# FILED
July 23, 1997 Cecil W. Crowson Ap pellate Cou rt Clerk IN THE COU RT OF CR IMINA L A PPEA LS OF TENN ESSEE

AT NA SHVILLE MA RCH SESSION , 1996
STA TE OF TENN ESSEE, ) C.C.A . NO. 01C01-9 509-CC-00308 ) Appellee, ) ) ) WARREN COUNTY VS. ) ) HON. CHA RLES HASTON ANGELA

GRISSOM, ) JUDGE ) Appellant. ) (Direct Appeal-Sentencing)

FOR THE APPELLANT : FOR THE APPELLEE : MICHAEL D. GALLIGAN JOHN KNOX WALK UP Galligan &

Newman Attorney Gen eral and Repor ter 308 West Main Street McMinnv ille, TN 37110 MARY ANN E QUEEN Legal Assi stant CHRISTINA S. SHEVELIER Assistant Att orney Gener al 450 James Roberts on Parkway Nashvil le, TN 37243 BILL LOCKE Distric t Attorney General ROBERT W . BOYD Assistant D istrict A

ttorney Professional Bui lding McMinnv ille, TN 37110 OPINION FILE D ________________________ AFFIRMED AS MODIFIED JERRY L. SMITH, JUDG E-2- 

## OPINION AppellantAngela Gri ssom entered a pl ea of guilty to one c ount of theft of property val ued i n ex cess

of $ 10,000 in viol ation of Tennessee Code A nnotated Section 39-14-103 (1991)

. See a lso id. § 39-14-105(4) . Follow ing a sentenc ing hearing on March 24, 1994, t he tri al judge sen tenced Appellant to the maximum sentence of six years in the Depart ment of Correcti on. However, soon thereafter , by order filed May 26, 1995, the trial judge placed Ap pellant on Community Corr ection s with the requir

ement that she observe a sentencing arrangement involving time in the county jail and house arrest and that she repay the victim corporation $29,778.37 and pay $1000 into the Econom ic Crime Fund. On appeal, Appellan t asserts that she is presumed to be an appropri ate candidate for a n on-incar cerativ e sentence and that, under the particul ar circumst ances of her case, the trial j udge should have granted her full probation.

We agree with Appel lant and modify her sentence to the mi nimum sentence of three years, w ith all ti me suspended. The Appell ant is placed on supervi sed probation fora period of six

years. As a condition of probation, theAppellant is ordered to pay restitution in the amount of $29, 778.37 over the six year probationar y period. See Tenn. Code Ann. § 4 0-35-303(c).

FACTS
Appellantrea dil y ad mits that she embezzl ed over $ 29,0 00 fro m her former employer

Calson ic Yoroz u Corporatio n (CYC) . At the March 24, 1995 sentenci ng hearing, two employees of CYC test ified that Appell ant had accepted responsibil ity for whatshe had done and that she had been c ooperative following her arrest. Shehad met with one of these employeesin an attempt to explain how she accomp lished this1 A plan of supervision was included in the pre-sente nce report which proposed the follow ing conditi ons should the c ourt decide to grant Appellant probat ion: (1) Appel lant should make restitution in the amount approved by

the court; ( 2) Appellant s hall maintain e mployment; (3) Appellant shall perform 100 hours of public service work. -3- crimeand how CYC might recov er some of its l osses. Both se emed amenable to the idea of Appellant serving some form of altern ative sent ence though both ultima tely expressed their deference t o the trial court on thi s matter. Another witness testified that, though she was not at all implicated in this crime, she had lost her job as a bank teller because of Appellant 's acts. She stated that th is event w as very devastatingand emotional for her as well as her family. In the midst of the testimony at the sentencing hearing, the judge st ated that “w hen you stea l, you have go t to pay in some fashion, and time is going to be necessary, I don’t know whether it is going to be full time or part time or whatever.”

At the close of the hearing, the judge, re-reading the pre-sentenc e report, 1 stated that Appellant was the mother of two small chil dren whom she cared for at home and forwhom separat ion from their mother w ould be traumatic . As he read, he also noted that Appellant had done some public ser vice work in the publ ic school system taping b ooks for the blind. The j udge then heard t he State’s bri ef arguments on enhanc ing Appellant's sentence due to the amount of money involved in the theft and Appe llant's abuse of a position of pri vate trust . However, it is unclear w hi c h of these factors the trial judge found to be pr esent and actu ally a pplied. He merely made a conclusory stat eme nt th at Ap pell ant wa s sen tenc ed to six (6) ye ars in the S tate peni tent iary.

Two weeks lat e r, a he arin g was he ld on Appe llan t's m otio n fo r alte rnat ive senten cing. There was no new evi dence presented and the majority of the hearing w

as devoted to a discuss ion about how to structureAppellant's r epayment of the money that she owed to CYC. Soon thereafter on May 1, 1995, a final hearing was held in which2 It seems that Appel lant had, at the t ime of this order , already served the entire month of Ap ril 1995 in the W arren County jail.
3 During th e months of May, July, Septe mber, and November of 1995 and January of 1996, Appellant would remain under strict hous e arrest. I n the alternating months of June, August, October, and December of 1995, she would ser

ve time at th e jail from 9:00 a .m. to 6:00 p.m. from M onday to Saturday every week and be under house arrest on Sunda ys. In February of 1 996 , App ella nt wou ld sp end from 9:00 a.m. to 3: 00 p. m. on Mond ays through Saturdays in the jail with house arrest on Sundays. -4- the court stated as its purpose the fin al imposition of a sente nce. The court stated that,
as for mitigati ng factors, i t considered A ppellant's att itude, that she ha d, in no way, blamed the victi m corporation for her actions, that she was not vindict ive, and that she
was willi ng to begin serv ing her sen tence immediately . Also, thecourt consi dered the fact that Appellant

was a w ife and the mother of very young chi ldren. He not ed that she had voluntari ly, w ithout direct ion from the court, assisted CYC in determining how this crime was

committed.

The court stated that

it must consi der certain enhancement factors. It noted the nature of this cr ime--that it wascommitted over

an extended per iod of time. The tri al judge also noted “the prevalence of su ch a crime in this community. I t seem[ed] to [the trial judge that there had been] sever al of these over

the past few years, and [the court] must be vigi lant in the mess age [it] sen d[s] to the com muni ty.” The court also considered the great amount of money that was lost by the victi m. Finally , the cou r t stated that this

crime w as committed by a person in a position of ex treme trust.

In light of all of these factors, the court entered a supplemental senten cing order which was in effect as

of the preceding April 1. The order contemplat ed that Appellant would serve the entire month of Apri l in the Warren County jail. 2 For

the followi ng ten months, the tria l judge fashio ned a sentence w hich consist ed of alternating house arrest and day-timeservice in the local jail. 3 Appellant would not be req uired to repay the money she owed CYC until after the first year, at which tim e she would begin-5-

payments of restitution as well as $1000 to the Economic Crime Fund. The court we nt
on to recommend that som e form of reduced house ar rest woul d be appropriatefor the second year of the se ntence s ince Appell ant would hav e to start maki ng restit ution payments to CYC by

this time. In consider ing the las t part of Appellant 's sentence, th e trial judge state d, “[f]or the thir d and subsequent years . . . [a]fter she has served community cor rections, s he would be pl aced on probation. ”

When an appeal chall eng es th e le ngt h, rang e, or mann er o f ser

vi ce of a sentence, this Court

conducts a de no v o review with a pr

esumption that the determination of the trial court was correct. Tenn. Code Ann. § 40-35 -401(d) (1990). However, the presumption o f correctness only appli es when the r ecord demonstrate s that the trial court properl y consider ed the relevant sentencing principles and a ll relevant facts and circumstanc es. State v. Ash by , 823 S.W .2d 166, 169 (Tenn . 1991). In this case, w hile the tri al judge di d briefly ment ion enhancement an d mitigating factors before imposing the six year sentence, he f ailed to state upon which of the se he was
r elying. See State v. Jone s , 883 S.W.2d 597, 600 (Tenn. 1994). With regard t o th e manner of serviceof the sentence, the court failed to g ive Appell ant the benefit of the presumption that she is ent itled to a non- incarcerati ve sentence. Given the state of this record, we are compelled to find that the trial court’s se ntencing decision does not enjoy the benefit of the presumpti on that it is correct. Our r eview will t herefore be de no vo upon the record.

LENGTH OF SENTENCE

We turn first to the length of App ellant's se ntence. As s tated above, thetrial judge initiall y sentenced A ppellant to si x year s in the Depar

tment of Correcti on. W hile the judge later

modified the manner of ser vice, the length remained at si x year s. In the absence of enhancement and mitig ating factors , the presumptiv e length of

senten ce4 This Court has held this enhan cement factor ap plicable in a case where the theft offense involv ed $52,000--an amount of money approachi ng the $60, 000 a mount

nece ssar

y to put t he off enseint o thenex t gr ade o f theft and where the“losses s uffered by the [v ictim busines s] owners from the defendant ’s criminal conduct were particularly damaging.” State v. Fr ank , No. 03C01-9209- CR-00303, 1993 WL 539401, at *4 (Tenn. Crim. App. Dec. 22, 1993). However, in this case, the amount of money involved was not near $60,000 and t here is no ev idence that the v ictim corpor ation suffered damages approac hing those i n Frank

. 5 ThisCou rt i s aware of State v. Bi lbrey , 816 S.W.2d 71 (Tenn. Crim. App. 1991), whi ch prohibited the use of this factor to enhance a sentenc e for the crime of fraudulent breach of trust because the vi olation of trust was inherent in thi s crime. While Bilbrey would len d support to a s imilar argument for the for mer crime of embez zlement, the legislat ure has consolidated al l of the theft offenses into one single offense, Tenness ee -6- fora Class B, C, D, and E felony is t he minimum sentence i n the statutory range. Tenn. Cod e Ann . § 40 -35- 210( c) ( Supp . 199 5). Appe lla nt was c onv ict ed of t heft o f property in excess of $10,0 00, a Class C felony. See id. § 39-14-105(4) (1991). As a Range I standard off ender, she is eligible for a sentence of three to six years, see id. § 40-35-112(a) (3) (1990), with three years th e presumptively appropr iate length.

As noted above, prior to the imposition of a six-year sentence, the trial court merelylistened to the State ’s proffer of two enhancement factors w ithout artic ulating whether it found either t o be p resent. We rej ect the application of the first of these enhancement factors--that the amount of money taken from the victim was particularly great. See i d. § 40-35-114 (6) (Supp. 199 5). Our C ourt has held t hat since the punishment for theft is

enhanced based upon the amount ta ken by the ac cused, use of this enhancement factor constitutes d ouble enhancement in violatio n of the statute. 4 State v. Brewer , 875 S.W.2d 298, 302 (Tenn. Crim. App . 1993) (citing State v. Tate , No. 03C01-9110-CR -00327, 1992 WL 281928 (Tenn. Crim. App. O ct. 15, 1992), perm. app. denied, (Tenn. Mar 8, 1993)). O n the other hand, we agree w ith the application of the second factor urged by the State to enhance Ap pellant's sen tence due to her abuse of a position of pri vate trust. Appel lant was a n employee of the victim comp any, a position of trust which enabled he r to commit these crimes. 5Code Annotated Se ction 39-14-101 (1991), def ining theft as knowingly obta inin g or exe rcisi ng con trol o ver pro pert y witho ut th e owne r’s ef fec tive consent, wi th the intent to d eprive the owner of the pr operty. Id. § 39-14- 103. We therefore feel that any pr oblem of double enhancement ha s been eliminated. We distinguish also State v. M cKinney , No. 01C01-930 7-CR-00234, 1995 W L 108257 (Tenn. Crim. App. Mar. 10, 1995), where we found this enhancement factor inapp licable to a defendant convict ed under the current theft st atute of stealing from his employ er. The Court asserted that “breach of tr ust is inherent in the charge of theft as charged in this case” and then q uoted the languag e of the indictment w hich used the words “through fraud and deceit.” Id . at *2 (emphasis added). In the case at bar, the indi ctment merely parrots the w

ords of the theft statut e. -7- W hen the trial court modified Appellan t's sentence at a subsequent hearing, it stated that

it was rely ing upon tw o add iti onal fa ctors: that t his type of cr ime was prevalent

in the community

and that thi s particula r crime was committed over an extended period of time. A lthough it i s clear that the trial judge had alr eady enhanced Appellant's sent ence wh en it artic ulat ed th ese f acto rs as “ enh ance men t fa ctor s,” we note that neither of thes e are statutor y enhanc ement f actors and cannot be used to enhance the length of a defendant ’s sentence. Stat e v. Stricklan d , 885 S.W.2d 85, 89 (Tenn. Crim. Ap p. 1993); see Tenn. Code Ann. § 40- 35-114 (Supp. 1995)

.

The record ref lects a nu mber of mitigatin g facto rs not th e least si gn i ficant of which was Appell ant's attitude of remorse, respo nsibility , and wil lingness t o aid the victim in any waythat she could. Appellant had already s pent time wi th employees of the victim corporation in an attempt diminish the harmful e ffect s of h er misconduct. See Tenn. Code Ann. § 40- 35-113(10) ( 1990). She had al so already spent community service hours in the public school system. As Appell a nt noted in a li st of mitigati ng factors filed with the lower court, her conduct did notcause or threaten serious bodily inju ry. See id. § 40-35-113(1) . And finally , Appellant has serious family obligatio ns as the mother of ver

y young children.-8- Where, as here, both enha ncement and mitigati ng factors appl y, the trial court must start at the minim um sentence in the rang e, enhance the sentenc e within the range as appropriate for the enh ancement fa ctors, and then reduce the sentence within the range asappropriate for the mitigati ng factors. Id. § 40-35-210(e) (Supp. 1995). In this case, the one applicable enhancement factor warrants the enha ncement of Appellant's sentence f ro m the minimum three years to four years. However, in our opinion the abundance of mitig ating ev idence necessi tates that the sent ence be reduced back down t o the minimum. In conclusion, three year s is the prop er length for Appellant's s entence.

MANNER OF SERVICE
Regarding the manner of serv ice, the TennesseeCriminal Sentencing Reform Act of 1989 recogniz es the limited capacity o f state prisons and mandates that “convic ted felons committin g the most severe offenses, possess ing criminal histories evincing a clear dis regard for th e laws and morals of societ y, an d e vincing failure of past efforts of rehabilit ation shall begiven first prior ity reg arding sent encing inv olving incarcerati on.” Id. § 40-35-102(5) . A defendant who does notqualify a s such and w ho is an especially mitigated or standard off ender of a Class C, D, or E felony i s “presumed to be a favorable candi date forsentencing options in the a bsence of evidenc e to the contrary .” Id. § 40-35-102(6) ; Ashby , 823 S.W.2d at 169. This si mply means that the trial judge must presume such a de fendant to be a favorabl e candidate for sent encing which does not involve incar ceration. State v. Byrd , 861 S.W.2d 377, 379-80 (Tenn. Crim. App. 1993). However, this presumption is rebuttable and i ncarceration may be ordered if the co urt is pres ented with evidenc e of th e follo wing: (A) Confinement is necessar y to p rotec t societ y by restraini ng a defendant who has a long histor y of crimina l conduct;-9- (B) Confinement is necessary to avoid depr

eciating t he seriousness of the offense or confinement is particular ly suite d to provide an ef fec tive deterrence to others likely to commit similar of fenses; or ( C) Measures less restrictive than confinement have frequently or recently been applied unsuc cessfully to the defendant.
Tenn. Code Ann. § 40-35 -103(1) (199 0); see also Ashby , 823 S.W.2d at 1 69. In determining the appropriat e sentencing alternative, a court may also look to

evidence
or inform atio n off ered by the p arties on the statutory enha ncement and mitig ating factors. Tenn. Code Ann. § 4 0-35-210(b)( 5) (Supp. 1995 ); see also Id. § 40-35-113 to 114 (1990 & Supp. 1995). La stly, a court should take into account t he potential or lackof potential for a defendant’ s rehabilit ation or treat ment when con sidering the appropriate se ntencing alt ernative. Id. § 40-35-103(5) (1990).

Here, Appellant does n ot fall wi thin the parameter s of Te nnessee Code Annotated Section 40-35-102(5) and she is a st anda rd o ffende r co nvi cted of aClass C felony. She is thereforepresumed to be a favorable cand idate for altern ative nonincarcerati ve sentenci ng . However, in this record, there is no indication that the tr ial court gave Appel lant the benefit of this presumption. Therefore, it i s the duty of this Court in light

of the presumption, t o review the evidenc e to determine i f the presumption has been rebutted. We begin our anal ysis by noting that, as Appellan t is a first -time offende r, confinement is not necessary because less restrict ive measures have been
a pplied unsuccessfully to her nor i s it necessar y due to a l ong histor y of crimina l conduct. See Id. § 40-35-103(1) (A), (C)

.

The remaining consideration fou nd in Section 40-35-103(1)(B) requir es an examination of the seriousness of the offense and the suitability of confin ement as a deterrence to others. C oncerning the latter, thi s Court has stated that “[b]eforea trial court can deny al ternative sentencing on the ground of deterrence, theremust besome evidence contained in th e record that the s ente nce i mpo sed wil l have a deterrent effe ct-10-

within the jurisdiction.” State v. Bi ngham , 910 S.W.2d 448, 4 55 (Tenn. Crim. App. 1995); see also Ashby , 823 S.W .2d at 170 (fin di ng evidence insufficient to sup port deterrence as sole reas on for denying alternative sentencing) . At the heari ng on alte rnat ive sentencing, the trial j udge stated that it seemed to him that there had been several of these type crimes in the recent past. However, not only did the State fail to presentevidence to support the cour t’s notion, i t never even made such an arg ument. Our Supreme Court has held that “deterrence cannot be concluso ry only but must be supported by proof.” Ashby , 823 S.W.2d at 170. As no proof was presented here, this conside ration ca nnot be the bas is for a d enial of alterna tive sente ncing.
Regarding the seriousnes s of the offense, this Cou rt has held that“[i]n order to deny an alternativ

e sentence based on the seriousnes s of the offens e, ‘the circumstance s of th e off ense as commit ted mu st be esp ecially viole nt, horr ifying, shockin g, reprehensible, off ensive, or otherwise of an excessi ve or exaggerated degree,’ and the nature of the offens e must o utweigh all factors favoring a sentence other than confineme nt.” Bingham , 910 S. W .2d at 4 54 (citin g State v. Ha rtley , 818 S.W.2d 370, 374-75 (T enn. Crim . App. 1991)). We are unable to conclude that, although ser ious, the cir cumstances of this offense meet this standar d.

Moreover, there are many factors that weigh in favor of alterna tive sente ncing. The trial cour

t noted many of these factor s during t he different hearing s, and we have already referred to them as mitigating fa ctors in our dis cu ssion of the leng th of Appellant's sentence. We restate a few for emphasis: Appellant hasbeen candid w ith the court and thevictim corporation regarding her crime. She has

exhibited an attitude of remo rse a nd re spon sibil ity. See State v. Do wdy , 894 S.W.2d 301, 306 (Tenn. Crim

. App.1994) ("a defendant's credi b ility and will ingness to a ccept responsi bility for the offense are circu mstances relev ant to determini ng his reha bilitation p ote ntial"); see a lso-11-

Tenn. Code Ann. § 40-35 -103(5). As noted herein, Appell ant, as the mother of sma ll children, i s needed in the home.

In light of the fact

that the presumpti on for alternative sentencing is not rebutt ed bythe statutory

considerati ons found in Tennessee C ode Annotated Sectio n 40-35- 103(1) and that other facto rs weigh strongly in favor of a sentence other than confinement, we conclude that an alternative sentence m ust be imposed. The sole remaining q uestion is w hich type of al ternative sentence is appr opriate in thi s case.
In response to t hat question, Appellant asserts that she should be granted full probation. However, the determinati on of wheth er Ap pell ant i s ent itle d to a n alt erna tive sentence and w heth er A ppel lant is e ntit led to fu ll probati on are differen t inquiries, requiri ng different burdens of pro of. Bingham , 910 S.W .2d at 455. Even thou gh presumed a favorable cand idate for alternativ e sentencing, Appellant bears the burden of establishin g sui tabi lity for full probation. Tenn. C ode Ann. § 40 -35- 303(b) (Supp. 1995); Bingham , 910 S.W.2d at 455. To meet this burde n, Appellant must demonstrate that probatio n will “subs erve the ends of justice and th e best interes t of both the public and the def endant.” State v. Dy kes , 803 S.W.2d 250, 259 (Tenn. Crim

. App. 1990). When determining suitabili ty for probati on, the sentencing court considers the following factors: (1) the nature and ci rcumstances of the criminal conduct involved; (2) the defendant’s potenti al or lack of potential for rehabilit ation, includi ng the ris k that, during the period of

probation, thedefendant will commit ano ther crime; (3) whether a sentence of full probation would unduly depreciate the seriousness of the offense; and (4) whether a sentence other than full probati on would pr ovide an effective deterrent to others likely

to commit simi lar crimes . Tenn. Code Ann. §§ 40-35-210(b)(4), -103(5), -103(1)(B) (1990); Bingham , 910 S.W .2d at 456 (citations omitte d).6 The record reflec ts that Appella nt was ind icted in Oct ober of 1993.

-12- Our conclusion in this regard is counsell ed by the recen t Tennes see Sup reme Court cas e of Stat e v. Davis , 940 S.W.2d 558 (Tenn. 1997) which holds that a sent ence forcrimes commit

ted prior to Jul y 1, 1 996, may

incl ude restitut ion to the v icti ms only if it is a sentence of probation. Pr ior to July 1, 1996, the TennesseeGeneral Assembly had not authorized restitution in cident to a sentence of incarceration. Id. at 561 n.6. We thoroughly agree with the trial judge that restitution is appropriate in this case, bu t
we m ayorder it onl y if Appellan t is placed on probation. M oreover, t he nature and circumstances

of Appellant’s conduct do not sug gest that sheneeds more supervis ion than that inherent to probation , nor d o they sug gest that she is the typ e of criminal prone to fut ure crimi nal acti vity. W e ackno wledge the serious nature of this of fense but do not think the s eriousness of i t is depreci ated by a three-year suspended sentence coupled with an order that Appellant repay

the money she owes her former employer during a six year probationar y period. Lastly, after being inv olved in c rimi nal proceedings

for over four

years, 6 Appellant now faces six years of har d work i n order to repay the victim. We th ink this sentence will provide an effective deterrent to others likely to commit similar crimes.

It is apparent from the record that the trial court gave much considerati on to the specific schedule for Appel lant's pay ments of restitution. W e therefore adopt this plan ordering Appellant to makerestitutio n in the amount of $29,778.37 to CYC as well as to make a contribu tion in the amount of $1000 to the Economic Crime Fund and to pay court costs in the amount of $331.25. Beginning the first f ull month after the relea se of this opinion, Appellant shal l pay the sum of $400 p er month through the clerk of the Warren County Ci rcuit Cour t and shall co ntinue to make suc h payments for 24
cons ecut ive months. For t he subsequent month s, Appellant s hall pay $600 per month until such time as co mple te pa ymen t of resti tuti on, e cono mic f und , and cour t cos ts ha ve7 Tennessee Code Annotated Section 40-35- 304(c), prov ides that a payment schedule may extend up un til, but not beyond, the statuto ry maximum term of prob ation superv ision that cou ld have been i mposed for the offense--in this

case, six

years. -13- been paid. 7 We note that this or der of restitution i s subject to Tennes see Code Annotated Section 40-35-304(f) (199 0), which al lows the v ictim or the district attorney general at any time to petition the court to adju st or otherw i se waive payment of performance of the rest itution ordered or any unpai d portion thereof.

In summ ary, we modify Appellant's s entence to athree-year term, all of which is suspended. A ppellantwill be on probation for a period of si x year s. We affirm the trial court’s dec ision order ing Appella nt to make resti tution in the amount of $29,778.37 and, in addition, to pay

$1000 into an Economic Crime Fund as

well as the court cos ts in the amount of $331.3 5. W e also impose upon Appellant the duty to perform 100 hours of publ ic ser

vice work as w as recommended in her pre-sentence report. See supra note 1.
Accordingl y the judg ment of the trial court is affirmed as modified

____________________________________ JER RY L

. SMI TH, JUD GE

CONCUR:

___________________________________ DAVI D G. HAY ES, JUD GE

___________________________________ WILL I AM S. RUSSE LL , SPEC I AL J UDGE