State of Tennessee v. Gary Allen Carlton

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
May 8, 2012 Session

STATE OF TENNESSEE v. GARY ALLEN CARLTON

Appeal from the Criminal Court of Davidson County
No. 2010-A-129 J. Randall Wyatt, Jr., Judge

No. M2011-01152-CCA-R3-CD - Filed July 16, 2012

Gary Allen Carlton (“the Defendant”) was convicted after a bench trial of one count of
impersonating a licenced professional and one count of violating the Home Improvement
Contractors Licensing Act. After a hearing, the trial court sentenced the Defendant to an
effective term of two years, with 120 days to be served and the remainder on probation. The
Defendant has appealed, challenging the sufficiency of the evidence and his sentence. Upon
our thorough review of the record, we affirm the judgments of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgments
of the Criminal Court Affirmed

J EFFREY S. B IVINS, J., delivered the opinion of the Court, in which J AMES C URWOOD W ITT,
J R., and J OHN E VERETT W ILLIAMS, JJ., joined.

Rob McKinney, Nashville, Tennessee, for the appellant, Gary Allen Carlton.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel Harmon, Assistant Attorney
General; Victor S. Johnson III, District Attorney General; and Brian Ewald, Assistant District
Attorney General, for the appellee, State of Tennessee.

OPINION

Factual and Procedural Background

The Defendant was indicted on one count of impersonating a licensed professional,
a home improvement contractor, see Tenn. Code Ann. § 39-16-302 (2006), and one count
of operating a home improvement business without a license, a violation of the Home
Improvement Contractors Licensing Act, Tenn. Code Ann. §§ 62-6-501 through -521 (2009)
(“the Act”). The Defendant waived his right to a jury trial, and the trial court conducted a
bench trial.
 At trial, Carolyn Lazenby testified that she is the Executive Director of the Board for
Licensing Contractors (“the Board”).1 She explained that the Board oversees and regulates
the construction industry. She testified that she was familiar with the Defendant, and she
identified him in court. According to Lazenby, the Board had received several complaints
about the Defendant and conducted a “formal hearing” in July 2009 (“the Hearing”), which
she attended. The Hearing concerned charges that the Defendant had been contracting
without a contractor’s license. The Defendant was present at the Hearing.

Following the Hearing, the Board issued an order on September 8, 2009 (“the Order”).
A copy of the Order was mailed by certified mail on September 9, 2009, to the Defendant at
his work address in Nashville and to his home address in Eagleville. The Order was admitted
into evidence. Lazenby testified that, in conjunction with the Hearing, the Board investigated
whether the Defendant had ever held a Tennessee contractor’s license. She stated that they
“could not find any record of him having a license.” The Order included a stipulation,
however, that the Defendant had been licensed in 1988. As a result of the Hearing, the Board
assessed a civil penalty of $25,000 against the Defendant, payable over two years. According
to Lazenby, the Defendant had not paid any of the penalty as of the time of trial in February
2011. The Board also ordered that the Defendant not apply for a license until six months
after he had paid the penalty in full.

Lazenby also reviewed a copy of contractor’s license number 60796 for Innovation
Properties, LLC, issued in March 2008. The owner of this license was Chip Ernest Carlton,
the Defendant’s nephew. The Defendant was not listed as one of the company’s employees.

On cross-examination, Lazenby acknowledged that the Board did not oversee home
improvement contracts for all Tennessee counties. Rather, only those counties that “opted
in” were under the Board’s jurisdiction. As of the time of trial, nine counties had opted in.
She also acknowledged that a general contractor license was different than a home
improvement contractor license. She agreed that persons performing home improvement
jobs priced at $3,000 or less were not required to be licensed. Moreover, persons who were
employees or subcontractors of a licensed contractor were not required to be licensed
themselves.

Lynn Salter testified that she lives in Davidson County. In September 2009, she was
seeking a contractor to replace her roof. She found the Defendant through an advertisement
on Craigslist. The advertisement included a telephone number and license number 60242.
When she called the number, she spoke with an individual who identified himself as Gary
Carlton. They scheduled a time to meet at Salter’s house.

1
See Tenn. Code Ann. § 62-6-104 (2009).

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 On September 25, 2009, Salter met the Defendant at Salter’s house. Salter identified
the Defendant in court. He gave her a business card, which identified the business as
Roofing Right. The Defendant’s name also appeared on the card. Additionally, the card
stated “licensed, insured and dependable.” Initially, the Defendant told her that he would
start the job without a down payment. Later, however, he told her that he could “get started
for $600.” Salter specifically asked the Defendant if he was licensed, and he told her he was.
She told him that she wanted to see a copy of his license.

During his meeting with Salter, the Defendant prepared a “proposal” for roofing
Salter’s house, dated September 25, 2009. The document was admitted into evidence. It
identifies the company name as “Roofing Right.” The phone number indicated was the same
one provided on the Craigslist advertisement. The price of the job was $3,600, with $600
to be paid up-front and the remainder paid upon completion. The proposal was signed by the
Defendant. The Defendant told Salter that the job would take one day and that “he used two
men” to do the work. He assured her, however, that he “would be there the entire time
helping and overseeing.” Salter did not accept the proposal when the Defendant gave it to
her, but told him that she needed to speak with her husband about it and that she needed to
see the Defendant’s license. The Defendant left the proposal with her and told her later that
evening on the phone that she had five days to make a decision about whether to accept it.

According to Salter, the Defendant called her the next day to tell her that he would be
faxing her a copy of his license. He assured her again that he was licensed. On September
29, she received a fax from the Defendant, including a cover letter and a copy of a business
license from Williamson County. She called Williamson County and confirmed that it was
not a contractor’s license. When she spoke with the Defendant by phone and told him that
she was asking for a contractor’s license, he apologized and stated that he had sent the wrong
thing, “but he would make sure [she] got it.” On October 2, 2009, she got another fax from
the Defendant, a copy of a license from the Board of Licensing Contractors issued to
Innovation Properties. The license number was 60796. When Salter questioned the
Defendant about the different company name, he told her “that Innovation Properties was
another one of his [companies].” After conducting some independent research, Salter
decided not to hire the Defendant.

On cross-examination, Salter acknowledged that she never gave the Defendant any
money and that he never performed any work for her, other than bidding the job. She stated
that he told her he was licensed in Davidson County. On questioning, she explained that the
Defendant’s brother, John Carlton, called her while she was waiting for another fax from the
Defendant. The Defendant’s brother told her that the Defendant “unexpectedly had to go out
of town,” but that he, the Defendant’s brother, would honor the contract. By that time,
however, she had decided that she did not want either the Defendant or his family to do the
work.

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 John Carlton, the Defendant’s brother, testified on behalf of the Defendant. He stated
that he is a home builder and that he resides in Nashville. He explained that he is licensed
by the State as a contractor under Destiny Enterprises, LLC. He and his son previously were
licensed under Innovation Properties, LLC. He became involved in the proposal given to
Salter because the Defendant “had acquired this job, but his limit was exceeded.” The
Defendant asked if John Carlton and John’s son were interested in taking the job, and John
said, “sure.” John Carlton called Salter and told her he was the Defendant’s brother, that they
operated under different companies, but that he would honor the Defendant’s contract with
her.

On cross-examination, John Carlton explained that his son was the general contractor
for Innovation Properties. He also stated that he was aware that the Defendant operated
under the name Roofing Right. Roofing Right was not John Carlton’s company, and he was
never involved in it in any way. When the Defendant prepared the written proposal for
Salter, he was operating on Roofing Right’s behalf and not on Innovation Properties’ behalf.

John Carlton testified that he was not aware of the Order entered against the
Defendant in September 2009. He had not been a witness or otherwise involved in that
proceeding. The Defendant had not told him about the Order. He was unaware of the
proceedings at the time he spoke with Salter.

The Defendant testified and, when asked what he was currently doing for work, stated,
“Right now I am disabled.” He explained that, at the time period in question, he was licensed
to do home improvements in counties that had not opted in and also was licensed in
Davidson County so long as the job did not exceed $3,000. He further explained that the real
price on the Salter job was $3,000 because he was going to use $600 worth of materials that
the Salters already had. He stated that he had never held himself out as having a State license
for home improvement.

The Defendant explained that he intended for one of his family members to actually
do the job because “[n]umber one, [he] had to go out of town; and number two, so there
would be no discrepancy [he] just told [his] brother go ahead and take that job, because [he]
cannot do it right now.” He also explained that he decided to get out of the business because
he had received the Order from the State Board and did not want further “conflicts.”

On cross-examination, the Defendant admitted to pleading guilty in March 2008 in
Davidson County to a misdemeanor violation of the home improvement contractors law and
to pleading guilty in December 2008 in Rutherford County to a misdemeanor violation for
attempting to impersonate a licensed professional. He reiterated that he was licensed to
operate as a home improvement contractor. As such, he could “do any contract up to
$25,000 in all counties except for nine counties.” In those nine counties, including Davidson

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County, he could not do a contract over $3,000. He stated that he learned that information
at the Hearing in July 2009. He acknowledged that he was not licensed as a home
improvement contractor by the State and that Davidson County required such licenses for
jobs over $3,000. He also acknowledged that he knew Salter’s house was in Davidson
County.

The Defendant testified that he did not receive the Order until after he met with Salter.
He also testified that the $600 to be paid before work began on the Salter job was to be paid
in their materials. He explained that the proposal he wrote did not make mention of this
arrangement but that, if the Salters accepted the proposal, the contract would be written to
reflect the payment in materials. Accordingly, he understood the actual contract price to be
$3,000.

When shown the Williamson County business license that he provided to Salter, the
Defendant explained that it was his “home improvement license per se in Williamson
County.” When Salter told him that it was not acceptable, he faxed her the license for
Innovation Properties. He explained: “I told my brother I was going to have to go out of
town and I couldn’t do it anyway so I would fax his license over and for him to talk to her
and deal with it.”

After hearing this proof, the trial court took the matter under advisement and
subsequently issued a comprehensive order in which it found the Defendant guilty of both
counts as charged.

At the sentencing hearing held later, Salter testified and reiterated briefly what had
occurred. She acknowledged that she never paid the Defendant any money. Sergeant Brink
Fidler of the Metro Police Department testified that he attempted a “reverse sting” on the
Defendant in May 2010 by trying to reach the Defendant by phone and have him provide an
estimate for home repairs to Sgt. Fidler’s house, which had been damaged in the May flood.
Although he spoke with someone over the phone whom he assumed was the Defendant, the
individual never followed up on setting up a meeting for providing an estimate. Rhonda
Sanders testified that she and her husband, residents of Davidson County, contracted with
the Defendant in 2006 to do some remodeling at their home, including a roof replacement.
Although she thought the Defendant was licensed, based upon his advertisements and
business card, she later discovered that he was not. Sanders testified that they had paid the
Defendant over $15,000 before the discovery. At that point, they refused to allow the
Defendant to continue the job. They subsequently filed a police report on the incident, but
the case was not prosecuted by the district attorney’s office. Sanders attended the instant trial
and, afterwards, found home improvement advertisements on Craigslist with the Defendant’s
phone number.

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 The transcript of the sentencing hearing also indicates that the prosecutor asked that
the presentence report be made an exhibit. The defense lawyer responded that certain
information in the report regarding the Defendant’s probation was incorrect and stated that
he would late-file exhibits demonstrating the correct information. The defense did not object
to the admission of the report. However, the record on appeal contains neither the
presentence report nor any late-filed exhibits.

The trial court again took the matter under advisement and subsequently issued a
comprehensive order sentencing the Defendant as a Range I, standard offender to one year
and six months on his conviction of impersonating a licensed professional, a Class E felony,2
and to six months on his conviction of violating the Act, a Class A misdemeanor.3 The trial
court ordered the sentences to run consecutively. As to manner of service, the trial court
ordered the Defendant to serve 120 days at Corrections Corporation of America with the
balance of the sentence on probation.

In this appeal, the Defendant challenges the sufficiency of the evidence supporting
both convictions and his sentence.

Analysis

Sufficiency of the Evidence

Our Rules of Appellate Procedure provide that “[f]indings of guilt in criminal actions
whether by the trial court or jury shall be set aside if the evidence is insufficient to support
the findings by the trier of fact of guilt beyond a reasonable doubt.” Tenn. R. App. P. 13(e)
(emphasis added). In applying this standard of review, the determinative inquiry is “whether,
after viewing the evidence in the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime beyond a reasonable doubt.”
Jackson v. Virginia, 443 U.S. 307, 319 (1979). See, e.g., State v. Victor Wayne Browning,
No. M2009-00509-CCA-R3-CD, 2010 WL 877523, at *4 (Tenn. Crim. App. Mar. 12, 2010)
(applying Jackson v. Virginia in challenge to sufficiency of the proof following bench trial).

Once the trier of fact finds a defendant guilty, the presumption of innocence is
removed and replaced with a presumption of guilt. State v. Evans, 838 S.W.2d 185, 191
(Tenn. 1992). Consequently, the defendant has the burden on appeal of demonstrating why
the evidence was insufficient to support the verdict. State v. Tuggle, 639 S.W.2d 913, 914

2
See Tenn. Code Ann. § 39-16-302(b).
3
See Tenn. Code Ann. § 62-6-512.

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(Tenn. 1982). This Court does not weigh the evidence anew; rather “the State is entitled to
the strongest legitimate view of the evidence and all reasonable or legitimate inferences
which may be drawn therefrom.” State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992) (citation
omitted). This standard of review applies to guilty verdicts based upon direct or
circumstantial evidence. State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011) (citing State
v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009)). In Dorantes, our Supreme Court adopted
the United States Supreme Court standard that “direct and circumstantial evidence should be
treated the same when weighing the sufficiency of such evidence.” Id. at 381. Accordingly,
the evidence need not exclude every other reasonable hypothesis except that of the
defendant’s guilt, provided the defendant’s guilt is established beyond a reasonable doubt.
Id.

Impersonating a Licensed Professional

The Defendant was convicted of one count of impersonating a licensed professional.
Tennessee Code Annotated section 39-16-302 provides that “[i]t is unlawful for any person
who is not licensed to do so, to practice or pretend to be licensed to practice a profession for
which a license certifying the qualifications of the licensee to practice the profession is
required.” Tenn. Code Ann. § 39-16-302(a). Four elements must be proven beyond a
reasonable doubt to establish this offense: (1) the defendant practiced, or pretended to be
licensed to practice, as a certain professional; (2) the profession at issue is a profession in the
State of Tennessee requiring a license certifying the qualifications of such licensee to
practice; (3) the defendant was not licensed to practice the profession in Tennessee; and (4)
the defendant acted intentionally, knowingly, or recklessly. See T.P.I. - Crim. 24.03 (13th
ed. 2009); State v. Alberto Camacho, No. E2005-02699-CCA-R3-CD, 2007 WL 3145003,
at *7 (Tenn. Crim. App. Oct. 29, 2007).

In this case, the trial court found that the Defendant had pretended to be a licensed
home improvement contractor. In support of this finding, the trial court relied on proof that
the Defendant held himself out as “licensed” on Craigslist, that he gave Salter a business card
during their meeting that indicated the Defendant was “licensed,” that Salter testified that the
Defendant reassured her verbally that he was licensed, and that he faxed to her a copy of his
Williamson County business license for a job in Davidson County.

As to the second element, the trial court found that Davidson County had “elected in
1994 to make [state] statutory provisions governing home improvement contractors
applicable within the county. Metro Gov’t of Nashville and Davidson County, Resolution
No. R94-1073.” Accordingly, the trial court found, “home improvement contracting is a
profession requiring a license in Davidson County, Tennessee.”

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 The trial court also found that the Defendant was not licensed by the Board as a home
improvement contractor, noting the Defendant’s admission of this point. And, as to the
fourth and final element, the trial court found that the Defendant “at least” had acted
recklessly. In this regard, the trial court noted the Defendant’s attendance at the July 2009
Hearing and, additionally, found it “highly unlikely” that the Defendant had not received the
Order prior to the Defendant’s meeting with Salter.

The Defendant argues in his brief to this Court only that, “[i]n the instant case, the
area is gray. A license is not needed for providing a service for the sum of Three Thousand
Dollars ($3,000) or less. [The Defendant] did not practice or perform the duties as a licensed
professional. [The Defendant] did not pretend to be a licensed professional and in fact,
worked as a subcontractor for his brother.”

We are not persuaded. The record supports the trial court’s finding that the Defendant
held himself out to Salter as willing and able and “licensed” to perform a job in Davidson
County that he priced at $3,600, over the $3,000 limit applicable to non-licensed home
improvement contractors operating in Davidson County. He did not attempt to refer the job
to his brother until it became clear that Salter was going to insist on seeing a license he did
not have. That Salter was wise enough to not accept the Defendant’s proposal does not
exonerate the Defendant from his actions in holding himself out as licensed to perform a job
that he, in fact, was not licensed to perform. The evidence is sufficient to support the
Defendant’s conviction of impersonating a licensed professional. Therefore, this issue is
without merit.

Violating the Act

The Defendant was also convicted of one count of violating the Act. In order to
analyze the sufficiency of the evidence supporting this conviction, we will examine several
definitions under the Act.

A “home improvement” is defined to include roofing a residence, see Tenn. Code
Ann. § 62-6-501(4)(A), excluding, however, roofing jobs “for which the contract price is
three thousand dollars ($3,000) or less,” id. § 62-6-501(4)(B)(ii). The roofing job which the
Defendant proposed to provide to Salter was priced at $3,600. The Defendant therefore
proposed to perform a home improvement included within the coverage of the Act.

A “home improvement contractor” is defined as “any person, other than a bona fide
employee of the [homeowner], who undertakes or offers to undertake or agrees to perform
any home improvement for the [homeowner], whether or not the person is licensed or subject
to the licensing requirements of this chapter.” Id. § 62-6-501(6). The Defendant offered, on
his own behalf as the proprietor of his company Right Roofing, to undertake replacing

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Salter’s roof. The Defendant was therefore acting as a home improvement contractor within
the coverage of the Act.

As to violations of the Act, Tennessee Code Annotated section 62-6-502 provides as
follows:

(a) No person may engage in or transact any home improvement
business, represent to the public as doing home improvement business or offer
to transact any home improvement business in this state, except in compliance
with the applicable provisions of this part. No person, whether subject to
licensing by any law or otherwise, may engage in this state in any trade
practice or other act that is prohibited by this part. Every person who willfully
participates in a prohibited act or violation with knowledge of the prohibited
act or violation is subject to the criminal penalty for the prohibited act or
violation. . . .

(b)(1) No person shall maintain, own, operate or transact a home
improvement business unless a license is first obtained as prescribed in this
part.

Tenn. Code Ann. § 62-6-503(a), (b) (emphasis added). Additionally, section 62-6-512
provides as follows:

Any person who owns, operates, conducts a home improvement business or
procures a home improvement contract without a license pursuant to this part
or who violates any of the provisions of this part, or having had a home
improvement contractor’s license suspended or revoked continues to engage
in the business, commits a Class A misdemeanor.

Tenn. Code Ann. § 62-6-512.

The trial court found that the Defendant had offered to provide a home improvement
to Salter. The trial court also found that the price of the home improvement was $3,600. The
trial court rejected the Defendant’s claims that he was going to ensure that the contract was
lawful by lowering the contract price to $3,000 in return for using $600 of the Salters’
materials, that he was going to allow his brother to perform the contract to avoid
“discrepancies,” and that he could not complete the work because he had to leave town.

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 The Defendant’s argument in his brief as to the sufficiency of the evidence on this
offense is limited to the following:

Based on the testimony of Carolyn Lazenby, the home improvement
contractor’s license only applies in certain counties. It also has a limit in
which certain jobs may be performed. There was no evidence to substantiate
the State’s position that [the Defendant] owned or operated a home
improvement business.

Again, we are not persuaded. The Defendant proposed performing a $3,600 roofing job for
Salter, whom he knew lived in Davidson County. The Defendant clearly was required to be
licensed in order to perform such a job. That he did not actually perform the job is
immaterial because offering to perform the job is sufficient under the statute. The written
proposal is on a Roofing Right form. It is signed by the Defendant. Drafting proposals for
home improvement jobs is a significant aspect of operating a home improvement business.
Clearly, the Defendant was holding himself out as operating a home improvement business,
one that was offering to perform jobs over $3,000 in Davidson County. The Defendant’s
proposal to Salter constituted a violation of the Act. Therefore, this issue is without merit.

Sentencing

The Defendant claims that the trial court abused its discretion in ordering consecutive
sentencing and in ordering that the Defendant serve a portion of his sentence in confinement.
The State disagrees. We agree with the State.

In making its sentencing determination, a trial court must consider:

(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

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 (7) Any statement the defendant wishes to make in the defendant’s own behalf
about sentencing.

Tenn. Code Ann. § 40-35-210(b) (2006). The trial judge should also consider “[t]he
potential or lack of potential for the rehabilitation or treatment of the defendant . . . in
determining the sentence alternative or length of a term to be imposed.” Id. § 40-35-103(5)
(2006).

When the record affirmatively shows that the trial court considered the statutory
sentencing principles and all relevant facts and circumstances, our review is de novo with a
presumption that the trial court’s determinations are correct. See Tenn. Code Ann. § 40-35-
401(d) (2006); State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). Also, when the trial court
considered all of the criteria set out in Tennessee Code Annotated section 40-35-210(b),
imposed a sentence within the applicable range, set forth its reasons for imposing the
particular sentence, and the record establishes that the trial court’s findings of fact are
adequately supported, we may not disturb the sentence even if we would have preferred a
different result. See State v. Carter, 254 S.W.3d 335, 346 (Tenn. 2008). When the record
does not demonstrate that the trial court gave due consideration to the requisite criteria, our
review of the sentence is purely de novo. Ashby, 823 S.W.2d at 169. The appealing party,
here the Defendant, bears the burden of establishing that the sentence is improper. Tenn.
Code Ann. § 40-35-401, Sent’g Comm’n Cmts; see also Ashby, 823 S.W.2d at 169.

In its order imposing sentence, the trial court indicated that it considered the testimony
at trial and at the sentencing hearing, “the presentence report, the Defendant’s criminal
history, and the exhibits admitted at the [sentencing] hearing.” The court then applied two
enhancement factors: the Defendant has “a previous history of criminal convictions or
criminal behavior, in addition to those necessary to establish the appropriate range,” Tenn.
Code Ann. § 40-35-114(1) (Supp. 2009), and the Defendant previously had failed to comply
with the conditions of a sentence involving release into the community, id. § 40-35-114(8).
The Defendant does not challenge the trial court’s application of these enhancement factors.

The court ordered consecutive service on the basis that the Defendant was being
sentenced “for an offense committed while on probation.” Tenn. Code Ann. § 40-35-
115(b)(6) (2006). The trial court found specifically that the Defendant was on probation for
an offense he committed in Rutherford County at the time he committed the instant offenses.
It is clear from the transcript of the sentencing hearing that the presentence report, absent
from the record on appeal, set forth the Defendant’s criminal history and the dates of his
probationary sentence. The trial court stated in its order that it was relying on the
presentence report in making its sentencing decision. Where the record on appeal does not
contain the relevant information, we presume the trial court’s findings are correct. See State
v. Estenico Slayton, No. 02C01-9505-CC-00149, 1996 WL 111236, at *4 (Tenn. Crim. App.

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Mar. 14, 1996) (where trial court considered presentence report but neither State nor
defendant introduced it into evidence, this Court presumes on appeal “that the trial court’s
factual findings are supported by the full record and are, therefore, correct”) (quoting State
v. Allen Gary Lord, No. 03C01-9312-CR-00391, 1995 WL 491015, at *9 (Tenn. Crim. App.
Aug. 17, 1995)). See also, e.g., State v. Ivy, 868 S.W.2d 724, 728 (Tenn. Crim. App. 1993);
State v. Oody, 823 S.W.2d 554, 559 (Tenn. Crim. App. 1991). Accordingly, the Defendant
has not demonstrated that he is entitled to relief from the trial court’s order of consecutive
service of his two sentences.

The Defendant also challenges the trial court’s imposition of a period of confinement.
In considering whether a period of confinement is appropriate, trial courts are to consider the
following factors:

(A) [Whether] [c]onfinement 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.

Tenn. Code Ann. § 40-35-103(1) (A) - (C) (2006).

With regard to ordering the Defendant to serve 120 days in confinement, the trial court
first noted that the Defendant had two previous convictions of violating the Act and one
previous conviction of attempting to impersonate a licensed professional. The trial court then
ruled that confinement was necessary to avoid depreciating the seriousness of the offenses
in this case, noting that “contracting licenses are required to protect the consumer and to
ensure a quality of workmanship through regulation and oversight” and that “contractors
illegitimately posing as such, do so at peril to the consumer.” The trial court specifically
found that the Defendant had repeatedly violated the licensing requirements and noted that
“the Defendant even continued to pose as a licensed contractor after being informed by the
Board for Licensing Contractors (“Board”) that he was forbidden from engaging in this type
of activity.” The trial court also found that the Board had fined the Defendant twenty-five
thousand ($25,000) dollars and that the Defendant had failed to pay this fine.

The trial judge also found that confinement was “particularly suited to provide an
effective deterrence to people likely to commit similar offenses,” noting that “the devastating
floods in May of 2010 caused substantial damage to numerous Davidson County residents’

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homes” and that “confinement is necessary to deter unscrupulous unlicensed contractors from
preying on vulnerable Davidson County residents after this natural disaster.” The trial court
also found “that less restrictive measures than confinement have frequently or recently been
applied unsuccessfully to the [D]efendant,” referring to the probationary sentence the
Defendant had been serving when he committed the instant offenses.

We discern no error by the trial court in ordering the Defendant to spend 120 days in
confinement. The Defendant has demonstrated, repeatedly, his refusal to abide by the laws
applicable to home improvement contractors. He also has demonstrated that a sentence of
full probation will not deter him from further wrongful conduct. We conclude that the trial
court’s order of 120 days’ confinement is entirely appropriate. Accordingly, the Defendant
is not entitled to relief as to this aspect of his sentence.

Conclusion

For the foregoing reasons, we affirm the judgments of the trial court.

_________________________________
JEFFREY S. BIVINS, JUDGE

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