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State v. Stubblefield5/20/2005
ense, but it should fit the offender as well. Tenn. Code Ann. § 40-35-103(2); State v. Batey, 35 S.W.3d 585, 588-89 (Tenn. Crim. App. 2000). Indeed, individualized punishment is the essence of alternative sentencing. State v. Dowdy, 894 S.W.2d 301, 305 (Tenn. Crim. App. 1994). In summary, sentencing must be determined on a case-by-case basis, tailoring each sentence to that particular defendant based upon the facts of that case and the circumstances of that defendant. State v. Moss, 727 S.W.2d 229, 235 (Tenn. 1986).
At the sentencing hearing the trial court opined:
Pursuant to 40-35-102(6), the defendant has been convicted as a standard offender of a Class D felony, actually, two, and, therefore, by law, [the defendant], the court is required to presume that you are a favorable candidate for some type of alternative sentencing, that is alternative probation or split confinement, absent evidence to the contrary. Looking for guidance for the court of evidence to the contrary, the legislature has set out certain considerations under 40-35-103 that I'm looking at now.
And I find that in this case that a sentence involving confinement should be considered here because confinement is necessary to protect this society by restraining a defendant who has a long history of criminal conduct. Again, I don't think I need to comment on that much because the record certainly bears that out in the pre-sentence report and now Exhibit 2, as well. I find, also, that confinement is necessary to avoid depreciating the seriousness of this offense and is particularly suited to provide an effective deterrent to others likely to commit this offense in Lewis County.
Based upon the testimony of Agent Ashmore regarding the sale of illegal drugs, particularly Lortab, and particularly those that are being prescribed by these doctors here in Lewis County, somebody has got to learn that there is a price to pay for this dangerous conduct. It's got to stop. This court has seen murder cases which grew out of this type of conduct, in Lewis County. So there needs to be confinement in this case to provide an effective deterrent to others likely to commit similar offenses, based upon the testimony that we've heard from the drug task force agent.
I find, also, as it relates to [the defendant], that measures less restrictive than confinement have frequently or recently been applied unsuccessfully, as evidenced by his failure at probation in the past. And while trial judges are encouraged to use alternative sentences and come up with something to try to rehabilitate an individual, I find that before I can do that in this case I have to be satisfied that, one, the individual is interested in rehabilitation and, two, that I have some level of satisfaction that he will be successful. And I have neither of those in this case. Number one, I don't think he wants it and, number two, I have no level of confidence that he would be successful at a sentence involving some type of treatment or rehabilitation.
And, therefore, I order, then, that this is not an appropriate sentence for probation, that he is ordered to serve the four years in the Department of Correction on each sentence to run concurrently, one with the other.
Upon review of the trial court's findings, we conclude that it considered both the applicable sentencing principles and the particular facts of the case and properly found that the defendant was not an appropriate candidate for alternative sentencing. We affirm.
Conclusion
The defendant's convictions and sentences are affirmed.
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