STATE OF TENNESSEE v. ADAM LEE LOPER ( 2020 )

10/22/2020
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs August 26, 2020
STATE OF TENNESSEE v. ADAM LEE LOPER
Appeal from the Criminal Court for Putnam County
No. 18-CR-818 Wesley Thomas Bray, Judge
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No. M2019-02258-CCA-R3-CD
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On September 30, 2019, the Defendant, Adam Lee Loper, pleaded guilty to theft of more
than $2,500. The trial court imposed a three-year sentence of incarceration. The Defendant
argues on appeal that the trial court erred in denying his request for probation. After
thorough review, we affirm the judgment of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
ALAN E. GLENN, J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS,
P.J., and NORMA MCGEE OGLE, J., joined.
Craig Fickling, District Public Defender, and Allison Rasbury West, Assistant District
Public Defender, for the appellant, Adam Lee Loper.
Herbert H. Slatery III, Attorney General and Reporter; Benjamin A. Ball, Senior Assistant
Attorney General; Bryant Dunaway, District Attorney General; and Bret Gunn, Assistant
District Attorney General, for the appellee, State of Tennessee.
OPINION
FACTS
We initially note that the Defendant has failed to include a transcript of the guilty
plea submission hearing in the record on appeal. Such an omission may prevent plenary
review of the Defendant’s appeal. See State v. Caudle, 388 S.W.3d 273, 279 (Tenn. 2012)
(holding that “when a record does not include a transcript of the hearing on a guilty plea,
the Court of Criminal Appeals should determine on a case-by-case basis whether the record
is sufficient for a meaningful review”). In the instant case, the record contains adequate
information for a meaningful review. See id. (“[T]he key to meaningful appellate review
under the abuse of discretion standard is whether the trial court recites a proper basis for
the sentence.”). The record before us on appeal includes the sentencing hearing transcript,
the presentence report, and judgment, which is sufficient for our review of the issue
presented, and we will presume the guilty plea submission hearing transcript supports the
trial court’s decision. See Caudle, 388 S.W.3d at 279 (“If . . . the record is adequate for a
meaningful review, the appellate court may review the merits of the sentencing decision
with a presumption that the missing transcript would support the ruling of the trial court.”).
Because the transcript from the guilty plea submission hearing is not included in the
record on appeal, we derive the following summary of the facts from the presentence
report.1 On June 6, 2018, Cookeville Police Department (“CPD”) officers responded to a
“shoplifter call” at a gas station. While en route, CPD Officer Michael Arms was advised
that the suspects were leaving the scene, going east on Interstate 40, and a be-on-the-
lookout (“BOLO”) call was sent to local authorities with the suspects’ vehicle information.
After arriving at the crime scene, Officer Arms was informed that “a black male entered
the store and distracted the clerk while a white male and female” filled two suitcases with
cartons of cigarettes from the stock room. The suspects then “fled the scene,” putting the
two suitcases in the trunk of a “white car.” The Tennessee Highway Patrol observed the
suspects’ vehicle on Interstate 40 and attempted to stop it. A pursuit ensued, and the
suspects were detained by the highway patrol. The agency searched the vehicle and found
two suitcases full of “approximately fifty-eight cartons” of cigarettes in the trunk of the
vehicle, with a total value of $3,034.
The trial court conducted a sentencing hearing on December 2, 2019. At the
sentencing hearing, Dannon Stickler affirmed that she prepared the Defendant’s
presentence report. Ms. Stickler testified that in creating the report, she discovered the
Defendant had a Knox County theft conviction with an offense date two days later than
that of the offense he was being sentenced for and an August 2018 Knox County theft
conviction, meaning he was “on bond for the Putnam County” case when the Knox County
offenses were committed. Ms. Stickler noted that the Defendant pleaded guilty and
received probation for the Knox County offenses in September 2018, but his probation was
revoked in May 2019 “when he was found to be in violation[,] and those sentences were
placed into effect[.]” The Defendant also had “prior incidents in Knox County where he’s
had violations” of probation.
On cross-examination, Ms. Stickler agreed that of the Defendant’s more than 20
total arrests, the “vast majority” were misdemeanors or dismissals. She also affirmed that
he had multiple felony theft convictions. In total, the presentence report showed 14 prior
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We note that the Defendant stipulated to the presentence report at the sentencing hearing.
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theft convictions, two drug paraphernalia convictions, one DUI conviction, one casual
exchange conviction, and one attempted aggravated assault conviction. Ms. Stickler
testified that the Defendant had a “moderate” score on the risks and needs assessment with
regard to his “ability to complete probation[.]” The presentence report also reflected that
the Defendant admitted to “weekly” cocaine use and did not have any employment listed
after May 2011.
The Defendant’s mother, Joan Loper, testified that she and her husband took care
of three of the Defendant’s four children, which was a financial “hardship[.]” She stated
that he needed to be on probation so that he could “come home and take care of his own
kids and [] pay child support.” Ms. Loper also testified that she would not be able to have
“knee replacement surgery while . . . caring for [the Defendant’s] three children[.]” She
stated that the Defendant had changed “like a hundred percent” and was “very religious
now.” Ms. Loper affirmed that the Defendant had “agreed to move into” her home if
granted probation. The Defendant’s father, Ron Loper, echoed his wife’s testimony. He
agreed that it was “very difficult” for them to take care of the Defendant’s children. He
also believed that the Defendant had “changed a lot[,]” and he affirmed that he and his wife
would be supportive of the Defendant if he were granted probation.
In an allocution by the Defendant, he stated that he would “like to go back to school”
and “start over[.]” He said that he worried about his parents having to take care of his
children and was “very sorry for the path that [he’d] chosen.” He also asserted that he was
a “more humble person” than he was prior to incarceration and had “learned a lot of
patience[.]”
Following the sentencing hearing, the trial court noted that it “sympathize[d]” with
the Defendant’s parents and the hardship of taking care of the Defendant’s children.
However, the court also noted that the Defendant’s previous probation “didn’t work” and
concluded that “confinement [was] necessary to protect society from [the Defendant].”
The trial court denied the Defendant an alternative sentence and ordered him to serve his
three-year sentence incarcerated.
ANALYSIS
The Defendant argues on appeal that the trial court abused its discretion by denying
his request for alternative sentencing and ordering he serve his sentence in confinement.
Specifically, he asserts that the court erred because his allocution showed remorse and a
“plan for a more successful and productive future.” The State responds that the trial court
properly considered the Defendant’s previous probation violations and criminal history in
concluding that less restrictive measures than confinement had been unsuccessful in
rehabilitating the Defendant and ordering incarceration. We agree with the State.
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Under the 2016 amendments to the Sentencing Act, a trial court is to consider the
following when determining a defendant’s 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; and
(8) The result of the validated risk and needs assessment conducted by the
department and contained in the presentence report.
Tenn. Code Ann. § 40-35-210(b).
The trial court is granted broad discretion to impose a sentence anywhere within the
applicable range, regardless of the presence or absence of enhancement or mitigating
factors, and “sentences should be upheld so long as the statutory purposes and principles,
along with any applicable enhancement and mitigating factors, have been properly
addressed.” State v. Bise, 380 S.W.3d 682, 706 (Tenn. 2012). Accordingly, we review a
trial court’s sentencing determinations under an abuse of discretion standard, “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 standard
of review also applies to “questions related to probation or any other alternative sentence.”
State v. Caudle, 388 S.W.3d 273, 278-79 (Tenn. 2012).
We initially note that under the revised Tennessee sentencing statutes, a defendant
is no longer presumed to be a favorable candidate for alternative sentencing. State v.
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Carter, 254 S.W.3d 335, 347 (Tenn. 2008) (citing Tenn. Code Ann. § 40-35-102(6)).
Instead, the “advisory” sentencing guidelines provide that a defendant “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[.]” Tenn. Code Ann. § 40-35-102(6).
A defendant shall be eligible for probation, subject to certain exceptions, if the
sentence imposed on the defendant is ten years or less. Id. § 40-35-303(a). A defendant is
not, however, automatically entitled to probation as a matter of law. The burden is upon
the defendant to show that he is a suitable candidate for probation. Id. § 40-35-303(b);
State v. Goode, 956 S.W.2d 521, 527 (Tenn. Crim. App. 1997); State v. Boggs, 932 S.W.2d
467, 477 (Tenn. Crim. App. 1996). In order to meet this burden, the defendant “must
demonstrate that probation will ‘subserve the ends of justice and the best interest of both
the public and the defendant.’” State v. Bingham, 910 S.W.2d 448, 456 (Tenn. Crim. App.
1995) (quoting State v. Dykes, 803 S.W.2d 250, 259 (Tenn. Crim. App. 1990)).
There is no bright line rule for determining when a defendant should be granted
probation. Bingham, 910 S.W.2d at 456. Every sentencing decision necessarily requires
a case-by-case analysis. Id. Factors to be considered include the circumstances
surrounding the offense, the defendant’s criminal record, the defendant’s social history and
present condition, the need for deterrence, and the best interest of the defendant and the
public. Goode, 956 S.W.2d at 527. Also relevant is whether a sentence of probation would
unduly depreciate the seriousness of the offense. See State v. Davis, 940 S.W.2d 558, 559
(Tenn. 1997); Bingham, 910 S.W.2d at 456.
To qualify for consideration for punishment in the community, an offender must
meet all of the following criteria:
(A) Persons who, without this option, would be incarcerated in a correctional
institution;
(B) Persons who are convicted of property-related, or drug-or alcohol-related
felony offenses or other felony offenses not involving crimes against the
person as provided in title 39, chapter 13, parts 1-5;
(C) Persons who are convicted of nonviolent felony offenses;
(D) Persons who are convicted of felony offenses in which the use or
possession of a weapon was not involved;
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(E) Persons who do not demonstrate a present or past pattern of behavior
indicating violence; and
(F) Persons who do not demonstrate a pattern of committing violent offenses.
Tenn. Code Ann. § 40-36-106(a)(1).
Under the “special needs” provision of the statute, an offender who does not
otherwise meet the criteria above “and who would be usually considered unfit for probation
due to histories of chronic alcohol or drug abuse or mental health problems, but whose
special needs are treatable and could be served best in the community” may be considered
eligible for a community corrections sentence. Id. § 40-36-106(c). In making this
determination, the trial court must first find that the defendant is eligible for probation and
then must determine that (1) the defendant has a history of chronic alcohol abuse, drug
abuse, or mental health problems; (2) these factors were reasonably related to and
contributed to the defendant’s criminal conduct; (3) the identifiable special needs are
treatable, and (4) the treatment of the special need could be best served in the community
rather than in a correctional institution. State v. Grigsby, 957 S.W.2d 541, 546-47 (Tenn.
Crim. App. 1997) (citations omitted).
However, even where a defendant meets the eligibility requirements of the statute,
the defendant is not automatically entitled to participate in community corrections. See
State v. Ball, 973 S.W.2d 288, 294 (Tenn. Crim. App. 1998). The defendant “bears the
burden of affirmatively showing a ‘special need’ which could be better addressed in the
community.” Grigsby, 957 S.W.2d at 547 n.11. Moreover, the trial court is in the best
position to ascertain a defendant’s amenability to a community corrections program given
its ability to observe the defendant’s demeanor and characteristics first hand. Id. at 547.
In determining if incarceration is appropriate in a given case, a trial court should
consider whether:
(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[.]
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Tenn. Code Ann. § 40-35-103(1). Furthermore, the defendant’s potential for rehabilitation
or lack thereof should be examined when determining whether an alternative sentence is
appropriate. Id. § 40-35-103(5).
After listening to the Defendant’s allocution, the trial court noted that it had
considered the evidence presented at the sentencing hearing, the principles of sentencing
and arguments as to sentencing alternatives, and the nature and characteristics of the
criminal conduct to which the Defendant pleaded guilty. The court noted that because the
three-year sentence length had previously been agreed upon, there were “really no
mitigating or enhancement factors to consider[.]”
The trial court examined the Defendant’s previous criminal history and noted that
he had committed “theft, after theft, after theft[.]” The court also noted that the Defendant
had “picked up [] charges” after pleading guilty to the charges in the instant appeal. The
trial court acknowledged that it “realize[d] drugs are a life controlling issue” but was
troubled that “rehab,” treatment, and previous grants of probation “didn’t work.” The trial
court also observed that the Defendant had been a father for 18 years but had constantly
“chose[n] a life of crime” over making life changes and being a father to his children.
Ultimately, the trial court found that “confinement was necessary” to protect society from
the Defendant and to “avoid depreciating the seriousness of the offense” the Defendant
committed.
We find no abuse of discretion in the trial court’s denial of probation. As the trial
court noted, the Defendant had a history of committing similar theft offenses and had been
previously granted probation, which he violated. Although the Defendant gave an
allocution indicating a desire to support his children and life changes he had made, the trial
court noted that he had committed similar theft offenses before and after committing the
instant theft offense. As evidenced by the record on appeal, the trial court thoroughly
considered all of the evidence before it prior to denying probation and ordering
incarceration, and the court stated its reasons for doing so. Despite the Defendant’s
arguments to the contrary, he is not entitled to probation, regardless of his remorse or plans
for the future. As we have stated, the court’s denial of probation and imposition of
incarceration is entitled to a presumption of correctness absent an abuse of discretion, and
we accordingly affirm the trial court’s sentencing decision. The Defendant is not entitled
to relief.
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CONCLUSION
Based on the foregoing authorities and reasoning, we affirm the judgment of the
trial court.
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ALAN E. GLENN, JUDGE
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