State of Tennessee v. Robert Wayne Cooper ( 2012 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs November 15, 2011
STATE OF TENNESSEE v. ROBERT WAYNE COOPER
Direct Appeal from the Circuit Court for Montgomery County
Nos. 40900545; 40901088 John H. Gasaway, III, Judge
No. M2011-00124-CCA-R3-CD - Filed March 15, 2012
The Defendant-Appellant, Robert Wayne Cooper, entered guilty pleas to four counts of
burglary, a Class D felony, in the Montgomery County Circuit Court. The trial court
sentenced him to forty-two months for each count, imposed concurrent sentences for three
of the burglary counts, and ordered that these sentences be served consecutively to the
remaining burglary count, for an effective sentence of eighty-four months in the Tennessee
Department of Correction. On appeal, Cooper argues that the trial court erred by: (1)
imposing a partially consecutive sentence alignment, and (2) imposing a sentence of total
confinement. Upon review, we affirm the trial court’s judgments.
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 J AMES C URWOOD
W ITT, J R., and D. K ELLY T HOMAS, J R., JJ., joined.
Roger E. Nell, District Public Defender; Charles S. Bloodworth, Assistant Public Defender,
Clarksville, Tennessee, for the Defendant-Appellant, Robert Wayne Cooper.
Robert E. Cooper, Jr., Attorney General and Reporter; Meredith Devault, Senior Counsel;
John W. Carney, Jr., District Attorney General; Arthur Bieber and Timothy J. Peters,
Assistant District Attorneys General, for the Appellee, State of Tennessee.
OPINION
During the May 2009 term, the Montgomery County Grand Jury returned a fifteen-
count indictment against Cooper in case number 40900545. This indictment alleged that
Cooper committed the following offenses at Langford Welding and Steel on December 1,
2008: Count 1, burglary of a non-habitation; Count 2, theft of property valued at $1,000 or
more but less than $10,000; and Count 3, vandalism of property valued at more than $500
but less than $1,000. The indictment also alleged that Cooper committed the following
offenses at Red River Block on December 24, 2008: Count 4, burglary of a non-habitation;
Count 5, theft of property valued at $1,000 or more but less than $10,000, and Count 6,
vandalism of property valued at $1,000 or more but less than $10,000. The indictment
further alleged that Cooper committed the following offenses at Lui Heimansohn Scrap
Metals on January 3, 2009: Count 7, burglary of a non-habitation; Count 8, theft of property
valued at $10,000 or more but less than $60,000; and Count 9, vandalism with damage to
property valued at $1,000 or more but less than $10,000. Finally, this indictment alleged that
Cooper committed the following offenses on January 13, 2008: Count 10, felony evading
arrest; Count 11, felon in possession of a handgun; Count 12, possession of marijuana; Count
13, possession of drug paraphernalia; Count 14, possession of a 38 caliber handgun with its
identifying information altered, covered, defaced, destroyed, or removed with intent to
conceal or misrepresent the identity; and Count 15, possession of a burglary tool.
In addition, during the September 2009 term, the Montgomery County Grand Jury
returned a three-count indictment against Cooper in case number 40901088. This indictment
alleged that Cooper committed the following offenses at Winn Materials on December 21,
2007: Count 1, burglary of a non-habitation; Count 2, theft of property valued at $1,000 or
more but less than $10,000; and Count 3, vandalism of property valued at $1,000 or more but
less than $10,000.
On August 16, 2010, Cooper entered guilty pleas in case number 40900545 to Counts
1, 4, and 7, the three counts of burglary of a non-habitation, and all the other counts in that
indictment were dismissed. On the same date, Cooper also entered a guilty plea in case
number 40901088 to Count 1, burglary of a non-habitation, and the other two counts in that
indictment were dismissed.
Plea Submission Hearing. At the August 16, 2010 plea submission hearing, the State
provided a summary of the facts supporting the entry of Cooper’s guilty pleas:
Taking them in chronological order, under docket number 40901088[,] the
State would attempt to prove that [Cooper] com[m]itted the burglary of a non
[-]habitation; that is[,] Winn Materials, . . . on December 21[,] 2007.
The proof the State would present is that the building was broken into,
and the [modus operandi] in each of these burglaries . . . [was] substantially
the same. It was a commercial building; it was late at night; [Cooper] would
cut the telephone lines or otherwise disrupt the alarm system, enter the
building either through a door, a rooftop, but forced entry into the building,
typically seize a safe and either open the safe on the spot or take the safe with
him in another vehicle and open it later.
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....
On that December 21[, 2007] burglary of Winn Materials no one was
immediately apprehended. Blood was recovered where the perpetrator had cut
himself in an effort to get into the building, but [law enforcement] didn’t have
any person to match it to [sic][,] and the case went inactive in 2008.
In 2008 . . . three [more] burglaries took place within about a one[-]
month period; using a similar [modus operandi. The first of these three
burglaries occurred at] Langford Steel on December[ 1, 2008], that is count
one of indictment 40900545; then three weeks later Red River Block [was]
burglarized in a similar [manner], that is count four of indictment ending in
545, and then the Lui Heimansohn, Curtis Mize recycling facility out on the
bypass was burglarized [in] a similar [manner] on January [3,] 2009, and in
that burglary the safe was actually taken out of the building.
[Cooper] was apprehended and then escaped from custody; he was
serving a general sessions sentence. He was identified at a truck stop by a
highway patrolman who saw [Cooper] sleeping in his car. When he was
roused[, Cooper drove off] in [his] vehicle, [and during the] attempt to make
an escape[,] he was forced into a field where he abandoned the vehicle.
[Cooper] was apprehended and in the vehicle [were] fruits, evidence[,] and
instrumentalities of the . . . 2008, 2009 burglaries . . . . Blood was drawn from
Mr. Cooper[,] and he was matched to the burglary [of Winn Materials] that
had been unsolved since December of 2007 . . . .
So in each of those two indictments, [409]01088 and . . . [409]00545
[Cooper] is charged [with] a series of offenses, each one consisting of a
burglary [of a] non[-]habitation, a theft for the property taken, and a vandalism
for damage either to the building and/or the safe . . . and/or [the] telephone
lines.
In the second indictment I mentioned[, 40900]545[,] . . . [there were]
additional counts resulting from the evading arrest [and the] drug
paraphernalia that was found in the vehicle after [Cooper] abandoned his
vehicle and so on; generally speaking [the] misdemeanor offenses [in] counts
ten through [fifteen]. And, of course, [Cooper], as I’ve stated, was [on] escape
status. That has turned into a misdemeanor escape warrant – [under] docket
. . . 40900478.
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The settlement is as follows, Your Honor: [Cooper] pleads guilty to
each [count charging him with burglary] of the non[-]habitation; that is[,
Cooper] pleads guilty in count one to the burglary of Winn Materials in
[409]01088, an offense occurring on December 21, 2007; under [the]
indictment number . . . [40900]545[, Cooper also] pleads guilty in count one,
that’s Langford Welding and Steel from December[ 1,] 2008; Red River
Block, count four, occurring on December [24,] 2008[, a]nd Lui Heimansohn
Salvage, Curtis Mize, occurring on January [3, 2009], that’s count seven. The
other counts would be dismissed in settlement, as well as the misdemeanor
escape [count] in the indictment [number] . . . [40900]478.
The State noted that it had originally filed a “[R]ange two notice” based on some
Class E felony convictions that Cooper received approximately nineteen to twenty-three
years before committing the offenses in this case. However, the State asserted that, in
exchange for the entry of Cooper’s guilty pleas to the four burglaries in this case, which
saved the time and expense of several jury trials and which made expert DNA testimony
unnecessary, it had agreed to sentence Cooper as a Range one, standard offender.
Sentencing Hearing. At the December 2, 2010 sentencing hearing, the State’s only
proof was the presentence investigation report, which was admitted into evidence. This
report showed that Cooper’s criminal history included two felony convictions and twenty
misdemeanor convictions, which are summarized in the table below:
Date of Conviction Offense Punishment
August 6, 1984 Possession of weapon with Sentence of 11 months, 29
intent to go armed days suspended after
service of 120 days;
payment of court costs
October 2, 1984 Altering the permanent Service of 120 days at a
identification number on a local workhouse; payment
weapon of $98.75 in court costs
October 2, 1984 Driving with a revoked Sentence of 11 months, 29
license days suspended after
service of 48 hours;
payment of $50 fine plus
court costs
October 2, 1984 Possession of marijuana Sentence of 11 months, 29
days suspended after
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service of 120 days;
payment of court costs
October 2, 1984 Failure to obey traffic laws/ Sentence of 11 months, 29
rules of the road days suspended after
service of 30 days;
payment of $10 fine; this
sentence was served
concurrently with
sentences received for
previous arrest
November 18, 1986 Failure to obey traffic laws/ Vehicle forfeited.
rules of the road
December 19, 1986 Contributing to the Sentence of 11 months, 29
delinquency of a minor days suspended after
service of 2 days; payment
of $250 fine plus court
costs; this sentence was
served concurrently with
sentences received for
previous arrests
December 19, 1986 Possession of marijuana Sentence of 11 months, 29
days suspended after
service of 2 days; payment
of $250 fine plus court
costs; this sentence was
served concurrently with
sentences received for
previous arrests
May 15, 1987 Possession of burglary Three-year suspended
tools (Class E felony) sentence to be served on
supervised probation
March 4, 1988 Assault and Battery sentence of 11 months, 29
(committed approximately days suspended; this
one month after he sentence was served
committed possession of Concurrently with his
burglary tools offense) three-year sentence for
possession of burglary
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tools
March 11, 1991 Simple Assault (was Sentence of 11 months, 29
originally charged with days suspended after
aggravated assault) service of 6 months
February 6, 1991 Operating a vehicle Forfeiture of vehicle
without a registration and
without registered plates
Failure to exhibit driver’s
license on demand
Undefined offense
October 25, 1991 Failure to abide by traffic Forfeiture of vehicle
laws/rules of the road
March 23, 1993 Offense involving Two-year suspended
Schedule VI drug not less sentence
than one-half (½) ounce
nor more than ten pounds
(10 lbs.) (committed within
approximately ten days of
prior offense for failure to
abide by traffic laws/rules
of the road) (Class E
felony)
December 10, 1992 Driving on a revoked Sentence of 11 months, 29
license days suspended; payment
of $50 fine plus court
costs; suspension of
driver’s license
June 16, 1994 Public intoxication Payment of fine and court
costs
May 13, 2008 Resisting a stop, frisk, halt, Sentence of 11 months, 29
arrest, or search days suspended
May 13, 2008 Evading arrest Sentence of 11 months, 29
days suspended
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May 13, 2008 Misdemeanor escape Sentence of 11 months, 29
(originally charged with days suspended after
felony escape) service of 10 days
July 21, 2008 Theft - up to $500 Sentence of 11 months, 29
(originally charged with days
burglary - 1 st degree)
The presentence investigation report also showed that Cooper had received probation and
parole for some of his convictions and had participated in the “boot camp” program in the
past. In addition, the report indicated that Cooper had “a history of unwillingness to comply
with the conditions of a sentence involving release in the community as evidenced by several
violations of probation and parole.”
Cooper indicated in the report that he had graduated from high school, had not
pursued any further education, and had received no vocational training. This educational
information could not be verified. Cooper also claimed that he had worked in the concrete
pouring and finishing business for several different employers for more than twenty-seven
years and had most recently worked for Ace Concrete for ten years. He also stated that he
had earned money painting automobiles. However, this employment history could not be
verified. In the report, Cooper indicated that he was “confident” that he could find
employment if released from confinement. He also told the investigating officer that he did
not use illegal drugs even though he “grew them and sold them.” However, a presentence
report from an earlier criminal case showed that Cooper had a “preferred habit” of using
marijuana, which began when he was sixteen years old.
Cooper, age forty-seven, testified in his own behalf at the sentencing hearing. He
admitted that he had been convicted of a Class E felony marijuana offense in 1993, and a
Class E felony possession of burglary tools offense in 1987. When the State asked him about
his Stewart County conviction for escape, Cooper responded that he had been convicted of
attempted escape because he had “tried to walk out of the jail.” He also acknowledged that
he had been placed in a workhouse as punishment for a theft of property conviction and that
he had escaped from the workhouse detail after eight days. He explained that he escaped
from the detail because no one realized that he was serving a two-year probationary sentence
for a case in Stewart County at the time that he was sentenced to the workhouse, so he
panicked and “did it again.”
Cooper stated that following his conviction for theft in July 2008, he refrained from
committing burglaries until December 2008 when he began burglarizing businesses again
because the weather turned cold and he had no work and no place to stay. He explained that
all of the victim businesses were in the concrete business. He stated that he knew Bill
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Langford of Langford Fabricating because he and Langford used to be partners in a concrete
business. He said he also knew Lui Heimansohn because he used to sell Heimansohn’s
father-in-law “gensing, yellow root.” Cooper said he specifically chose the businesses to
burglarize because he suspected that they had money stored in safes. He said he would cut
the telephone lines to the businesses so that the security systems would not notify the police.
He initially claimed that he had not been to the victim’s businesses prior to robbing them but
later admitted that he had been to Lui Heimansohn’s business approximately ten years before
he burglarized it.
Cooper admitted he stole a total of $18,000 from the victim businesses. He
acknowledged he had been to jail and to prison for previous offenses. He also admitted that
he had been on probation for prior offenses and had violated his probation. Cooper also
acknowledged he was on escape status from an eleven-month, twenty-nine-day sentence for
a conviction in Montgomery County and was on probation for a conviction in Stewart
County at the time that he committed the instant offenses.
Cooper said he did not fight with the highway patrolman that arrested him and did not
have a history of violence. He refused to admit that he had a criminal history that included
drug offenses and claimed that his marijuana conviction was for the sale and delivery of
marijuana.
Cooper also made the following statement prior to being sentenced:
I would like to start [by] apologizing for what I did[,] and I can see
everybody’s point of view, what you are getting at [sic]. I could be trusted for
Community Corrections, if I [were] allowed to be on it. I am capable of paying
the money back . . . . That’s all I [sic] got to say.
At the close of proof, Cooper’s attorney reminded the court that Cooper had been in
custody for approximately two years since his arrest. Defense counsel requested that the
court consider the confinement Cooper had already served as punishment for the 2007
burglary and that the court impose a nine-year Community Corrections sentence as
punishment for the three remaining burglary offenses. He suggested that if Cooper obtained
employment and paid court-ordered restitution in full to the victim businesses, then he could
be “stepped down” from a Community Corrections sentence to a supervised probation
sentence after one year.
After hearing the proof and arguments from counsel, the trial court stated that it had
considered the factors in code section 40-35-210, which included the evidence received at
the sentencing hearing, the presentence report, the principles of sentencing and arguments
as to sentencing alternatives, the nature and characteristics of the criminal conduct involved,
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the evidence offered regarding the applicable mitigating and enhancement factors, any
statistical information from the Administrative Office of the Courts regarding sentencing
practices for similar offenses in Tennessee, and the statement that Cooper made in his own
behalf.
The trial court noted that Cooper was pleading guilty to four burglaries. The court
determined that these guilty pleas constituted mitigation because Cooper’s guilty pleas
obviated the need for separate jury trials for each of the burglary counts. See T.C.A. § 40-
35-113(13) (2006). The court also applied enhancement factor (1), that Cooper had “a
previous history of criminal convictions or criminal behavior, in addition to those necessary
to establish the appropriate range” because his criminal history included two felony
convictions and numerous misdemeanor convictions. See id. § 40-35-114(1) (2006). The
court also applied enhancement factor (8) because Cooper, “before trial or sentencing, failed
to comply with the conditions of a sentence involving release into the community[.]” See
id. § 40-35-114(8) (2006). Finally, the trial court applied enhancement factor (13) to the
offenses in case number 40900545 because at the time that these three burglaries were
committed, Cooper was “released on probation.” See id. § 40-35-114(13)(C) (2006). This
factor also could have been applied to these offenses because Cooper was on escape status
at the time he committed these burglaries. See id. § 40-35-114(13)(H) (2006).
The trial court also stated that it considered the sentencing purposes and
considerations outlined in sections 40-35-102 and -103. Regarding the factors in section 40-
35-103, the court stated:
[T]he Court has considered whether confinement is necessary to avoid
depreciating the seriousness of these offenses, or whether confinement is
particularly suited to provide an effective deterrence to others likely to commit
similar offenses[,] but more importantly, the Court has considered under sub-
part ([C]) whether measures less restrictive than confinement have frequently
or recently been applied unsuccessfully to [Cooper].
Because Cooper entered guilty pleas to four counts of burglary as a Range I, standard
offender, he faced a sentence of two to four years. See id. § 40-35-112(a)(4) (2006). At the
conclusion of the hearing, the trial court sentenced Cooper to forty-two months for each
burglary count, imposed concurrent sentences for three of the burglary counts, and ordered
that these sentences be served consecutively to the December 21, 2007 burglary count, for
an effective sentence of eighty-four months in the Tennessee Department of Correction.
Cooper subsequently filed a timely notice of appeal.
ANALYSIS
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Sentencing. Cooper contends that the trial court erred in ordering a partially
consecutive alignment of sentences and erred in denying alternative sentencing. In response,
the State argues that the record supports the sentence imposed by the trial court in this case.
This case is governed by the 2005 amended sentencing act because all four of the
burglary offenses occurred after the new sentencing act’s effective date of June 7, 2005. See
id. § 40-35-210 (2006), Compiler’s Notes. Under the amended sentencing act, “the trial
court ‘shall consider, but is not bound by’ an ‘advisory sentencing guideline’ that suggests
an adjustment to the defendant’s sentence upon the presence or absence of mitigating and
enhancement factors.” State v. Carter, 254 S.W.3d 335, 344 (Tenn. 2008) (quoting T.C.A.
§ 40-35-210(c) (2006)). Moreover, under the new law “[a]n appellate court is . . . bound by
a trial court’s decision as to the length of the sentence imposed so long as it is imposed in a
manner consistent with the purposes and principles set out in sections -102 and -103 of the
Sentencing Act.” Id. at 346. The Tennessee Supreme Court explained the impact of the
2005 amended sentencing act:
The amended statute no longer imposes a presumptive sentence.
Rather, the trial court is free to select any sentence within the applicable range
so long as the length of the sentence is “consistent with the purposes and
principles of [the Sentencing Act].” Id. § 40-35-210(d). Those purposes and
principles include “the imposition of a sentence justly deserved in relation to
the seriousness of the offense,” id. § 40-35-102(1), a punishment sufficient “to
prevent crime and promote respect for the law,” id. § 40-35-102(3), and
consideration of a defendant’s “potential or lack of potential for . . .
rehabilitation,” id. § 40-35-103(5).
Id. at 343 (internal footnote omitted). The court also emphasized the broad discretion the
trial court has in sentencing a defendant under this act:
[A] trial court’s weighing of various mitigating and enhancement factors has
been left to the trial court’s sound discretion. Since the Sentencing Act has
been revised to render these factors merely advisory, that discretion has been
broadened. Thus, even if a trial court recognizes and enunciates several
applicable enhancement factors, it does not abuse its discretion if it does not
increase the sentence beyond the minimum on the basis of those factors.
Similarly, if the trial court recognizes and enunciates several applicable
mitigating factors, it does not abuse its discretion if it does not reduce the
sentence from the maximum on the basis of those factors. The appellate courts
are therefore left with a narrower set of circumstances in which they might find
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that a trial court has abused its discretion in setting the length of a defendant’s
sentence.
Id. at 345-46.
On appeal, we must review issues regarding the length and manner of service of a
sentence de novo with a presumption that the trial court’s determinations are correct. T.C.A.
§ 40-35-401(d) (2006). Nevertheless, “the presumption of correctness which accompanies
the trial court’s action 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). This means that if the trial court followed the
statutory sentencing procedure, made adequate findings of fact that are supported by the
record, and gave due consideration and proper weight to the factors and principles that are
relevant to sentencing under the 1989 Sentencing Act, this court “may not disturb the
sentence even if we would have preferred a different result.” State v. Fletcher, 805 S.W.2d
785, 789 (Tenn. Crim. App. 1991). In a case where “the trial court applies inappropriate
mitigating and/or enhancement factors or otherwise fails to follow the Sentencing Act, the
presumption of correctness fails.” Carter, 254 S.W.3d at 345 (citing State v. Shelton, 854
S.W.2d 116, 123 (Tenn. Crim. App. 1992)). Because it appears that the trial court properly
considered the purposes and principles of the sentencing act, our review is de novo with a
presumption of correctness. See id. at 345-46; Ashby, 823 S.W.2d at 169.
A trial court, when sentencing a defendant, must consider the following:
(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.
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T.C.A. § 40-35-210(b) (2006); see also Carter, 254 S.W.3d at 343; State v. Hayes, 337
S.W.3d 235, 264 (Tenn. Crim. App. 2010). The defendant has the burden of showing the
impropriety of the sentence. See T.C.A. § 40-35-401(d) (2006), Sentencing Comm’n
Comments.
I. Consecutive Sentencing. Cooper contends that the trial court erred by ordering a
partially consecutive alignment of his sentences. First, he asserts that the trial court failed
to make any findings regarding the factors for consecutive sentencing in section 40-35-
115(b) and failed to otherwise explain the imposition of a partially consecutive sentence
alignment mandated by section 40-35-210(e), which requires the trial court to “place on the
record, either orally or in writing, what enhancement or mitigating factors were considered,
if any, as well as the reasons for the sentence, in order to ensure fair and consistent
sentencing.” Although Cooper assumes that the court sentenced him to a partially
consecutive sentence because he committed three of the instant burglaries while on
probation, he claims that the trial court did not apply this factor on the record. See id. § 40-
35-115(b)(6) (2006). Moreover, he argues that because the trial court used the factor that he
committed three offenses in this case while on probation when determining the length of his
sentences, the court’s use of this same fact to sentence him to a consecutive sentence under
section 40-35-115(b)(6) violates his double jeopardy protections and violates his right to due
process. See State v. Wyatt, No. 03C01-9301-CR-00016, 1994 WL 41332 (Tenn. Crim.
App., at — , Feb. 9, 1994), perm. app. denied (Tenn. May 16, 1994) (“The aggravating
circumstances relied upon by this Court to justify the imposition of consecutive sentencing
are not redundant or duplicative of any enhancement factors relied upon in determining
appellant’s basic sentence.”).
In response, the State argues that the record in this case supports the imposition of a
partially consecutive sentence alignment. The State also asserts that “[t]here is no
prohibition in the 1989 Sentencing Act against using the same facts and circumstances both
to enhance sentences under the applicable enhancement factors and to require those sentences
to be served consecutively.” See State v. Meeks, 867 S.W.2d 361, 377 (Tenn. Crim. App.
1993) (also citing State v. Davis, 825 S.W.2d 109, 113 (Tenn. Crim. App. 1991) for the
proposition that “consideration of prior criminal convictions and conduct for both
enhancement and consecutive sentencing purposes is allowed”); State v. Melvin, 913 S.W.2d
195, 205 (Tenn. Crim. App. 1995) (holding that “[t]he use of enhancement factors to increase
the length of a sentence within the appropriate range does not bar the use of these facts in
determining whether consecutive sentences should be imposed”). We agree with the State.
Where a defendant is convicted of one or more offenses, the trial court has discretion
to decide whether the sentences shall be served concurrently or consecutively. T.C.A. § 40-
35-115(a) (2006). A trial court may order multiple offenses to be served consecutively if it
finds by a preponderance of the evidence that a defendant fits into at least one of the seven
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categories in section 40-35-115(b) (2006). An order of consecutive sentencing must be
“justly deserved in relation to the seriousness of the offense.” Id. § 40-35-102(1) (2006).
In addition, the length of a consecutive sentence must be “no greater than that deserved for
the offense committed.” Id. § 40-35-103(2) (2006).
Here, in determining the length of each of the four burglary sentences, the trial court
found that Cooper had “a previous history of criminal convictions or criminal behavior, in
addition to those necessary to establish the appropriate range[.]” Id. § 40-35-114(1) (2006).
The court noted that Cooper’s criminal record included two previous felony convictions and
at least fifteen misdemeanor convictions.1 See id. § 40-35-115(b)(2) (2006). At the
sentencing hearing, Cooper never disputed his criminal history. This court has held that
“[e]xtensive criminal history alone will support consecutive sentencing.” State v. Adams,
973 S.W.2d 224, 231 (Tenn. Crim. App. 1997) (citing State v. Chrisman, 885 S.W.2d 834,
839 (Tenn. Crim. App. 1994)). Moreover, the court noted that three of the four burglaries
were committed while Cooper was on probation. See T.C.A. § 40-35-114(13)(C), -115(b)(6)
(2006).
We conclude that the trial court did not err in ordering Cooper to serve concurrent
sentences for counts one, four, and seven of indictment number 40900545 and in ordering
that these sentences be served consecutively to the burglary conviction in indictment number
40901088. Although the trial court did not explicitly refer to the factors in section 40-35-
115(b), we conclude that the court provided an adequate record regarding the need for a
partially consecutive alignment of sentences. The record shows that Cooper’s criminal
record was extensive and that three of the four burglaries were committed while Cooper was
on probation. See id. § 40-35-115(b) (2), (6) (2006). Accordingly, Cooper is not entitled to
relief on this issue.
II. Alternative Sentence. Cooper also argues that the trial court erred by failing to
consider an alternative sentence. He contends that the trial court failed to apply any of the
factors in section 40-35-103(1) before ordering him to serve a sentence of confinement.
Finally, he argues that the trial court, in sentencing him to a sentence of total confinement,
failed to consider the General Assembly’s repeated preference for sentences requiring
restitution to victims. See id. §§ 40-35-102(3)(D) (“[R]estitution to victims [is encouraged]
where appropriate.”), 40-35-103(6) (“Trial judges are encouraged to use alternatives to
incarceration that include requirements of reparation, victim compensation, community
service or all of these.”), 40-35-104(c)(2) (the payment of restitution to a victim may be
combined with an alternative sentence where appropriate), 40-35-304 (outlining the
1
The presentence report shows that Cooper’s criminal history actually included twenty misdemeanor
convictions.
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procedural rules regarding restitution). In response, the State asserts that the record supports
a sentence of confinement, especially since Cooper was on escape status from an eleven-
month, twenty-nine-day sentence in Montgomery County and was on probation in Stewart
County when he committed three of the burglaries in this case. We agree with the State.
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). A trial court should consider the following
when determining whether there is “evidence to the contrary” that would prevent an
individual from receiving alternative sentencing:
(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 also Ashby, 823 S.W.2d at 169.
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
(Tenn. Crim. App. 1996). Where a defendant is considered a favorable candidate for
alternative sentencing, the State has the burden of presenting evidence to the contrary. See
State v. Bingham, 910 S.W.2d 448, 454 (Tenn. Crim. App. 1995), overruled on other
grounds by State v. Hooper, 29 S.W.3d 1, 9 (Tenn. 2000). However, 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) (2006)).
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). The trial court shall
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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. See 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, his 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 (Tenn. 1978)). The court should also consider the potential for rehabilitation or
treatment of the defendant in determining the appropriate sentence. See T.C.A. §
40-35-103(5) (2006). In addition, the principles of sentencing require the sentence to be “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) (2006). In addition, “[t]he potential or lack of potential for the rehabilitation or treatment
of the defendant should be considered in determining the sentence alternative or length of a
term to be imposed[,]” and “[t]he length of a term of probation may reflect the length of a
treatment or rehabilitation program in which participation is a condition of the sentence[.]”
Id. § 40-35-103(5) (2006). Moreover, our supreme court has held that truthfulness is a factor
which the court may consider in deciding whether to grant or deny probation. State v.
Bunch, 646 S.W.2d 158, 160 (Tenn. 1983) (citing State v. Poe, 614 S.W.2d 403, 404 (Tenn.
Crim. App. 1981)).
Here, the trial court placed particular emphasis on the fact that confinement was
necessary because “[m]easures less restrictive than confinement [had] frequently or recently
been applied unsuccessfully to the defendant[.]” T.C.A. § 40-35-103(1)(C) (2006).
Although Cooper was considered a favorable candidate for alternative sentencing, the fact
that he had violated his probation and parole several times in the past and had committed
three of the four burglaries in this case while on probation for a separate offense constituted
“evidence to the contrary” that prevented him from receiving an alternative sentence.
Moreover, Cooper failed to establish his suitability for full probation. Lastly, Cooper was
ineligible for a Community Corrections sentence because the trial court determined that total
confinement was appropriate in this case and because Cooper was on escape status that the
time he committed three of the four burglaries in this case. See id. § 40-36-106(a)(2) (2006).
Accordingly, Cooper is not entitled to relief.
CONCLUSION
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Upon review of the record, we affirm the trial court’s judgments.
______________________________
CAMILLE R. McMULLEN, JUDGE
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