### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT KNOXVI LLE A ssi gne d on Br ie fs Jun e 24, 200 8

STATE OF TENNESS EE v . LANA BIL LI NGS HE NRY

Appeal from t he Criminal Court for Sul livan Cou nty Nos. S53,756 and S53,757 Robert H. Montgom ery, Judge

No. E2007-02649-CC A-R3- CD - Filed July 28, 2008

Th e De fe nd a nt, La na

Bill ing s He nry, app e a ls fr om the se nte nc ing de c isi on of theSul liv a n Co un ty Criminal Court. In O ctober 2007, the Def

endant e ntere d guilty pleas to mult iple counts of for gery and thef t. Under the terms of the a gree ment, the Def endant r ece ived an e ffe ctive six-yea r sentenc e
a s a Ra ng e II , mu lti ple of

fe nd e r, a nd the m a nn e r o f s e rv ic e wa s su bmi tte d to the tr ia l c ou rt

. Following a sentencing hea ring, the trial court order ed the Def endant to se rve he r sentenc es in the De pa rt me nt o f C or

re c tio n. On app e a l, the De fe nd ant a rg ue s th a t a

se nte nc e of

c ommun ity

corr ections wa s appropriate. Af ter re view, we aff

irm the sentenc ing decision of the tria l court.
Tenn. R. App . P. 3 Appeal as of Right; Judgments of the Cr iminal Cou rt A ffirm ed

D AVI D H. W ELL ES , J., delivere d the opinion of the court, in which J A M ES C UR W OOD W I TT , J R ., and R OBER T W. W EDEMEYER , JJ., joined.

Debor ah B. Lonon, Assistant P u b l i c Defender , Blountvi lle, Tenne ssee, f or the a ppellant, Lana Bill ings Henry.

Robe rt E

. Cooper, Jr., Attorne y Gene ral a nd Reporter ; Rachel W est Harmon, Assistant Attorney Gene ral; Gre eley Wells, District Attorney Gene ral; and Amber Massengill, Assistan t Di strict Attorney Ge nera l, for the a ppellee, State of

Tenne ssee.

OP IN ION

Fa c tu al B ac kgr ound T h is c a s e r e late s to th e D e f e n d a n t’ s g u il ty p le a s a n d r e s u lt in g s e n te n c e s

. O n A ugust 28, 20 07 , a Sul liv a n Coun ty gr a ndjury r e turne d tw o s e pa rate pr e se ntm e nts a ga ins t th e De fe nd a nt, c a se numbers S53,756 and S53,757.

In c a se nu mbe r S 53 ,7 56 , the six -c ou nt pr e se ntm e nt c ha rg e d th e De fe nd a nt w ith thr e e c ou nts
o f f orgery involving less than $1,000.00 (Class E felonies), one count of for gery involving $1,000.00 or more but less than $10,000.00 (a Class D f elony), one count of identity theft (a Class D felony), and one c ount of theft of pr operty va lued at $500.00 or le ss (a Class A misdemeanor) . See Te nn.-2-

Cod e An n. §§ 39 -1 4- 10 3 (th e ft ), -1 14 (f or ge ry ), -1 50 (i de nti ty the ft ). Th e se c on d p re se ntm e nt, c a se
nu mbe r S 53 ,7 57 , c ha

rg e d th e De fe nd a nt w ith fi ve of fe ns e s— thr e e c ou nts of

fo rg e ry inv olv ing le ss than $1,000.00, one c ount of identity theft, and one count of theft of property valued at $500.00 or le ss.

On Octobe r 22, 2007, the De fendant ple d guilty as c harge d in both cases. The underlying fa c ts, a s r e c ite d at th e gu ilt y p le a he ari ng , a

re a s f oll ow s:
First, in S53,756, ha d this c ase gone to trial the State’s proof would ha ve bee n that on November 19th, 2006 the victim, [ Brittany] Wills, was working at Bath and Body Works located in the Fort H enry Mall, Kingsport, Sulli van County, Tennesse e on Fort Henry Drive. She had discove red that he r wallet was missing and called he r
cre dit card c ompany to notify them that it ha d been possibly stolen. She wa s alerte d that the cr edit car d was be ing used, or had be en used, at the mall on that same date. The [D ]ef endant . . . was also training, or was training at t hat same store , Bath and Body Works, whe re the victim wor ked and wa s working on that date. A t some point . . . the [D] efe ndant[] w as flagge d by manage ment and loss preve ntion put her on the telephone w ith someone from a nother off ice a nd they tape- rec orded a confe ssion—them taking a stateme nt from her essentially stating what she ha d done.

The c redit ca

rd wa s u s ed at [T] he De b Shop in the amount of [$101.79], at [Proffitt’s] in the amount [$52.01], at [Ae ropostale] for [$79.29] and for the forge ry
o v e r $ 1 , 0 0 0

. 0 0 a t K a y J e w e le r s in th e a mo u n t o f $ 1 , 7 7 3

. 9 4

. I t w a s used all on November

19th, 2006, it was a Capital One c redit ca rd

. S h e signed the victim’s

na me wi th ou t th e vic tim ’s c on se nt and

. . . th e the ft c ha rg e aro se ou t of

a c tua lly taking the wallet, a ll the above oc curring in Sul livan County on that case.
In S53,757 the S tate’s proof would have been that on Dece mber 3rd, 2006 the victim, Peggy Bailey, found that her debit car d was missing from her home located at 664 Bancr oft Chapel Road, Sullivan County, Tennessee . After checking her balanc e she discove red that funds were mi ssing from her bank account. She notified the bank a nd again, the [ D]e fendant, at some point beca m e a suspe ct in this case. Before doing that she actually notified she knew Peggy Bailey persona lly and Peggy Bailey kind of had been taking her under her wing and the [D]e fendant c alled her and apologized f

or stealing her

debit car d and also stated that she had take n about $1 00 .0 0 in c a sh , sh e did thi s in a c ardthat sh e ha d w ri tte n, fr om h e r p ur se . Sh e tol d the victim that she nee ded the money to pay her parole office r. She later returne d the vic tim ’s c ardc ut u p in sid e a gr e e tin g ca rd a nd apo log iz e d ag a in f

or takin g th a t c re dit

c ard . Sh e us e d the c re dit c ard thr e e tim e s on De c e mbe r 3r d, 20 06 , e a c h ti me a t W a lMar t, 2 5 0 0 W e s t St o n e D r iv e , K in g s p o rt, Su ll iv a n Co u n ty , e a c h w ith in ab o ut 14 minutes of eac h other in the a mounts of $102.57, $42.57, $22.56. She did not have the victim’s PIN number on this ac count so she had to use it a s a cr edit car d and on

eac h occa sion signed the v i cti m’s name without the victim’s conse nt. Again, the theft being the ta

king of the cre dit c ard, or the debit car d in that case , all the above

occur ring in Sull ivan County.-3-

Th e pl ea agre ement

pr ov ide d f

or a n e ff e c tiv e six -y e ar s e nte nc e a s a Ra ng e II , mu lti ple offe nder—two ye ars for ea ch of the Class E felony for gerie s, six years f or the Class D fe lony forge ry, six year s for both c ounts of identity theft, and ele ven months and twenty-nine days for eac h the ft c on vic tio n. Al l se nte nc e s we re to b e se rv e d c on c ur re ntl y w ith on e a no the r andc on se c uti ve ly to two prior ca ses, S44,424 and S45,171. Th e m an n er o f s er v ice of the sentenc e wa s left to the discretion of the trial court.

A sentenc ing hearing was held on the s ame date foll owing the Defenda nt’s guilty pleas. The twenty-six-ye ar- old Defe ndant t es t ified on her own beha lf. At the time of the he aring, she w as serving a nine -and- half-ye ar se ntence for thef t, identity theft, and two for g er i es. The Defe ndant stated t h at s he committed those off enses be cause she “w as on Oxyc ontin and Morphine and Dilaudid” and that she pled guilty to those charge s in 2001. She stated that she ha d been pa roled for these c onvictions on March 9, 2004, and that the sentenc e did not expire until 2009. The Defe ndant rela yed that, af

ter be ing paroled, s h e “w as doi ng good until” she met Peggy Bailey and she then started using drugs again. Acc ording to the Def endant, she had passe d drug scr eens w hile on parole

.
The Defendant testified t hat s he cut up the card, returned it , and apologized t o Ms. Bailey. She acknow ledged that she made char ges to the car d and took mone y from Ms. Ba iley. When a sked why she did such things, she re plied that she had an addiction and was “rea lly bad hooked on dr ugs.” She also asserted that she attempted to repay Ms. Bailey some of the money. Finally, she admitted that she too k Britta ny W ill s’ c re dit c ard a nd wa lle t andthat sh e c on fe sse d w he n c on fr on te d b y ma ll

security and then later

to police.

After these incidents, she “ended up in re hab.” A ccor ding to the Defe ndant, she ove rdosed

on fo rt y p ill s ( “ Clo na

pin s a nd

. . . s e iz ur e me dic a tion”). S he st a ye d intr e a tme nt f or thi rt y d a ys , rec eiving sever al merit ce rtificate s. She testified that she was supposed to stay in treatment for three months but t hat she wa s removed and returne d to jail to serve her parole violation. The De fendant admitted to the parole violation.

When a sked why she would be a good candidate for a lternative se ntencing given that she had failed to c omply with the conditions of her pa role, she r eplied, “A ll the things I’ve we nt through here lately is, one. I mean it’s been a lot harder

this time around than what it was on my first ti me, and

a lon g w ith my s on .” She the n te sti fi e d th a t sh e ha d a six -y e ar- old

so n, wh o li ve d w ith he r p are nts , a ndthat sh e ha d b e e n inpriso n mu c h o f h is l if e . Sh e a lso c on fi rm e d th a t, i f r e le a se d, sh e c ou ld reside w ith her par ents, who desire d for he r to continue re habilitation and treatment.

In add i t i o n t o co unseling and twelve -step mee tings, she also had a job waiting for her at Kentucky Frie d Chicken re staurant. She did not have a high school diploma or GED. Furthermore, she re quested to be transfer red to Johnson County jail in M o u n t ai n C i ty, where she could attend GE D c la sse s a ndtw e lve -s te p me e tin gs

.
At t h e co n clusion of the sente ncing hea ring, the trial court ordere d the Def endant to serve her se ntence in Department of Correc tion. It is from the sente ncing dec ision of the trial court that the De fe nd a nt a

pp e a ls.-4- AN AL YSI S Th e De fe nd a nt arg ue s that the tr ia l c ou rt e rr e d infaili ng to g rant h e r a se nte nc e of

c ommun ity

corr ections. She ar gues that under the “spe cial nee ds” provision of the statute, Te n n essee Code Annotated se ction 40-36-106( c), she is entitled to commun ity corre ctions based on he r “c hronic drug abuse, toge ther with her

mental hea lth issues . . . .”
On app eal, the party cha llenging the sentenc e imposed by the trial c ourt has the bur den of establishing that the sentenc e is err oneous. See Tenn. Code Ann. § 40-35-401, Sentencing Comm’n Comments; see also State v. Arne tt, 49 S.W.3d 250, 257 (Tenn. 2001) When a defe ndant cha llenges the length, ra nge, or ma nner of service of a se ntence , it is t he duty of thi s Court to conduct a de novo revie w on the record with a presumption that the determinations made by the court form which the

app e a l is take n a

re c or re c t. T e nn . Co de An n. § 4 0- 35 -4 01 (d ). Ho we ve r, thi s presu mpt ion“ is conditioned upon the af

firmative showing in the re cord that the trial court c onsidered the sentenc ing principles and a ll releva nt fac ts and circ umstances.” State v. Pettus, 986 S.W.2d 540, 543-44 (Te nn. 1999); see a lso St ate v. Stace y Joe C arte r, -- S.W.3d --, No. M2005- 02784-SC-R11-CD, 2008 WL 2081247, at *8 (Tenn. May 19, 2008). If our revie w reflects that the t rial court failed to consider the sentenc ing principles and a ll releva nt fac t and circ umstances, then r eview of the cha llenged sente nce is purely de novo without the pre sumption of corre ctness. State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991) ; see a lso Carter, 2008 W L 2081247, at *8.

In conduc ting a de novo re vi ew o f a s en tence , this Court m ust consider (a ) the e vidence adduce d at the trial a nd the sentenc ing hearing; (b) the pre sentenc e re port; (c) the principles of sentenc ing and ar guments as to sentenc ing alt ernatives; (d) the nature a nd char acte ristics of the criminal conduct involved; ( e) e vidence and information offer ed by the pa rties on the enhanceme nt and mitigatin g fa ct o rs set forth in Tenne ssee Code A nnotated sec tions 40-35-113 and 40-35- 114; (f) any statistical information provide d by the Admi nistrative Office of the C ourts as to Tenne ssee sentenc ing prac tices for

simil ar of

fense s; and (g) any statement the defe ndant wishes to make in the defe ndant’s own be half a

bout se ntencing. Tenn. Code Ann. § 40-35-210( b); see a lso Carter, 2008 WL 2081247, at *7 (Tenn. Ma y 19, 2008); State v. Imfe ld, 70 S.W.3d 698, 704 (Tenn. 2002)

.
Effe ctive June 7, 2005, our legislature amende d Tenne ssee Code A nnotated sec tion 40-35- 102(6) by de leting the statutory presumption that a def endant who is c onvicted of a Class C, D, or E felony, a s a mitigated or standa rd off ender , is a favor able c andidate f or alternative sentencing. Our sentenc ing law now provide s that a def endant who doe s not possess a criminal history showing a clea r disrega rd for society’s law s and morals, who ha s not failed past re habilitation efforts, and who “is an e specia lly mit igated or standa rd off ender convicted of

a Class C, D or E fel o ny, sh ou ld be

c on sid e re d a s a

fa vo ra ble c a nd idate fo r a lte rn a tiv e se nte nc ing op tio ns in the abs e nc e of e vid e nc e to the contra ry. A c ourt shall consider, but is not bound by, this advisory sentencing guideline.” Tenn. Code Ann. § 40-35- 102(5), ( 6) (e mphasis added) . No longer i s any def endant e ntitled to a presumption that he or she is a favor able c andidate f or probation. Carter , 2008 WL 2081247, at *10.
The following conside rations provide guida nce r egar ding what constitutes “evide nce to the contra ry”:-5- (A) Confine ment is nece ssary to prote ct society by re straining a def endant wh o h a s a lon g h ist ory o f c ri min a l c on du c t;
(B) Confinement is nec essary to av o i d depre ciating the seriousness of the of fe ns e or c on fi ne me nt i s p art ic ula rl y s uit e d to pr ov ide a n e ffe c tiv e de te rr e nc e to others likely to commit sim ilar off enses; or
(C ) M e a su re s le ss r e stric tiv e than c on fi ne me nt h a ve fr e qu e ntl y o r r e c e ntl y been a pplied unsucce ssfully to the defendant . . . .
Tenn. Code Ann. § 40- 35-103(1) ; see a lso Carter, 2008 WL 2 0 8 1 247, at *11. Additionally, the principles o f s en t en cing reflect that the se ntence should be no greater than that deserve d for the offe nse committed and should be the le ast sever e mea sure ne cessa ry to ac hieve the pur

poses for wh ic h th e se nte nc e is i mpo se d. Te nn . Co de An n. § 4 0- 35 -1 03(2) , (4) . The c ou rt sh ou ld a lso

c on sid e r the de fe nd a nt’ s p ote nti a l f or re ha bil itatio n o r t

re a tme nt i n d e te rm ini ng the app ropri ate sentenc e. Te nn. Code Ann. § 40-35- 103(5).

The De fenda nt was sentenc ed as a Range II , multipl e offe nder and, thus, she should not be considere d a fa vorable candidate for a lternative se ntencing. S ee Tenn. Code Ann. § 40- 35-102(6)

. Moreove r, the De fenda nt has a criminal history evincing a c lear disregar d for the la ws of socie ty and a fa ilure of pa st efforts at reha bilitation. See Tenn. Code Ann. § 40-35-103( 1)(A) , (C). Howe ver, she ar gues that she is eligible for place ment in a community corre ctions progra m.

The Com munity Correc tions Act was mea nt to provide an a lternative me ans of punishment for “ selec ted, nonviolent felony off ender s . . . , there by rese rving secur e conf inement fa cilities for violent felony off

ender s.” Tenn. Code Ann. § 40-36-103( 1); see a lso St ate v. Samuels, 44 S.W.3d 489, 4 9 2 (T en n. 2001). Pursuant to statute, per sons who satisfy all of the f ollowing mini mum
c ri te ri a are e lig ibl e fo r p art ic ipatio n in a c ommun ity c or

re c tio ns pr og ram:
(A) Per sons who, wit hout this option, would be incarce rate d in a cor rec tional instit ution; (B) Persons who a

re c onvicted of pr operty-r elated, or drug/alcohol- related felony off enses or other fe lony offense s not involving crimes against the person as provided in title 39, chapte r 13, parts 1-5; (C ) P e rs on s w ho are c on vic te d o f n on vio le nt f e lon y o ff e ns e s; (D) Per sons who are convicted of felony off

enses in which the use or possession of a we apon wa s not involved; (E) Pe rs o ns who do not demonstrate a prese nt or past pattern of beha vior indicating violence; [ and] (F) Persons who do not demonstrate a p at t ern of committing vi olent offe nses[.]
Tenn. Code Ann. § 40-36-106( a)( 1). However, pe rsons who ar e sente nced to inca rce ration or who

are on esca

pe at the time of consideration will not be eligible, even if they meet these criteria. See Tenn. Code Ann. § 40- 36-106(a )(2)

.W e s ur m i s e t hat “ Ti t l e 40” r efer s t o a l oca l s ent enc i ng a l t er nat i ve t o i nca r ce r at i on. 1

-6- Persons who do not otherwise satisfy the minimum criteria a nd who would usually be

c on sid e re d u nf

it f or pr ob a tio n d ue to h ist orie s o f c hr on ic a lc oh ol a bu se , d ru g ab us e , or m e nta l he a lth problems, but whose spec ial needs are treatable and c ould be serve d best in the community may be considere d eligible for pa

rticipation in a community co rre ctions progra m. Tenn. Code Ann. § 40- 36- 106(c)

.
Because the De fenda nt, by her own a dmission, was incar cer ated at the time of sentenc ing, she wa s not eligible for community corr ections under subsection (a). Nonethele ss, she ar gues that she is eligible, under subse ction (c) , on the basis that her drug abuse is a “spec ial need.”

Un de r s ub se c tio n ( c ), if

th e Def e nd a nt i s st a tut orily ine lig ibl e fo r p ro batio n, sh e is p e r s e ineligible for community corr ections on a “ specia l needs” basis. State v. Kendrick, 10 S.W.3d 650, 65 5 ( Te nn

. Cr im. Ap p. 19 99 ); Sta te v. Grisb y, 95 7 S. W .2 d 5 41 , 5 46 (T e nn . Crim. Ap p. 19 97 ); Sta te v. Boston, 938 S .W.2d 435, 438 (Te nn. Crim. App. 1996); State v. Staten, 787 S.W.2d 934, 936 (Tenn. Crim. App. 1989) . An offe nder is eligible for probation i f he or she is sentence d to ten year s or less and ha s not been c onvicted of a few s p ec i fi ed offe nses. Tenn. Code A nn. § 40-35-303( a). Under th e p le a

a g r e e me n t, n o in d iv id u a l s e n te n c e w a s g r e a te r th a n s ix y e ar s a n d , th e r e f o r e , the Def endant would be eligible for pr obation. Acc ordingly, we must determine whether the Def endant meets the other

require ments of subsection (c)

. A determination that the Defe ndant is suitable for place ment in the progra m require s the following findings of fac t: (1) that the off ender has a history of c hro ni c al c oh ol, dr

ug abu se , o r m e nta l he a lth pr ob le ms; (2 ) that th e se fa c tor s w e re re a so na bly related to and contributed to the offe nder’ s criminal conduct; (3) that the identifiable spec ial need (or ne eds) a

re tre atable; an d (4 ) t hat the tre atment of the spe cial nee d could be se rved be st in the community rather tha n in a cor rec tional insti tution. B oston, 938 S.W.2d at 439.

Th e re c or d s up po rt s th e tr ia l c ou rt ’s fi nd ing that th e De fe nd a nt w ou ld b e un lik e ly t o c omp ly with the require ments of a c ommunity correc tions sentence. W e agre e with the trial c ourt that, given the Def endant’ s extensive criminal history, he r drug problem would best be tr eate d in a cor rec tional fa c ili ty. Th e De fe nd a nt ha s a lo ng his tory o f c ri min a l c on du c t r e nd e ri ng c on fi ne me nt n e c e ssa ry to protec t society from a dditional criminal behavior by the Def endant. The prese ntencer e p o r t i n d ic ates prior c on vic tio ns fo r fo rg e ry , the ft , ide nti ty the ft , fe lon y failu re to app e ar, fr a ud ule nt u se of c re dit

car d, violation of the bad c heck la w, and evading arrest. Furthermore , measure s less restric tive than confine ment have be en re peate dly and unsucc essfully applied to the Def endant. The Def

endant wa s gr a nte d “ Ti tle 40 ” on a

the ft c on vic tio n inBr ist ol G e ne ra l Se ssi on s Co urt in 19 99 . M ult ipl e 1 petitions were filed to r evoke her “Title 40” sentenc e due to he r fa ilure to comply with the conditions of her rele ase. The Defendant was convicted of five counts of forgery and two counts of fr audulent use of a cre dit card in Janua

ry 2001, and she was placed on probation. Her probation wa s revoke d following the commission of theft, identity theft, and two for gerie s in February 2001, and due to the fa ct t h at she tested positive for marijuana

while on bond supervision. She wa s incarc erated and pa ro le d in 2004

. Th e Defe nd a nt w a s o n p aro le a t th e tim e sh e c omm itt e d th e pr e se nt o ff e ns e s. Ac c or din gly , w e a gr ee wi th the tr ia l c ou rt that th e De fe nd a nt i s u ns uit able fo r c ommun ity

corr ections. See State v. Michae l E. Bunting, No. E2005-00321- CCA-R3-CD, 2006 WL 1994573,-7-

at *6 (Tenn. Crim. App., Knoxvil le, J uly 18, 2006), perm. to appea l denied, (Tenn. Nov. 13, 2006) ; Sta te v. Do na ld E . Brya nt, No . E 20 02 -0 06 90 -C CA -R 3- CD , 2 00 3 W L 9 34 24 3, a t *4 (T e nn . Crim. App., Knoxville, Mar. 10, 2003)

. CO NC LU SION Based upon the f

oregoing, we conclude that the S ullivan County Crim inal Court’s decision denying the De fenda nt a s entenc e of community corr ections was proper. T he sente ncing dec ision is affirme d.

______________________________ DAVI D H. WE LLES, JUDGE