IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

 AT NASHVILLE

Assigned on Briefs June 29, 2010

STATE OF TENNESSEE v. CHANDA DAWN LANGSTON

Appeal from the Criminal Court for Davidson County

No. 2009-A-647 Cheryl A. Blackburn, Judge

No. M2009-02247-CCA-R3-CD - Filed September 30, 2010

The Defendant, Chanda Dawn Langston, pled guilty to six counts of forgery between $1,000

and $10,000, a Class D felony, and to one count of theft of property over $60,000, a Class

B felony. On August 20, 2009, the Defendant was sentenced as a Range I offender to four

years’ confinement for each of the six forgery convictions and twelve years’ confinement for

the theft conviction, all to be served concurrently. On appeal, the Defendant contends that

her sentences are excessive and that the trial court erred in denying her request for alternative

sentencing. Although we conclude that the trial court erred in applying one enhancement

factor, we hold that the sentence imposed by the trial court is appropriate. The judgments

of the trial court are affirmed.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed

JOSEPH M. TIPTON, P.J., delivered the opinion of the court, in which NORMA MCGEE OGLE

and D. KELLY THOMAS, JR., JJ., joined.

Paul Julius Walwyn, Madison, Tennessee, for the appellant, Chanda Dawn Langston.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney

General; Victor S. Johnson, III, District Attorney General; and James Milam, Assistant

District Attorney General, for the appellee, State of Tennessee.

OPINION

At the sentencing hearing, Barry Canter, the victim, testified that he was the owner

and operator of Cooks Orthopedics and Putnam County Orthopedic Appliance Company.

He said that he employed the Defendant as a bookkeeper and that she worked at his

businesses for over six years. He said he noticed unexplained money discrepancies and

asked the Defendant if she knew the source of the problems. Mr. Canter said the Defendant
responded by stating that she did not know anything and that she did not think accountants

or billing agents were responsible. Mr. Canter stated that after this conversation, his wife

noticed a company check written to the Defendant for $1,600. He said that he and his

attorney confronted the Defendant with the check and that she admitted forging it.

Mr. Canter testified that he had evidence showing that the Defendant forged 149

company checks, beginning in July 2004 and continuing until October 2008, for a total loss

of $233,285.79. He said the indictment reflected only a portion of this loss, charging the

Defendant for forging fifty-five company checks, from January 2007 until October 2008, for

a loss of about $106,000. Mr. Canter said the Defendant’s actions forced him to borrow

$200,000, secured by a second mortgage on his home, to keep his companies running. He

said that he and his wife worked longer hours six days a week and earned reduced pay or no

pay in an attempt to save the companies. He said that he was unable to pay employee

commissions or bonuses. Mr. Canter stated that ordering the Defendant to pay restitution

would not help the financial health of his companies, as it would take the Defendant more

than thirty years to repay the amount taken.

Metropolitan Nashville Police Detective Casey Stupka testified that she investigated

the forgeries and theft. She stated that the Defendant was authorized to write company

checks for legitimate company purposes. She determined that the Defendant made company

checks payable to herself and recorded the missing money as payment to company vendors.

Detective Stupka said thatshe obtained a subpoena for the Defendant’s bank account records

and that she examined how the Defendant spent the money taken. She said the Defendant

spent the money on fast food, a 2006 Dodge Durango, gasoline, and consumer goods. She

stated the Defendant appeared to be supporting multiple people with the money.

The Defendant acknowledged that she forged 149 company checks, that she took

company money and placed it in her personal bank account, and that her actions caused Mr.

Canter and his companies financial trouble. She said she knew her actions would be

discovered, and she acknowledged there was no justification for her acts. She stated that she

did not tell Mr. Canter the truth when he first asked about the missing money because he did

not ask if she was the person who took the money and because he did not suspect her at that

time.

The Defendant expressed remorse. The Defendant testified that she wanted to repay

the money taken but doubted if she could ever repay the full amount. The Defendant stated

that she would attempt to pay at least half of her salary as restitution if she received an

alternative sentence but that she would likely be unable to pay more than $250 per month

even if she were able to obtain a good job.

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The Defendant testified that she supported up to fifteen people with the money taken

from Mr. Canter, including friends and family. She stated that she spent some of the money

on necessities. She admitted she spent hundreds of dollars on hotel rooms and more than

$300 per month on cellular telephones for herself and her boyfriend.

The trial court found that the following enhancement factors applied pursuant to

Tennessee Code Annotated section 40-35-114:

(1) the Defendant had a previous history of criminal behavior;

(6) the amount of damage to property sustained by or taken from

the victim was particularly great; and

(14) the Defendant abused a position of private trust.

See T.C.A. § 40-35-114 (Supp. 2009). The trial court found no mitigating factors applicable.

The Defendant was sentenced to four years’ confinement for each of the six forgery

convictions and twelve years’ confinement for the theft conviction. The sentences were

imposed concurrently, for an effective sentence of twelve years’ confinement. The trial court

denied the Defendant’s request for alternative sentencing, stating that confinement was

necessary to avoid depreciating the seriousness of the offense and was particularly suited to

provide an effective deterrence to others likely to commit similar offenses. This appeal

followed.

I

The State contends that we should dismiss the Defendant’s appeal because the

Defendant failed to file a timely notice of appeal. The Defendant has not responded to this

argument.

Rule 4 of the Tennessee Rules of Appellate Procedure requires a party to file a notice

of appeal within thirty days “after the date of entry of the judgment appealed from.”

T.R.A.P. 4(a). The timely filing of a notice of appeal is not a prerequisite to the jurisdiction

of this court. Id. In the interest of justice, we may waive the notice of appeal and proceed

to analyze the issues raised by the parties.

The trial court filed its judgments on August 20, 2009. The Defendant, through

counsel, filed a notice of appeal along with a motion to be declared indigent and to have

appointed counsel for an appeal sixty-three days later on October 22, 2009. The record

reflects that trial counsel was retained only for representation in the trial court and that

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whether trial counsel would continue to represent the Defendant on appeal was unresolved

until the notice of appeal was filed and the trial court ruled on the Defendant’s request for

appointed counsel. Under these circumstances, we conclude that the interest of justice

warrants a waiver of the timely filing of a notice of appeal.

II

The Defendant contends that her sentences are excessive because the trial court

misapplied two enhancement factors and failed to apply mitigating factors. The State

counters that the trial court properly determined the length of the Defendant’s sentences. We

hold that the sentences imposed were not excessive.

Appellate review of sentencing is de novo on the record with a presumption that the

trial court’s determinations are correct. T.C.A. §§ 40-35-401(d) and -402(d)(2006). As the

Sentencing Commission Comments to these sections note, the burden is now on the

appealing party to show that the sentencing 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 consideration and proper weight to the factors and

principles that are relevant to sentencing under the 1989 Sentencing Act, we may not disturb

the sentence even if a different result were preferred. State v. Fletcher, 805 S.W.2d 785, 789

(Tenn. Crim. App. 1991).

However, “‘the presumption of correctness which accompaniesthe trial court’s action

is conditioned upon the affirmative showing in the record that the trial court considered the

sentencing principles and all relevant facts and circumstances.’” State v. Carter, 254 S.W.3d

335, 344-45 (Tenn. 2008) (quoting 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 sentencing decision, identify the mitigating and

enhancement factors found, state the specific facts supporting each enhancement factor

found, and articulate how the mitigating and enhancement factors have been evaluated and

balanced in determining the sentence. State v. Jones, 883 S.W.2d 597, 599 (Tenn. 1994); see

T.C.A. § 40-35-210(e).

Also, in conducting a de novo review, we must consider (1) any evidence received at

the trial and sentencing hearing, (2) the presentence report, (3) the principles of sentencing

and arguments as to sentencing alternatives, (4) the nature and characteristics of the criminal

conduct, (5) any mitigating or statutory enhancement factors, (6) statistical information

provided by the administrative office of the courts as to sentencing practices for similar

offenses in Tennessee, (7) any statement that the defendant made on his own behalf, and (8)

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the potential for rehabilitation or treatment. T.C.A. §§ 40-35-102, -103, -210; see Ashby,

823 S.W.2d at 168; State v. Moss, 727 S.W.2d 229, 236 (Tenn. 1986).

In imposing a sentence within the appropriate range of punishment for the defendant:

[T]he court shall consider, but is not bound by, the

following advisory sentencing guidelines:

(1) The minimum sentence within the range of

punishment is the sentence that should be imposed, because the

general assembly set the minimum length of sentence for each

felony class to reflect the relative seriousness of each criminal

offense in the felony classifications; and

(2) The sentence length within the range should be

adjusted, as appropriate, by the presence or absence of

mitigating and enhancement factors set out in §§ 40-35-113 and

40-35-114.

T.C.A. § 40-35-210. From this, “the trial court is free to select any sentence within the

applicable range so long as the length of the sentence is ‘consistent with the purposes and

principles of [the Sentencing Act].’” Carter, 254 S.W.3d at 343 (quoting T.C.A. §

40-35-210(d)).

The Defendant argues first that the trial court erred by finding that she had a previous

history of criminal behavior and in applying enhancement factor (1). See T.C.A. §

40-34-114(1) (allowing sentence enhancement based upon a defendant’s prior criminal

convictions or criminal behavior). The trial court found and gave great weight to

enhancement factor (1), basing its finding on evidence of uncharged criminal behavior that

was part of the same criminal scheme for which the Defendant was convicted but occurred

before the dates listed in the indictment.

When considering prior criminal convictions and behavior under Code section

40-35-114(1), “[i]t is only when offenses are committed within twenty-four hours of each

other in a single course of conduct that multiple offenses must be treated as one.” State v.

McKnight, 900 S.W.2d 36, 54 (Tenn. Crim. App. 1994) (holding that when a defendant was

convicted in one trial of forty-six separate offenses occurring over an extended period, those

offenses qualified as “prior criminal history” and could be used as an enhancement factor in

the same trial); see also T.C.A. § 40-35-107(b)(4)).

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The record reflects that the Defendant admitted to four years of forgery, with more

than eighty instances occurring before the offenses charged in the indictment. The forgeries

occurred over an extended period of time, and the sentencing court was not required to treat

them as one offense. See McKnight, 900 S.W.2d at 54. Therefore, the record supports the

trial court’s finding of prior criminal behavior and its application of enhancement factor (1).

The Defendant also contends that the court misapplied enhancement factor (6)

because the Defendant pled guilty to the highest grade of theft, that of $60,000 or more. See

T.C.A. § 40-35-114(6) (allowing sentence enhancement when the amount of damage to

property sustained by or taken from the victim was particularly great). When considering

whether harm to the victim or property is particularly great under factor (6), this court has

held that because “the punishment for theft is enhanced based upon the amount taken by the

accused, use of this enhancement factor constitutes double enhancement in violation of the

statute.” State v. Grissom, 956 S.W.2d 514, 518 (Tenn. Crim. App. 1997). However, this

court held that this enhancement factor was applicable when the theft involved $52,000, an

amount approaching the minimum sum necessary to put the offense into the highest grade

of theft, and when the victim’s business losses were particularly damaging. See State v.

Barbara D. Frank, No. 03C01-9209-CR-00303, Blount County, slip op. at 4 (Tenn. Crim.

App. Dec. 22, 1993). This enhancement factor has also been applied when the theft involved

$357,000, an amount far exceeding the $60,000 necessary to categorize the offense as the

highest grade of theft, and when the victim’s business losses were particularly damaging.

See State v. Cynthia Taylor Mann, No. M1999-01390-CCA-R3-CD, Montgomery County,

slip op. at 4-5 (Tenn. Crim. App. May 8, 2001).

The Defendant admitted taking over $106,000. This amount is approaching twice the

$60,000 necessary for the offense to be categorized as the highest grade of theft. The

Defendant’s theft was particularly damaging to the victim’s businesses. As a result of the

Defendant’s actions, Mr. Canter was forced to borrow $200,000, secured by a second

mortgage on his home, to prevent his businesses from failing. He and his wife worked longer

hours at reduced salary. He was unable to pay employee commissions or bonuses. The

record supports the trial court’s applying factor (6) to the Defendant’s theft conviction. See

Cynthia Taylor Mann, slip op. at 4-5; Barbara D. Frank, slip op. at 4. However, this

enhancement factor is not applicable to the Defendant’s acts of forgery, as it would

“[constitute] double enhancement in violation of the statute.” See Grissom, 956 S.W.2d at

518; see also T.C.A. § 39-14-114 (stating that forgery “is punishable as theft pursuant to

[T.C.A.] § 39-14-105.”). While the victim’s business losses were particularly damaging, the

highest amount taken through any of the six counts of forgery is $3,406.94, an amount that

does not approach the $10,000 needed to raise the offense into the next grade of forgery. See

T.C.A. § 39-14-105. Therefore, we hold that application of enhancement factor (6) is

appropriate with regard to the theft but inappropriate with regard to the six counts of forgery.

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The trial court found and gave great weight to enhancement factor (14), regarding

abuse of a position of trust, because the Defendant was an employee in charge of maintaining

Mr. Canter’s financial books and concealed her wrongdoing by manipulating company

records. See T.C.A. § 40-35-114(14). We conclude that the record supports application of

enhancement factor (14).

The Defendant also contends that the trial court failed to find and apply numerous

mitigating factors: (1) The Defendant’s criminal conduct neither caused nor threatened

serious bodily injury; (2) The Defendant acted under strong provocation; (3) Substantial

grounds exist tending to excuse or justify the Defendant’s criminal conduct, though failing

to establish a defense; (7) The Defendant was motivated by a desire to provide necessities

for the Defendant’s family or the Defendant’s self; and (13) The Defendant accepted

immediate responsibility for her actions and indicated a desire to pay restitution to the victim.

See T.C.A. § 40-35-113.

The trial court stated its consideration of mitigating factors, noting that its application

of the enhancement and mitigating factors “[was] all the same” for both the forgeries and the

theft. We note that there was no proof of any strong provocation, only the Defendant’s desire

to take money from her employer. There were likewise no substantial grounds to excuse or

justify the Defendant’s behavior, nor has the Defendant shown that her primary motivation

was to provide necessities to her family. Although there is proof that the Defendant

supported an extended network of family and friends, there is also proof that she splurged

on luxury items such as hotels and expensive cellular phones. The Defendant did not accept

immediate responsibility for her actions. She initially failed to disclose her actions and only

accepted responsibility when confronted with proof of her forgeries. There is proof,

however, that the Defendant’s actions neither caused nor threatened serious bodily injury and

that she expressed remorse and a desire to pay restitution. See T.C.A. §§ 40-35-113(1), (13).

Taking into account the trial court’s misapplication of enhancement factor (6) to the

sentencesfor the forgery convictions and the court’s failure to consider mitigating factors (1)

and (13) for all of the Defendant’s sentences, we consider the length of the sentences

imposed. Upon review, we conclude that the trial court’s significant weighing of

enhancement factors (1) and (14), even when considered in light of the mitigating proof,

supports sentences of twelve years for Class B felony theft and four years each for the six

counts of Class D felony forgery. The Defendant has failed to show that the trial court erred

in imposing sentences of twelve and four years.

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III

The Defendant contends that the trial court erred in denying the Defendant’s request

for alternative sentencing, arguing that she was presumed eligible for alternative sentencing

and that the seriousness of her offenses did not outweigh factors favoring community

corrections sentences. The State contends that the trial court properly denied alternative

sentencing. We agree with the State.

Initially, we note that the Defendant was not eligible for probation for the theft

conviction because she received a twelve-year sentence. See T.C.A. § 40-35-303(a).

Additionally, the Defendant was not to be considered a favorable candidate for alternative

sentencing for the theft conviction because she was convicted of a Class B felony. See

T.C.A. § 40-35-102(6) (stating that a qualified “especially mitigated or standard offender

convicted of a Class C, D or E felony, should be considered as a favorable candidate for

alternative sentencing options in the absence of evidence to the contrary”). Despite this, the

Defendant was eligible for community correctionssentences. See T.C.A. § 40-36-106(a)(1).

However, mere eligibility does not automatically entitle a defendant to a sentence under the

Community Corrections Act. See State v. Beverly Dixon, No. W2004-00194-CCA-R3-CD,

Shelby County, slip op. at 10 (Tenn. Crim. App. June 30, 2005) (citing State v. Ball, 973

S.W.2d 288, 294 (Tenn. Crim. App. 1998)). The Community Corrections Act must be read

together with the Sentencing Act as a whole. See State v. Wagner, 753 S.W.2d 145, 147

(Tenn. Crim. App. 1988).

When determining if incarceration is appropriate, a trial court should consider if:

(A) Confinement is necessary to protect society by restraining a

defendant who has a long history of criminal conduct;

(B) Confinement is necessary to avoid depreciating the

seriousness of the offense or confinement is particularly suited

to provide an effective deterrence to others likely to commit

similar offenses; or

(C) Measures less restrictive than confinement have frequently

or recently been applied unsuccessfully to the defendant[.]

T.C.A. § 40-35-103(1); see also State v. Hooper, 29 S.W.3d 1, 5 (Tenn. 2000).

In denying community corrections, the trial court found that confinement was

necessary to avoid depreciating the seriousness of the offense and that confinement was

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necessary to serve as a deterrent to others likely to commit similar crimes. If the seriousness

of the offense is the basis for the denial of alternative sentencing, “‘the circumstances of the

offense as committed must be especially violent, horrifying, shocking, reprehensible,

offensive or otherwise of an excessive or exaggerated degree,’ and the nature of the offense

must outweigh all factors favoring a sentence other than confinement.” State v. Trotter, 201

S.W.3d 651, 654 (Tenn. 2006) (quoting State v. Grissom, 956 S.W.2d 514, 520 (Tenn. Crim.

App. 1997)). In Trotter, defendant employeesforged company checks worth nearly $500,000

over a two-year period and spent the money on luxury items and illegal drugs. The

defendants did not have prior criminal records and expressed remorse. See Trotter, 201

S.W.3d at 652-53. Our supreme court held that the circumstances were “offensive,

excessive, and of an exaggerated degree,” and outweighed any factors in favor of an

alternative sentence. Id. at 655.

We note that the Defendant does not have a long history of criminal conduct, other

than the offenses at hand, and less restrictive measures than confinement have not been

applied to the Defendant. Also, the Defendant testified that an alternative sentence would

provide an opportunity to pay restitution to the victim and enable her to care for her children.

We note, however, that Mr. Canter testified that the rate at which the Defendant proposed

to pay restitution would not rescue his businesses from their dire financial straits.

The excessive nature of the Defendant’s offense outweighs factors in favor of an

alternative sentence and supports the denial of an alternative sentence. See Trotter, 201

S.W.3d at 655 (holding that a sentence of confinement was necessary to avoid depreciating

the seriousness of the offense and that the excessive nature of the offense warranted the

denial of an alternative sentence); Beverly Dixon, slip op. at 10 (holding that a defendant

bookkeeper was properly denied probation and community corrections when she forged

company checks and stole at least $133,000 from her employer, causing the financial ruin of

her employer). The Defendant’s forgeries were repeated more than 100 times over many

years and nearly destroyed the victim’s businesses. The money was used to buy luxury items

and support friends. The Defendant has not shown that the trial court erred in determining

the manner of her sentences.

In consideration of the foregoing and the record as a whole, the judgments of the

trial court are affirmed.

____________________________________

JOSEPH M. TIPTON, PRESIDING JUDGE

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