State of Tennessee v. Antonio D. Blaylock

Jackson TN - Criminal defense attorney represented Antonio D. Blaylock with felony evading arrest, felony reckless endangerment, reckless driving, reckless aggravated assault, leaving the scene of an accident involving injury, misdemeanor evading arrest, driving without a license, and leaving the scene of an accident involving property damage charges.

On August 12, 2019, the Defendant entered an open plea to felony evading arrest,

felony reckless endangerment, reckless driving, reckless aggravated assault, leaving the

scene of an accident involving injury, misdemeanor evading arrest, driving without a

05/27/2021- 2 -

license, and leaving the scene of an accident involving property damage, with sentencing

to be determined by the trial court. Tenn. Code Ann. §§ 39-13-102, -13-103; 39-16-603;

55-10-101, -10-105, -10-205; 55-50-301. The facts underlying the plea, as explained by

the State, were as follows:

[O]n October 28th of 2018, deputies with the Madison County

Sheriff's Department were dispatched to 116 Baymeadows Drive in

reference to underage drinking. While en route, a complain[ant] called back

and said that shots had been fired. Deputy Burmeister was first on the scene.

He observed multiple cars leaving the area. He blocked the roadway at

Henderson Road and River Chase Drive where vehicles could not leave. He

observed every vehicle stop but a 2002 silver Jeep Cherokee who continued

to turn into a homeowner's yard and turn around. The deputy then cut the

vehicle off blocking the roadway to River Chase Drive and Candlewick

Drive. The vehicle then turned around again in another homeowner's yard.

The windows in the Cherokee were down. The officers did give

verbal commands for the driver to stop his vehicle. He refused to obey the

commands and the officer[']s emergency equipment and then turned around

the vehicle.

Deputies then turned around and again continued to make a traffic

stop. At that time the vehicle refused to stop and headed down Henderson

Road towards Old Medina Road.

At the intersection of Henderson Road and Old Medina Road, two

other deputies attempted to make contact with the vehicle. The driver then

cut through a yard and drove around the deputies onto Old Medina Road

headed southbound.

Deputy Reasons was then following directly behind the vehicle and

was calling out locations so the other officers could also assist in following

the vehicle. While attempting to stop the vehicle, the driver, [the Defendant],

reached speeds of 90-plus miles an hour through residential areas and

business areas and construction zones. He continued to drive erratically

going in and out of oncoming traffic.

The vehicle drove through a red light at the intersection of Campbell

and Ridgecrest almost hitting two vehicles. The driver then drove through a

construction barricade on South Campbell. While running through the

construction zone, the vehicle then ran a red light at the intersection of - 3 -

Campbell and North Parkway. The vehicle then hit a vehicle turning off of

Maple Street onto Campbell where the vehicle then swerved and ran through

an electric pole and hit a tree causing the vehicle to go airborne where it then

hit the front porch of a house and overturned onto the driver's side at the

residence of 149 Campbell Street.

EMS was called at that time to check on the people involved in the

crash. Deputy Reasons cleared the Jeep, but no contact with any occupants.

He observed a black male jump out of the sunroof of the silver Jeep Cherokee

headed west. He was wearing a gray hoodie and blue jeans. Deputies then

chased the suspect shouting multiple times, "Sheriff's Department. Stop.”

The suspect refused to stop and respond to voice commands.

The suspect continue[d] to run onto Pearl Avenue where Deputy

Reasons did catch the suspect behind a residence and he was placed under

arrest at this time.

Your Honor, the vehicle that [the Defendant] hit was a 2010 Ford

Edge. Your Honor, that was driven by the victim, [Taseshalyn Newsom.]

She did complain of neck pain and neck injury as a result of the crash which

is the reckless aggravated assault.

[The Defendant] once he was taken into custody did ask the officers

why did the officers try and pull him over. He then stated that he needed

medical attention. EMS did check [the Defendant] and he was cleared.

When running [the Defendant's] information through dispatch, it

showed that he was unlicensed. [The Defendant] then stated that there was

another person in the vehicle and he was not the driver. No passenger was

ever found or observed in the vehicle at the time of the crash. He was

transported to the Criminal Justice Complex at that time.

Your Honor, just to be clear, in regards to the two leaving the scenes

of an accident, the first leaving the scene of the accident with injury would

be the crash with the 2010 Ford Edge, Ms. Newso[m.] He then was able to

flee a little bit further distance and the second leaving the scene of an accident

was the property damage to where he hit the telephone pole and the house,

but then exited the vehicle and ran from the scene.

This all did occur here in Madison County, Tennessee, Your Honor.- 4 -

II. Sentencing Hearing

During the sentencing hearing, the presentence report was received as an exhibit.

Ms. Newsom1 provided a victim impact statement to the presentence report officer, which

reflected that the crash "destroyed” Ms. Newsom's car, her only means of transportation.

She stated that due to the loss of her car, she lost her job, was forced to withdraw her child

from school, and could not attend doctors' appointments. Ms. Newsom said that she

"barely [rode] around in a vehicle now,” that she was "real nervous,” and that she suffered

"bad whiplash” and "real bad pains.” Ms. Newsom acknowledged that she received

medical treatment for her injuries, which was covered by her medical insurance. Ms.

Newsom estimated her monetary damages at $19,000 for the loss of her 2010 Ford Edge,

$150 for three children's car seats, and $100 for shoes. Ms. Newsom requested that the

Defendant serve more than one year in prison, pay restitution, and have no contact with

her.

The presentence report officer noted that Jimmy Carmichael, who owned the house

with which the Defendant collided at the end of the high speed chase, reported $10,429.44

in damages to the house and loss of rent to his insurance company. The insurance company

file reflected that Mr. Carmichael paid a $500 deductible. Mr. Carmichael requested that

the Defendant receive probation, pay restitution, and have no contact with him. The parties

stipulated at the hearing that the Jackson Electric Authority's loss due to the damaged

telephone pole was $3,817.47.

Relative to the Defendant's criminal history, the presentence report officer stated

that no prior charges or convictions were found. However, it was noted that the

Defendant's driver's license was eligible for reinstatement after having been suspended

since October 7, 2016, "due to a truancy law violation.” The report contained no

information regarding the Defendant's family, education, or health.

The Defendant, who was twenty years old at the time of the hearing, testified on his

own behalf, insisting he had just arrived at the party and had not yet exited his vehicle when

he heard gunshots and saw people fleeing. He testified that he was "in fear for [his] life”

and ran from the police because he "was just trying to make it home.” The Defendant

averred that if he had known the extent of the damage he would cause, he would have

stopped for the police. The Defendant took full responsibility for his actions and

apologized to the victims. He stated that he intended to obtain employment in an effort to

pay restitution; he noted that he had previously worked for "Ryder's,” where he made

between nine and ten dollars per hour, but had to quit in order to attend his court dates.



1 The prosecutor noted that they had been unable to contact Ms. Newsom to arrange for her sentencing

hearing testimony.- 5 -

The Defendant stated that he had also previously worked with his uncle at "A&B

Driveway,” where he earned between five and six hundred dollars per week, and that the

uncle was willing to hire him again.

The Defendant testified that he did not graduate high school after he "had a wreck”

and "trouble with a teacher.” He noted that he completed partial homeschooling and that

when he turned eighteen, "they wouldn't allow [him] to come back to school.” The

Defendant was willing to obtain his GED, although he noted that the school he needed to

attend was in Whiteville, Tennessee, and that he was previously trying to obtain

transportation to the school.

The Defendant requested that the trial court allow him to serve his sentence on

probation and testified he would follow all rules and restrictions imposed by the trial court.

Although he did not have a prior criminal history as an adult, the Defendant acknowledged

that "a couple of things” happened when he was a juvenile. He stated, though, that he

"always completed the probation.” The Defendant testified he did not use drugs or drink

alcohol.

Sharon Polk, the Defendant's mother, testified that the Defendant lived with her and

her husband. She apologized for the Defendant's behavior and emphasized that he was "a

good child” who typically did not get into trouble. Ms. Polk testified that the Defendant's

father abused her throughout the Defendant's childhood and that the Defendant's exposure

to the abuse "had a lot to do with his reaction.” She noted that the Defendant had been

diagnosed with attention deficit hyperactivity disorder (ADHD), for which he received

counseling and was prescribed Adderall. Ms. Polk testified the Defendant never had any

trouble with drugs or alcohol and that he did not own a gun. She asked the trial court to

place the Defendant on probation and promised to help the Defendant pay his fines and

restitution.

The trial court proceeded to question Ms. Polk about the Defendant's juvenile court

history, apparently reading from a document that is not present in the record. Ms. Polk

acknowledged that the Defendant ran away in 2011 "for a couple of hours” in response to

his father's abusing Ms. Polk. She stated that she picked the Defendant up once he was

found and that he appeared before a judge in connection with the incident. She did not

recall whether the Defendant violated his probation in that case. The court continued to

discuss a 2014 case in Madison County related to "Disrupting a meeting or procession.”

Ms. Polk stated, "That probably was something to do with . . . a class that he had to go

through for juvenile[.]” Ms. Polk affirmed that the Defendant was ordered to complete

"some kind of treatment or counseling,” including "Pathways and QUINCO” and "some

work kind of program” after school related to behavioral problems. Ms. Polk stated that

the Defendant was "sentenced to alternative school.” - 6 -

The trial court asked Ms. Polk whether the Defendant was under her care during the

incidents the court referenced, and she responded affirmatively. The court asked, "And

you couldn't make him mind?” Ms. Polk averred that the Defendant's "acting out”

stemmed from his having observed his father's abuse rather than Ms. Polk's not being able

to "handle him[.]”

The trial court continued reading from the unidentified document, stating that on

June 1, 2016, the Defendant had been convicted of theft of property. Ms. Polk responded

that the Defendant had been previously "in trouble with some boys,” but "that got

dismissed.” The court stated that "this shows he was convicted and put on intensive

probation . . . involving a theft charge. Did he steal a vehicle or something?” Ms. Polk

replied, "No, sir. Because the one that got that vehicle[,] that got dismissed.” She agreed,

though, that the juvenile court attempted to help rehabilitate the Defendant. Ms. Polk

agreed that the Defendant's driver's license was suspended in 2016 due to truancy

violations. She stated that she did not know the Defendant had taken her car on the night

of the offenses, but she denied that he stole it.

After questioning Ms. Polk at length regarding her knowledge of the circumstances

of the offenses in this case, the trial court asked her, "You know, how are you going to pay

over $25,000 in restitution because I know he can't do it?” Ms. Polk replied, "We'll do it.

We can get it done.” The court responded, "All right. How much money have you saved

since this happened October 27th of last year? How much money have you saved to pay

Ms. Newsom[] for her damages or the other victims? How much money have you saved?”

Ms. Polk stated that she was in the process of saving money. The court asked how much

money Ms. Polk paid to post the Defendant's bond, and she responded that she and some

relatives jointly paid $750. The court stated, "So what actions have you taken since that

time, since your son did all of these that he's pled guilty to, what have you done as his

mother – is he working anywhere now?” Ms. Polk stated that the Defendant had been

working for a company that would not give him excused absences for court dates, although

the company was willing to hire him "as soon as he gets out.” The trial court then

questioned Ms. Polk about whether she had insurance on the car the Defendant crashed;

she stated that the car was new and that she and her husband were intending to obtain

insurance the following Monday.

The trial court questioned the presentence report officer regarding the lack of any

health information or a Strong-R assessment in the presentence report. The officer

responded that she had the Defendant's completed questionnaire, but due to an oversight

on her part, she had not run the computer program to produce the Strong-R assessment.

The court noted that it was required to consider the assessment and that it was also relevant

to the court's consideration of alternative sentencing. The court continued the hearing until

the presentence report officer could complete the assessment; although the court entered- 7 -

the Defendant's assessment questionnaire as an exhibit, it does not appear in the appellate

record.

At the second sentencing hearing about one month later, the trial court noted that

the Defendant had requested the court to consider alternative sentencing "like the Day

Reporting Center” and that the court had received an "Assessment and Eligibility Report”

from the day reporting center by letter dated December 13, 2019. The letter was entered

as an exhibit, but does not appear in the appellate record.2

The court read from the letter

that the Defendant was ineligible for placement at the Day Reporting Center because

"according to their assessment” he did not have a "severe to moderate substance abuse

history” but that he qualified for the "CRC Services[.]” The court noted its unfamiliarity

with CRC Services and asked whether Henry Holladay, who was the Corrections Program

Director at the Day Reporting Center, was at the courthouse. The presentence report officer

responded that Mr. Holladay was attending a holiday party, but that she had called Mr.

Holladay and that he was on his way and would be there "in a few minutes.” The court

responded that it was "not waiting for him.” The court discussed that "the assessment just

says that he's just not eligible or doesn't meet the requirements for the Day Reporting

Center.”

The trial court noted that according to the Day Reporting Center assessment, the

Defendant "reported to . . . [Mr. Holladay] that this [was] the first time that he ha[d] gotten

into trouble. Now that's not exactly true, is it?” The Defendant responded from the defense

table that Mr. Holladay asked "how many priors did [the Defendant] have as an adult.”

The court replied, "Okay. Well, you know, usually when they ask if you've ever been in

trouble before that means forever in your life . . . . You told him this is the first time you

had gotten into trouble.”

Before proceeding, the trial court asked defense counsel if the Defendant wished to

proceed or wait for Mr. Holladay to arrive. The court noted, "I was just waiting because

you wanted me to consider the Day Reporting Center and I didn't have an assessment and

that's the reason I reset it. Again, I'm just going on what his report says that he technically

doesn't qualify for the program.” The Defendant indicated that he wished to proceed.

The trial court stated that it had considered the presentence report, the principles of

sentencing, the arguments of counsel as to sentencing alternatives, the evidence presented

during the guilty plea hearing, the Defendant's statement, and his potential for

rehabilitation and treatment. The court noted that the State's narrative of the relevant



2 We note that the court referenced an additional version of the presentence report's having been entered as

an exhibit. The appellate record contains one copy of the presentence report in the technical record and one

copy in an exhibit volume, respectively, and they are identical.- 8 -

events reflected the nature and characteristics of the criminal conduct. The court then

reviewed the applicable enhancement factors and found that the following factors applied:

(1) the Defendant has a previous history of criminal convictions or criminal behavior, in

addition to those necessary to establish the appropriate range; (3) the offense involved more

than one victim; and (6) the personal injuries inflicted upon, or the amount of damage to

property sustained by or taken from, the victim was particularly great. Tenn. Code Ann. §

40-35-114(1), (3), (6). The trial court gave enhancement factors (3) and (6) great weight,

noting the Defendant placed multiple lives at risk and caused extensive damage. The court

noted that although the Defendant's juvenile convictions did not appear to be felonies, he

had previously been in trouble, did not "take advantage of opportunities for rehabilitation,”

and continued to violate the law as an adult.

In mitigation, the trial court considered the Defendant's youth. Tenn. Code Ann. §

40-35-113(13). After applying and weighing the applicable enhancement and mitigating

factors and considering the facts and circumstances of the case, the trial court sentenced

the Defendant as a Range I, standard offender as follows:

Count Offense Sentence

Count 1 Evading Arrest (D felony) 4 years

Count 2 Reckless Endangerment (E felony) 2 years

Count 3 Reckless Driving (B misdemeanor) 6 months

Count 4 Reckless Aggravated Assault (D felony) 4 years

Count 5 Leaving the Scene of an Accident Involving Injury (A

misdemeanor)

11 months, 29 days

Count 6 Evading Arrest (A misdemeanor) 11 months, 29 days

Count 7 Driving Without License (C misdemeanor) 30 days

Count 8 Leaving the Scene of an Accident Involving Property

Damage (C misdemeanor)

30 days

The trial court further ordered counts one through three to be served concurrently with each

other and counts four through eight to be served concurrently with each other but

consecutive to counts one through three, for an effective sentence of eight years. The court

also ordered restitution in the following amounts: $19,250 to Ms. Newsom, $500 to Mr.

Carmichael, and $3,817.47 to Jackson Electric Authority.- 9 -

The trial court stated as its greatest concern that the Defendant "really had no regard

for [the] lives of other people out there that night.” The trial court recounted the

"outrageous” circumstances of the offenses and found that society had a "great” interest in

being protected from the Defendant's "possible future criminal conduct.” The court further

found that a sentence of probation would unduly depreciate the seriousness of the offenses.

The court also found that it was "important to send a deterrent to other people.” The court

noted that people who ran from the police put their lives, the lives of other motorists, and

the lives of law enforcement officers in jeopardy. The trial court acknowledged that the

Defendant testified he was scared when he ran from the police but told the Defendant he

needed "to think about other people.” The court stated "based upon his juvenile history”

and the offenses in the instant case that the Defendant had an extensive criminal history.

The trial court found that the Defendant was not a good candidate for alternative

sentencing or "any type of probation.” At this juncture, defense counsel noted for the court

that Mr. Holladay had arrived. The court responded,

Well, Mr. Holladay, I've read his report. I've read his recommendations. I

do want to say this: I don't think [the Defendant] was very honest. In the

assessment when he tells Mr. Holladay he's never been in trouble before then

that is certainly not the truth. He has been in trouble before as a juvenile on

multiple occasions. I don't think he's a good candidate for that. I don't think

he's been very truthful or honest and that reflects poorly upon his potential

for rehabilitation.

The trial court also addressed a general issue in which "[so] many young people these days

feel like they have a right to run from the police and . . . jeopardize other motorists on the

roadway and . . . put law enforcement officers in jeopardy.” The court noted its experience

that "every week or every month we have new indictments” for felony evading arrest and

that the offense had become a "serious problem” in the judicial district. The court stated

that "it's about time that people beg[a]n to realize when you decide to run from the police

in a motor vehicle especially when you cause damage and injury . . . and then . . . you just

keep fleeing, I don't think you deserve probation at that point.” As a result, the trial court

denied the Defendant's request for probation and ordered him to serve his sentence in

confinement. This timely appeal followed.

Analysis

On appeal, the Defendant contends that the trial court erred by denying probation or

an alternative sentence, arguing that the principles of sentencing, his youth, and his lack of

criminal history make him a "proper candidate for probation or at a minimum a proper - 10 -

candidate for split confinement.”3

The State contends that the trial court properly exercised

its discretion in ordering the Defendant to serve his sentence in confinement.

Tennessee Code Annotated section 40-35-102 states that "[t]he foremost purpose of

[the Tennessee Criminal Sentencing Reform Act of 1989] is to promote justice, as

manifested by [section] 40-35-103.” Code section 40-35-102(3) also adopts the following

principles:

(3) Punishment shall be imposed to prevent crime and promote respect for

the law by:

(A) Providing an effective general deterrent to those likely to violate the

criminal laws of this state;

(B) Restraining defendants with a lengthy history of criminal conduct;

(C) Encouraging effective rehabilitation of those defendants, where

reasonably feasible, by promoting the use of alternative sentencing

and correctional programs that elicit voluntary cooperation of

defendants; and

(D) Encouraging restitution to victims where appropriate[.]

Before a trial court imposes a sentence upon a defendant, it must consider: (a) the

evidence adduced at the trial and the sentencing hearing; (b) the presentence report; (c) the

principles of sentencing and arguments as to sentencing alternatives; (d) the nature and

characteristics of the criminal conduct involved; (e) evidence and information offered by

the parties on the enhancement and mitigating factors set forth in Tennessee Code

Annotated sections 40-35-113 and 40-35-114; (f) any statistical information provided by

the Administrative Office of the Courts ("AOC”) as to Tennessee sentencing practices for

similar offenses; (g) any statement the defendant wishes to make in the defendant's own

behalf about sentencing; and (h) 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). Ultimately, in sentencing a defendant, a trial court should impose a sentence

that is "no greater than that deserved for the offense committed” and is "the least severe

measure necessary to achieve the purposes for which the sentence is imposed.” Tenn. Code

Ann. § 40-35-103(2), (4).



3 The Defendant does not contest the length of his sentences or the trial court's imposing partial consecutive

sentences.- 11 -

Tennessee Code Annotated section 40-35-102(5) states that "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.”

As such, a defendant who is a standard offender convicted of a Class C, D, or E felony

should be considered a favorable candidate for alternative sentencing absent evidence to

the contrary. See Tenn. Code Ann. § 40-35-102(6)(A). "[A] defendant who is being

sentenced for a third or subsequent felony conviction involving separate periods of

incarceration or supervision shall not be considered a favorable candidate for alternative

sentencing.” Id. However, a defendant is not entitled to a presumption that he or she is a

favorable candidate for alternative sentencing. State v. Carter, 254 S.W.3d 335, 347 (Tenn.

2008). Tennessee Code Annotated section 40-35-102(6) is now only advisory. See Tenn.

Code Ann. § 40-35-102(6)(D). "Any sentence that does not involve complete confinement

is an alternative sentence.” State v. Robert Elijah Oxendine, No. M2019-00288-CCA-R3-

CD, 2020 WL 704578, at *4 (Tenn. Crim. App. Feb. 12, 2020) (quoting State v. Gregory

Tyrone Dotson, No. M2018-00657-CCA-R3-CD, 2019 WL 3763970, at *10 (Tenn. Crim.

App. Aug. 9, 2019) (citing State v. Fields, 40 S.W.3d 435 (Tenn. 2001))).

This court reviews a trial court's sentencing determination "related to probation or

any other alternative sentence” under an abuse of discretion standard accompanied by a

presumption of reasonableness. State v. Caudle, 388 S.W.3d 273, 278-79 (Tenn. 2012);

see State v. Bise, 380 S.W.3d 682, 707 (Tenn. 2012). The burden of showing that a

sentence is improper is upon the appealing party. See Tenn. Code Ann. § 40-35-401,

Sentencing Comm'n Cmts.; see also State v. Arnett, 49 S.W.3d 250, 257 (Tenn. 2001).

This court will uphold the trial court's sentencing decision "so long as it is within

the appropriate range and the record demonstrates that the sentence is otherwise in

compliance with the purposes and principles listed by statute.” Bise, 380 S.W.3d at 709-

10. Moreover, under such circumstances, appellate courts may not disturb the sentence

even if we had preferred a different result. See Carter, 254 S.W.3d at 346.

a. Purposes and Principles of Sentencing

In this case, the trial court's effective sentence of eight years in confinement for a

nineteen-year-old Defendant whose reckless behavior was confined to one incident in

which no lives were lost,4 who did not have a history of violent behavior or felony

convictions, and who lacked a history of drug or alcohol abuse, was inconsistent with the

purposes and principles of sentencing. Specifically, the Defendant was not a person with



4 We do not intend to minimize the serious physical and financial injuries to Ms. Newsom as a result of the

Defendant's colliding with her car during the high speed pursuit.- 12 -

a lengthy history of criminal conduct who needed to be restrained, and the sentence did not

encourage the Defendant's rehabilitation or restitution to the victims. See Tenn. Code Ann.

§ 40-35-102(3). Moreover, in consideration of the Defendant's youth and history, a

sentence of eight years in confinement was not the "least severe measure necessary to

achieve the purposes for which the sentence was imposed.” Tenn. Code Ann. § 40-35-

103(4). Most notably, although the trial court discussed at length the high monetary value

of the damage the Defendant caused, even questioning the Defendant's mother about how

much money she had saved to assist the Defendant in making restitution payments, the

sentence the trial court imposed significantly hindered the Defendant's ability to pay

restitution to the victims. See Tenn. Code Ann. § 40-35-102(3)(D). The Defendant

testified that two employers were willing to hire him if he were released on probation and

that those employers paid nine or ten dollars per hour and five hundred to six hundred

dollars per week, respectively; it is unlikely the Defendant has been able to pay any of his

restitution while in confinement.



b. Alternative Sentencing

An offender is eligible for probation if he or she is sentenced to ten years or less and

has not been convicted of certain specified offenses. See Tenn. Code Ann. § 40-35-303(a).

Although the trial court was 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). It is the defendant's burden to establish his or her suitability for full

probation. See Carter, 254 S.W.3d at 347 (citing Tenn. Code Ann. § 40-35-303(b)). The

defendant must demonstrate that probation will "subserve the ends of justice and the best

interests of both the public and the defendant.” Hooper v. State, 297 S.W.2d 78, 81 (Tenn.

1956), overruled on other grounds, State v. Hooper, 29 S.W.3d 1, 9-10 (Tenn. 2000).

Among the factors applicable to probation consideration are the circumstances of the

offense; the defendant's criminal record, social history, and present condition; the deterrent

effect upon the defendant; and the best interests of the defendant and the public. State v.

Grear, 568 S.W.2d 285, 286 (Tenn. 1978).

Relative to alternative sentencing considerations generally, a trial court should

consider the following when determining any defendant's suitability:

(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- 13 -

(C) Measures less restrictive than confinement have frequently or recently

been applied unsuccessfully to the defendant[.]

Tenn. Code Ann. § 40-35-103(1).

As a standard offender convicted of Class D and E felonies, the Defendant was a

favorable candidate for alternative sentencing. See Tenn. Code Ann. § 40-35-102(6)(A).

When determining that the Defendant specifically was not a good candidate for probation,

the trial court discussed at length the "outrageous” circumstances of the offenses, including

the numerous lives the Defendant endangered during the high-speed pursuit and the

physical and property damage to the victims. The court declined to accept the Defendant's

averment that he initially fled from the police because he was afraid. The court stated that

full probation would depreciate the seriousness of the offenses and noted that in the court's

experience, the judicial district had numerous cases involving young defendants fleeing

from the police; as a result, the court implicitly found that denying probation would deter

other similarly situated individuals. The court considered the Defendant's juvenile record

and suggested by its questioning that it was concerned about returning the Defendant to the

care of his mother, with whom the Defendant lived when he committed offenses as a

juvenile. We agree with the State that the trial court considered the proper factors and that

in light of the court's reliance on the aggravated circumstances of the offenses and the need

to deter similarly situated individuals, the Defendant was not entitled to full probation.

Relative to other alternative sentences and whether a sentence of full incarceration

was the least severe measure necessary to achieve the purposes of sentencing and no greater

than deserved for the offenses, see Tennessee Code Annotated sections 40-35-103(2), (4),

we note that the trial court was statutorily obligated to consider the AOC's statistical

information regarding sentencing practices and that the record is devoid of any indication

that the court complied with this duty. See Tenn. Code Ann. § 40-35-210(b)(6).

The 2017-185 AOC statistical data on sentencing practices reflected that about sixtythree percent of Range I sentences for Class D felonies were for full probation or split

confinement; thirty-seven percent of the sentences were for complete confinement. The

trial court ordered the maximum in-range sentence of four years, or forty-eight months, in

confinement for each of the Defendant's Class D felony convictions—Count 1, evading

arrest in a motor vehicle, and Count 4, reckless aggravated assault. The four-year sentences

were ordered to run consecutively and formed the base of the eight-year effective sentence.

Relative to the Class D felony sentences, the 2017-18 AOC report reflected that the

"mean,” or average, sentence for a Range I, standard offender was about thirty-three



5 The 2017-18 report was released in November 2018; the 2018-19 report was not released until March

2020. As a result, the latest available statistical data available to the trial court at the Defendant's December

2019 sentencing hearing was from the 2017-18 report.- 14 -

months; the "median,” or middle number of the set of data, was thirty months. See

Administrative Office of the Courts, Sentencing Practices in Tennessee (Nov. 2018).

Although the trial court was not mandated to give the statistical information any particular

weight, it bears noting that the trial court's sentences in Counts 1 and 4 were higher than

average; given the facts of this case, the sentences do not comport with the legislature's

directive that trial courts should prioritize the incarceration of "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[.]” Tenn. Code Ann. § 40-35-102(5).

Relevant to the Defendant's potential for rehabilitation, the record reflects that the

trial court also failed to consider a validated risk and needs assessment. See Tenn. Code

Ann. § 40-35-210(b)(8); cf. State v. Ronald Ailey, No. E2017-02359-CCA-R3-CD, 2019

WL 3917557, at *32 (Tenn. Crim. App. Aug. 19, 2019) (concluding that the trial court had

considered the presentence report and statistical information adequately when both were

entered as exhibits and the court stated multiple times that it would review or had reviewed

all the information the defendant had submitted). At the first sentencing hearing, the court

addressed the presentence report officer regarding the lack of a Strong-R assessment or any

health information in the presentence report. The officer responded that she had the

Defendant's completed questionnaire, but due to an oversight on her part, she had not run

the computer program to produce the Strong-R assessment. The court entered the

questionnaire as an exhibit to the hearing, but it does not appear in the appellate record; the

presentence report officer stated that she needed a copy of the questionnaire to complete

her task, and it is not obvious from the transcript what happened to the questionnaire. At

the second sentencing hearing, the court articulated a mistaken impression that it had

continued the first hearing in order to obtain a letter of eligibility from the "day center”;

the Strong-R assessment was never addressed by the court, and it was not entered as an

exhibit to the second hearing.

A "validated risk and needs assessment” is "a determination of a person's risk to

reoffend and the needs that, when addressed, reduce the risk to reoffend through the use of

an actuarial assessment tool designed by the department that assesses the dynamic and

static factors that drive criminal behavior.” Tenn. Code Ann. § 40-35-207(d). Although

the trial court must consider the risk and needs assessment in determining a defendant's

sentence, "the statute does not mandate that any particular weight be given to the risk and

needs assessment, and . . . the weight to be assigned to the assessment falls within the trial

court's broad discretionary authority in the imposition of sentences.” State v. Christopher

C. Solomon, No. M2018-00456-CCA-R3-CD, 2018 WL 5279369, at *7 (Tenn. Crim. App.

Oct. 23, 2018) (citing Bise, 380 S.W.3d at 708). In this case, nothing in the record indicates

that the trial court considered the Strong-R assessment or that the assessment was ever

provided to the court.- 15 -

Instead, the trial court only briefly considered the Defendant's potential for

rehabilitation by finding that the Defendant lied to Mr. Holladay about his juvenile history.

At the second hearing, the trial court examined a letter stating that the Defendant was not

eligible for day center services because he was not suffering from a moderate to severe

drug or alcohol addiction. The letter, which was not entered as an exhibit, also stated that

the Defendant denied having been "in trouble” before. The Defendant interjected from the

defense table that Mr. Holladay asked him only about adult charges. Mr. Holladay, who

was attending a work-related holiday party, was called to court, but the trial court stated

that it would not wait for him to arrive. The trial court then asked the Defendant if he

wanted to proceed; the Defendant acquiesced. Near the end of the hearing, it was noted

that Mr. Holladay had arrived and was available to testify, but the court only responded

that the Defendant was not "very truthful or honest” with Mr. Holladay and that it reflected

poorly upon his potential for rehabilitation.

Further, relative to the Defendant's history of criminal behavior, it is unclear

whether the trial court referred to documents not in evidence at the hearings, as the court's

mentioning a theft incident involving a car was not prompted by answers the Defendant or

his mother gave during their testimony on direct examination, and the presentence report

only referred to prior truancy charges. Utilizing the witness testimony and the presentence

report, almost all of the Defendant's prior offenses were for unruly actions resulting from

difficult behavior—disrupting school, running away, and truancy. The remaining

delinquency adjudication, which was only referenced by the trial court, for misdemeanor6

theft did not indicate that the Defendant was incapable of rehabilitation, and we note that

it could not be used to enhance the Defendant's sentence. See Tenn. Code Ann. § 39-40-

114(16) ("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”).

We further note that the Defendant's criminal history contained far less than the

three prior felony convictions specified by statute to denote offenders who are not favorable

candidates for alternative sentencing. See Tenn. Code Ann. § 40-35-102(6)(A). We

emphasize that the Defendant's juvenile offenses, with the exception of truancy, were not

documented at the sentencing hearings, and the behavior to which the Defendant and his

mother testified was uniformly nonviolent—running away, disrupting school, and

truancy—and did not indicate that he had previously engaged in the same degree of

reckless behavior he exhibited in this case. The Defendant also testified that he

successfully completed his probation on previous occasions, and he had no history of

alcohol or drug abuse. The Defendant's mother and stepfather were supportive and offered

to help the Defendant make restitution payments if necessary. As such, none of the



6 The trial court acknowledged during sentencing that the Defendant's juvenile record did not contain

delinquency adjudications that would have constituted felony offenses if the Defendant had been an adult

when they were committed. - 16 -

evidence presented at the sentencing hearings was "to the contrary” that the Defendant was

a favorable candidate for alternative sentencing. See Tenn. Code Ann. § 40-35-102(6)(A).

In sum, the trial court did not consider the mandated risk assessment and statistical

information before imposing the Defendant's sentence; instead, it relied on the Defendant's

response regarding his prior record to determine that the Defendant had poor prospects for

rehabilitation and concluded that although the victims were entitled to a significant amount

of restitution, the Defendant should be incarcerated for eight years instead of being placed

under supervised release and working toward paying that restitution. Because the record

does not demonstrate that the Defendant's sentence "is otherwise in compliance with the

purposes and principles listed by statute” the court's sentencing determination has lost the

presumption of reasonableness for purposes of our review. Bise, 380 S.W.3d at 709-10.

We acknowledge that defense counsel allowed these errors to occur without lodging

a contemporaneous objection. However, the trial court had an independent statutory duty

to consider a risk assessment and any statistical information from the AOC about similar

offenses before imposing a sentence. At any rate, this court may at any time "consider an

error that has affected the substantial rights of a party[.]” Tenn. R. App. P. 36(b). In this

case, the absence of a risk assessment was significant—the Defendant's family situation,

juvenile record, and potential to reoffend weighed heavily in the trial court's decision not

to grant probation or split confinement. Likewise, the AOC statistics would have assisted

the trial court by providing context about sentencing practices for similar offenses; instead,

the court imposed the maximum in-range sentence in confinement without considering that

the majority of trial courts are imposing shorter sentences and favoring alternative

sentencing over imprisonment for standard offenders.

Based upon the circumstances of the offenses, which involved reckless behavior

causing serious bodily and financial injury to Ms. Newsom and property damage to Mr.

Carmichael's home and a utility pole, and which endangered numerous police officers,

motorists, and residents of the areas through which the Defendant drove, we agree with the

trial court that a period of incarceration acknowledges the seriousness of the offenses and

impresses upon the Defendant and others that such conduct carries consequences.

However, our review of the record also indicates that the Defendant is a favorable candidate

for split confinement, which allows the State to supervise him and also give him the

opportunity to work toward rehabilitation while making restitution payments to the victims.

As a result, we order that the Defendant's sentence be modified to reflect one year in

confinement and seven years on supervised probation. - 17 -

Based on the foregoing authorities and reasoning, we reverse the judgments of the

trial court and remand the case for entry of modified judgments reflecting an effective sentence of eight years, with one year to serve and seven years on supervised probation.