State of Tennessee v. Trevor H. Taylor

                                                                                       12/22/2017
       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                        AT KNOXVILLE
                          Assigned on Briefs May 17, 2017

              STATE OF TENNESSEE v. TREVOR H. TAYLOR

                Appeal from the Criminal Court for Sullivan County
                      No. S66141 James F. Goodwin, Judge
                     ___________________________________

                          No. E2016-01920-CCA-R3-CD
                      ___________________________________


Defendant, Trevor H. Taylor, pled guilty to three separate sales of cocaine.
Corresponding guilty pleas to delivery of cocaine were merged with the sale of cocaine
convictions. The negotiated plea agreement set a sentence of three years for each
conviction, to be served concurrently with each other for an effective sentence of three
years. The manner of service of the sentence was left to the determination of the trial
court at a separate sentencing hearing. The trial court ordered the entire sentence to be
served by incarceration. Defendant appeals, arguing that the trial court erred by denying
“probation or other appropriate alternative sentencing.” After review, we affirm the
judgments of the trial court.

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

THOMAS T. WOODALL, P.J., delivered the opinion of the court, in which JOHN EVERETT
WILLIAMS and ROBERT W. WEDEMEYER, JJ., joined.

Stephen M. Wallace, District Public Defender; and William A. Kennedy, Assistant Public
Defender, Blountville, Tennessee, for the appellant, Trevor Howard Taylor.

Herbert H. Slatery III, Attorney General and Reporter; Renee W. Turner, Senior Counsel;
Barry Staubus, District Attorney General; and Kent L. Chitwood, Jr., Assistant District
Attorney General, for the appellee, State of Tennessee.

                                       OPINION

      The record shows that Defendant sold cocaine to the confidential informant on
February 4, 2015, on February 5, 2015, and again on February 11, 2015. The sales were
monitored by law enforcement agents.
       Defendant’s criminal history included thirteen convictions between 1991 and
February 2016. Defendant was indicted by the Sullivan County Grand Jury for the
offenses in the case sub judice on February 23, 2016. His sentencing hearing was held
September 2, 2016, on the same day his guilty pleas were entered.

       The most recent conviction prior to the sentencing hearing was on February 10,
2016, for the offense of assault committed on January 22, 2016. In that case, Defendant
received a sentence of 11 months, 29 days, with all but 90 days suspended. He was also
ordered to have “A & D” treatment.

       All of Defendant’s prior convictions were misdemeanors. The pre-sentence report
shows that his first listed conviction in 1991, for vandalism, resulted in a totally
suspended sentence of 11 months, 29 days. His additional convictions and sentences are,
in chronological order: 2000, DUI, 11 months, 29 days, all but 10 days suspended; 2001,
evading arrest, 11 months, 29 days, all suspended; 2001, driving on revoked license, 6
months, all suspended; 2001, DUI, second offense, 11 months, 29 days, all but 47 days
suspended; 2001, vandalism, 11 months, 29 days, all suspended; 2003, assault, 11
months, 29 days, all suspended except 10 days; 2005, in Virginia, “embezzlement [of]
business” less than $200.00, 12 months, 5 days, suspended, plus 30 days of supervised
probation; 2005, driving without “DL/NO INSURANCE,” fine plus court costs; 2006,
assault, 11 months, 29 days, all but 45 days suspended; 2006, an additional conviction for
assault, 11 months, 29 days, all but 90 days suspended (the second assault in 2006 was
committed 15 days after he was convicted on the first assault in 2006); 2011, fraudulent
use of credit card, length of sentence not stated but all of it except 60 days was
suspended; 2016, the above described offense of assault.

       Clearly, over the period of 1991 through 2016, Defendant received alternative
sentences for each of twelve misdemeanor convictions, and he committed the offenses at
ages 22, 31, 32, 34, 35, 36, 37, 42, and 47. It is equally clear that alternative sentencing
on twelve occasions over 25 years neither rehabilitated nor deterred Defendant from
criminal conduct. With that in mind, we summarize the testimony at the sentencing
hearing.

       Defendant testified and agreed that his criminal record set forth in the presentence
report was correct. He added that he had been incarcerated for 187 days in lieu of bail,
pending disposition of the charges to which he had pled guilty. His entire testimony
consisted of one and one-half pages of transcript. In his brief direct examination (there
was no cross-examination by the State), Defendant set forth the reasons that he should
receive alternative sentencing for his effective 3-year sentence. Defendant stated that he
was “through with drugs.” He added that while incarcerated he had completed a drug and
alcohol class. Defendant expressed his intention to enter Tri-Cities Recovery when
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released. Defendant testified that the gentleman who taught the drug and alcohol class
was going to assist Defendant in his drug/alcohol recovery. Defendant stated that he
intended to resume work for a lawn care business so that he would be able to pay his
fines.

       In its ruling from the bench, the trial court announced that it had considered
everything set forth in T.C.A. § 40-35-210(b). Having done so, the trial court noted that
Defendant had “been given supervised probation repeatedly over the years. His offenses
go back to 1991 . . . and it’s just suspended sentence or probation time after time after
time again.” The trial court also pointed out that on “multiple occasions” Defendant
committed crimes while on probation.

       Based upon Defendant’s criminal history and his repeated failed efforts at release
with supervision, the trial court denied Defendant’s request for an alternative to
incarceration and ordered Defendant to serve the 3-year sentence in the Department of
Correction.

       On appeal, Defendant correctly asserts that he was statutorily eligible for
probation or some other form of alternative sentence. T.C.A. § 40-35-303(3). He argues
that the trial court abused its discretion by ordering the entire sentence to be served by
incarceration. He also specifically argues that since his prior convictions are only
misdemeanors, he should not be denied an alternative sentence because of his long
history of criminal conduct. T.C.A. § 40-35-103(1)(A). He also asserts that the multiple
occasions he committed crimes while on supervised release for prior convictions should
not deny his opportunity for an alternative sentence because all three events occurred
more than ten years ago and thus “cannot be said to have been frequent or recent.”
Defendant did not cite any cases in support of his unique arguments.

        Furthermore, Defendant argues that if he is not entitled to probation, he should
have been sentenced to community corrections. Defendant did not ask the trial court to
consider community corrections in the event probation was denied, and there was no
proof of the suitability of Defendant to be sentenced to community corrections. Thus, the
trial court had no need to address that specific alternative to full incarceration. Therefore,
Defendant has waived that argument on appeal. Even if not waived, nothing in the record
supports any type of alternative sentence for Defendant.

       A trial court’s sentencing decisions are generally reviewed for abuse of discretion,
with a presumption of reasonableness granted to within-range sentences in felony cases
that reflect a proper application of the purposes and principles of sentencing. State v.
Bise, 

 (Tenn. 2012). A trial court abuses its discretion when it
applies an incorrect legal standard, reaches an illogical conclusion, bases its decision on a
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clearly erroneous assessment of the evidence, or employs reasoning that causes an
injustice to the party complaining. State v. Herron, 

 (Tenn. 2015).

        This standard applies to misdemeanor sentences as well, and trial courts are
entitled to considerable latitude in misdemeanor sentencing. State v. Kavonda Renee
Waters, No. M2015-00324-CCA-R3-CD, 

, at *3 (Tenn. Crim. App.
May 25, 2016), no perm. app. filed.; State v. Troutman, 

 (Tenn.
1998). The appealing party bears the burden of proving that the sentence was improper.
State v. Ashby, 

 (Tenn. 1991); see T.C.A. § 40-35-401(d),
Sentencing Comm’n Comts.

       Decisions to deny probation are also reviewed for an abuse of discretion. State v.
Caudle, 

 (Tenn. 2012). A defendant bears the burden of proving
suitability for probation, including showing that probation will serve the ends of justice
and the best interests of the public and the defendant. State v. Carter, 

 (Tenn. 2008). In determining whether to grant probation, a trial court should
consider whether: 1) “confinement is necessary to protect society by restraining a
defendant who has a long history of criminal conduct;” 2) “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;” and 3)
“measures less restrictive than confinement have frequently or recently been applied
unsuccessfully to the defendant.” T.C.A. § 40-35-103(1)(A)-(C).

       As stated above, the trial court ordered Defendant’s sentence to be served by
incarceration because of Defendant’s lengthy criminal history and Defendant’s multiple
acts of criminal conduct while serving sentences on probation. The trial court listed all
the factors in T.C.A. § 40-35-210(b) which it had considered in determining the manner
of service of the sentence. The trial court properly applied the purposes and principles of
sentencing. There is a presumption of reasonableness afforded the trial court’s
determination, and there is no evidence of an abuse of discretion by the trial court.

        Accordingly, Defendant is not entitled to relief in this appeal, and the judgments
of the trial court are affirmed.


                                   ____________________________________________
                                   THOMAS T. WOODALL, PRESIDING JUDGE




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