State of Tennessee v. Jeffery Deshawn Mitchell ( 2013 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs November 14, 2013
STATE OF TENNESSEE v. JEFFERY DESHAWN MITCHELL
Appeal from the Circuit Court for Marshall County
Nos. 12-CR-136, 12-CR-137, 12-CR-138, 12-CR-139 Robert G. Crigler, Judge
No. M2013-00265-CCA-R3-CD - Filed December 4, 2013
The Defendant-Appellant, Jeffrey Deshawn Mitchell, entered guilty pleas in Case No. 12-
CR-136 to sale of a counterfeit substance, which he represented to be cocaine (count 1) and
delivery of a counterfeit substance (count 2); in Case No. 12-CR-137 to sale of less than .5
grams of cocaine base (count 1) and delivery of less than .5 grams of cocaine base (count 2);
in Case No. 12-CR-138 to sale of less than .5 grams of cocaine base (count 1) and delivery
of less than .5 grams of cocaine base (count 2); and in Case No. 12-CR-139 to possession
with the intent to sell .5 grams or more of cocaine base (count 1), possession with intent to
deliver .5 grams or more of cocaine base (count 2), resisting arrest (count 3), and evading
arrest (count 4). The plea agreement stated that the length and manner of sentencing in these
cases would be determined by the trial court, and the trial court sentenced Mitchell as a
Range I, standard offender to an effective sentence of seventeen years in confinement. On
appeal, Mitchell argues that his sentence is excessive. Upon review, we affirm the judgments
of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed
C AMILLE R. M CM ULLEN, J., delivered the opinion of the court, in which T HOMAS T.
W OODALL and J OHN E VERETT W ILLIAMS, JJ., joined.
James R. Frazier, for the Defendant-Appellant, Jeffery DeShawn Mitchell.
Robert E. Cooper, Jr., Attorney General and Reporter; Meredith DeVault, Senior Counsel;
Robert Carter; District Attorney General; and Weakley E. Barnard, Assistant District
Attorney General, for the Appellee, State of Tennessee.
OPINION
FACTS
Plea Submission Hearing. At the November 7, 2012 plea submission hearing, the
State summarized the facts supporting Mitchell’s guilty pleas:
Starting first with case number 12-CR-136, those events occurred on
October 13, 2010. It was a controlled buy. It was preceded by a recorded
telephone call between a confidential informant [(CI)] and the defendant, that
was recorded and monitored by agents of the Drug Task Force.
The agents then conducted a search of the confidential informant to
make sure the confidential informant was not in possession of anything that
would taint a controlled buy.
The arrangement was made that the defendant would come to a
residence the CI was located at. The defendant was then observed driving to
that location.
The CI was observed walking outside, interacting with the defendant,
whereupon the CI handed $100 to the defendant and received crack cocaine
in exchange.
The CI returned inside, handed it over to the Task Force agents. They
noticed that it appeared to be a very small quantity, given it was a $100 buy.
They actually had the CI call the defendant and complain about the weight, and
the defendant offered some explanation about that he had acquired it from
someone else, and et cetera.
It was sent to the lab, and it weighed .4 of a gram.
In case number [12-CR-]137, this event occurred on November 18,
2010. Again, it was preceded by a recorded and monitored telephone call
between the CI and the defendant about purchasing crack cocaine. It was
agreed to.
Again, the same scenario would be repeated. The defendant would
come to the residence where the CI was located. The CI would come outside
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and purchase the crack cocaine from the defendant. That is exactly what
happened.
The defendant was observed driving to that residence. The CI was
observed going outside. They interacted, and the CI handed $100 to the
defendant. The defendant handed back several baggies of suspected crack
cocaine. The CI turned those over to the Task Force agents.
The individual weights, because there were, I think, four baggies were:
.09; .1; another .1; and another .1. That adds up to just 1/100 of a gram less
than .4 of a gram, so I guess that is 3.99 grams–or excuse me–.39 grams, so
1/100 of a gram less than .4.
Case number [12-CR-]138 occurred on January 5, 2011. Again, you
had recorded and monitored telephone calls between the defendant and the CI
about the defendant coming to the residence, where the CI was located.
The defendant was observed going to that location. The CI was
observed going outside. The CI handed the money to the defendant. The
defendant handed crack cocaine to the CI. The CI went back inside and
handed that to the Task Force agents.
In this case it weighed .2 grams.
Lastly, in case number [12-CR-]139, those events occurred on May 3,
2012.
The agents of the Task Force had information about the defendant, that
he was currently involved in selling crack cocaine from the parking lot of the
rec center here in Lewisburg. They went to that location.
They also had a description of the vehicle. As they were getting to that
location, they observed the vehicle leaving the rec center. They wound up
conducting a traffic stop of the vehicle. The defendant was a passenger in the
vehicle.
The stop, I will tell you, is on videotape. I believe they requested that
the defendant step out of the vehicle. They explained that he was going to be
pat[ted] down.
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I will tell you, the officers also smelled burnt marijuana coming from
the vehicle. I think they talked with both the driver and the defendant about
whether they had just smoked marijuana.
Outside the vehicle, it was explained the defendant was going to be
pat[ted] down. And I believe before that process could actually begin, the
defendant took off running. At this point, he disappears from the view of the
camera.
Of course, the two agents of the Drug Task Force immediately go on
pursuit and they deploy their Tazer, which does strike the defendant. He falls
to the ground at that point. They get on top of him, of course, trying to now
arrest him.
He did continue to resist that effort momentarily, but ultimately they
were able to take–or get control of him, get him handcuffed, take him into
custody.
They did search him after that and found $181 in cash; and crack
cocaine which was sent to the lab that weighed 1.61 grams.
Sentencing Hearing. At the December 19, 2012 sentencing hearing, the State
admitted the presentence investigation report and acknowledged that Mitchell was a Range
I, standard offender. The presentence report showed that Mitchell’s criminal history included
several misdemeanor convictions, including two convictions for driving on a suspended,
cancelled, or revoked license, two convictions for violating the seat belt law, and convictions
for criminal trespass, evading arrest, theft of property valued at less than $500, simple
assault, and violating the insurance law. The report also showed that Mitchell had received
probation at least eight times in the past and had violated the terms of his probation at least
three times. Moreover, the report showed that Mitchell had been released on bond for the
offenses in Case Nos. 12-CR-136 and 12-CR-137 when he committed the offenses in Case
No. 12-CR-139.
Crystal Gray, the probation and parole officer who prepared Mitchell’s presentence
report, testified that Mitchell was twenty-two years old at the time she completed his report.
She stated that Mitchell made the following statement to her that was included in the report:
“My offense is the sell [sic] of drugs and possession. I did this at the time because lack of
not having a job at the time. I was only trying to help my family which is my mom and sister,
and kids.”
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Gray stated that Mitchell had been serving a probationary sentence for an unrelated
theft conviction when he committed the offenses in Case Nos. 12-CR-136 and 12-CR-137.
She also confirmed that Mitchell was serving several probationary sentences for unrelated
convictions when he committed the offenses in Case No. 12-CR-139. Specifically, Mitchell
was serving a probationary sentence for evading arrest when he committed the offense of
evading arrest in count 4 of Case No. 12-CR-139.
Although Mitchell told Gray that he was not affiliated with a gang, Officer John
Christmas of the Lewisburg Police Department informed Gray that the police had listed
Mitchell as a suspected member of the Vice Lords gang. Although Mitchell had been
charged with several offenses involving cocaine at the time of her report, he denied using
cocaine and asserted that he only sold it. Mitchell admitted that he began using marijuana
and alcohol when he was fourteen years old and last used marijuana in May 2012 prior to his
arrest.
Gray noted that Mitchell had committed two offenses as a juvenile which would have
been felonies if he had committed them as an adult. These juvenile offenses included a
September 20, 2005 adjudication for aggravated robbery and an August 3, 2006 adjudication
for aggravated burglary. Gray stated that Mitchell had also been convicted of several
misdemeanors as a juvenile, including simple possession of marijuana, theft of property
valued at less than $500, and possession of tobacco on school property.
Gray said that Mitchell reported that he had two children for whom he did not pay
child support. She stated that Mitchell had been employed at Lewisburg Printing but was
fired when he tested positive for marijuana. She also stated that he had been hired and then
laid off several times from Cosmolab. She said Mitchell worked for Shoney’s restaurant but
lost that job when he was returned to the State’s custody.
Shane Daugherty, a lieutenant with the Drug Task Force, testified that he assisted in
arresting Mitchell for the offenses in Case No. 12-CR-139 after Mitchell attempted to evade
the police. Once Mitchell was taken into custody, Lieutenant Daugherty recovered a bag
containing 1.6 grams of crack cocaine or cocaine base. Lieutenant Daugherty stated that use
and sale of crack cocaine posed a high risk to human life and that approximately 200 of the
more than 300 drugs cases in the judicial district involved cocaine or crack cocaine. He
asserted that confinement deterred individuals from committing offenses involving crack
cocaine. Lieutenant Daugherty said he believed, based on his own observations, that
Mitchell was a member of “The Conservative Vice Lords,” the largest gang in Lewisburg,
Tennessee. He stated that the members of this gang supported themselves and their families
by selling illegal drugs.
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John Christmas, an officer with the Lewisburg Police Department, testified that he had
extensive experience in investigating gangs. He determined, based on his own investigation,
that Mitchell was “a low-ranking soldier” or “enforcer” member of the “Vice Lords” gang.
He said that enforcer members usually worked for the gang and committed violence against
non-members or members who had violated one of the gang’s bylaws. Using the point-scale
system employed by state and federal agencies that concludes that individuals receiving a
score of “10” or more are in a gang, Officer Christmas stated that Mitchell received a score
of “17.” He identified a photograph, entered into evidence, of Mitchell and three other
individuals, all of whom were confirmed members of the Vice Lords gang. In it, Mitchell
was displaying the Vice Lords’ hand sign.
Mitchell, the Defendant-Appellant, testified that he had matured and changed his ways
since he committed the offenses in this case. He said that if the court were to grant him a
Community Corrections sentence, he could work at his uncle’s car-detailing business.
Mitchell said he had received seven months of training as an auto body mechanic at the
Nashville Auto Diesel College but had quit before completing the thirteen-month course
because his girlfriend, Adrika O’Neal, had become pregnant with their first child. Mitchell
attributed his juvenile offenses to the bad company that he kept at the time. Although he
stated that he never used cocaine or crack cocaine, he admitted that he smoked marijuana
four or five times a week until his incarceration in May 2012. He stated that he would
willingly participate in a drug rehabilitation program if he were granted an alternative
sentence.
Mitchell denied that he was a member of the Vice Lords gang. When Mitchell was
shown the photograph identified by Officer Christmas, he claimed that although he knew
“Semo,” another man in the photograph, they were not friends. Mitchell stated that he did
not know that “Semo” held a high position in the Vice Lords gang. He also denied knowing
that the other two men in the picture were members of the Vice Lords gang. He claimed that
he was intoxicated and just having fun when he made the Vice Lords’ hand sign in the
photograph.
Mitchell stated that he had been in a relationship with Adrika O’Neal, the mother of
his two children, for eight years and that they lived together. He claimed he was a good
father and that although there was no order requiring him to pay child support, he financially
supported his children.
Adrika O’Neal, Mitchell’s girlfriend and the mother of his two children, testified that
Mitchell lived with her most of the time. She stated that Mitchell was a good father who
provided for his children. She acknowledged that she “sort of kind of knew” that he was
selling drugs and that Mitchell refused to listen to her when she told him to stop. O’Neal
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stated that she would help Mitchell fulfill his obligations if he received probation or a
Community Corrections sentence. She stated that she was not aware of Mitchell belonging
to a gang.
The trial court determined that Mitchell was a Range I, standard offender. See id. §
40-35-105. The court applied enhancement factor (1), that the defendant had a history of
criminal convictions or criminal behavior, in addition to that necessary to establish his range.
See T.C.A. § 40-35-114(1). The court noted that although Mitchell had not been convicted
of any felonies as an adult, he had been convicted of numerous misdemeanors as an adult,
including two convictions for driving on a suspended, cancelled, or revoked license, two
convictions for violating the seat belt law, and convictions for criminal trespass, evading
arrest, theft of property valued at less than $500, simple assault, and violating the insurance
law. The court also noted that Mitchell’s admission of regular drug use supported the
application of factor (1). The court also applied enhancement factor (8), that the defendant,
before trial or sentencing, failed to comply with the conditions of a sentence involving
release into the community. See id. § 40-35-114(8). In applying this factor, the court also
noted that Mitchell had violated his probation three times in the past for failing to report to
court or failing to pay fines, fees, or costs. The court applied enhancement factor 13(A), that
at the time the defendant committed the felony for which he was convicted, he had been
released on bail. See id. § 40-35-114(13)(A). It stated that although factor (13)(A) did not
apply to Case No. 12-CR-136, it would apply to the other three cases. In addition, the court
applied enhancement factor 13(C), that at the time the defendant committed the felony for
which he was convicted, he had been released on probation. See id. § 40-35-114(13)(C).
The court noted that Mitchell was on probation for misdemeanor theft in Case No. 2009-CR-
1862 at the time he committed all of the offenses in this case. The court also noted that
Mitchell was on probation for a simple assault conviction at the time that he committed the
offenses in Case No. 12-CR-139. Finally, the court applied enhancement factor (16), that the
defendant was adjudicated to have committed a delinquent act or acts as a juvenile that would
constitute a felony if committed by an adult. See id. § 40-35-114(16). The court noted that
Mitchell had committed two offenses as a juvenile, attempted aggravated robbery and
aggravated burglary, which would have been the felonies if he had committed them as an
adult. It also applied the “catch-all” mitigating factor that Mitchell had entered guilty pleas
to the offenses in this case. See id. § 40-35-113(13).
At the conclusion of the hearing, the trial court in Case No. 12-CR-136 merged count
2 with count 1 and sentenced Mitchell to one year and six months for the conviction for sale
of a counterfeit controlled substance, a Class E felony. See id. § 40-35-112(a)(5). In Case
No. 12-CR-137, the trial court merged count 2 with count 1 and sentenced Mitchell to four
years and six months for his conviction for sale of a Schedule II drug, a Class C felony. See
id. § 40-35-112(a)(3). In Case No. 12-CR-138, the trial court merged count 2 with count 1
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and sentenced Mitchell to five years for the conviction for sale of a Schedule II drug, a Class
C felony. See id. In Case No. 12-CR-139, the trial court merged count 2 with count one and
sentenced Mitchell in count 1 to eleven years for his conviction for possession with intent
to sell a Schedule II drug, a Class B felony; in count 3 to six months at seventy-five percent
for his conviction for resisting arrest, a Class B misdemeanor; and in count 4 to eleven
months and twenty-nine days at seventy-five percent for his conviction for evading arrest,
a Class A misdemeanor. See id. § 40-35-112(a)(2).
We note that there was some confusion in the record regarding the particular offenses
for which Mitchell had been released on bond when he committed other offenses in this case.
However, based on the record, Mitchell was released on bond in Case Nos. 12-CR-136 and
12-CR-137 when he committed the offenses in Case No. 12-CR-139. Accordingly, pursuant
to Tennessee Rule of Criminal Procedure 32(c)(3), Case No. 12-CR-139 must be served
consecutively to Case Nos. 12-CR-136 and 12-CR-137. The court also ordered that Case
Nos. 12-CR-136 and 12-CR-137 be served consecutively to one another, which is supported
by Tennessee Code Annotated sections 40-35-115(b)(1), (2), (6). Because of the court’s
imposition of consecutive sentencing, Mitchell received an effective sentence of seventeen
years. The trial court determined that this sentence was justly deserved based on the
seriousness of the offenses and that the sentence was no greater than that deserved for the
offenses committed. See id. § 40-35-102(1), -103(2).
Regarding alternative sentencing, the court found that confinement was necessary to
protect society because Mitchell had a long history of criminal conduct. See id. § 40-35-
103(1)(A). The court noted that although Mitchell had no prior felony convictions as an
adult, he had been convicted of four felonies in this case. The court also noted that
Mitchell’s juvenile record, which included two offenses that would have been felonies if he
had committed them as an adult and included numerous misdemeanor convictions, weighed
against the grant of alternative sentencing or a sentence of split confinement. In addition, the
court found that confinement was necessary to avoid depreciating the seriousness of the
offense or was particularly suited to provide an effective deterrence to others likely to
commit similar offenses. See id. § 40-35-103(1)(B). The court specifically accredited
Lieutenant Daugherty’s testimony regarding the prevalence of cocaine offenses in the district
and the fact that incarceration deterred individuals from committing offenses involving crack
cocaine. Lastly, the court found that measures less restrictive than confinement had
frequently or recently been applied unsuccessfully to Mitchell. See id. § 40-35-103(1)(C).
The record showed that Mitchell had been granted probation multiple times in the past and
had violated the terms of his probation at least three times. Regarding Mitchell’s potential
for rehabilitation, the court noted that Mitchell had “a job and had a chance at one point
probably to be a productive working person” but “didn’t do it” because he was fired from
that job for testing positive for marijuana.
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ANALYSIS
Mitchell argues that his sentence is excessive. Specifically, he asserts that the trial
court improperly applied enhancement factors (1) and (8) and that the trial court failed to
consider the principles of sentencing and arguments as to sentencing alternatives as required
by Tennessee Code Annotated section 40-35-210(b)(3). Mitchell asks that this court reduce
his sentence in count 1 of Case No. 12-CR-139 to eight years and grant him Community
Corrections sentences, probation, or split confinement for all of his convictions. The State
responds that the sentences in this case were proper because the trial court imposed within-
range sentences consistent with the purposes and principles of the Sentencing Act. We agree
with the State.
We note that the 2005 amendments to the sentencing act “served to increase the
discretionary authority of trial courts in sentencing.” State v. Bise, 380 S.W.3d 682, 708
(Tenn. 2012). In light of this broader discretion, “sentences should be upheld so long as the
statutory purposes and principles, along with any applicable enhancement and mitigating
factors, have been properly addressed.” Id. at 706. Therefore, this court reviews a trial
court’s sentencing determinations under “an abuse of discretion standard of review, granting
a presumption of reasonableness to within-range sentencing decisions that reflect a proper
application of the purposes and principles of our Sentencing Act.” Id. at 707. This abuse of
discretion standard of review also applies to a trial court’s decision regarding “probation or
any other alternative sentence.” State v. Caudle, 388 S.W.3d 273, 278-79 (Tenn. 2012).
Pursuant to the 2005 amendments to the sentencing act, a trial court must consider the
following when determining a defendant’s specific sentence and the appropriate combination
of sentencing alternatives:
(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). The defendant has the burden of showing the impropriety of the
sentence on appeal. Id. § 40-35-401(d), Sentencing Comm’n Comments. In determining the
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proper sentence, the trial court must consider the defendant’s potential for rehabilitation or
treatment. Id. §§ 40-35-102, -103. In addition, the court must impose a sentence “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.” Id. §§ 40-35-103(2), (4).
Any sentence that does not involve complete confinement is an alternative sentence.
See generally State v. Fields, 40 S.W.3d 435 (Tenn. 2001). Tennessee Code Annotated
section 40-35-102(6)(A) (2006) 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[.]” However, a trial court
“shall consider, but is not bound by, the advisory sentencing guideline” in section 40-35-
102(6)(A). T.C.A. § 40-35-102(6)(D) (2006).
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 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[.]
Id. § 40-35-103(1)(A)-(C) (2006); see State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).
Tennessee Code Annotated section 40-35-102(5) gives courts guidance regarding the types
of defendants who should be required to serve their sentences in confinement:
In recognition that state prison capacities and the funds to build and maintain
them are limited, convicted felons committing the most severe offenses,
possessing criminal histories evincing a clear disregard for the laws and morals
of society and evincing failure of past efforts at rehabilitation shall be given
first priority regarding sentencing involving incarceration[.]
We note that the trial court’s determination of whether the defendant is entitled to an
alternative sentence and whether the defendant is a suitable candidate for full probation are
different inquiries with different burdens of proof. State v. Boggs, 932 S.W.2d 467, 477
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(Tenn. Crim. App. 1996). The defendant has the burden of establishing suitability for full
probation, even if the defendant is considered a favorable candidate for alternative
sentencing. See id. (citing T.C.A. § 40-35-303(b)).
A defendant is eligible for probation if the actual sentence imposed upon the
defendant is ten years or less and the offense for which the defendant is sentenced is not
specifically excluded by statute. T.C.A. § 40-35-303(a) (2006). Although Mitchell was
eligible for probation for his convictions in Case Nos. 12-CR-136, 12-CR-137, and 12-CR-
138, he was ineligible for probation for count 1 in Case No. 12-CR-139 because his sentence
exceeded ten years. See id.; State v. Langston, 708 S.W.2d 830, 832-33 (Tenn. 1986)
(concluding that a defendant is eligible for probation if each of the sentences is ten years or
less regardless of the effective sentence). The trial court shall automatically consider
probation as a sentencing alternative for eligible defendants; however, the defendant bears
the burden of proving his or her suitability for probation. Id. § 40-35-303(b) (2006). In
addition, “the defendant is not automatically entitled to probation as a matter of law.” Id. §
40-35-303(b) (2006), Sentencing Comm’n Comments. Rather, the defendant must
demonstrate that probation would serve “the ends of justice and the best interests of both the
public and the defendant.” State v. Souder, 105 S.W.3d 602, 607 (Tenn. Crim. App. 2002)
(citations omitted). 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. See 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)).
Mitchell argues that the trial court erred in applying enhancement factor (1), that the
defendant had a history of criminal convictions or criminal behavior, in addition to that
necessary to establish his range, because he had no felony convictions as an adult and most
of his misdemeanor convictions involved traffic offenses. See T.C.A. § 40-35-114(1). Aside
from Mitchell’s extensive juvenile record, the trial court properly applied enhancement factor
(1) based on his extensive history of misdemeanor convictions as an adult, which included
two convictions for driving on a suspended, cancelled, or revoked license, two convictions
for violating the seat belt law, and convictions for criminal trespass, evading arrest, theft of
property valued at less than $500, simple assault, and violating the insurance law. Moreover,
the trial court properly applied enhancement factor (1) based on Mitchell’s admission that
he regularly smoked marijuana until his incarceration in this case.
Mitchell also argues that the trial court erred in applying enhancement factor (8), that
the defendant, before trial or sentencing, failed to comply with the conditions of a sentence
involving release into the community. See id. § 40-35-114(8). Although Mitchell
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acknowledges that he violated his probation for misdemeanor convictions when he was
between the ages of eighteen and twenty, he claims that these violations stemmed from his
failure to report to court and pay his fines and costs rather than new charges. We conclude
that the trial court properly applied enhancement factor (8) because the evidence showed that
Mitchell failed to abide by the terms of his probation, regardless of the nature of the terms.
Finally, Mitchell contends that the trial court failed to consider the principles of
sentencing and arguments as to sentencing alternatives as required by Tennessee Code
Annotated section 40-35-210(b)(3). He asserts that “[t]he imposition of sentences must bow
to the reality that the [S]tate does not have sufficient prison facilities to accommodate all
persons who, accordingly to traditional concepts of punishment, would be incarcerated.” He
argues that he was eligible for alternative sentencing pursuant to Code section 40-35-303(a),
because the offenses for which he was sentenced were not specifically excluded by statute.
Although he acknowledges that he was not considered as a favorable candidate for
alternative sentencing for his Class B felony conviction, he argues that alternative sentencing
was still an available option. Lastly, he asserts that an alternative sentence was appropriate
because he was “candid and honest” with the trial court, entered guilty pleas rather than
presenting a “frivolous defense,” accepted responsibility for his actions, and requested an
opportunity to “straighten out his life and assume family responsibilities.”
Here, the trial court properly imposed within-range sentences for all of Mitchell’s
convictions. See id. § 40-35-112(a). It then properly imposed sentences of confinement after
determining that Mitchell had a long history of criminal conduct, that confinement was
necessary to avoid depreciating the seriousness of the offense or was particularly suited to
provide an effective deterrence to others likely to commit similar offenses, and that measures
less restrictive than confinement had frequently or recently been applied unsuccessfully to
him. See id. § 40-35-103(1)(A)-(C). The presentence report showed that Mitchell’s criminal
history consisted of two offenses as a juvenile that would have been felonies if Mitchell had
committed them as an adult, at least nine misdemeanors as an adult, and at least three
probation revocations, which places him squarely within the parameters of Tennessee Code
Annotated section 40-35-102(5). Moreover, Mitchell failed to establish his suitability for
probation at the sentencing hearing. Because the record shows that the trial court carefully
considered the evidence, the enhancement and mitigating factors, and the purposes and
principles of sentencing prior to imposing a sentence of confinement, we uphold Mitchell’s
sentence of seventeen years in the Tennessee Department of Correction. See Caudle, 388
S.W.3d at 280.
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CONCLUSION
The trial court’s judgments are affirmed.
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CAMILLE R. McMULLEN, JUDGE
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