### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT KNOXVI LLE A ssi gne d on Br ie fs O ct obe r 27, 200 9 STA TE OF TEN NES SEE v. MIC HELLE BISHOP Appeal from t he Circuit Court for Sullivan County Nos. S51,057; S52,581; and S52,582 R. Jerr y Beck, Judge

No. E2009-00404-CC A-R3- CD - Filed De cem ber 18, 2009

Th e de fe nd a nt, Mic he lle Bis ho p, ple a de d g uil ty in the Sul liv a n Cou nty Cir c uit Cou rt to thr e e c ou nts of theft of property valued at $500 or less, one count of t heft of property valued at $1,000 or more but less than $10,000, two counts of i dentity theft, two counts of for gery, and one count of failure to appea r in exc hang e fo r an effe ctive sente nce of five ye ars with the manne r of se rvice of the sentenc e to be de termined by the trial court. The trial court ordere d a fully inca rce rative se ntence , and the de fendant now appeals, claiming she should have be en granted probation or other alternative se nte nc ing . D isc e rn ing no e rr or , w e a ff ir m th e jud gme nts of

the tr ia l c ou rt

. Tenn. R. App . P. 3; Judgments of the C ircuit Court A ffirm ed
J A M ES C UR W OOD W I TT , J R ., J., delivere d the opinion of the court, in which J OS EP H M. T I P TO N , P.J., and J OHN E VERET T W I L L I AMS , J., joined. Joseph F. Harrison, Assistant Dist rict Public Defe nder, f or the a ppellant, Michelle Bishop. Robert E. Cooper, Jr ., Attorney Ge n era l and Reporter ; Rachel W est Harmon, Assistant Attorney Gene ral; H. Gr eele y Wells, Jr., District A t t o rn ey Ge nera l; and Julie R. Canter, Assistant District Attorney Ge nera l, for the a ppellee, State of

Tenne ssee. OP IN ION
On Fe br ua ry 1, 20 07 , th e de fe nd a nt, Mic he lle Bis ho p, e nte re d p le a s o f g uil ty i n c a se nu mbe r S 51 ,0 57 to t wo c ou nts of the ft of pr op e rt y v a lue d at $ 50 0 or les s, two c ou nts of ide nti ty theft, two counts of forge ry, and one count of theft of property va lued at $1,000 or more but less than $10,000. She also enter ed pleas of gui lty in case number S 52,581 to one count of failure to appea

r and in ca se number S52,582 to one count of theft of property va lued at $1,000 or more but less than $10,000. Pursuant to a plea agre ement with the State, the def endant r ece ived an e ffe ctive sente nce of five ye ars with the manne r of se rvice of the sente nce to be determined by the trial court following a sente ncing hea

ring. In addition to these c harge s, the defe ndant pleade d gui l t y in case number S52,497 to one count of fa ilure to appe ar in e xchange for a one-ye ar suspe nded sente nce to be serve d c on se c uti ve ly t o th e fi ve -y e ar e ff e c tiv e se nte nc e a t iss ue in thi s c a se a ndin c a se nu mbe r S 52 ,5 83 to-2-

one count of

theft of pr operty va lued at $500 or l es s i n ex ch an g e for a suspende d sentenc e of 11 months and 29 days t o be served conc urre ntly to the sentence imposed in case numbe r S52,497. The State rec ited the following stipulated fac ts at the guilty plea ac cepta nce he aring: Concerning f

irst Case #S51057, on July the 29th of 2005 Ms. Felicia Wagone r wa s approa ched by the [d]e fendant at the Con oc o M ark e t onEa st St on e Drive . T he [d ]e fe nd a nt ask e d M s. Wagone r if she would give her a ride home to the Kingsport Manor. Ms. Wagone r agr eed to.

While Ms. Wa goner dr ove [the defe ndant] to t hat residenc e[,] [the de fendant] took Ms. Wagone r’s re d Gucc i wallet out of her purse that was [lying] in the floorboa rd without being detec ted by Ms. Wagone r.

At app ro xim a te ly 6 :40 the nex t day [ the de fe nd a nt] arrived at the Walgr eens Pharmacy a nd purcha sed $139.68 worth of merc handise with one of Ms. Wagone r’s ch ecks which had be en forge d and signed . . . a llegedly by Ms. Wag oner w ith it not being with the consent of Ms. Wagone r, along with the Te nnessee driver’ s lic e ns e of Ms. Wa go ner bein g p la c e d o n th e de sk . T he re wa s a vid e ota pe of thi s. At approximate ly 6:55, 15 minut es lat er, [ the defe ndant] we nt to the Big B rea k Ex x on on West Stone Drive and again wr ote a c heck in the am o u n t of $71.99 fr om Ms. Wagoner ’s sto l en chec kbook, signed Ms. Wagone r’s na me, and took the merc handise. Onc e again video evidenc e wa s obtained.

. . . . Ultimately [the de fendant] was a dvised of her co n s t i t u t i o n al ri g h t s per the M ir a nda de c isi on a ndwaive d th os e ri gh ts and gave a stateme nt confe ssing to her involvement in the ca se.

Concerning S52581, the failure to appea r, [the defe ndant] failed to appea r in the gene ral sessions court on May the 28th of 2006 to answer

char ges to the fe lony offense of theft ove r $1,000. She had bee n rele ased on bond on the condition that she appea r in court on that date.

. . . . S52 58 2 c on c e rn ing the ft ov e r $1 ,0 00 , De te c tiv e Chris Tincher found, upon investigation, that Annie Sams, a re sident of E6-3- Ki ng sp ort Mano r A partme nts re po rt e d th a t so me on e sto le approximate ly $1600 of jewelry from her be droom. She stated that [the de fe nd a nt] wa s in he r r e sid e nc e du ri ng the time of the the ft

. Detec tive Chris Tincher interviewe d [the de fendant], who conf essed that sh e ha d s tol e n th e je we lry o f M s. Sa ms w ith ou t he r c on se nt.
The trial court acc epted the plea agre ement, enter ed the guilty plea s, and order ed the pre paration of a pr e se nte nc e re po rt

.

At the Februa

ry 26, 2009 sentenc ing he aring, the 41-yea r-old defe ndant testified that s h e wa s l i v ing with her mother a nd her two daughters, age s 13 and 17. She stated that she had graduated from high school a nd completed training to become a ce rtified nursing assistant, although she no longer he ld her nursing a s s i s t an t ’s license at the time of the hea ring. At the time of the hearing, the defe ndant was working at a McDonald’s restaurant. The de fendant rated he r hea lth as fair, noting that she suf

fer ed fr om high blood pressure, de gener ative disk disease , fibromyalgia, rheumatoid arthritis, a slipped disk, a bulging disk, and a pinched ne rve. The defen d ant admit ted that sh e ha d a

le ng thy c ri min a l hi sto ry bu t attribu te d the ma jority of he r co nv ic tio ns to h e r q ue st t o obtain money to purcha se coc aine, whic h s h e agree d was he r “dr ug of choic e” and which she claimed “ ruined [he r] life .”

The de fendant testified that following her guilt y pleas in t his case, he r probationary se nte nc e in S c ott

Cou nty , V ir gin ia , w a s r e vo ke d, a nd sh e wa s ord e re d to spe nd ne arl y two ye ars in ja il i n V ir gin ia . I n a dd iti on , s he ha d s e rv e d “ [a ]l mos t se ve n mo nths” in the Sul liv a n Co un ty j a il. The de fendant stated that her time in jail had “[c ]hange d her life ” and a llowed her to finally conquer her c ocaine addiction. She claimed that she had been able to r eunite with he r family and that she had participated in a progr am ca lled Families F ree , which provide d substance a bus e co u n s eli ng and pare nting classes. The de fendant stated that during her incar ce ra t ion in Virginia, she had be en employed as a

“pod cle aner ,” allowing her to “work[ ] off

about $3,000 worth of court costs and fines.”
Th e de fe nd a nt t e sti fi e d th a t f oll ow ing he r r e le a se in V ir gin ia , s he ret urne d to Tenne ssee a nd was re lease d on bond. She stated t hat s he was “ashamed” of her “ horrible” criminal rec ord and c laimed that she “ne eded some time to sit and think.” The defe ndant said that she wa s “a totally, totally differ ent per son” following her incar cer ation. The defenda nt asked the court “ for a chance to be on probation” to e stablish that she had “c hanged” and that she c ould “do right.”

During cr oss-exa mination by the State, the defe n d an t admitted that she had be en presc ribed “hydrocodone ,” “anatrypta line,” and “zanafle x” for her various hea lth issues. S he denie d any illegal drug use

.

Lisa Tipton, the defe ndant’s counselor with the Families Free progra m, testified that the def endant ha d been “ very r ece ptive” to the help of fer ed t h ro u gh the program and that she ha d “demonstrated the ability to take re sponsibili ty for the mistakes that she ’s made.” Ms. Tipton stated that she believe d the def

endant to “be a very good candidate for pr obation with support.”-4- Reba Bishop, the defe ndant’s mother, testified that the def endant ha d change d a gre at deal f ollowing her inca

rce ration in Virginia. She expla ined that the defe ndant was “ doing her ve ry best” to be a mot her to her children. She stated that she ha d seen no e videncethat the def endant ha d been using drugs. Ms. Bishop testified that she believe d the def endant to be a good candidate for probation. The pre sentenc e re port, filed as a n exhibit by the State, established that the de fenda nt ha d 2 4 p ri or

c on vic tio ns , inc lud ing thr e e c on vic tio ns of c ri min a l tr e sp a ss, se ve n c on vic tio ns of the ft , three convictions of violation of the drive r’s lice nse law, thre e convic tions of assault, two c on vic tio ns of

po sse ssi on of

ill e ga l dr ug s, thr e e c on vic tio ns of fo rg e ry , one c on vic tio n of v a nd a lis m, one convic tion of uttering a worthless chec k, and one c onviction of public intoxication. In addition to h e r r e c or d o f cri mi nal co nv ic tio ns , th e de fe nd a nt h a d 1 1 s e pa rate c ha rg e s o f u tte ri ng wo rthle ss c he c ks dis mis se d u po n th e payme nt o f the c he c ks a ndthe c ou rt c os ts.
At the conc lusion of the testimony, the t rial court noted t hat the def endant “ since a ge 32 has just been ba sically in trouble up until she was incar cer ated.” The c ourt also observe d that the defe ndant had “a prior history of violent of fense s” and “a lengthy rec ord of convictions.” The court conclude d that the def

endant’ s family support favor ed a gr ant of probation but determined that the defe ndant’s “c ontinuous problems, continuous probations” weighe d in f avor of a denial of probation or other a lternative se ntencing. The court stated tha t i t was “of the opinion that, just reading her prior re cord, that she’d likely commit new crimes if rele ased. Considering her r ecor d of prior f ailure on probation, there ’s a likelihood she’d r eoff end in re gards to probation.” The c ourt conc luded that probation wa s not “in the best intere st of the State or the [d] efe ndant.” As suc h, the court ruled that the def endant would “ be re quired to ser ve [he r] se ntence .”
In th is ap p e a l, th e d e f

e n d a n t c o n te n d s th a t th e tria l c o u r t e rr e d b y d e n y in g her probation or other

alternative sentenc ing. The State conte nds incarc eration was appropriate.
When c onsidering a c hallenge to the ma nner of service o f a sente nce this court c on du c ts a

de no vo re vie w with a pre su mpt iontha t th e de te rm inatio ns of

the tr ia l c ou rt

are c or re c t. T. C.A . § 40 -3 5- 40 1( d) (2 00 6) . O ur c a se la w h a s lo ng he ld that th e pr e su mpt ion of c or re c tne ss “ is conditioned upon the af

firmative showing in the re cord that the trial court c onsidered the sentenc ing principles and a ll rele vant facts and cir cumstance s.” State v. Carter , 254 S.W.3d 335, 344-45 (Te nn. 2008) (quoting State v. Ashby , 8 23 S.W .2 d 1 66 , 1 69 (T e nn . 199 1) ). Th e app e a lin g part y, in this c a se the def endant, be ars the bur den of e stablishing im propriety in the s en t ence. T.C.A. § 40-35-401, Se nte nc ing Com m’ n Co mme nts ; see also Carter , 2 54 S.W .3 d at 34 4; Ashby , 823 S.W.2d at 169. If our re v i ew o f t he sente nce e stablishes that the trial court gave “ due conside ration and pr oper weight to the fa ctors and principles which are relevant to sentenc ing under the Act, and that the trial co u r t’ s f in d in g s o f f

a c t

. . . ar e a d e q u a te ly s u p p o r te d in th e r e c o r d , th e n w e may not disturb the sentenc e eve n if we w ould have pr efe rre d a differ ent re sult.” State v. Fletc her , 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991)

. In t he event the re cord f ails to demonstrate the r equire d consideration by the trial court, appellate r eview of the sentenc e is purely de novo. Ashby , 823 S.W.2d at 169.The off ens es i n c as e num ber S51, 057 t ook pl ac e pr i or t o t he eff ec t i v e d at e of t he 2005 a m endm ent s t o t he 1 Se nt enc i ng A ct

. N o w ai ver of t he defenda nt ’ s e x pos t f ac t o pr ot ec t i ons a nd r eque s t t o be sen t en ce d unde r t he 2005
am endm ent s a ppea r s i n t he r ec or d. -5-

In making its sentencing de termination i n t h e present ca se, the trial c ourt, at the conclusion of the se ntencing hea ring, was obliged to dete rm i ne the pr opriety of se ntencing alternatives by considering:

(1) The evidenc e, i f any, rece ived at the tria l and the sente ncing hearing; (2 ) T he pr e se nte nc e re po rt ; (3 ) T h e principles of se ntencing and a rguments as to sentenc ing a lte rn a tiv e s; (4) The nature and cha

rac teristics of the c riminal conduct involved; (5) Evidence and information offer ed by the pa rties on the mitigating and enhanceme nt fac tors set out in §§ 40-35-113 and 40- 35-114; (6) Any statisti cal information pr ovided by the administrative off ice of the c ou rt s a s to se nte nc ing pr a c tice s f or sim ila r o ff e ns e s in Tenne ssee; and (7) Any statement the def endant wishe s to make in the def endant’s own beha lf about sentenc ing. T.C.A. § 40-35-210( b). The trial court should also consider “ [t]he pote ntial or lack of potential for the re ha bil itatio n o r t

re a tme nt o f the de fe nd a nt .

. . in d e te rm ini ng the se nte nc e a lte rn a tiv e or le ng th of a te rm to be imposed.” Id. § 40-35-103( 5).

With rega

rd to the def

endant’ s Class E felony convicti o n s in cases S52,581 and S5 2 , 5 8 2 , s h e is c o n s id e r e d a f a v o r ab le c a n d id a te f

o r a lt e r n a ti v e s e n te n c in g
. See T.C.A. § 40-35-10 2 (6 ) ( 2 0 0 6 ). “[ F ]a v o ra b l e s t at u s co n s i d er at i o n , ” h o we v er , d o es n o teq u at e t o a p re s u m p t ion of such status. State v. Carter , 2 54 S.W .3 d 3 35 , 3 47 (T e nn . 2 00 8) . W ith re ga rdto h e r C la ss E felony c onviction in case numbe r S51,057, she is presumed to be a fa vorable ca n didate for alternative sentenc ing. See T.C.A. § 40-35-102( 6) (2003)

. Under eac h standard, se ntenc

ing issues 1
are determined by the facts and circumstance s prese nted in eac h case

. State v. Taylor , 744 S.W.2d 919, 922 (Tenn. Crim. App. 1987)

.

As the re cipient of a

sentenc e of te n year s or less, the def endant is also eligible for probation. See T. C.A . § 40 -3 5- 30 3( a ). She bo re the bu rd e n, ho we ve r, of e sta bli sh ing he r “ su ita

bil ity f o r f u ll p r o bation.” State v. Mounge r , 7 S.W .3 d 7 0, 78 (T e nn . Crim. Ap p. 19 99 ); see T.C.A. § 4 0

- 3 5-303(b) ; S tate v. Bingham , 910 S.W.2d 448, 455-56 (Te nn. Crim. App. 1995), ov e rru le d in part on other grounds by State v. Hoope r , 29 S.W.3d 1, 9-10 (Te nn. 2000)

. A d e fe nd a nt s e e kin g f ull-6-

pr ob a tio n be ars the bu rd e n of sh ow ing that pr ob a tio n wi ll “ su bs e rv e the e nd s o f j us tic e a ndthe be st interest of both the public and the def endant.” State v. Dy kes , 8 03 S.W .2 d 2 50 , 2 59 (T e nn . Crim. App. 1990) (quoting Ho op e r v . S tat e , 2 9 7 S .W.2d 78, 81 (1956) ), overruled on othe r grounds by Hooper , 29 S.W

. 3 d a t 9

- 1 0

. A mo n g th e f a c to r s ap p li c ab le to p r o b a ti o n c o n s id e r a ti o n ar e the circ umstances of

the offe nse; the defe ndant’s criminal rec ord, social history, and pre sent condition; the deter rent e ffe ct upon the def

endant; and the best interests of the defe ndant and the public. Sta te v. Gre ar , 568 S.W.2d 285, 286 (Tenn. 1978)

.

As for the defen d ant’s misdemea nor sentenc es, the sente ncing court is afforde d considera ble latitude. See, e.g. , State v. Johnson , 15 S.W.3d 515, 518 (Tenn. Crim. App. 1999)

. Mis de me a no r s e nte nc e s mu st b e sp e c if ic a ndin a c c or da nc e wi th the princ ipl e s, pu rp os e , a ndgo a ls of the Cr imi na l Se nte nc ing Re fo rm Ac t of 19 89 . T .C. A. §§ 40 -3 5- 10 4, -3 02 (2 00 6) ; State v. Palme r , 902 S.W.2d 391, 393 (Tenn. 1995) . The misdemea nor off ender must be sentence d to an authoriz ed determinant sentence with a per centa ge of that sentence designated f or eligibility for reha

bilitative progra ms. Gener ally, a per centa ge of not gre ater than 75 per cent of

the sentenc e should be fixe d for a misdemea nor off

ender

. Palmer , 902 S.W.2d at 393-94. A convicted misdemeanant ha s no presumption of entitlement to a minimum sentence. State v. Baker , 9 6 6 S

. W. 2 d 429, 434 (Tenn. Cr im. Ap p. 19 97 ); Sta te v . C re as y , 885 S.W.2d 829, 832 (Tenn

. C ri m . App. 1994). The misdemeanor se ntencing st atute requires that the t rial court consider the e nhance ment and mitigating fac tors when c alculating the pe rce ntage of t he sentenc e to b

e serve d “in ac tual confine ment” prior to “consid er at i o n for wor k rele ase, f

urlough, trusty status and related re habilitative progra ms.” T. C.A . § 40 -3 5- 30 2( d) (2 00 6) ; State v. Troutm an , 979 S.W.2d 271, 274 (Tenn. 1998)

. Her e, the de fendant’s rec ord of c riminal convictions and criminal activity spanned mor e than a

de c a de a ndinc lud e d n ume ro us c on vic tio ns of the sa me c ha ra c te r as tho se a t issu e in this case
. See T.C.A. § 40-35-103( 1)(A) (“Confine ment is nece ssary to protec t society by restraining a defe ndant who has a long history of criminal conduct . . . .”). The rec ord establishes that in addition to her re cord of

criminal convic t i o n s an d crimi nal beha vior, the def endant wa s the rec ipient of numerous probationary sentenc es in the past and that s h e viol ated the te rms of her probationary sentenc e in Scott County, Virginia by commi tting the inst ant offe nses. See id. § 4 0- 35 -1 03 (1 )( C) (“ Me a su re s le ss r e stric tiv e than c on fi ne me nt h a ve f r e q u e n t l y o r

r e c e ntl y b e e n a

pp lie d u ns uc c e ssf

ull y to the de fe nd a nt .

. . .” ). Th e re c or d a lso e sta bli sh e s that the State a gr e e d to a llo w the de fe nd a nt t o serve two sentenc es on probation consecutively to the five -yea r sentenc e imposed in this case and that the State allowed most of the defe ndant’s nine convictions to be served conc urre ntly. Se e Sta te v. Dwayne Anthony Dixon , No. E2007-02237- CCA-R3-CD, slip op. at 6 (Tenn. C rim. App., Knoxville, Aug. 26, 2008) (“ A sentenc ing court may c onsider a defe ndant’s enjoyment of lenienc y

. . . in a war ding or reje cting alternative sentenc ing options.”)

. Under these circ umstances, the trial c ou rt didno t e rr

by or de ri ng the de fe nd a nt t o s e rv e he r s e nte nc e in c on fi ne me nt.
Acc ordingly, the judgments of the trial court are aff irmed.

___________________________________ JAMES CURWOOD WI TT, JR., JUDGE