### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE June 17, 200 3 Session
STATE O F TENN ESSEE v. TRAC I L. CR EWS
Direct Appeal from the Circuit Court for Williamson County No. I-502-189-A Donald P. Harris, Judge

No. M2002-02908-CCA-R3-CD - F iled November 20, 2003

The defendant entered a

best interest plea to theft over $10,000, as a Range I , standard offender. She
was sentenced to six years, with eig ht months of confinement and the remainder suspended with ten yearsof intensive probation. Restitution was included. On appeal of her sentence , the sentence was modified t

o three y ears and the remaining t

erms of th

e sentence aff

irmed in a

ll respects. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed as Modified

J OHN E VERE TT W IL LI AMS , J., delivered the o pi nion of the court, in which J ERRY L. S MITH and R OBER T W. W EDEMEYER , JJ., joined.

Edward J. G

ross, Na shville, T ennesse e, for the appell ant, Tra ci L. Crews.

Paul G. Summers , Attorne y General and Repor

ter; P. Robin Dixon, Jr., A ssistant A ttorney Genera l; Ronald L. Davis, District Attorney General; and Sharon E. Gu ffee, A ss istant District Attorney General, for the appellee, State of Te nnessee.

OPINION

The def end ant , Tr aci L. Crews, entered a best interest plea to theft over $10,000, a violation of Tennessee Code Anno tated se ction 39- 14-103, a Class C felony, as a Rang e I, standard offe nder. After a senten cing hea

ring, the trial court imposed a sentence of six y ears, with eight months incarceration

followed by the bala

nce of ten y ear s on inten sive prob ation. The defenda nt appea ls from the sentence she received.

Facts

The defendant was invo lved with codefendants Michelle Vance and Patti Wade in an enterpr ise intended to obtain money by theft fr om the vic tim, E. J. Foo twear. V ance wa s accoun ts-2-

pay able and pay roll manager at Durang o, a subsidiary of E. J. Footwea r. Vance issued checks to the defenda nt, which she

cashed a t a check c ashing business. The defendant claimed she received nothing from the p

roceed s, but said

Vance b ought he

r child items with a combined estimated value of approximately three to four thousand dollars. Wade, the defendant’s sister, was later involved and her name used on three checks issued by Vance. According to Wade and the defenda nt, Wade was paid $600 for the f ee norma lly p aid at check cas hing bus inesses.

Michelle Vance testified

that the defendant received one-ha lf of all proceeds from the

checks made to he

r, and the checks made to Wad

e were divided e qually

betwee n the three partic ipants.

The presentence report revea led that the defen dant was forty-one y ears old and separated from her current

husband. She had custody of her two children, ages tw elve and one, as w ell as a minor cousin. The defendant had no prior criminal history. Although une mployed at the time of the offense s, the defendant had a significant employ ment history. She h ad recen tly r elocate d to Huntsville, Alabama, and had an offer of employ ment at a medical clinic there.

The defendant, in her direct appeal, contends the trial court er red in application of the enhancement factor, the sentence requiring confinement, and the amount of restitution.

Analysis

This Court’s review of the sentence imposed by the trial cou rt is de novo with a presumption of correctness. Tenn. Code Ann. § 40-35-401(d). This pre sumption is conditioned upon an affirmative showing in the record that the tri a l judge c onsidere d the sent encing principle s and all relevant facts and circumstances. State v. Pettus , 986 S.W.2d 54 0, 543 (T enn. 1999). If the trial court fails to comply with the statutory directives, there is no presumption of corr ectness a nd our review i s de novo

. State v. Poo le , 945 S.W.2d 93, 96 (Tenn. 1997).

The burden is upon the appealing party to show that the sentence is improper. Tenn. Code Ann. § 40-35-401(d), Sentencing Commission Comments. In conducting ou r rev iew, we are requir ed, pursuant

to Tenne ssee Code

Annotate d section

40-35-21 0, to consi der th e following factor s in sen tenci ng: (1) [t]he evidence, if any, received at the trial and the sen tenci ng hearing; (2) [t]he presentencereport; (3) [t]he principles of sentencing and arg uments as to sentencing alterna tives; (4) [t]he nature and characteristics of the criminal conduct involved; (5) [e]vidence and information offered by the parties on the enhancement and mitigating factors in §§ 40-35-113 and40-35-114; and (6) [a]ny statement the defendant wishes to make in the defendant’s own behalf about sentencing

. If no mitigating or enhancement fac tors for sente ncing are present, Tennesse e Code Annotatedsection 40-35-210(c) provides that the presumptive sentence for most offenses shall be the minimum sentence within the applicable range. State v. Lavender, 967 S.W.2d 803, 806 (Tenn. 1998); State v. Fletcher , 805 S.W.2d 785, 788 (Tenn. Crim. App. 1991). However, if such factors-3-

do exi st, a trial court should enhance the minimum sentence within the range for enhancement factors and then reduce the sentence within the range for the mitigating f actors. Tenn. Code Ann. § 40-35-21 0(e); State v. A rnett , 49 S.W.3d 250, 257 (Tenn. 2001). No particular weight fo r eac h factor is prescribed by

the statut e, as the weight given to each fa ctor is left

to the discretion of the trial court as long as the trial court complies with the purposes and principles of the sentencing act and its findings are supported by the record. State v. Madden , 99 S.W.3d 127, 138 (Tenn. Crim

. App. 2002) ; see Tenn. Cod e Ann. § 40 -35-210, Sentencing Commiss ion Comment s. Neverth eless, should there be no mitigating factors, but enha ncement factors are present, a trial court may set the sentence above the minimum within the range. Tenn. Cod e Ann. § 40 -35-210( d); State v. I mfeld , 70 S.W.3d 698, 704 (Tenn. 2002).

The Tennessee Criminal Sentencing Reform Act of 1989 recognizes the limited capacity of state prisons and mandates that convicted felons committing the most severe offenses, possessing criminal histories evincing a clear disregard for the laws and morals of society , and evincing failure of past eff orts of re

habilitat io n sha ll be given first priority regarding sentencing

involving incarceration. Tenn. Code Ann. § 40-35-102(5). A defendant whodoes not qualify as such a nd who is an especially

mitigated or standard offender of a Class C, D, or E felony, is presumed t o be a favora ble candidate for

sentencing options in the absence of evidence to the contrary . Tenn. Code Ann. § 40-35-10 2(6). Th is simply means tha

t the tria l judge m ust presu me such a defendant to be a favorable candidate for sente ncing which does not involve incarceration.

The presumption that a defendant is a favorable ca ndidate for sentenci ng which does not involve incarceration is rebuttable, and incarc eration may be order ed if the court is present

ed with evidence of the following: (A) Confinement is neces sary to pr otect socie ty by restrai ning a defendant who has a long histor

y of crim inal cond

uct; (B) Confineme

nt is nece ssary

to avoid depreciating the seriousness of the offense or confinement is pa rtic ularly suited to provide an effectivedeterr

ence to o thers like

ly to commit simil ar offe

nses; or (C) Measures less restrictive than confinement

have fr equently or rece ntly been ap plied unsu ccessf

ully to the defendant. Tenn. Code Ann. § 40-35-103(1) (1990). In determining the appr opriate sentenc ing alte

rnative , a court

may also look to evidence or information offered by the parties on the statutory e nhancement

and mitigating factor s. Tenn. Code Ann. § 40-35-210(b)(5) (Supp. 19 95); Tenn. Code Ann. §§ 40-35-113, -114 (Supp. 1995). Lastly , a court should take into acco u nt the potential, or lack of potential, for a defendant’s rehabil

itation or treatme nt when c onsideri ng the a ppropria te sente ncing a lternative. Tenn. Code Ann. § 40-35-103(5) (1990).

If our review reflects that the trial court followed the statutory sentencing

proc edure and imposed a lawful

sentenc e after

giving due cons ideratio n and p roper weight to the factors and principles set out under sentencing law and that the trial court’ s finding s of fact ar e adequ ately supported by the rec ord, then we may not modify the

sentence, even if we would have preferred a different result. State v. Hooper , 29 S.W.3d 1, 5 (Tenn. 2000).

The trial judge applied enhancement factor (7); that the amount of damage to proper

ty sust ainedor taken from the victim was particularly great. See Tenn. Code Ann. § 40-3 5-114

.-4-

Mitigating factor (1) was also found applicable; that the c onduc t neither caused nor threatened serious bodily injury

. See Tenn. Code Ann. § 40-35-113.

The defendant

was sente nced to si x yea

rs in the D epartme

nt of Corr ection , with the sentence suspendedaf

te r s er vi ng ei gh t m on th s a t 1 00 %. Pr ob at io n w as se t a t t en ye ars and s pecif ied as intensive . The def

endant w as order

ed to pay restitutio n of $14,4 90.00 and the cour t costs.
The trial judge made the fol lowi ng observation prior to announcing the def endant’s sentence: This is one of those cases that I see periodical l y in that both of these women [the defendant and her sister, Wade] would have been gra nted full probation had they merely come in here and told th e truth, but I don’t know why that for some reason they have e

lected not to do so. And that reflects, of course, on their a menabilit y to rehabilitation.

The trial judge in this ca s e properly considered the relevant sentencing principles together withthe relevant facts and circumstances. The refore, our

review i s de novo with a presumption of
correctness.
Ini ti al ly, we examine the trial court’s application of the enhancement factor that the amount of propert y ta ken from the defe ndant wa s particu

larly great . The def

endant w as found g

uilty of theft of property in e

xcess of $10,000, a Class C felony. Grading of theft. -- Thef

t of prope rty or servi ces is: (1) A Class A mi sdemean or if the t heft o f th e property

or services obtained is five hundred dollars ( $500) or l ess; (2) A Class E felony if the va lue of the property

or services obtained is more than five hundred dollars ($500) but less than one thousand dollars ($1,000); (3) A Class D felony if the value of the prope rty or servi ces obta

ined is one thousand dollars ($1,000) or more but less than ten thousand dollars ($10,000); (4) A Class C felony if the value of the property or

services obtained is tenthousand dollars ($10,000) or more but less than sixty thousand dollars ($60,000); a nd (5) A Class B f

elony if the va

lue of the

propert y or service s obtaine d is sixty thousand dollars ($60,000) or more. Tenn. Code Ann. § 39-14-105(4) (1991).

We reject t

he use of this enha

ncement factor unde r the circumstances of this case. The gener al rule is that since the punishment for theft is enhanced based upon the amount taken by the accused, the use of

this fact or constitutes doub le enhancement in violation o f the stat

u te. State v. Grissom , 956 S.W.2d 51 4, 517 (Te nn. Crim. A

pp. 1997) ; State v. Ta

te , 1997 Tenn. Crim. Ap p. LEXIS 793, No. 03C01-9110-CR-00327 (Tenn. Crim. App. Oct. 15, 1992), perm. to appeal denied (Tenn. Mar. 8, 1993).

We are aware that there have been several exceptions to the general rule that allows use of this enha ncement under ce rtain cir cumstanc es:-5-

(a) State v. Barbara D. Frank , No. 03C01-9209-CR-00303, 1993 Tenn. Crim. App. LEXI S 860 (Tenn. Crim. App., at Knoxville, Dec. 22, 1993), when the amount taken approached the next classifica tion of theft, a nd the vic tim, a clos ely

held corpora tion of thr

ee indivi duals, wa s particu larly damaged; (b) State v. Barbara

Kay Keefer , No. 03C01-9709-CC-00413 1999 Tenn. Crim. App. LEXIS 124 (Tenn. Crim. App. at Knoxville, Feb. 10, 1999), when the amou n t actually taken was over four times the $60,000 necessary to constitu

te a Class B fe lo ny t he ft an d f or ce d t he vi ct im in to ba nk ru pt cy; (c) State v. Cynthia Tay lor Mann , No. M1999 -01390-C CA -R3 -CD, 2001 Tenn. Crim. App. LEXI S 337 (Tenn. Crim. App ., at Nashville, May 8, 2001), the amount stolen was about six times the $60,000 threshold for Class B felony theft
an d dep rived employee s of the partnership of y ear-end bonuses and retirement contribu tions, and the pa

rtners o f the vic ti m were forced to sign a $400,000 promissory note to cover losses; a nd (d) State v. Jacob Dyck , No. E2001 -00476-C CA-R3-CD, 2002 Tenn. Crim. App. LEXIS 355 (Tenn. Crim. App. at Knoxville, April 22, 2002), the amount actually stolen qualified for the next highest level of felony theft, a

nd the victim was an elderly individua

l.

In the instant case, the highest total figure propose d by t he State as stolen from the victim was $38,000, mid-range of Class C felony theft. There was no evidence adduc ed showing particu la r great damage to the large corporate victim. Accordingly , we conclude that this enhancement factor was misapplied.

The Range I sente

nce for a Class C felony is three to six y ears. See Tenn. Code Ann. § 40- 35-112(a)(3). The presumptive sentence for a Class C felony is the minimum sentence in the range, increased as approp riate for

enhanc ement fa

ctors an d decre ased as a

ppropria te for mit igating factor s. See id. , 40-35-210(c)(e). Absent any enhancement factor, we conc lude that the sentence should be modified t

o three y ears.
The defendant also complains of the length of mandatory inca

rceration of eight months and the amount of restitution. The sentencing judge clearly accredited the

testimony of the acc omplice Michelle Vance as to the sha

ring of the chec k proceeds, which directly c ontradicted the defendant’s contenti ons. The record also reveals that the de fendant accepted responsibility only with strong qualification. Falsi ficat ion an d resp onsi bili ty-shift ing a re ill omens for a defendant seeking the largesse of total probation.

We ha ve re pe at ed ly h eld that truthfulness and willingness to accept responsibility for the offenses are proba

tive of the prospects for rehabilitation. State v. Dowdy , 894 S.W.2d 301, 306 (Tenn. C rim. A pp. 1994) ; State v. Anderson , 857 S.W .2d 571, 57 4 (Tenn. Cri m. App. 199 2). By
eva luating the defendant in this manner, the trial court, pursuant to Tennessee Code Annotat e d section 40-35-103(5), determined the defendant’s a lternative sentence. Having concluded that the-6-

termof incarce ration prior to probation status and the restitution were appropriate, we a ffirm the eight- month

term of incarceration and restitution as ordere d and modif y th e sentence to three y

ears.

___________________________________ JOHN EVERETT WILL IAMS, JUDGE