State of Tennessee v. Joshua Lishun Brewer, E2015-02178-CCA-R3-CD

Background

Joshua Lishun Brewer, a juvenile at the time, entered a best-interest (Alford) guilty plea to carjacking (Class B felony) with an agreed eight-year sentence; trial court to determine manner of service.
Victims were approached after stopping to check a person in a ditch; three men brandished pistols, took the car, purse, and phone; victims tracked the phone and police located the vehicle with five males and recovered the purse, phone, pellet pistols, and some cash. Brewer gave a statement confessing to the carjacking.
Presentence report showed an extensive juvenile record (probation violations, adjudications for assault, carrying weapon to school), mental-health diagnoses (bipolar disorder, ADHD, conduct disorder), substance use, and a prior suicide attempt.
After pleading but before sentencing, officers encountered Brewer in a hotel room where a gun with blood matching Brewer’s DNA was recovered; Brewer was charged with unlawful possession of a firearm and related offenses.
Trial court found enhancement factors (extensive juvenile criminal history, failed alternative sentences, post-plea criminal behavior) and some mitigation (abusive upbringing, mental illness) and ordered confinement rather than probation. Brewer appealed the confinement order.

Issues

Issue	Plaintiff's Argument (State)	Defendant's Argument (Brewer)	Held
Whether confinement was properly ordered instead of probation	Confinement appropriate given Brewer’s criminal history, hotel incident with gun, and aggravating facts of carjacking	Trial court erred; evidence preponderates against finding post-plea criminal behavior and court improperly relied on presentence report/hearsay and State’s factual version despite Alford plea	Affirmed: abuse-of-discretion standard; confinement upheld based on history, failed alternatives, and credible evidence of gun possession
Admissibility/use of presentence report at sentencing	Presentence report is reliable hearsay and mandatory for court consideration	Brewer contends he preserved objection via Alford plea and report should have been excluded as hearsay	Waived (no contemporaneous objection). Even if not waived, reliable hearsay is admissible at sentencing and court must consider presentence report
Credibility of officer testimony about hotel gun/DNA	Officer testimony credible; court may credit it	Brewer disputes credibility and argues court should state burden when finding occurrence	Court credited officer; credibility determinations are for trial court and will not be reweighed on appeal
Whether court relied on improper factors (pending charges)	Court did not rely on pending charges	Brewer argues court improperly considered pending charges and State’s factual version despite Alford plea	Court stated it did not consider pending charges; noting Alford plea does not preclude reliance on reliable presentence information

Key Cases Cited

North Carolina v. Alford, 400 U.S. 25 (U.S. 1970) (permits entry of a guilty plea while maintaining innocence when plea is in defendant's best interest)
State v. Caudle, 388 S.W.3d 273 (Tenn. 2012) (standard of review for alternative sentencing is abuse of discretion with presumption of reasonableness)
State v. Ashby, 823 S.W.2d 166 (Tenn. 1991) (sentencing must consider nature of offense and totality of circumstances)
State v. Trotter, 201 S.W.3d 651 (Tenn. 2006) (confinement permissible when needed to protect society, avoid depreciating seriousness, or when less restrictive measures failed)
State v. Souder, 105 S.W.3d 602 (Tenn. Crim. App. 2002) (defendant bears burden to show suitability for probation)
State v. Dykes, 803 S.W.2d 250 (Tenn. Crim. App. 1990) (principles on probation suitability and sentencing considerations)
State v. Baker, 956 S.W.2d 8 (Tenn. Crim. App. 1997) (reliable hearsay admissible at sentencing)
State v. Carter, 254 S.W.3d 335 (Tenn. 2008) (defendant's burden to show probation will serve interests of justice)