weeks he had been in the program. Furthermore, the Defendant testified that he was taking three pr

escripti on medica

tions, two f

or 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 Def endant admitted that he was g uilty of the ch argesto which he pled guilty. He also acknowledged that he had bee n involved in four

traffic accide nts as a r esult of b eing dr

owsy from his medication. At the conclusion of the sentencing hearing, the tria l court ordered the Defendant to serve th

ree and one-hal f y ears in confine ment. I t is from th

is senten cing or

der that the Defe ndant app eals.

When an accused challenges the leng th, 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 a

re correct. See Tenn. Code Ann. § 40-35-401(d). T his presu mption is “conditioned upon the affirmative showing in t h e record that the trial court considered the se ntencing 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 , recei ved at the

trial and sentenc ing hea

ring; ( b) the pr esentence repo

rt; (c) the principles of sentencing and arguments as to sentencing a lternatives; (d) the nature and characteris tics of the crimi nal conduc t involved; (e) any statutory mitigating or enhancement fac tors; (f) any sta tement made by t

he defe ndant re gardin g sentenc ing; and (g) the potential or lack of pote ntial for reha bilitati on or treatment. See Tenn. Cod e Ann. §§ 4 0-35-102 , -103, -2 10; State v. Brewer , 875 S.W.2d 298, 302 ( Tenn. Cri m. App. 199 3); State v. Thomas , 755 S.W.2d 838, 844 (Tenn. C rim

. App. 1988).

If our review reflects that

the trial court followed the statutory sentencing procedure, that the court impose d a law ful sentence after having g iven due consideration and proper weig ht to the factors and principles set out under the sentencing law, and tha t the trial court’s findings of fact are adequa tely supported by the record, then we may not modify the

sentenc e even if we would have preferred a different result. See State v. Pike , 97 8 S.W.2d 904 , 926-27 ( Tenn. 199 8); State v. Fletcher , 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).-5-

A defendant who “is an

especia lly m itigate d or stand ard off

ender c onvicted

of a ClassC, D,
or E felony is presumed

to be a favorable candidate for a lternative sentencing options in the absence of evidenc e to the con

trary .” Tenn. Code Ann. § 40-35-1 02(6); State v. Lane , 3 S.W.3d 456, 462 (Tenn. 1999). Guidance rega rding what constitutes “evidence to the contrar y” which would re

but the presumption of alternative sentencing can be found in Tennessee Code Annotated section 40-35- 103(1), w hich sets forth the

following

consider ations:
(A) Confinement is necessary to protect society by

restraining a defendant who has a long h istory of crimin al conduc

t; (B) Confineme

nt is nece ssary

to avoid dep

reciating the se

riousnes s of the of

fense or confinement

is particularly

suited to provide

an effective de

terren ce to othe

rs likely to commit similar offenses; or (C) Measures less restri c tive 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).

Ad di ti on al ly, the principles of sentencing reflect that the sentenc e should be no greater than that deserved for the offense committed and should be the least severemeasure necessary to achieve the purposes for which the sentence is imposed. See Tenn. Code Ann. § 40-35-103(2 ), (4) . The court sho uld also c onsider t he potent ial for r ehabilita tion or tre atment of

the defe ndant in determining the appropriate sentence

. See id. § 40-35-103(5).

Becau se the De fe nd an t i s a st an da rd of fe nd er co nv ic te d o f o ne cl as s D fe lo ny, three c lass E felonie s, and thre e class A misdemeanors, he was entitled to a presumption that he was a favor able candida te for alternative sentencing in the absenc e 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 rebuttedby t

estimony by t he Defe ndant’s mother, Te resa 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 drug s he has used weighed against the presumptionthat he was a favorable candidate f or alternative sentencing. The trial court sta

ted that it

did not believe the Def endant when he testified that he had taken no medication on the day of the se ntencing hearing. The c ourt described the Defend ant as having slurredspeech and

almost falling asleep during his mother’s testimony . The trial court concluded that the Defendant would be“better off in jai l than out th

ere popp ing pills a s fast as h e can g et some druggist to give them to him.”

The Defend ant conte

nds that the trial c ourt did no t proper ly c onsi der the sentencing principl es set out in Tennessee Code Annotated section 40-35-103(1), which ar e listed above. However, the trial court

did properly consider

the testimony of the Defe ndant’s mother that he could notcomply

withthe conditions of an alt ernativ e sentence. Ms. Gentry also testi fied tha

t the victi m of the Defendant’s forger

ies was her mother, with whom the Defendant would live if he were granted-6-

an alte rnative sent ence. Also, the court heard the testimony of the Defendant’s probation officer, who, along w ith Dr. B ell, did no t perce ive the De

fendant to be ame

nable to r ehabil itation. Th e potential or lack of potential for rehabilitation of a defendant should be considered in determining whether he or she should be granted an alterna tive sentence. See Tenn. Code Ann. § 40-35-103(5). Furthermore, the probation officer testified that the Defendant ha d been untruthful about

the vari ety of drugs that he had u sed, and the t rial cou rt express ed its doub ts about the Defe ndant’s h onesty regar ding his u se of medication on the day of the se ntencing hearing. A def

endant’s credibility or lack thereof is germane to his or her re habilitative potential. See Statev. Zeol ia , 928 S.W.2d 457, 463 (Ten n. Crim. Ap

p. 1996); State v. Dowdy , 894 S.W.2d 301, 306 (Tenn. Crim. App. 1994). Alth ough the Def

endant had no prior convictions, at the time he was sentenced he had seve n convicti ons, representing significant criminal behavior. See Stat e v. Cu mmin gs , 868 S.W.2d 661, 667 (Tenn. Cr

im. App. 19 92). His lo ngtime u se of illegal drugs is further evidenc e of his previous hist ory of criminal behavior. Therefore, we believe that the presumption that the Defendan t is a favora ble candidate for alternative sentencing has been rebutted by

the e viden ce of his lack of potential for rehabilitation and lon g history of criminal conduct. Accord

ingly , we are

unable to conclude that

the tr ial j udge erred or abused his discretion in deny ing the Defendant an alternative sentence. The judgment of the trial court is affirmed.

___________________________________ DAVID H. WEL

LES, JUDGE