### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE Assigned on

Briefs M ay 15, 2002
STATE OF TENN ESSEE v. ROMAN IA ANN GADSO N
Appeal from the Circuit Court for Montgomery C ounty Nos. 40811, 40000089, 40000380, 49900072, 40100017, 40100053, 40100068

John H. Gasaway, III, Judge

No. M2001-01212-CCA-R3-CD - F iled October 25, 2002

The defendant, Romania Ann Gadson, pled guilty in the Montg omery County Circuit Court to seven felonie s. While she was on probation for those crimes, the defendant committed and was convicted of three a ddit ional felon ies an d one m isdem eanor. After a sente ncing h earing, the trial court revoked the defenda

nt’s prob ation, de

termi ned that h er effective sentence for the “old” convictions was twelve years, a

nd ordered that she serve the twelve-ye ar sentence in incarcera tion. The trial court also sentenced the defendant to an effect ive sentence of five y ears in confinement for the “new” convictions and ordered that she serve the five-y ear sent ence consecutively to the twelve-ye ar sentence. The defendant

appeals, claiming (1) that the trial court incorre ctly calcula

ted the effective sentence for her old convictions to be twelve y ears; (2) that

the trial court erred in sentencing her to the maximum punis hment in the range for one

of her new convictions; and (3) that she should have received a community corrections sentence for her new convictions. As to the defendant’s claim that the trial court incorrectly calcul ated her twelve-y ear sentence, we remand the judg ments of conviction to the tria

l court. As to the defendant’s new convictions, we conclude that the tr ial court properly sente

nced the defendant and affirm those judgments of conviction. Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed in Part; Case Remanded

J OSEPH M. T IPTON , J., delivered the opinion of the court, in which J OE G. R ILEY and J AMES C URWOOD W ITT , J R ., JJ., joined.
Lonna K. Hildreth, Nashville, Tenne ssee, attorney for appellant, Romania Ann Gadson.

Paul G. Summers , Attorney Gene ral and Reporter; Renee

W. Turner , Assistan

t Attorne y General ; John Wesley Carney , Jr., District Attorney Genera l; and Lance A. Baker, Assistant District Attorney General, for the appellee, State of Te nnessee.1 There is no judg ment of conviction or any other information regarding case number 499 00092 in the record on ap pea l.
-2- OPINION

Between August 1999 and October 2000, the defendant pled g uilty in f our ca ses to seven felon ies. T he tri al cou rt sen tenced her as a Range I, s tanda rd offe nder t o the f ollo wing:

Case Number Count Offense Offense Classification Sentence

40811 1 Theft of property valued over $500 Class E felony 1 year to be served as 118 days in jail, the remainde r on probation
2 Aggravated burglary Class C felony 3 years to be served as 118 days in jail, the remainder on probation
3 Theft of property

valued over $500 Class E felony 1 year to be served as 118 days in jail, the remainde r on probation 49900072 3 Aggravated burglary Class C felony 4 ye ars to be served a s 1 year in jail, the r

emainder on probation
4 Theft of property

valued over $1,000 Class D felony 2 years to be served as 120 days in jail, the remainder on probation 40000089 1 Forgery Class E felony 2 years to be served on probation
40000380 1 Possession of

contraband in a penal institution Class C felony 3 years to be served on probation

The s entences within case numbers 40811 and 49900072, respectively , were to be served
co nc ur re nt ly. The eff

ective th ree-y ear sen tence f or case number 40 811, the e

ffecti ve f our-yea r sentence for case number 49900072, and the two-y ear sentence

for case number 40000089 were to be served c onsecuti vely . The three-year sen tence f or case number 40 000380 wa s purport edly to be served concurrently

to case number 49900092. 1-3-

On April 5, 2001, the defendant pled guilty to ag gravated burglary , burglary , theft of prope rty valued ov er five

hundred dollars, and theft of property valued less than five hundred dollars. The defendant admitted that she had violated the probation she was serving for her old convictions and waiveda probation violation hearing. On May 15, 2001, the trial court

held a sentencing hearing for the four new conv

ictions.

At the hearing, Cathy

Gadson, the defendant’s mother, testified that the then twen ty- ye ar-old defendant had bee n a good child and was not vio lent. The

n, Ms. Gadson’s son was kille d, and his death destroyed the f

amily. The

defendant had idolized her brother and blamed herse lf for his death. Alth ough the de fendan t got co unsel ing, it did not help her, and she started using drugs. Acc ording to Ms. Gadson, if the trial court granted the defe ndant an alternative sentence, the defe ndant would live with her and get help for her drug problem.

The defendant testified

that she started committing crimes when she was eig hteen y ears old because after her brother

died, no one had been around to keep her in line and out of trouble. The defendant had never used a

weapon o

r threa tened an yone during

her cri mes, and no one was in the homes that she burglarized. The defendant had returned stolen property to one of her

victims and had been accepted into an alcohol and drug rehabilitation program at Turning Point. The defendant testified that her

drug a ddiction c aused he

r to commit

her cri mes, and she acknowledged that if the trial court allowed her to get treatment for her addiction, she would stay aw ay from a life of crime.

The defendant’s presentencereport reflec ts th at the defend ant is singl e and o btain ed a hi gh school diploma wh

ile she was incarcerated

in a juven

ile faci lity . The def

endant r eported being in fair physical health and ha

ving skin cancer. The report shows that the de fendant has a his tory of drug an d alcohol abuse and that she started using cra ck cocaine when she was eig hteen yea rs ol d

. In the report, the defendant stated that she started smoking crack cocaine “ever yday , all day” a

nd that she wanted help for her drug a ddiction.

The trial court sentenc ed the defendant as a Rang e I, standar

d offend er to the following :

Case Number Count Offense Offense Classification Sentence

40100017 1 Aggravated burglary Class C felony 3 years

2 Theft of property

valued over $500 Class E felony 2 years

40100053 1 Burglary Class D felony 2 years
40100068 1 Theft of property valued less than $500 Class A misdemeanor 11 mo nt hs , 2 9 d ays-4-

The trial court ordered that the sentences in case number 40100017 be served concurrently for an effectivesentence of three ye ars. I t also determined that the defendant was on bail for the ag gravated burglary and felony thef

toffenses in case n

umber 401 0017 when

she commit

ted the bu rglar y of fense in case num

ber 4010 0053. I

t, therefore, he

ld that und

er Rule 32(c)(3)(C), Tenn. R. Crim. P., she had to serve the sentence for the latter case consecutively to those for the f ormer. See Tenn. R. Cr

im. P. 32(c)(3)(C) (providing for manda tory consec

utive sentencing when a

defendant commits a felony while released on

bail for another offense and the defe ndant is convicted of both offenses). Fi na ll y, it ordered that the sentence

in case number 40100068 be served concur rently to the sen tence in case number 40100 053 for an effective sentence of five yea rs. The trial court revoked the defendant’ s probation for her old convictions and orde red that she serv e the fiv e-year sen tence c onsecuti vely

to the effective twelve-y

ear sentence that she had rec eived for the old convi ctions. The defendant appeals , raising

severa l sentenc ing issue s. Appellat e review o f sentencing is de novo on the record with a presum ption that the trial court’s determin ations ar e correct. Tenn . Code Ann . § 40-35- 401(d). A s th e Sentenci ng Commis sion Comments to this section note, the burden is now on the defendant to show tha t th e sentence is improper. This means that if the trial court followed the statutory sentencing procedure,
ma de fi ndings of fact that are adequa tely supported in the rec ord, and gave due consideration and proper weight to the factors and principles that are relevant to sentencing

under the 1989 Sentencing Act, we may

not disturb

the sente nce eve n if a different result were prefe rred. State v. Fletcher , 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).
However, “the presum

ption of correctness whic h accomp anies the

trial cou rt’s act ion is conditioned upon the affirmative showing in the record that the trial court considered the sentencing principles andall relevant facts and circumstances.” State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). In this respect, for the pur pose of meaningful appellate review , the trial court must place on the record its reasons for ar riving at the final sentencing decision, identify the mitigating and e nhancement factors found, sta

te th e specific facts supporting each e nhancement factor found, an d articulate how the mitigating and enhanc ement factors have been evaluated and balanced in de termining the sentence. T.C.A. § 40-35-210(f) (1990).

State v. Jones , 883 S.W.2d 597, 599 (Tenn. 1994).
Also, in conducting a de novo review, we must co nsider ( 1) the ev idence, if any, rec eived at the trial and

sentenc ing hea

ring, ( 2) the pr

esentence repo

rt, (3) th e prin ciples of sentencing and argume nts as to sentencing alternatives, (4) the nature a nd chara cteristi cs of the

criminal conduct, (5) any mitig ating or statutory enhanc ement factors, (6) any statement that the defendant made on her own behalf and (7) the potential for rehabilitation or trea tment. Tenn. Code Ann. §§ 40-35-102, -103, and -210 ; see Ashby , 823 S.W .2d at 168 ; State v. Mo ss , 727 S.W.2d 229, 236-37 (Tenn. 1986).-5-

The sentence to be imposed by the trial court is presumptively the minimum in the range for
a Class B, C, D, o r E felony unless ther e are enhancement factors present. Tenn. Code Ann. § 40-35-210(c). Procedu

rally , the tria

l court is t

o increase the sentence within the rang e based upon the existence of enhancement factors and, then, reduce the sentence as appropriate for any mitigating factors. Tenn. Code Ann. § 40-35-2 10(d) and (e). Th e weight to be affo

rded an e xisting fa ctor is left to the trial court’s discretion so long as it complies with the purposes and principles of the 1989 Sentencing Act and it s f indings are adequately

supported by the record. Tenn. Code Ann. § 40-35-210, Sentencing Commission Co mments; Moss , 727 S.W.2d at 23 7; see Ashby , 823 S.W.2d at 169.

I. TWELVE-YEAR SENTENC E CALCULAT ION

The defendant contends that the trial court erred by calculating the effective sentence for he r oldconvictions to be twelve ye ars. She claims that her effective sentences in case numbers 40811, 49900072, 40000089, and 40000380 were three, four, two, and t hree y ears, r especti vely . She asse

rts that although the sentences for the first three cases we re to be se rv ed co ns ec ut iv el y, the trial court ordered that she serve her three-y ear sentence in case number 40000380 c oncurrently to “t he sentence that she was then serving.” She contends that upon revoking he r probation, the trial court should have ordere d her to se

rve an effectiv e sentence of nine y ears in confine ment. The

state cla ims that the twelve-ye ar se ntence is correct. Based upon the r ecord before us, we cannot dete rmine whether the trial court correctly calculated the defendant’s effe ctive sentence. During the sentencing hearing for the defendant’s new convictions, the trial court re ad the defendant’s sentences for her old convictions and stated that the defendant was to serve herthreeyear sentence in case number

40000380 concurrently

to her sentence in case number 49900092. The judgment for cas e number

40000380 a

lso reflects that th

e three -y ear sen

te nc e for tha

t case wa s to be served concurrently

with her sentencein case number 49900092. However, we have no judgment
or any other i nform ation about case nu mber 4 99000 92. Al thou gh we suspect that the trial court intended for the d

efenda nt’s sente nce in ca se number 40 000380 to b e serve d concur rently with case number 49900072, we cann ot ma ke that assumption. Therefore, we remand the c ase to the trial court. If the trial court deter mines that the defendant was to serve her sentenc e for case number 40000380 concurrently

to case number 49900072, then upon revoking the defe nd an t’s probation, the trial court should have ordered her to serve a n effective sentence of

nine year s in confinement for the old convictions.

We notethat the state’s brief claims in a footnote that under Rule 32(c), Tenn. R. Crim. P., the trial court correctly

ordered the defendant to serve twelve years because the defendant committed the offense in case number 40000380 while she was on probation in case numbers 40811, 49900072, and 40000089. How ever, as the defendant’s reply brief points out, Rule 32(c)(3)(A) provides for mandatory

co ns ec ut iv e s en te nc in g w he n a de fe nd an t c om mi ts a f el on y while on parole, not probation, for another

felony. Ther

e is no evidence that the defendant was on parole at the time she committed the offense in case number 40000380.-6-

We also note that the judgment for count four in case number 49900072 r eflec ts tha t the defendant was convicted of theft

of property ove

r $1,000, a Class C fel ony . Howeve r, that of fense is a Class D felony. See Tenn. Code Ann. § 39-14-405(3). Because the indictment states that the defendant was indicted for Class D felony theft an d t he defendant was sentenced to the minimum in the range for a Class D felony , we believe the trial court made a cleric al error on the judgmen

t. Therefore, we also remand count four in case number 49900072 for cor rection of the jud

gment to reflect the correct offe

nse classification.
II. SENTENCE

FOR THE F

ELONY THEF T CONVICTI ON
Next, the defen dant contends that the trial court erred by sentencing her to the maximum punishmentin th e range for her theft of p roperty valued over five

hundred dollars c onviction

in case number 40100017. Specifically, she c ontends that the applicable mitigating factors outweighed the enhancement

fac tors. The

sta te cl aims t

hat th e tri al court pr

oper ly sente nced the defendant . We agree with the state.

In sentencing the defendant, the trial cour t noted tha t as a Range I , standard offender, the appropr iatestatutory

range s of punish

ment wer e three to six years f

or aggr avated burglar

y, a Class C felo ny; two to four y

ears for burglary , a Class D felony; one to two y ears for theft

of propert y valuedmo re th an fi ve hu nd re d d ol la rs , a Cl as s E fe lo ny; an d u p t o e le ve n m on th s, tw en ty- ni ne da ys for theft of property

valued less than five hundred dollars, a Class A misdemeanor. The trialcourt determinedthat enhancement factor (1), that the def endan t has a previous history of c riminal convictions in addition to those necessary to establish the appropriate range, and f actor (8), that the defendant has a previous history of unwillingne ss to comply with the conditions of a sentence involving releas e into the

community , applied

to allfour convictions. See Tenn. Code Ann. § 40-35- 114(1), (8). The

trial cou rt a lso applied enhancement factor (13), that the def endant committed a felony while on release status, to the aggr avated burglary , burglary , and theft of property va

lued over five hundred

dolla r s convictions. See Tenn. Code Ann. § 40-35-114(13). I n mitigation, the trial court applied the following factors to all four of the convictions: (1) the defendant’s criminal conduct didnot cause or

threaten serious bodily injury ; (5) the defendant, before detection, compensated the victim of criminal conduct for

the damage or

injury the victim

sustaine d; (6) the

defenda nt, beca use of her youth , lack ed sub stant ial j udgmen t in co mmit ting t he offenses; and (13) the defendant, by pleading guilty, saved the state the time, effort, and expense of going to trial. SeeTenn. Code Ann. § 40-35-113(1), (5), (6), (13).

The trial court weighed the enhance ment and mitigating factors and sentenced the defendant to the minimum in the range for theaggravated burg lary and bur

glary convictions, three years a nd two years, r

espectively. F

or the felony and misdemea nor theft of property

convictions, the trial court sentenced th e defen dant to the maximum in the range, two ye ars and eleven months, twenty -nine days, respectively.

Alth ough the defendant con tends t hat the mitigating factors outweighe d the enhancement factors and that the trial court shoul d have sente nced h er to t he min imum in th e range for her felony-7-

theft conviction, we believe t hat the tr ial cour t proper ly s entenced the def

endant. A s previou sly stated, the weight

to be afforded an

existing f

actor is l eft to the

trial cou rt’s disc retion so long as i t complies with the purposesand princ iples of th e 1989 Sen

tencing Act and it s finding s are ad equatel y supported by the rec ord. Tenn. Code Ann. § 40-35-210, Sentencing Commission Co mments; Moss , 727 S. W.2d at 237; Ashby , 823 S.W.2d at 169. In sentencing the defe ndant to the maximum punishmentin th e r an ge fo r a Cl as s E fe lo ny, the trial court determined that the enhancement factors outweighed

the mitigating fa c tors. The record before us, espec ially the defenda nt’s extensive criminal history, supports the weig ht that the trial court gave to the applicable e nhancement

and mitigating factors and

the trial court’s sentenc ing her

to the maximu

m punishme

nt availa ble for the offense.
III. ALTERNATIVE SENTENCING

Fi na ll y, the defendant contends that the trial court erred

by ordering

her to serve her effective five-ye ar sentence in confinement. She claims that she is eligible for community corrections under Tenn. Code Ann. § 40-36-106(a). I n addition, she claims that her drug addiction and skin cancer constitute “special needs” pursuant to Tenn. Code Ann. § 40-36-106( c) that “make her more qualified for the Community Corrections Prog ram.” The state contends that the trial court pr operly denied alternative sentencing. We ag ree with the state.

When determin

ing if incarce

ration is a

ppropria te, a trial court should consider that (1) confinement

is neede d to prote ct socie ty b y r estrain ing a defendant who has a long history of criminal conduct, (2) confinement is needed to avoid depreciating the seriousness of the offense or confinement

is particularly

suited to p

rovide a n effective dete

rrence to peo ple likely

to commit similaroffenses, or (3) less restrictive measures than confinement have freque ntly or rece

ntly been applied unsu cces sfully to the defenda nt. Ashby , 823 S.W.2d at 169 (citing Tenn. Code Ann. § 40-35-103( 1)(A)-(C)). The tria l court ma

y a lso consid

er the mit igating and enha ncing f actors se t forth in Tenn. Code Ann. §§ 40-35-113 and -114. Tenn. Code Ann. § 40-35-21 0(b)(5) ; State v. Boston , 938 S.W.2d 435, 438 (Tenn. Crim. App. 1996). Additiona lly, a trial c ourt shoul d consider
a defenda nt’ s poten tial or lack of potential for rehabilitation when determining if a n alternative sentenc e would be

appropr iate. Te nn. Code A

nn.§ 40-3 5-103(5) ; Boston , 938 S.W.2d at 438. In deny ing the defendant’s request for a lternative sentencing, the trial court stated,

An d the Court f

inds that th

ere is no reasona ble expec ta tio n that Ms. Gadson can rehabilitate herself in a proba ted status. She has been on probation for multip le, multipl e offenses. She simply ca nnot follow the rules and regulations, and she’s demonstrated that over and over and over.

A release status through community correctionwould

not be any different than to be in a

release status under a probated sentenc e.-8- She has to be confined, so she’s [ordered] to serve this effective 15 ye ar sente nce at TD OC. That’ s all.

Based upon our de novo review, we conclude that the trial court did not err in ordering the defendant to serve h er entire five-ye ar sentence in incarcera tion. The defendant had seven prior felony convicti ons, and w

hile she w as on prob ation for those off enses, sh e comm itted three more felonies and one misdemeanor. Although the defen dant b lamed he r action s on her dr

ug prob lem, she continued to commit crimes without seeking treatment. According to the presentence r eport, the defendant “advised she has skin cancer and she take s medication for itching, but otherwise defendant reported being healthy .” The defendant did not testify about her skin cancer at the sentencing hearin g. We believe the record dem onstrates that the defendant’s previous sentences involving releas e into the co mmun ity have b een un succes sful a nd th at the defend ant do es not reflec t a high potential for rehabilitation. Moreover, the defendant has not de monstrated that she has special needs that can best be treated in the commun ity. W e affir m the tria

l court’sdenial of

a community corrections sentence. Based upon the foregoing and the record as a whole, we remand t he judg ments of conviction in case numbers 40811, 49900072, 40000089, and 40000380 to the trial court to determine whether the defendant’s effective sentenc e for those convictions is nine o r twelve ye ars and to correct the judgment for coun t four in c ase numbe

r 4990007 2. As to th e defendan t’s rema ining co nvictions , we affi rm the judg

ments of th

e trial c ourt.

___________________________________

JOSEPH M. TIPTON, JUDGE