# FILED
December 21, 1998 Cecil W. Crowson Appellate Court Clerk IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE OCTOBER 1998 SESSION

STATE OF TENNESSEE, ) ) NO. 01C01-9801-CC-0004 2 Appellee, ) ) COFFEE COUNTY VS. ) ) HON. GERAL D L. EWELL, SR. , MARK A. HILL, ) JUDGE ) Appellant. ) (Sentencing)

FOR THE APPELLANT : THOMAS C. FARIS 101 S. College Street Winchester, TN 373 98-1517 FOR THE APPELLEE : JOHN KNOX WALKUP Attorney Gene ra l an d Reporter KIM R. HELPER Assistant Attor ney General Cordell Hull Building, 2n d Floor 425 Fifth Avenue North Nashville, TN 37243-0493 C. MICHAEL LAYNE District Attor ney General 307 South Woodland P.O. Box 147 Ma ncheste r, TN 37355-0147

OPINION FILED:2

AFFIRMED

JOE G. RILEY, JUDGE3 OPINION

The defendant, Mark A. Hill, appeals t he sentence imposed by the trial cour t after he pled guil ty to one (1) felony count of theft over $1,000 and six (6) misdemeanor c ounts of theft under $500. The trial cou rt sentenced him to concurrent terms of three (3) years for the fe lony and eleven (11) mont hs and twenty-nine (29) days for the misdemeanors. The defendant was ordered to serve ten (10) months and twenty-four (24) days in the Coffee County jail wit h the remainder on probation. The defendant contends the trial court abused its s entencing discretion in the following manner:

(1) failing to prope rly consider the defendant’s mitigati ng factors and order total probation, while erroneously considering enhancement factors not submitted by the s tate; (2) improperly consi dering that the defendant was living out of wedlock with the mother of his i llegitimate chil d; and (3) failing to give proper weight to the defendant’s mental limitations. After a thorough rev iew of the record an d applicable sentencing principles, we AFFIRM the judgment of the trial court.

FACTS4 The defendant was empl oyed by the Staggerw ing Museum Foundation at the ti me the offenses were committed. Over the course of several w eeks, the defendant on nu merous occasions stole property fr

om the museum and its owner. During an investigation, t he defendant confessed to the thefts and retu rned the majority of the stolen property.
The defendant agreed to plead guilty to one (1) felony count of theft over $1,000 and six (6) misdemeanor counts of theft under $500. The defendant agreed to concurrent sentences ofthree (3) years for the felony and eleven (11) months and twentynine (29) days for th e misdemeanors wit h the manner of servi ce to be determined by t he trial court. In accordance with a m ental evaluation of the defe ndant, the state agr eed that any incarceration ordered by the trial court should be served i n the Coffee County Jail ra ther than the Depart ment of Correction. The prosecutor suggested that the defendant ser ve ten (10) months and twenty-four (24) days in jail, apparently in an attempt to match the release el igibility date f or a three (3) year sentence as a Range I, standard off ender in the Departm ent of Correction.

The trial court a cquiesced to the prose cutor’s recommendation regarding local confinement. In doing so, it considered the defendant ’s proposed mitigat ing factors and found three (3) enhancement factors applicable. Additionally,5

the trial court ordered the defendant t o perform one hundred (100) hours community service and make res titution to the victim.

SENTENCING

A.

This Court’s revi ew of the sentence im posed by the trial court is de novo with a presumpti on of correctness. Tenn. Code Ann. § 40-35-401(d). T his presumption is conditioned upon an affirmative showi ng in the record that the trial judge co nsidered the sentencing princi ples and all relevan t facts and circumstances. State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). If the trial court fails to comply with the statutory directives, there is no presumption of correctness and our review is de novo
. State v. Poole , 945 S.W.2d 93, 96 ( Tenn. 1997).
The burden is upon the appealing party to s how that the sentence is improper . Tenn. Code Ann. § 40- 35-401(d) Sentencing Commissi on Comments. Under the 1989 Sentencing Act, sentences whic h involve confinement are to be based on the following considera tions contained in T enn. Code Ann. § 40-35- 103(1): (A) [c]onfinement is necessary to protect6 society by restraining a defendant who h as a long history of criminal conduct; (B) [c]onfinement 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) [m]easures less restrictive th an confinement have frequently or recently been applied unsuccessful ly to the defendant.
See State v. Grigs by , 957 S.W.2d 541, 545 (Tenn. Crim. App. 1997); State v. Mill saps , 920 S.W.2d 267, 270 (Tenn. Crim. App. 1995). A court may al so consider the mit igating and enhancing factors set forth in Tenn. Code Ann. §§ 4 0-35-113, 114, as they relate to Tenn. Code Ann. § 40-35-103. See Tenn. Code Ann. § 40- 35-210(b)(5).

In this case the tr ial judge conscienti ously considered the various sentencing pr inciples and all re levant facts and circumstances. If our review reflec ts that the tri al court followed the statutory sen tencing procedure, im posed a lawful senten ce after giving due consideration and proper weight to the factors and principles set out under our sentenci ng law, and the tr ial court’s findings of fact are adequately s upported by the record, then we may not modify the sentence even if we would have preferred another result. State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).1 The defendant a sserted the follow

ing mitigating fact

ors: (1) the defendant’s criminal conduct neither caused nor threatened serious bodily injury, Tenn Code Ann. § 30-35- 113(1); (2) substantial grounds existed tending to excuse or justify the defendant’s

criminal conduct

, though failing to establish a defense, Tenn. Code Ann. § 40-35-113(3); (3) the defendant, because of his youth, lacked substantial judgment in committing the offense, Tenn. Code Ann. § 40-35-113(6); (4) the defendant was suffering from a mental condition that significantly

reduced his culp

ability for these o

ffenses, Tenn. Code Ann. § 40-35-113(8); and (5) the defendant has the responsibility of caring for a young minor child and quite probably has the best job situation in terms of

payment that he wil

l ever have in his life, has shown remorse for the crimes he has committed, and incarceration will quite probably cost him any opportunity to lead

a normal and prod

uctive role in soc

iety at the wage he is presently earning. 2 The defendant has previously been convicted of possession of marijuana, public

intoxication, and u

nderage possess

ion of alcohol. 7 B.

We conclude the trial court did not abuse its discretion in sentencing the defendant . The court accepted the defendant’s five (5) mitigating factors; 1 however, it found sua sponte the following enhancement factors applicable:

(1) the defendant has a h istory of crimi nal convictions or criminal history in addition to those necessary to establish the appropriate range, Tenn. Code Ann. § 40-35-114(1); 2 (2) the felony was co mmitted while t he defendant was on probat ion, Tenn. Code Ann. § 40-35-114(13)(C); and (3) the defendant abused a position of private trust, Tenn. Code Ann. § 40-35-8 114(15). A trial court mayconsider enhancement fac tors even though the prosecution failed to file a notice of them. State v. Birge , 792 S.W.2d 723, 726 (Tenn. Crim. App. 1990).

The state now concedes the record is unclear as to whether the defendant was on probation at the time the inst ant offenses were commit ted. Furthermore, we note that Tenn. Code Ann. § 40-35-114(13) onlyapplies when the pr ior conviction was a felony. Neverth eless, less rest rictive measures than confinement have recent ly been applied unsucces sfully to the defendant. The defendant has received suspended sentences in the past; yet, t his failed to deter him from future cr iminal conduct. This is a valid statutorybasis upon which to base a sentence of confinement. See Tenn. Code Ann. § 40-35-103(1)(C). Accordingly, when the defendant’s prior criminal conduct is considered in conjunction with his abuse of a position of private trust, the trial court can hardly be said to have abused its discretion in ordering a period of confinement.

The defendant’s remaini ng issues are wit hout merit. The trial court did mention the defendant’s “illegitimate” child, but did so in the context of determining whet her the defendant had a financial obligation to the child. Further, the trial court9

considered the defendant ’s mental limita tions in arrivi ng at the sentence. The tri al court ordered th e defendant’s confinement served locally to avoid the inherently adverse effect a Department of Correction sentence would have on a mentally challenged individual . We find no abuse of d iscretion by the t rial court.
As the defendant has failed to show the impropriety of his sentence, the judgment of the trial court is AFFIRMED.

_________________________ JOE G. RILEY, JUDGE CONCUR:

____________________________ PAUL G. SUMMERS, JUDGE

____________________________ JOSEPH M. TIPTON, JUDGE