# FILED
April 24, 1997 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT NASHVILLE MARCH 1997 SESS ION

STATE OF TENN ESSEE, ) ) NO. 01C01-9605-CC-00212 Appellee, ) ) COFFEE COUNTY VS. ) ) Hon. Gerald L. Ewell, Judge JEFFERY L. RIGNEY and ) HERMAN EUGE NE HALE, ) (Sentencing - Theft of ) Property Ov

er $1,000) Appellants. )

FOR APPELLA

NT RIGNEY : FOR THE APPEL LEE : JEFFREY K. SECKLER CHARLES W. BU RSON Seckler, Bramlett & Durard Attorney General and Repor ter 724 North Main Street P.O. Box 967 MERRILYN FEIRMAN (brief) Shelbyville, TN 37160 Assistant Attorney Gener al 500 Charlotte Avenue Nashville, TN 37243 FOR APPELLANT HA LE : LISA NAYLOR (oral argument) ROBERT S. PETERS Assistant Attorney Gener al Swafford, Peters & Priest 450 James Robertson Parkwa y 10 0 F ir st Av en ue , S .W. Nashville, TN 37243-0493 Winchester, TN 37398 C. MICHAEL LAYNE District Attorney General KENNETH SHELTON Assistant

District Attorney General 307 S. Woodland P.O. Box 147 Manchester, TN 37355

OPINION FI LED:
AFFIRMED JOE G. RILEY, JUDGE2 OPINION

The appellants, Jef

fery L. Rigney and Herman Eug ene Hale, appeal the sentences imposed by

the Circuit Court of Coffee Count y following

their guilty plea to theft of property over $1,000.Both defe ndants were sentenced to four years, provided that upon the expiration of Rigney’s service of nine (9) months and Hale’s service of twelve (12) m onths in t he count y jail, the y could ser ve the remainder of theirsentences in the community c orrections program. Both appeal the manner in which they are to serve the ir sentences, claiming that they

should not be confined forany period of time. Appellant Rigney also asser

ts that asentence of four (4) years is excessive and i nappropriate under the 1989 Criminal Sentencing

Reform Act. We disagree and affirm the judgment of the tri al court.

I. BACKGROUND
Rigney and Hale, along with Jacob Har t, Steve Heif ner and Fr anz Hickert z, were involved in a scheme to take merchandise from the Food Lion grocery store in Manch ester. At that time all of the defendant s were employees of that s tore , exceptHale. For at least si x weeks, Rigney, Hart, Heif ner and Hickertz would smuggle merchandise from thestore and then take that merchandi se to Hale, who would store the goods

in a wareho use or at h is residen ce. Appa rently, Hale would give a list toRigney or Hart r equesting certain ite ms from the store. In his statement to the police, Rigney

confessed that the items were taken for resale. All five de

fendants were i ndicted

for theft of property over $10,000, a Class C felony. Subsequently, Ri gney and Hale pled guilty to theft of property over $1,000, a Class D felony. Both were s entenced as Ra nge I, Standard Offenders. Although the trial judge sentenced both to four (4) years , Rigney was r equired to
serve nine (9) months in the county jail before being put on community corrections. Hale was ordered to serve twelv e (12) months in the

county jail before serv ing the
re mainder

of his sentence on community cor rections. Each defendant was als o3

required to pay $8,000 in restitution. Both are appealing their sentences.

II. REVIEW OF SENTENCING

Thi s Court’s review of the sentences imposed by the trial court is de novo with a presumption of correctness. Tenn. Code Ann. § 40-35-401(d). This presumption is conditioned upon an affirmativ e showing in the reco rd that the trial judge considered th e sentencing princip les and all relevant facts and circumstances. State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). The bu r den is upon an appealing party to show that the sentence is improper. Tenn. Code Ann. § 40-35- 401(d) Senten c ing Commission Comments. In conducting our review, we are required, pursuant to T enn. C ode Ann. § 40-35-210(b), to cons ider the following factors in sent encing: (1) [t]he evid ence, if any, recei ve d at t he trial and the sentencing hearing; (2) [t]he presentence report; (3) [ t]he principles

of sentencing and arguments as to sentencing alternatives; (4) [

t ]he nature and c haracteristics of the criminal conduct inv olved; (5) [e]videnc

e and information offered by

the parties on the enhancement and mitigating factors in §§ 40-3 5-113 an d 40-35-1 14; and (6 ) [a]ny s tatemen t the defendant wishes to make in hi s own behalf abo ut sentencing. If no mitigatingor enhancing factors for sentenc ing are present, Tenn. Code Ann. § 40-35-2 10(c) pro vides that the presu mptive sentence shall be the minimum sentence within the applicable range. See State v. Fletcher, 805 S.W.2d 785 (Tenn. Crim. App. 1991). However, if such factors do exist, a trial court should start at the minimum sentence, enhance the minimum s entence within the rang e f or aggravating

factors and then reduce the sentence withi n the range for the mitigating facto rs. Te nn. Code Ann. § 40-35-210(e). No particular weight for each factor is prescribed by the statute, as the weight given to each factor is left to the discretion of the trial court as long as its findings are supported by the record. State v. Moss , 727 S. W. 2d 229 (Te nn. 1986); State v. Santiago , 914 S.W.2d 116 (Tenn . Crim. App. 1995); s e e

Tenn. Code Ann. § 40-35-210 Sentencing Comm ission Comments. If our review reflect

s that the trial court foll owed the statutory sent encing procedu re, im posed a lawful sentence after g iving due considerati on and proper4

weight to th e factor s and prin ciples se t out und er the sen tencing la w, and the trial court’s findings of fact are adequately supported by the record , th en we may not modify the sent ence ev en if we woul d have preferred a different resul t. State v. Fletcher , 805 S.W.2d at 789.
A. Length o

f Sentence - Rigney
AppellantRigney asserts tha t the trial judge erred in imposing the maximum sentence of four (4) years for this Cla ss D fe lony. Specifically , he claims that the trial judge misapplied enhancement factor s. Thus, he argues that the miti gating factors suggest that a mini mum sentence is appropriate. In a written Sentencing O rder, the trial court no ted the enhancing an d mitigating factors that were applicable to Rigney . The listed enhancement factors
were: (1) the

defendant

has a pr evious histor y of a criminal convicti on in addition to that necessary to establis h the appropriate range; and ( 2) th e defend ant was a leader in the commission of an offense invol ving two or more actors. Se e Tenn

. C ode Ann. § 40-35-114(1) and (2).The trial court also cons idered as mitigating factors that: (1) the defendant’s criminal conduct neither cause d nor t hreat ened serious bodily injury; ( 2) the defendant assisted the authorities in uncover ing offenses committed by other persons or in detectingor apprehending other persons who had committed the offenses; and (3) the defendant assiste d the authorities in locating or recovering any prope r ty or person invol ved in the crime. See Tenn. Code Ann. § 40-35-113(1), (9) and (10). Rigney initially argues t h at he does not have a prior conviction and enhancement factor (1) was wrongly applied. He was charged in 1985 w ith grand larceny and was put on pre-trial diversion. Thus, he asserts that pre-tri al diversion is not a conviction and cannot be us ed to enhance his sentence. The state doe s not dispute this, and we agree. Pr e-trial di version pr ovides a pr ocedura l alterna tive to prosecution and dispositio n by normal methods. Dearborne v. State , 575 S.W.2d 259 (Tenn. 1978). The trial court improperly applied this enhance ment factor.1 Rigney later rec anted this estimation in his written statement to the police. In his written statement, he cl aimed that his part amounted to betw een $8,000 and $10,000. 5 Rigney further claims that he was not the leader in this sche me and enhancement factor (2) was misappli ed. He quotes the Sentencing Order wherein the trial judge refers to Hale and Rigney respectively as “Master-Mind Number O ne” and “Master-Mind Number Two.” Therefore, Rigney contends that because the trial judge specifically found that Hale’s role was more culpable than his own, he cannot be considered the leader in the commission of an offense involving two or more actors. Th is Court has previously held that enhancement for being a l ead er in th e commission of an offense does not require that the defendant be the sole leader but onlythat he be "a" leader. State v. Hicks , 868 S.W.2d 729, 731 (Tenn. Cr im. App. 1993) ; see

Te nn. Code Ann. § 40-35-114(2). The trial court properly applied this enhancement factor. The trial court should ha ve applied enhancement number (6) under Tenn. Code Ann. § 40-35-114 in that the amount of property ta ken fr om the vict im was particularlygreat. This Court, in conducting our de novo r e view, is authoriz

ed to consider any enhancement factors not relie d upon by the trial court which are supported by the record. State v. Ada ms , 864 S.W.2d 31, 34 (Tenn. 1993); State
v. Pearson , 858 S.W.2d 879, 884-885 (Tenn. 1993); State v. Jernigan , 929 S.W.2d 391, 397 (Tenn. Crim. App. 1996). It is apparent from the videotaped confessions of all involved and the written statementof Rigney that the dollar amou nt of the property stolen far ex ceeded $1,000. Rigney estimated that his p art in the theft totaled around $15,000 - $20,000. 1 Although this enhancement factor was not articulated as such, the trial judge noted in the Sentencing Order that the amount of property stolen w as particularlygreat. In fact, the amount of property

stolen approaches, if not exceeds, the Class C theft amount of $10,000. Therefore, we find that the amount of property stolen was

exceptionally gr

eat, and this could be considered as a proper enhancement factor. See State v. Barbara D. Fr ank , C.C.A. No. 03C01-9209-CR-6

00303 (Tenn. Crim. App. filed December 22, 19 93, at Knoxville). Addition ally, the trial judge noted that Rigney was an employee of Food Lion at the time he was steali ng the mercha ndise. As such, he abused a posi tion of privatetrust. Tenn. Code Ann. § 40-35-114(15). This would be an appropriate enhancement factor as well. Presuma bly, the trial court gav e little wei ght to t he enumerated mitigating factors in light of

the dollar amount of

property that was stolen and Rigney’s role in the overall sc heme. We conclude that the trial court gav e proper weight and
c onsideration to the sentencing factors and principles. Accordingly, Rig ney ha s failed to overcom e the presu mption of correctness afforded the tri al court in its sentencing determination. Thi s issue is without mer it.

B. Manner of Senten ce

Both appellants contest the manner i n which they are to s erve their sentence. Theyclaim that incarceration is inappropriate

and instead suggest that they should receive no jail time. Under the Criminal Sen tencing R eform A ct of 1989, trial courts are encouraged to use alternatives to i ncarceration. An especiallymitigated or standard offenderconvicted of a Class C,D or E f elonyis presumed to be a favorable candidate for alternative sentencing optio ns in the absence of evidence to the contrary. Tenn. Code Ann. § 40-35-102 (6). A tria l court must presume that a defendant sentenced to eight years or less who is not an offender for who m inca rceratio n is a priority is subject to alternative

sentencing. State v. Byrd , 861 S.W.2d 377, 379-380 (Tenn. Crim. App. 1993). It is further presumed that a sentence other than incarceration w ould result in s uc cessful rehabilitation unless rebutted by sufficient evid ence in the record. Id . at 380. In de termining whether inc arceration is appropriat e, a trial court may conside r the need to protect society by restraining a defendant havin g a lo ng history of criminal conduct, the need to avoid d epreciating the serious ness of the offense,7

whether confinement is particularlyappropriate to effectively deter others likely

to commi t similar offenses, and whether less restrictive measures have often o r recentlybeen unsuccessfully applied to the defendant. Tenn. Code Ann. § 40-35- 103(1); see

also State v. Ashby , 823 S.W.2d at 169. Furthermore, the potential or lackof potential for rehabilitation should be considered in determining the sentence alternative or length of a term to be imposed. Tenn. Code Ann. § 40-35-103(5). In the present case, the trial court found that the appe llants were essentially the leaders in the plan to steal from Food Lion. The amount of property taken was extensive. Furthermore, these th efts we re ongoing for at least s ix (6) weeks and likely would have continued if the authorities had not discov ered t he fraudulent scheme. Addition ally, the tri al court found that appellant Hale had a prior criminal history. He had a prior

conviction for passing

worthless checks up to $100 and four (4) prior convictions for driving under the influence of an intoxicant. Signific antly, the trial court found that both Rigney and Hale gave untruthful testimony

at the sentencing hearing a nd neither accepted full responsibility for his actions. A defendant’s truthfulness whil e testifying on his own beh alf is pro bative of his atti tude towar ds society and prospects for rehabilitation and is a relevant factor in the sentencing process

. St ate v. Dowdy , 894 S.W.2d 301, 306 (Tenn. Crim. App. 1994). A defendant’s “credibility and willingness t

o acceptresponsibility forhis crime are circumst ances germane to his rehabi litation pot ential.” State v. Zeolia , 928 S.W.2d 457, 463 (Tenn. Crim. App. 199 6); see State v. Dowdy , 894 S.W.2d at 306. There is no mathematical equation to be uti lized in determining sentencing alternatives. Not only should the sent ence fit the offense, but it sh ould fit the offenderas well. Tenn. Code Ann. § 40- 35-103(2); State v. Boggs , 932 S.W.2d 467 (Tenn. Crim. App. 1996). Indeed, indi vidualized punishment i s the essence of alternat ive sentencing. State v. Dowdy , 894 S.W .2d at 30 5. In sum mary, sentencing must be determined on a case-by-case basis, tailoring each sentence to that particular

defendant based upon the facts of that case and the2 See Op. Att’y Gen. 91-96 (1991 ) for a discus sion of proper sentencing credits to be applied tow ard jail time during s plit confinement.

8 circumstances of that defendant. State v. Moss , 727 S.W.2d at 235. Both appellants are abl e to serve the majority of their sent ences in the community corrections

program a nd receive the bene fit of a lternati ve sentencing. We find that the trial court’s imposition of a period of incarceration w as appropriate forboth appellants. See Tenn. Code Ann. § 40-36-106(f). Therefore, this issue has no merit. 2

Because we find that neither issue raised by the appellants has any merit, the judgment of the trial court is affirmed.

JOE G. RILEY, JUDGE

CONCUR:

JOSEPH M. TIPTON, JUDG E

THOMAS T. WOOD

ALL, JUDGE