especially mitigated standard in Tennessee

2016A defendant who does not possess a criminal history showing a clear disregard for society’s laws and morals, who has not failed past rehabilitation efforts, and who “is an especially mitigated or standard offender convicted of a Class C, D, or E felony is presumed to be a favorable candidate for alternative sentencing options in the absence of evidence to the contrary.” Id. § 40-35- 102(6); See also Fields, 40 S.W.3d at 440 .

2011A defendant who does not possess a criminal history showing a clear disregard for society’s laws and morals, who has not failed past rehabilitation efforts, and who “is an especially mitigated or standard offender convicted of a Class C, D or E felony is presumed to be a favorable candidate for alternative sentencing options in the absence of evidence to the contrary,” T.C.A. § 40-35-102(6) (2003), where “the sentence actually imposed upon such defendant is eight (8) years or less.” T.C.A. § 40-35-303(a); see also State v. Fields, 40 S.W.3d 435, 440 (Tenn. 2001).

2011Tennessee Code Annotated section 40-35-102(6) (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[.]” 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 de

2011Accordingly, Colley is not considered a favorable candidate for -9- alternative sentencing under Tennessee Code Annotated section 40-35-102(6) (2006), which 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[.]” A trial court, when imposing a sentence of total confinement, should base its decision on the following factors: (A) Confinement is necessar

2016The following considerations provide guidance regarding what constitutes “evidence to the contrary” which would rebut the presumption of 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 defenda

2001According to this subdivision, the defendant “who does not fall within the parameters of subdivision (5) and who is an especially mitigated or standard offender convicted of a Class C, D or E felony is presumed to be a favorable candidate for alternative sentencing options in the absence of evidence to the contrary.” Id. § 40-35-102(6); see also State v. Hooper, 29 S.W.3d 1, 5 (Tenn.2000) (“This statutory presumption of alternative sentencing is not conclusive, however, and the presumption may be rebutted by ‘evidence to the contrary.’ ”).

2003A defendant who “is an especially mitigated or standard offender convicted of a Class C, D, or E felony is presumed to be a favorable candidate for alternative sentencing options in the absence of evidence to the contrary.” Tenn. Code Ann. § 40-35-102 (6); State v. Lane, 3 S.W.3d 456, 462 (Tenn. 1999).

2003A defendant who “is an especially mitigated or standard offender convicted of a Class C, D, or E felony is presumed to be a favorable candidate for alternative sentencing options in the absence of evidence to the contrary.” Tenn. Code Ann. § 40-35-102 (6) (1997); see also State v. Lane, 3 S.W.3d 456, 462 (Tenn. 1999).

2005Furthermore, “[t]he trial court must presume that a defendant sentenced to eight years or less and not an offender for whom incarceration is a priority is subject to alternative sentencing and that a sentence other than incarceration would result in successful rehabilitation.” State v. Byrd, 861 S.W.2d 377, 379-80 (Tenn. Crim.

1995The defendant must (1) be an especially mitigated or standard offender who has been convicted of a class C, D or E felony, and (2) must not have a criminal history “evincing a clear disregard for the laws and morals of society and evincing failure of past efforts at rehabilitation.” Tenn. *271 Code Ann. § 40-35-102(5) (emphasis added) (1990); see also Tenn.Code Ann. § 40-35-102(6) (1990); State v. Byrd, 861 S.W.2d 377, 379 (Tenn.Crim.App.1993).

2014See T.C.A. § 40-35-102(6) (2010) (stating that an eligible 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”); see also State v. Carter, 254 S.W.3d 335, 346 (Tenn. 2008).

2014See T.C.A. § 40-35-102(6) (2010) (stating that an eligible 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”); see also State v. Carter, 254 S.W.3d 335, 346 (Tenn. 2008).

2021Although the trial court is required to automatically consider probation as a sentencing option, see Tennessee Code Annotated section 40-35-303(b), no criminal defendant is automatically entitled to probation as a matter of law, see State v. Davis, 940 S.W.2d 558, 559 (Tenn. 1997).

2018State v. Davis, 940 S.W.2d 558, 559 (Tenn 1997). lnstead, the defendant bears the burden of proving his or her suitability for alternative sentencing options State v. Carter, 254 S.W.3d 335, 347 (Tenn. 2008) (citing T.C.A. § 40-35-303(b)).

2022Id.

2010State v. Boggs, 932 S.W.2d 467, 477 (Tenn. Crim.

2022A defendant has the burden of establishing that he is suitable for probation and “demonstrating that probation -5- will ‘subserve the ends of justice and the best interest of both the public and the defendant.’” Carter, 254 S.W.3d at 347 (quoting State v. Housewright, 982 S.W.2d 354, 357 (Tenn. Crim.

2015App. P. 36(a); Moss, 13 S.W.3d at 387 (concluding that when the defendant did not receive the victim impact statements until the day of the sentencing hearing and trial counsel did not object or request a continuance, “any issue predicated upon the timeliness of the report [was] 3 The offense in Donald Blevins was committed before the 2005 amendment to Tennessee Code Annotated section 40-35-102(6) took effect, and the defendant was sentenced under the 2003 version of the sentencing act, which provided that “an especially mitigated or standard offender convicted of a Class C, D, or E felony is

2015App. P. 36(a); Moss, 13 S.W.3d at 387 (concluding that when the defendant did not receive the victim impact statements until the day of the sentencing hearing and trial counsel did not object or request a continuance, “any issue predicated upon the timeliness of the report [was] 3 The offense in Donald Blevins was committed before the 2005 amendment to Tennessee Code Annotated section 40-35-102(6) took effect, and the defendant was sentenced under the 2003 version of the sentencing act, which provided that “an especially mitigated or standard offender convicted of a Class C, D, or E felony is

2010Even though probation must be automatically considered, “the defendant is not automatically entitled to probation as a matter of law.” T.C.A. § 40-35-303(b) (2006), Sentencing Comm’n Comments; State v. Hartley, 818 S.W.2d 370, 373 (Tenn. Crim.

2010The granting or denial of probation rests within the sound discretion of the trial judg e. State v. Mitch ell, 810 S.W.2d 733, 735 (Tenn. Crim.

2008Tenn. Code Ann. §§ 40-35-102 , -103, -210 (2003); see State v. Ashby, 823 S.W.2d 166, 168 (Tenn. 1991); State v. Moss, 727 S.W.2d 229, 236-37 (Tenn. 1986). -3- A defendant who does not possess a criminal history showing a clear disregard for society’s laws and morals, who has not failed past rehabilitation efforts, and who “is an especially mitigated or standard offender convicted of a Class C, D, or E felony is presumed to be a favorable candidate for alternative sentencing options in the absence of evidence to the contrary.” Tenn. Code Ann. § 40-35-102 (6); see also State v. Fields, 40 S.W.3

2007T.C.A. § 40-35-401, Sentencing Comm’n Comments; see also State v. Arnett, 49 S.W.3d 250, 257 (Tenn. 2001). -6- A defendant “who is an especially mitigated or standard offender convicted of a Class C, D, or E felony is presumed to be a favorable candidate for alternative sentencing options in the absence of evidence to the contrary.” T.C.A. § 40-35-102(6).

2005See Tenn. Code Ann. § 40-35-102 (6) (2003) ("A defendant . . . who is an especially mitigated or standard offender convicted of a Class C, D or E felony is presumed to be a favorable candidate for alternative sentencing options in the absence of evidence to the contrary."); see also State v. Souder, 105 S.W.3d 602, 607 (Tenn. Crim.

2003However, a defendant who commits “the most severe offenses, possess[es] a criminal histor[y] evincing a clear disregard for the laws and morals of society, and [has failed] past efforts at rehabilitation” does not 1 See Trotter v. State, 508 S.W.2d 808, 809 (Tenn. Crim.

2002As pointed out by the state, “[p]robation is a privilege or act of grace which may be granted to a defendant who is eligible and worthy of this largesse of law.” State v. Dykes, 803 S.W.2d 250, 259 (Tenn. Crim.

2001Cf. State v. Hudson, 562 S.W.2d 416, 419 (Tenn.1978) (holding that Tennessee Code Annotated section 39-4914, which provided additional punishment for one who employs a firearm as a means of committing a felony, does not create a separate offense, but provides only for increased punishment and “the form of the indictment ... should have been in compliance with the construction of [section] 30-4914.”) In the alternative, a defendant is presumed to be a favorable candidate for alternative sentencing if, under Tennessee Code Annotated section 40-35-102(6) (1997), the defendant is an especially mit

2001Therefore, to be eligible for alternative sentencing, the defendant must not have committed the “most severe offense,” nor have a criminal history evincing either “a clear disregard for the laws and morals of society,” or “failure at past efforts at rehabilitation.” Id.

2000See State v. Vanderford, 980 S.W.2d 390, 407 (Tenn. Crim.

2000See also State v. Bonestel, 871 S.W.2d 163, 167 (Tenn. Crim.

2000Tenn. Code Ann. § 40-35 - 102(5), (6) (1990 & Supp. 1996); State v. Grigsby, 957 S.W.2d 541, 545 (Tenn. Crim.