# FILED
August 2, 1999 Cecil Crowson, Jr. Appellate Cou rt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT JACKSON APRIL 1999 SESSION

STATE OF TENNESSEE, ) ) Appellee, ) No. 02C01-9803-CC-00068

) ) Lake County v. ) ) Honorable J. Steven Stafford, Judg e ) MARILYN ELAM, ) (Forgery) ) Appellant. )
For the Appellant : For the Appellee : Jim W. Horner Paul G. Summers District Public Defender Attorney General of Tennessee 208 N. Mill Avenue and P.O. Box 742 Patricia C. Kussmann Dyersburg, TN 38025-07 42 Assistant Attorney Gener al of Tennessee (AT TRIAL) 450 James Robertson Parkwa y Nashville, TN 37243-0493 C. Michael Robbins 46 North Third Street C. Phillip Bivens Memphis, TN 38103 District Attorney General (ON APPEAL) and Mark L. Hayes Assistant District A

ttorney General 115 E. Mar ket St., P .O. Box E Dyersburg, TN 38025-20 05

OPINION FILED:____________________

AFFIRMED Joseph M. Tipton Judge2 O P I N I O N
The defendant, Marilyn Elam, appeal s as of right from her conv iction following a bench trial

in the Lake County Cir cuit Court for forgery , a Class E felony. The defendant was sentenced as a Rang e I, standard offender to one year of confinement in the custody of the Depar tment of Correction. The defendant contends that the trial court err

ed in sentencing her to cont inuous confinement. We affirm the judgment of conviction.

The proof at trial established th at Cary Richardson gave the defendant a ride to Huck’s Conv

enience store on May 20, 1997. Angela Boehm was the cas hier on duty at Huck’s that day . The defendant purchased beer and cig arettes, and she presented a check for forty dol lars bearing the name and addr ess of Cary Richardson. In the presence of Ms. Boehm, the defe ndant signed the check, “Cary Richardson.” The defendant was unable to produce id entification, but Ms. Boehm accept ed the check. The bank did not honor the c heck written agains

t Mr. Richardson’s ac

count because the account had been closed. Mr. Richardson testif ied that the defendant did not have permission to si gn his name on the check. The tr ial court found the defendant guilty of f orgery.

At the sentencing hearing , Officer Gracie Ashley of Westate Correc tions Networks testified that she was assigned to su pervise the defendant followi ng her plea of guilty to facilitati on of the sale of cocaine on August 26, 1996. She testified that the defendant was sentenced to two years in Community C orrections. She testified th at the defendant committed numerous violati ons of the conditions of her Community Corrections sentence and that the sentence was revok ed on February 3, 1997. She said the defendant was then placed on probation, and the probation w as in effect on May 20, 1997.3 Probation Officer Richard Per kins testified that he was assigned to supervise the defendant’s prob ation following the rev

ocation of her Community Corrections sentence. H e testified that the defendant was on probation at the time she committed the present offense. On cross -examination, Officer Perki ns testified that the defendant reported to him every month as directed and that he had no pr oblems from the defendant. He testified that while under his supe rvision, the defendant was subject to random drug testing and that the defendant never tested positive for alcohol or drugs.
A presentence report was introduced into evidence.It reflects that the defendant was thirty-seven years old at the time of the sentencing hearing. The repo rt shows that the defendant has a prev ious conviction in 1996 for facilitation of the sale of a Schedule II drug. It reflects that the defendant dropped out of school after completing the eighth grade and has not been employed since 1981. The defendant r eported that she is disabled and receiv es disability checks . She reported that she has v ery poor mental health and has had psychiatric counseling. She also reported tha t she suffers from back pain resulting from a shooting in 1981. The defendant report ed previous difficulties with drug

and alcohol dependence.

The trial court sentenced the defendant as a Range I, standard offender to one year of confinement to be serv ed in the Department of Correcti on. In mitigation, the trial court found that the defendant’ s conduct neither caused nor threatened serious bodily injury. Tenn.Code Ann. § 40-35-113(1). The tr ial court applied the follow ing enhancement factors, as listed in Tenn. Code Ann. § 40-35-114:

(1) The def endant h as a previ ous history of criminal convictions

in addition to those necessar y to establish the appropriate range; (8) The defen dant has a previous history of unwillingness to comply with the co ndition s of a sen tence invo lvi n g release in the community; [and]4 (13) The f elony was committed w hile on any of the following form s of release status if such releas e is from a prior felony conviction:

. . . . (C) Probation[.]
The trial court ordered that the defendant receive straig ht confinement, finding that measures less restrict ive than confinement had been frequentl y or recently appl ied unsuccessfully to the defendant. Tenn . Code Ann. § 40-35-103(1)(C).

Appellate review of sentencing is de novo on the record with a presumption that the trial co urt's determinations are c orrect. Tenn. Code Ann. § 40-35- 401(d). As the Sentencing Commission Comments to this section n ote, the burden is now on the defendant to show that the sentence is improper. This means that if the trial court followed the statutory sentencing procedure, made findings of fact that are adequately supported in the record, and gave due co nsideration and proper w eight to the factors and principles tha t are relevant to sentenci ng under the 1989 Sentencing Act, we may not distur

b the sentence even if a different res ult were preferred. State v. Fletcher , 805 S.W.2d 785, 78 9 (Tenn. Crim. App. 1991).

However, “the pres umption of correctness whic h accompanies the trial court's action is conditioned upon the affirmative showi ng in the record that the tr ial court considered the sentencing principles and all relevant facts and circumsta nces.” State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). In this respect, for the purpose of meaningful appellate review,

the trial court must place on the record its reasons for arriving at the final sentencin g de cision, identify the miti gating and enhancement factors found, state the specific facts supporting each enhancement factor found, and articulate h ow the mitigating and5 enhancement factors hav e been evaluated and balanced in determining the sentence. T.C. A. § 40-35-210(f) (1990). State v. Jones , 883 S.W.2d 597, 59 9 (Tenn. 1995).

Also, in conducting a de novo review, we must consider (1) the evi dence, if any, received at the t rial and sentencing heari ng, (2) the presentence r eport, (3) the principles of sentencing and arguments as to sentencing alternatives, (4) the natu re and characteristics of the c riminal conduct, (5) any mitigating or statuto ry enhancement factors, (6) any statement that the defendant made on his own behalf and ( 7) the potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40- 35-102, -103, -210;
see Ashby , 823 S.W.2d at 168; State v. Moss , 727 S.W.2d 229 (Tenn. 1986).

The sentence to be imposed by the trial court for a Class E felon y is presumptively the mini mum in the range when there are no enhancement or mitigati ng factors present. Tenn. Code Ann. § 40- 35-210(c). Procedurall y, the trial court i s to increase the sentence within the range based upon the ex istence of enhancement factors and then reduce the sentence a s appropriate for any miti gating factors. Tenn. Code Ann. § 40-35-210(d), (e) . The weight to be afforded an ex isting factor is left to th e trial court's discr

etion so long as it compli es with the purposes and pr inciples of the 1989 Sentencing Act and its findi ngs are adequately su pported by the record. Tenn. Code Ann. § 40-35-210, Sentencing Commission Comments; Moss , 727 S.W.2d at 237; see Ashby , 823 S.W.2d at 169.

The defendant contends that the trial court erred by ordering a sentence of continuous confinement. She argues that (1) the trial court erred by applying enhancement factor (8), that the defendant has a previous history

of unwillingness to comply with the conditions of a sentence involving release in the community, (2) she is statutorily inelig ible for continuous confinement, (3) the presumption in favor of alternat ive senten cing was not overcome , and (4) t he trial co urt’s den ial of alt ernative6

sentencing based on the unsucces sful application of measures less restrictive than confinement results in double enhanc ement. The state contends, and we ag ree, that a sentence of continuous confinement is sup ported by the record.

First, the defendant challenge s the trial court’s appl ication of the enhancement factor found in Tenn. Code Ann. § 40- 35-113(8), that she has a prev ious history of unwillingness to comply with the conditions of a sentence involving release in the community, as it relat es to the denial of a sentence alter native to confinement. See Tenn. Code Ann. § 40-35-210(b)(5) . Although she admits that her Community Corrections sentence w as revoked for failure to compl y with its condit ions, the defendant nevertheless maintains that the record does not show an unwillingness t

o comply with a sentence not involving confin ement. Despite the defendant’s contenti on, we believe that her previous inability to comply with a Community Corrections sentence supports the application of enhancement factor (8), and we further believe that this wa s an appropriate factor for the trial court to consider in determ ining the manner in which the defendant is to serve her s entence. See Tenn. Code Ann. § 40-35-103(1)(C). This issue is without meri

t.

Next, the defendant contends that sh e is statutorily in eligible for continuous confinement. She argues that pursuant to Tenn. Code Ann. § 40- 35- 104(c)(8)(B), a sentence of continuous confinem ent is not authorized for standard offenders convicted of theft in vio lation of Tenn. Code Ann. § 39-14-103, i nvolving property valued at l ess than one thousand dollars. She argues that this statute applies to her forgery convi ction because forgery i s punishable as theft, and theft of property or services valued at less than one thousand dollars is a Class E felony, as is her forgery conviction. Tenn. Code Ann. § § 39-14-114(c), -105(2).The state argues that Tenn. Code Ann. § 40-35-104(c)(8) (B) applies to persons c onvicted of Tenn. Code Ann. § 39-7

14-103, not forgery. It c ontends that the defendant is eligi ble for a sentence of continuous confinement.

Pursuant to Tenn. Code Ann. § 39-14-114(c), a conviction f or forgery “is punishable as theft pursuant to § 39- 14-105, but in no event shall forgery be less than a Class E felony.” The defendant relies upon Tenn . Code Ann. § 40-35-104(c)(8)(B), which states in perti nent part that a sentence of continuous confinement in the Department of Correction is authorized for felony conv ictions of one year or more, unless “[t]he defendant is conv icted of a violation of § 39-14- 103, involving pr operty valued at less than one thousa nd dollars ($1,000) and such defendant is sentenced as . . . a standard offender . . . .”

Because the defendant presents an issue requiring statutory interpretation, we first turn to an analysis of the guiding principles. A court’s interpretation of a statute must g ive effect to the legislatur e’s intent when enacting the statute. Owens v. State , 908 S.W.2d 923, 92 6 (Tenn. 1995). Thus, the court’s role is to “ascertain and giv

e effect to the legislative intent without unduly restricting or expanding a statute’s coverage beyond its intended scope.” Id. ; see Hicks v. State , 945 S.W.2d 706, 707 (Tenn. 1997); State v. Davis , 940 S.W.2d 558, 56 1 (Tenn. 1997); State v. Sliger , 846 S.W.2d 262, 26 3 (Tenn. 1995). When a statute is unambiguous, the court should enforce the statut e as written, without resorting to auxi liary rules of construction. Browder v. Morris , 975 S.W.2d 308, 311 (Tenn. 1998). “Unambiguous statutes must be construed to mean what they say.” Robertson v. Univer sity of Tennessee , 912 S.W.2d 746, 74 7 (Tenn. 1995) (citation omitted).

Viewed in this lig ht, we conclude that Tenn. Code Ann. § 40-35- 104(c)(8)(B) applies

only to convictions

for Tenn. Code Ann. § 39-14-103, not forg ery. The statute providing an ex emption from continuous confinement in the Department of1 We note that the stat ute prohib its a sent ence of conti nuous confinement onl y in t he Department of Correct ion. I t does not pr event a one-y

ear sentence to

continuous conf inement in a l ocal jail or workhouse. 8 Correction for Class E felony property theft convictions is unambiguous. By its plain language, it does not apply to convictions for crimes that are punished as thef ts but only to convictions for vi olations of Tenn. Code Ann. § 39-14-103, i.e., theft of property. In addition, the forgery st

atute provides that forger y is punished as theft pursua nt to § 39- 14-105. It does not provide that forgery is punis hed as theft pursuant to Tenn. Code Ann. § 40-35-104(c)(8)(B ). An analysis of the plai n language of Tenn. Code Ann. § 40- 35-104(c)(8)(B) and of the forgery statute leads us to conclude that the legislature did not intend for forgery conv ictions to be exempt from a sente nce of continuous confinement in the Department of Correc tion. 1 We decline the defen dant’s invitation in the present case to extend the scope of the statute beyond the plai n meaning of its terms. In addition, we not e that although this issue was not raised, this c ourt has upheld sentences of confineme nt for Range I, standard offenders convicted of Class E felony forgery. See State v. Franklin , 919 S.W.2d 362, 36 4 (Tenn. Crim. App. 1995); State v. Paul Brent Bax ter , No. 01C01-9311-CC-00 389, Marshal l County ( Tenn. Crim. App. July 28, 1994).

Next, the defenda nt conte nds that as a sta ndard offe nder con victed of a Class E felony, she is entitled to a presumption in fav or of a sentence alternative to confinement. Tenn. Code Ann. § 40 -35-102(6). She argues that this presumption is not overcome by any ev idence in the record. On the contrary, we agr ee with the trial court tha t a sente nce of co nfinem ent is jus tified b ecause “[ m]easur es less res trictive than confinement have frequently or recently been applie d unsuccessfully to the defendant[.]” Tenn. Code Ann. § 40-35-103( 1)(C). The record show s that the defendant’s previous Community Corrections sentence w as revoked because of her failure to comply with its conditions. Further more, the defendant was on probation at the time she committed the present off ense. We conclude that th e record9

demonstrates the defendant’s inabili ty to abide by sentences involving rel ease in the community and supports the tr ial court’s denial of a sente nce alternative to confinement.
Finally, the defendant also c ontends that the trial court “double enhanced” her sentence because it reli ed upon the defendant’s being on probati on at the time of the prese nt offe nse both to enhan ce her sen tence with in the ran ge and to d eny a sentence alternative to c onfinement. See Tenn. Code Ann. §§ 40-35-103(1)(C), -114(13)(C). Firs

t, we note that the trial

court’s denial of alternati ve sentencing was justified both because the defendant w as on probation at the time of the pres ent offense and because the defendant failed to comply with the terms of her Community Corrections sentence. Either of these facts, standing alone , support a conclusion that less restrictive measures than confinement have been recently applied un successfully to the defendant and would justify the denial of a sentence alternati ve to continuous confinement.
In any event, we do not believe that the trial

court’s reliance on the defendant

’s probation st

atus for both enh ancement

withi n her ra nge and i mpositi on of a sentence of confinement was improper . In State v. Davis , 825 S.W.2d 109, 113 (Tenn. Crim. App. 1991), this cour t held that nothing in the 1989 Sentencing Act prohibited consideration of prior cri minal convictions and con duct for both enhancement and consecutive sentencing purposes and that such consideration did no t involve double jeopardy. We believe that a similar conclusion applies to the pr esent case. Pursuant to Tenn. Code Ann. § 40-35-210(b)(5) , the trial court is obl igated to consider enhancement factors in determining both the sentence and the manner in w hich it is to be served. The use of the defendant’s prob ation status to enhance her sentence within the range does not bar the use of such status to justify the sent ence being served in confinement.10 In consideration of the foregoing and the record as a whole , we affirm the judgment of conviction.

________________________________ Joseph M. Tipto n, Judge
CONCUR:

__________________________ David G. Hayes, Judge

__________________________ L.T. Lafferty, Senior Judge