### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE Assigned on

Briefs D ecem

ber 10, 200 2 STATE OF TENN ESSEE v. SHERRY L. WILLIAMS Direct Appeal from the Criminal Court for Sullivan County Nos. S44,925-931 S45,851 S45,852 Phyllis H Miller, Judge

No. E2002-01288-CCA-R3-CD February 13, 2003
The de fe nd an t, Sh er ry L. Williams, pleaded guilty to 20 forg ery cha rges and three charg es of criminal impersonation, with a recommended effective sentence of seven y ears. The plea agreement provided that the trial court would det ermin e the manner of service of the sentenc e. After a sentencing hearing, the trial court denied any form of alternative sentencing and or dered incarceration

i n the Depa rtment of

Correct ion. Fro m this dete

rmination , the def

endant a ppeals. Finding no error , we aff

irm the jud

gment of the trial court.

Tenn. R. App.P. 3; Judg ment of t he Crim inal Court

is Affirme

d.
J AMES C URWOOD W ITT , J R ., J., delivered the opinion of the co urt, in which G ARY R. W ADE , P.J., and J ERRY L. S MITH J., joined.
Steve McEwen, Mountain Ci ty, Tenness ee (on a

ppeal); Stephen M. Walla c e, Distri ct Public Defender; and Leslie S. Hale, Assistant District Public Defender (at trial), for the Appellant, Sherr y L. Willi ams. Paul G. Summers, Attorney Gene ral & Reporter; Helena Walton Yarbroug h, AssistantAttorne y Genera l; H. Gree ley Wells, Jr., D istrict Attorn ey Gene ral; and William Harper, Assistant District Attorney Gene

ral, for the Appellee, State of Tennessee.
OPINION
In April 2001, the Sullivan County Grand Jury returned a

presentment against Sherry L. Williams charging 25 counts of forger y, Tenn. Code Ann. § 39-14-114 (1997), and a one-count indictmentcharging criminal impersonation, id

. § 39-16-301 (Supp. 2002). The following month, the defendant was indicted on eight additional counts of

forgery . Two new criminal impersonation charges and one charge of identity theft, id . § 39-14-150 (Supp. 2002), were returned by indictment in June, and on January 30, 2002, a final g roup of seven forgery

ch arges were repor

ted out by the gr an d j ur y.-2- Negotiations between the defendant, who was a Range I standard offender, and the state re sulted in th

e followi ng plea

agree ment submit

ted to the trial cou rt for ap proval. S44,925: Gui lty pleas to five counts of for gery , with an agreed sentence of

one year on e ach count to be served concurrently to each ot he r; di sm is sa l o f 2 0 c ou nt s o f f or ge ry. S44,926: Guilty plea to criminal impersonation, with an ag reed sentence of six months t o be serv ed conc urrently to sentences in S44,925. S44,927 : Gu ilty pleas to three counts of f orgery , with an agreed sentence of one yea

r on each count to be served concurr ently to each other but consecutively

to sentences in S44,925. S44,928: Guilty

plea toone count

of forgery , with an agreed sentence of one year to be

se rved c onsecutively to sentenc es in S44,925 and S44,927.
S44929: Guilty pleas to four counts of f orgery , with an agreed sentence of two years on e ach count to be served concurrently to each other but consec uti vely to sentence s in S44,925, S44,927, and S44, 928.
S44930 & S44931: Guilty pleas to two counts of cr iminal impersonation, with an agreed sent ence o f six months to be served concurr ently to each other

and conc urrently to sentences in S44,925. S45,851: Guilty pleas to six co unts of f orgery , with an agreed sentence of two year s on each count to be served concurrently to each other but consecutively to sentenc es in S44,925, S44,927, S44, 928, and S44,929.
S45 ,852: G uilty plea to one count of for gery , with a recommended sentence o f two ye ars to be served c oncurre

ntly to the sen

tences i n S45, 851.
Pursuant to the plea agreement, the defe ndant would receivean effective sentence of seven years a

nd would pay restitution. The manner of service of the sentences was re served for the trial court’s determination.

We glean from the transcript of the g uilty plea submissio n and the presentence investigation report, which are included in the appellate record, that sometime in 1994, the defendant-3-

used the name, social security number, and other personal information of her former sister- in-law, Anita Cox, to open a c

harge accoun t with Sear s. The defendant, however, ga ve her own address as the bill ing add ress f or the charge ca rd. Th e defen dant f orged M s. Co x’s n ame to numer ous ch arge slips, totaling at least $2,843. The defendant’s fraudule nt scheme went

undetected until 1998 when the defe ndant’s h usband fo und mail a

nd credi t card r eceipts in their bedroom.
The first criminal impersonation charge involved an a utomobile accident in May 2000. When a police officer arrived at the scene to investigate, the defendant, who was intoxicated, produced a driver’s license in the name of B renda Light. Ms. L ight is the defendant’s sister.
The next three forgery

charges stemmed from the theft of personal checks from the residence of James Hale. The defendant forg e d Mr. Hale’s name to the checks, which totaled approxima

tely $600, and

passed th em at Wal- Mart and

Food City

in Kings port.
Checks stolen fr

om Lin da C arr were the basis for five additional for gery charges. The defendant forged Ms. Carr’s name to chec ks totaling approximately $390; the defendant passed the checks at Food City

and Ingles F

ood Store.
The second criminal impers onation charge arose when the de fendant identified hersel f as Donna B ishop to an

office r who wasinvestig ating su spicious la te-night activit

y at the Elks ’ Lodge on December 7, 2000. Le ss than a month later, the defendant identified herself asKristen Gray beal to an offic er on duty

at Riverview Apar

tments in K

in gsp ort. Ms. Graybe al is the defendant’s mother, and the third criminal impersonation charge re lated to the Gray

beal identification.
In case number S45,851, the defendant stole checks fr om Ray Harkler

oad in March 2001, made them payable to e ither hersel f or White’ s Fresh Fo o ds, forged Mr. Harkleroad’ s signature, and passed them at various local businesses. The Harkleroa d forged check s total ed slightly more than $1,000.

The final for

gery charg e, in

case number S45,852, related to a $400 check forged and utteredby the

defenda nt, also in March 2001. This check was stolen from Elizabeth Smith’s purse, and the de

fendant cashed t he chec k at Firs t Tenness ee Ban

k in King sport.
The tria l court conducted a sentencing hear ing on May 16, 2002 a nd ordered incarcerative sentencing. The defendant has appealed the application of two enhancement factors (gratify ing the desire for pleasure or excitement and abuse of private trust) and

the manner of service of her sentences. At the senten cin g hearing, the defe ndant testified in support of her bid for probation or other alternative sentencing. She explained that he r involve ment in cr

iminal ac tivity derivedfrom her drug usage, pa rticularly cr

ack cocaine. Even prior to using drug s, the defen da nt said that she had been abused in early childhood by her

grandfather and uncle. She be lieved that

she could benefit from counseling to deal with the childhood abuse, and if g ranted probation, the defend ant to ld th e court that s he wou ld do everythi ng she c ould to fol low up with couns eling.1 Eff ecti ve Jul y 4, 2002, t

he “e nhanc ement

fac tors ” code s ecti on 40 -35-114 wa s revi sed to add a new enhancement factor. 2002 Public Acts, ch. 849. The new enhancement fa cto r, th at th e “o ff ens e was an a ct of terr ori sm, or was rela ted to an act o f terrorism ,” was d esig nated enhanc ement fac tor ( 1), a nd for mer en hance ment factors ( 1) through (22) were redesignated (2) through (23). Tenn. Code Ann. § 40-35 -114 (Supp. 200 2). -4- The defendant testified about in-patient drug reha bilitation pro grams t

hat she had attendedprior

to being arrested. The defenda nt said that she had also been attending an alcohol and drug class tha

t was ava ilable at the Sulliva

n County Jail. The de

fendant i s divor ced and has two minor children. Recently , her former husband had petitioned for full custody of th e children, and one of the reasons the defendant ga ve for seeking a non-incarc erative sent e nce was to maintai n custody of the ch ildren. I f relea sed, the d

efenda nt said tha t she coul d live with her mother and father. Her mother, the defe

ndant tes tified, ha

d been c hecking

the emplo yme

nt section of the newspaper

to help the d efenda nt obtain e

mploy ment.
On cross -exam inati on, t he defe ndant said t hat, p rior t o bein g arreste d and incarcerated, she had been receiving $562 monthly in Social Security disability benefits. According to the defendant, she could still receive disability benefits if she were employ ed, depending on

how much she ear

ned. The defenda nt’s last e mploy ment was w orking p art-time at McDonald’s. The defendant admitted that, in addition to crack cocaine, she had taken L ort ab “p ain killers, used marijuana, and eat[en] acid.”

The court separately

qu est ioned the defendant and elicited that the defenda nt had access to Mr. Hale’s house and his checks because she was dating Mr. Hale’ s son. The defendant was married at the time. The defe nd ant described Mr. Harkleroad as a “ friend” who was “like a da dd y” to her. She testified that she met Mr. Harkleroad when she worked at Ha rdee’s where Mr. Harkleroad

was a re gular c

ustomer. Their fr

iendship d

evelope d to the point that the defendant was cleaning his house. The thef t of Ms. Smith ’s check occurr ed while s he and Ms. Smith were stay ing at a “safe house,” used as a shelter f or abused women. The defendant ag reed with t he court’s assessment that she had been stealing and writing worthless checks since approximately 1995.
Based upon the evidence before i t, the tri al court found the existence of four enhancing factors. First, the defendant has a previous history of criminal convictions or be havior. See Tenn. Code Ann. § 40-35-114(2) (Supp. 2002). 1 Second, the defendant committed theforgeries to gratify her desire for pleasure or excitemen t. Id . § 40-35-114(8) (Supp. 2002). Third, the defendant has a previous history of unwillingness to comply with t he cond itions of a sentence involving release into the community. I d . § 40-35-114(9) (Supp. 2002). Fourth, the defendant abuseda position of private trust. Id . § 40-35-114 (16) (Supp . 2002). The trial court placed grea t weight on the last factor. As for mitigating factors, the trial court found but a ssigned slight weight to the fact that the defendant’s conduct neither caused nor threatened serious bodily injury. See id. § 40-35-113(1) (1997). The tria l court a lso stated that it ga ve the defendant

“quite a bit of credit” for her self-re habilitat ive eff orts rela tive to pa rticipat ion in drug

treatme nt.-5- Based on the relevant circumstances, which the trial cour t enumerated

to include a criminal history, illegal drug use demonstrating a clear disreg ard for society’s laws a

nd morals, the failure of past efforts at rehabilitation, “reprehensible” stealing fr om an employer and a

boyfriend’s father, and the need for

deterrence, the trial court conclude d that the defendant had not carried her burden of demonstrating that full probation would serve the end s of justice, the community, the def endan t’s family, or the def endant herself. As for other sentencing options, the only additional finding that the trial court articulated was that “there is no commu

nity corrections prog

ram in this county for wome

n that I find would meet your needs as well as incarceration in the Department of Corrections.”
When there is a challenge to the leng th, range, or

manner of servi ce of a s entence , it is the duty

of this court t o condu ct a de novo review of the record with a presumption that the determinations made by the trial court are correct. Tenn. Code Ann. § 40-35-40 1(d) (19 97). This presump tion is “co nditioned upon the affirmative showing in the record that the trial c ourt considered

the sentencing principles and all relevant facts and circumstances.” State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). “The burden of showing that the sentence is improper is upon the appellant.” Id

. In the event the rec ord fails to mirror the required consideration by the trial, revie

w of the sentence proceeds on purely a de novo basis. Id . If, however, a ppellate review reflects that the trial court took into account all relevant factor s and its findings o f fact f ind adequ ate suppo

rt in the record, this court

mut affirm the sentence, “even if we would ha ve preferred a differ

ent result.” State v. Fletcher , 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).

In fashioni ng an a

ppropria te sente nce, the trial c ourt, at the conclusion of the sentencing hearing, is to determine the range of sentence and the n determine the specific sentence and proprie

ty of sentencing alternatives by considering (1) the evidence, if a ny, rece ived at the trial and the sentencing hearing, (2) the presentenc e report, (3) the principles of sentencing and arg uments as to sentencing alternative, (4) the nature and circumstances of the criminal conduct involved, (5) evidence and information offered by the parties on the enhancement and mitigating f actors, (6) any statemen ts the defendant wishes to make in the defendant’s behalf about sentencing , and (7) the potential fo r rehabi litation or treatment. Tenn. Code Ann. §§ 40-35-210(a), (b) (Supp. 2002), - 103(5) ( 1997); State v. Holland , 860 S.W.2d 53, 60 (Tenn. Crim. App. 1993).

Even though the defendant agreed to a sentence of seven y ears, she complains that the trial cou

rt erre d in apply

ing sent ence en hanceme nt facto rs. Because these factors a re availab le for consideration of alternative sentencing, a s well as in determini ng sentence length, we review these claims. See Tenn. Code Ann. § 40-35-210-(b)(5) (Supp. 2002).

Turning to the enhancement factors applied i n this cas e, we ag ree with the trial court regarding the defendant’s previous history of criminal convictions or behavior, see Tenn. Code Ann. § 40-3 5- 114(2) ( Supp. 2002) , and reg arding the defe ndant’s p revious h istory of unwilli ngness to comply with the conditions of

a se ntence involving release into the community , see id . § 40-35- 114(9) (Supp. 2002). The presentence report supports these e nhancement

factors, as it reflects prior drug and “worthless check” convictions and the defe ndant’s failure to “repor

t[ ] f or proba tion” in-6-

con nection with two previous “worthless check” convictions; the defendant, more over, does no t dispute these facts.

We part com

pany with the tr

ial cour t, howeve r, on its determination that the forgeries were committed to gratify the defendant’s desire for pleasure or excitement. See id . § 40-35-114(8) (Supp. 2002). The only basis that the trial cour t mentioned was the commission of the forg eries “ so [she] could buy drugs a nd ge t high.” The plea sure-or -exciteme nt enhanc ement fa

ctor ca lls into question a defendant’s motive for committing a crime. See State v. Kissinger , 922 S.W.2d 482, 490 (Tenn. 1996). “While . . . pleasure or excitement may be of

a sexual nature, it does not have to be.” Id. Accordingly , it is appropriate to use factor (8) for sentence enhancement related to offenses that do not have a sexual content. Id . The Kissinger court illustrated the point in the following fashion.
An offender who steals because of a pleasure e x perienced in “not getting caught;” an arsonist who burns houses du e to the excitement that watching fire brings; an assa ulter who breaks an arm to hear the victim beg for mercy

– all may have the

ir sentences enhanced under factor [(8)] providing the state produces proof of the f actor.
Id

. Alth ough the defe

ndant’s d rug de pendenc y in

this case undoubtedly prompted the forg eries, drug addiction, without mor

e, is n ot ine

xtric ably tied t o ple asur e or e xcitement. We do not gainsay that a person mi ght, for

example , thriv e on the excitement of imitating signatures, but we are not confronted

with evidence to establish such pleasure or excitement. See State v. John Robert Benton , No. E2000-03194-CCA-R3-CD, slip op. at 4-5 (Tenn. Crim. App., Knoxville, July 20, 2001) (court misa pplied pleasure or excitement enhancement factor; de fendant, convicted of vandalism and burglary , testified the incident was “alcohol-related”).

We also part company

with the trial court’s determination that the defendant abused a position of private trust. See Tenn. Code Ann. § 40-35-114(8) (Supp. 2002). None of the forgeries involved an adult perpetrator and a minor victim. When the victims, as in this case, are adults, they “are generally

held to have reasonab le judgment and, unlike minors, can genera lly function reasonably

independently.” State v. Gutierrez , 5 S.W.3d 641, 645 (Tenn. 1999). Application of

the p rivate trust factor “is a task that must be undertaken on a case-b y- case

basis .” S tate v. Po ole , 945 S.W.2d 9 3, 96 (Te nn.1 997) . The sen

tencing court is directed to examine “

the natur e of the r

elationsh ip” and w

heth er that relationship “promoted confidence, reliability, or faith.” Kissinger , 922 S.W .2d at 488 . Such a r elationsh ip “usually includes a degre e of vulne rability ,” and “ [i]t is the explo itation of this vulne

rability to achiev e criminal purposeswhich is d eemed mor e blameworthy a nd thus justifies application of the enhancement

factor.” Gutierrez , 5 S.W.3d at 646. The factor should be applied, the Gutierrez court explained, “only where

there is evidence that the nature of the relationship between the perpetrator and the adult victim causedthe victim to be particularly vulne rable. If such

a relati onship or ‘ private trust’ is shown, the State must then prove that the perpetrator abused that relationship in committing-7-

the crime.” Id . (footnote omitted) (mere fact that defendant a nd adult victim lived tog ether insufficient for application of private trust enhancement f actor).
The trial court was understandably troubled by the def

endant’s exploitation of the victims in this case; however, in our opinion the proof fall s short of demonstrating abuse of a position of

private trust. The

re is no in dication

that the d efenda nt’s acc ess to Mr. Hale’s residence was obtai ned by ex ploi ting a ny rel ationship with Mr. Hale; that the defendant was “dating” Mr

. Hale’s son, without more, does not prove a particular vulnerability of either the son or the father sufficient to apply this enhancement factor. See State v. Bobby Garner , No., M1999-01427-CCAR3-CD, slip op. at

4 (Tenn. Crim. App. , Nashvill e, Nov. 9, 2000) (de fendant mar ried to victim’s daughter at time of burg lary; bey

ond the “familial relationship,” no evidence of relationship that promoted confidence, reliability , or faith).

As for Mr. Harkleroad, no evidence w as offered that his judgment was impaired or that he c ould not fu

nction re asonably

independ ently . Even though the

defenda nt was cle aning h

is hous e, no detai ls about that arrangement are in the record. Nothing more being shown, Mr. Harkleroad

cannot, f rom an evidentiar

y st andpoint, be class ified as a particularly

vulnera ble victim

. In summary , we conc lude that the only applica ble enha ncement factor s in this case are (2) and (9). Again, however , as part of the defendant’s plea ag reement, she received

minimum sentences within the range, which was one to two y ears, on nine of the forgery convictions. For the other eleven f orger y c onviction s, she re ceived a n agre ed sente

nce of tw o ye ars. Cons i derin g t hat enhancement

factors (2) and

(9) wereappropriately

applied in this case, in our opinion the two-ye ar forgery sentences were altogether proper and suited to the defendant’s criminal conduct, and to the extent that the tr

ial judg e conside

red factors (2) a

nd (9) in determining alterna

tive sente ncing is sues, she was justified in doing so. See State v. James Anthony Cline , No. E2001-02011-CCA-R3-CD, slip op. at (Tenn. Crim App., Knoxville, Aug. 6, 2002 (when determining if alterna tive sentence would be appropriate, trial court may apply releva

nt mitigating and enhancement factor s).
Ad di ti on al ly, the defendant argues that alternative sentencingwas warranted in her cases, rather than incarceration. The defendant was sentenced asa Standard Range I Offender, and the forgery

convictions were Class E felonies. An alternative sentence

is any sentence

that does not involve total confinement. See State v. Adrianne Elizabeth Noles , No. W2002-01558-CCA-R3-CD, slip op. at 3 (Tenn. Crim. App., Jackson, Dec. 12, 2002) ; see generally State v. Fields , 40 S.W.3d 435 (Tenn. 2001). A defendant who“is an especially mitigated or

standard offender convicted of a Class C, D, or E felony is pre sumed to be a favorable candidate for a lternative sentencing options in the absence of eviden ce to the co ntrary.”Tenn. Code Ann. § 40-35-102(6) (1997). Our sentencing scheme also providesthat “co nvicted f elons com

mitting th

e most sev ere off

enses, possessing crimina l hist ories evincing a clear disreg ard for the laws and morals of society , and evincing failure of past efforts at re habilitat i on, shall be given first priority regarding sentence s involvi ng incarceration.” Id . § 40-35- 102(5) ( 1997). Con sequentl y, a defenda nt who mee

ts th e above crite ria is presu med el igi ble for alternative sentencing unless sufficie nt evidence rebuts the presumption. The Act, we hasten to add, does not provide that all offenders who meet

the crite ria-8-

are entitled to such relief; rather, it requires that sentencing issue s be determined by the f acts and circumstances presented in each case. See State v. Taylor , 744 S.W.2d 919, 922 (Tenn. Crim. App. 1987).
The presumption of favorable candidacy for alternative sentencing may be rebutted by “evidenc e to the contrary .” Fields , 40 S.W.3d at 440.

Guidance as to what constitutes evidence to the contrary may be found in the foll owing se ntencin g co nsidera

tions cont

ained in Tennessee Code Annotated section 40-35-103(1) (1997) : (A) Co nfineme nt is necess ary to pro tect s ociet y by restraini ng a defenda nt who has a long h

istory of crimin al conduct; (B) Confineme

nt is nece ssary

to avoid de

precia ting the seriousness of the offense o r confinement is especially suited to provide an effective deterrence

to others likely to commit similar offenses; or ( C) Measures less restrictive than confinement have f requ en tl y o r recent ly b een app lied unsuc cessfully to the defe ndant.
Id.
The defendant, a Range I offender, enjoyed the pre sumption of favorable candidacy fora lternative sentencing for her Class E fe lonies. See Tenn. Code Ann. § 40-35-102(6) (1997 )

. Moreover, sh e was eli g ible for probation. See id. § 40-35-303(a) (Supp. 2002). Determining entitlement

to full probation, however , necessarily requires a separate inquiry from that of determining whether a defendant is entitled to an alternative sente nce. See State v. Bingham , 910 S.W.2d 4 48, 455 (T enn. Crim. App. 1995), overruled on other grounds by State v. Hooper , 29 S.W.3d 1 (Tenn. 2000). Unlike the presumption of favorable ca ndidacy for alternative sentencing in general, a defendant be ars the burden of demonstrating suitability for full probation. See Tenn. Code Ann. § 40-35-303( b) (Supp. 2 002); State v. Mounger , 7 S.W.3d 70, 78 (Tenn . Crim. App.1999); Bingham , 910 S.W.2d at 455-56. To carry tha t burden, the defendant must show that probation will “subserve the ends of justice and the best interest of bot h the publi c and the defendant.” State v. Dykes , 803 S.W.2d 250, 259 (Tenn. Crim. App. 1999), overruled on other grounds by State v. Hooper , 29 S.W.3d 1 (Tenn. 2000).

Last , we note that the defenda nt met all o f the minim

um criter ia for pa rticipat ion in a community corrections program and conceivably

could be eligible for placement on the basis that her drug abuse is a “special need.” See Tenn. Code Ann. § 40-36-106(a), (c) (Supp. 2002). Eligibili ty for the program, nevertheless, doe s not translate into automatic entitlement to such relief. See Taylor , 744 S.W.2d at 922.-9- The trial court

did not expressly declare w hether the presumption of the defendant’s favora ble candi dacy for al ternat ive se ntenc ing had been re butt ed, al thou gh it acknowledged that the presumpt io n applied. The trial court did find that the defendant had not carrie d her burden of demonstrating that full probation would serve the interests of justice. The trial court also found that the defendant’s needs would best be served by incarcerat

i on before being release d into the community

as opposed to placement in a community corrections program as an alternative sentence.
We agree with the trial court that the defe nd ant di d not demon strate e ntitlemen t to full probation. The only reasons that the de fendant’s counsel offered

were that probation would give the defendant a ch ance to prove that she could change , that the defendant had already been incarcerated

for 211 da

ys, that the d

efenda nt was will

ing to underg o counseling for drug a buseand her childhood physical abuse, a nd that she was willing to get a job an d payrestitution and court costs. Under these circumstances, we ca nnot quarrel with the trial court’s refusal to grant probation.
Alth ough the trial

court did not explicit

ly rule whe ther the presumpt ion of fa vorable candidacy for alternative sentencing had been re butted, it did cite to multiple negative aspects of the defendant’s behavior. From the trial court’s remarks, we discern that the trial court was troubled by other criminal offenses that the defendant had committed, by the defendant’s failure to report for probation in 1999 on two “worthless check” charges, by the commission of new offenses while on probation, by h

er poor s ocial an d work his tory , by using he r childre n as an excuse for more lenient sente ncing, by t

he defe ndant’s s ustained

intent to violate the law as evide

nced by the leng th of time that the offenses had

been ongoing and the eff orts to conceal the forgeries, by the lack of “genuine sincere remorse ” and fa

ilu re to co mply with prior court order s, and by the fa ilure to accept respo nsib ilit y for her wr ongdoi ng.

The considerations that gave the trial court

pause ar e suffic ient to re

but the fa vorable candidacy presumption. These consider ations, we note, ar e mirror ed in the p

resente nce rep ort. Furthermore, the presentence report supports the trial court’sevaluation of the defendant’s lack of remorse and failure to accept responsibility . Kingsport De tect ive Mark Mason advised the presentenceinvestig ator tha t the def endant ha s a “cri minal reputa tion in the community” and that she was not cooperativeduring the forgery investigations. In her statement g iven to the presentence investigator

and included in the report, the defendant maintained that s he did not fo rge the credit card purchases involving her former sister-in-law. Rather, the defendant claimed that the sister-in-law “gave” the credit ca

rds to the defendant to purchase things for the de fendant’s children.
Lack of truthf ulness is a

n approp riate and importan

t conside ration in d

etermin in g whether an offender should be granted a n alternative sentence. State v. Ze olia , 928 S.W.2d 457, 463 (Tenn. Crim. App. 1996); State v. Gennoe , 851 S. W.2d 8 33, 837 (Tenn. Crim. App. 1992). Lack of truthfulness is probative on the issue of amenability to re habilitation. State v. Ne ely , 678 S.W.2d 48, 49 (Tenn. 1984). Also highly probative in this regard are the def endant’s failure to report for probation in 1999 on two “worthless check” charg es and the commission of new forgery offenses while on probation. Evidence of thepresumption of favorable candidacy for an alternative sentence-10-

includes the frequent or recent unsuccessf ul application of “[m]easures less restrictive tha n confinement.” Tenn. Code Ann. § 40-35-103(1)(C) (1997)

.

Amenabil ity to rehabil

itatio n is likewise critical to selection of community correction s as an alternative sentence. State v. Grigsby , 957 S.W.2d 541, 547 (Tenn. Crim. App. 1997). “[G]iven their ab ility

to revie w the off

ender’ s demean or and ch aracte ristics f irst hand, trial courts are in the best position to ascertain an offender’s amenability to a community corrections program.” Id

. Becau se of the

trial cou rts’ wide discreti on, our c ourt will n ot disturb t h e decision to gra nt or deny a c ommunity corrections sentenc e absent a clear abuse of discre tion. Id

. The trial cour t ’s remarks at sentencing implicitly acknowledged that the defenda nt satisfied all of

the following minimumcriteri a for pa rticipat ion in a co mmunity

corrections prog

ram: (1) Persons who, without this option , would be incarcerated in a correctional institution; (2) Persons who are convicted of property- related, o r drug/alcohol-related

felony offe

nses or other felony

offenses not involv i ng crimes against the person as provided in title 39, chapter 13, parts 1-5; (3) Pers ons who ar

e convic ted of non

violent fe lony offense s; (4) Persons w

ho are c onvicted

of felon y of fenses i n which the use

or possession of a weapon was not involved; (5) Persons who do not demonstrate a present or past patt ern of behavior indicating violence; [and] (6) Persons who do not

demonstrate a

pattern of committing violent offenses[.]
Tenn. Code Ann. § 40-36-106(a) (Supp. 200 2). Even so, the la w is settled that an offender meeting the requirements for

eligibil ity i s not automatically entitled to such relief

. See Ball , 973 S.W.2d at 294; Taylor , 744 S.W.2d at 92 2. Rather , the statu te provid es that the criteri a shall

be interpreted as “minimum state standards, guiding the determination of elig ibility of offenders”for the prog ram. Tenn. Code Ann. § 40-36-106(d) (Supp. 2002). The trial court, in our opinion, reg a rded the defendant’s attitude and mendacity a s unsuitable for a community-based a

lternative to incarceration, particu larly

because the defendant previously had failed

to report for probationon other c onviction s. Commitment to personal betterment is a key ing

redient for succ essful c ompletion o f a community corrections program, and the trial c ourt was in the best position to gauge this critical factor.-11- The trial cou

rt refe rred to the defe ndant’s “needs” and to “need[ing] help” with her “drug abuse,” suggesting that the tr ial court also evaluated

the defe ndant’s s uitability

for commu

nity corrections purs uant to the “specia l needs” accesspoint to the progra m, which p

rovides, Felony offenders not otherwise eligible under subsec tion (a), and who would be us ually considere d unfit for probation due to histories of ch ronic al cohol, dr

ug abus e, or men

tal healt h problem s, but whos e special needs ar

e treata ble and c ould be se

rved bes t in the co mmunity rather than in a correctional institution, may be considered

eligible for punishment in the community under the provisions of this chapter.
Id . § 40-36-106(C) (Supp. 2002).

The trial court s tated that there was “no community corrections program in t

his county for women that I find would meet your needs as well as incarceration in the Department of Corrections.” The court added, “You not o nly need help with y our drug abuse, y ou need help with training for emplo yme

nt and g ett ing some order in your life before y ou get back out in the co mm un it y, trying to have interaction with you[r] children and other me mbers of the community.” Based up on all the

evidenc e befor

e it, the tr

ial cour t, it seems to us, view ed the defendant a s requiring a highly

structur ed envir onment, su ch as full incarc eration would pro vide, tobring focus and order to

the defe ndant’s life. The

court obv

iousl y di d not consider a community-ba sed alternative sentenc e as mee ting eith er the de fendant ’s long- standing

problems or socie

ty’ s needs. The defendant, moreover, did not show why or how her ne eds could better be served by remaining in the community. We cannot say that the trial court abused its considerable discretion in deny ing commu nity corr ectio ns sen tenci ng.

All things considered, we conclude that the trialcourt wa s warra nted in re jecting all forms of alternative sentencing short of total confineme nt for this defendant. For these reasons, we affirm the trial court’s judgment sentencing the defe ndant toseven years in co nfine ment a s a Ran ge I standard offende

r.

___________________________________ JAMES CURWOOD WITT, JR., JUDGE