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

STATE OF TENNESSEE V. ELIZABETH MULLINS

Direct Appeal from the Criminal Court for Anderson County No. 98CR0178 James B. Scott, Jr., Judge

No. E1999-01343-C CA-R3-CD - Dec ided April 27, 2000

Elizabeth Mullins appeals from the Anders on Count y Criminal Court’s denial of probation. She contends that she did not receive a fair probation hearing and that the trial court did not consider all the applicable factors relevant to probation. We affirm the sentence of confinement.

Tenn. R. App. P. 3 Appeal as of Right; Judgmen

t of the Criminal C

ourt Affirmed

T IPTON , J. delivered the opinion of the court, in which W ITT , J., and O GLE , J., joined.

Mart S. Cizek, Clinto

n, Tennessee, fo

r the appellant, E

lizabeth Mullins.

Paul G. Summers, Attorne y General & Repor

ter; Elizabeth B. M

arney, Assistant A

ttorney Genera

l; James N. Ramsey, District Attorney General; and Janice G. Hicks, Assistant District Attorney General for the appellee, State of Tennessee.

OPINION

The defendant ente

red a best intere

st guilty plea to theft of

over one thousand

dollars, a Class D felony. The trial court

imposed a two-year

sentence to be served in the Department of Correction. The defendant contends that her probation hearing was unfair because the trial court decided to deny her request for probation before the evidence was presented. She also contends that after continuing the probation hearing to allow her to gain employment, the trial court did not consider her proof of employment

at the subsequent hearing. The state con tends that the trial court properly denied probation after considering the defendant’s backgroun d, social history, and untruthfulne ss along with the nature and c

ircumstances of

the theft.

At the guilty plea hearing, the state gave the following accoun

t of the crime: The

victim laid her purse down in a hospital waiting area. Witnesses noticed a woman and a short male behaving suspiciously. The woman left with something under her coat, and the victim noticed that her purse, which contained money and jewelry, was gone. Witnesses identified thedefendant and a male called Shorty from a photograph array. Th e police fou nd Shorty in possessio n of the victim’s ch

ecks. Shorty said that the defendant filled out the checks and told him to cash them. The

defendant told-2-

the police that Shor

ty sold the victim’s jewelry to purchase crack cocaine. The trial court told the defendant that she would have a probation hearing but that her record would probably prevent her from getting probation.

The defendant a

greed that she sti

ll wanted the cour

t to accept h

er pl ea despite the court’s express war

ning tha t the consequences of her plea would mean that she might serve two years in the penitentiary.

At the probation hearing on January 8, 1999, the state entered the defendant’s presentence report into evidence. The report reveals that the then thirty-eight-year-old defendant graduated from high school. The report

states that she helped

her aunt, who has multiple sclerosis, in exchange for room and board an

d that she occasio

nally cleaned ho

uses. The defendant was divorced twice and has a child from her second marriage, but she does not have custody. She reported being in good health with the e xception of recent surgery on her ankle. She admitted using alcohol and crack cocaine but claimed to have been drug-free and sober for the las

t nine months. Her criminal record consists of misdemeanor

convictions for a

traffic offens

e in March 1990, driving under the influence of an intoxicant in Mar ch 1996, theft and attempted forgery in April 1996, and thefts in 1997 and 1998. The report reveals that the defendant had violated probation twice and was on probation at the time she committed the present offense. The victim impact st atement reveal

ed that the victim opposed probation.

At the J anuary 1999 hearing, the court questioned a probation officer, who stated that the defendant was currently reporting and had passed her last drug screen. The court also questioned the defendant’s au

nt, who said that she

had multiple

sclerosis and is sometimes paralyzed. The aunt confirmed

that the defenda

nt helped care f

or her and her se

ven-year-old

daughter. She agreed

that she could take the de

fendant t o work. The c ourt noted that the defendant’s ankle injury had prevented her from getting a job and con tinued the hearing to give the defendant a chance to find employment.

At the second probation hearing on February 15, 1999, defen se counsel presented a letter from the manager of Ryan’s Steakhouse, stating that the defendant worked there fifteen to twenty hours per week and was eligible for full-time employment once her ankle healed. The tr ial court questioned the victim, who said that she wa nted the defenda

nt to go to jail. The vi

ctim said that on the evening of the offense, her husband was admitted to the Coronary Care Unit. She said that she had removed her jewelry and put it in her purse in preparation for spending the night at the hospital. She said that her purs

e also contained he

r checkbook, cr

edit cards, money, ca

r keys and house ke

ys. She said she left her

purse in the waitin

g room for five minu

tes while she went

to get so me foo d brought by relatives. She stated that she spent the rest of the night cance

lling her credit c

ards while her husband lay dying. S

he said that it took mo

nths to get her credit straightened out and that the defendant took adva ntage of her when she was very vulnerable. The trial court denied probation based upon the defendant’s prior record, stating: But just looking at her

past, looking at this

[presentence report]–I don’t think there’s any doubt that I

would do a disservice to our system, to myself, based upon what I know is in this . . . report. . . . . Just lo oking at this, I could not a bit more give you probation based upon your rec ord without setting a precedent that to me would be completely out of reason and logic.-3-

At the hearing on the defendant ’s motion to

reconsider the denial of probation, the defendant testified that

she had abused dr

ugs and alcohol but

had been sober a

nd drug-free fo

r the last thirteen months. She said that she was working at Ryan’s Steakhouse, attending Al cohol ics Anonymous (A.A.) meetings, paying her probation fees, and had passed all her drug screens. She denied taking the victim’s purse but

admitted that she was with the person who took it. She said she went into the hospital with Michael Bratcher, who had died after the incident. She said that she did not know why Mr

. Bratch er was going to the hospital but that they did not need treatment. She said that she followed him into the hospital beca use he was like a son to her. She said that Mr. Bratcher carried the victim’s purse out u

nder his shirt, alth

ough she asked him

notto take it. She said the purse that she had in the surveillance tape was her own purse. She said tha

t ShortyWheeler was waiting for them in the car

an d that she touched the purse only after they were in the car. She said that she passed out and that Mr. Bratcher later told her that Mr. Whe eler ha d traded the jewelry for crack cocaine. She said that she barely remembered what happened that night because she was under the influence of dru

gs and alcohol.

The defendant’s aunt testified that she had known the defendant all of her life. She said that for the last thirteen month s, the defendant

was drug-free

and sober, atten

ded A.A. and Nar

cotic s Anonymous meetings, met with her probation officer, and worked. She said that the defendant had expressed remorse and had said on many occasions that she wished she ha d not go ne into the hospital with Mr. Bratcher. She restated that she has multiple sclerosis and sometimes experiences paralysis. She said that she trusted the defendant with her seven-year-old daughter and her money. The trial court disbelieved the defendant’s testimony regarding her reason for entering the hospital

on the night of the offense. It considered the defendant’s social history and the circumstances of the crime. The court complimented the defendant for i m proving her life, but it denied the moti

on to reconsider based upon her previous record and violations of probation.

Appellate review of sente

ncing is de novo on the record with a p resum ption that the trial court's determinations are correct. Tenn. Code Ann. § 40-35-401(d). As the Sentencing Commission Comm ents to th is section note, the burden is now on the defendant to show that the
sentence is improper. This means that if the trial court followed the statutory sentencing procedure, made findings of fact that are adequately supported in the r ecord, 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 accompanies the tri al court's action i s conditioned upon the affirmative showing in the record that the trial court considered the sentencing principles and all relevant facts and circumstances.” State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). In this respect, for the purpose of meaningful appellate revie w,

the trial court must

place on the record its reasons for arriving at the final sentencing decision, ident ify the mitigating and e nhancement fac

tors found, state t

he specific facts supporting each enhancement factor fou nd, and articulate how the mitigating and enhancement fa

ctors have been

evaluated and balanced in determining the-4-

sentence. T.C.A. § 40-35-210(f) (1990). State v. Jones , 883 S.W.2d 597, 599 (Tenn. 1994).

The defendant conte

nds that the trial c

ourt is not entitled t

o the presumption of

correctness due to the disjointed na

ture of the proce

edings and its fa

ilure to place its fac tual findings on the record. To the contrary, at the close of the second probation hearing, the trial court denied probation based upon the defendant’s prior record, which included two probation violations. At the hearing

on the m ot ion to reconsider, the court considered the defendant’s social history and the circumstances of the crime, i.e., the fact that the crime took

place in a hospital waiting room. The
court disbelieved the defendant’s testimony regarding her reason for entering the hospital. The court denied the motion based upon the defendant’s previous probation violations . Thus, the court did place findings upon the record. Finally, the disjointed nature of the proceed ings benefitted the defendant because she wa

s given an opport

unity to obtai

n employment between

the first and second hearings.

In c on ducting a de novo review, we must consider (1) the evidence, if any, re ceived at the trial and sentencing hearing, (2) the presentence report, (3) the principles of sente ncing and arguments

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

, (5) any mitigating

or statutory enhancement factors, (6) any statement that the defendant made on her own behalf and (7) the potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103, -210; see Ashby , 823 S.W.2d at 168; State v. Moss , 727 S.W.2d 229 (Tenn. 1986).

The defendant received the agreed upon sentence of two years. She challenges the manner of service of her se ntence. As a Range I, standard offender convic ted of a Class D felony, the defendant correctly asserts that she is

presumed to be a f

avorable candidate for alternative sentencing options. See Tenn. Code Ann. § 40-35-102(6). The presumption in favor of alternative

sentencing
may be rebutted if

(1) “confinement is necessary to protect society by restraining

the defendant who has a long history of criminal conduct,” (2) “confinement is nec essary to av oid depreciating the seriousness

of the offense or c

onfinement is

particularly

suited to provide a

n effective det

errence to others likel y to com

mit similar offenses,” or (3) “measures less restrictive than confinement have frequently

or recently been applied unsuccessfully to the defendant.” Tenn. Code An n. § 40-35- 103(1)(A)-(C); see Ashby , 823 S.W.2d at 169. Furthermore, the defendant’s potential for rehabilitation or

lack thereof should be examined when determining whether an alternative sentence is appropriate. Tenn. Code Ann. § 40-35-103(5).

The defendant contends that at the reconsideration hear ing, the court indicated that it had decided to deny the motion before the presentation of any evidence. At the hearing, defense counsel stated that he and the defendant left the first hearing believing that probation was contingent upon proof of employment. He said that at the second hearing, the trial court denied probation after the victim spoke and before the defendant could present an y evidence. The

trial court state

d its willingness

to hear the defendant’s proof. Just before the defendant testified, the court said, “I would be happy to have her get up here and testify. I am not trying to prevent you from it, Ms. Mullins, butI am not going to say that this is going to change my mind one bit.” We do not believe that this-5-

statement indicates that the court

would not c onsider the evidence presented. Instead, the court merely refused

to guarantee a p

articular resul

t.

The defendant summarily contends that the trial court failed to consider all the factors which bear upon whether she should have been granted probation. With the exception of the employment letter, the defendant fails to specify what factors the trial court should have considered. The defendant cites to State v. Bonestel , which held that with respect to probation, thetrial court must

we igh “the accused’s criminal record, social history, present physical and mental condition, the circumstances of

the offense, the deterrent effect upon the criminal activity of the accused as w

ell

as others, and the accused’s potential for rehabilitation[.]” 871 S.W.2d 163, 169 (Tenn. Crim. App. 1993) (citing Stiller v. State , 516 S.W.2d 617, 620 (Tenn. 1974)). Thedefendant contends that the failure to consider all the factors requires a reversal and remand for a new probation hear ing. See Bonestel , 871 S.W.2d at 169.

The state contends that

the trial court considered the defendant’s criminal record, her social history, the circumstances of the theft, and her potential for rehabilitation. The record supports the state’s contention. Furthermor e, we note that the trial court considered the defendant’s physical condition, her

ankle injury, in continuing the first probation hearing. Although the court made no specific findings regarding deterrence, it noted at the conclusion of the second probation hearing that in light of the defendant’s record, it could not grant probation “without setting a pre cedent that to

me would be complete

ly out of reason and logic.” Finally, the trial court disbelieved the defendant’s testimonyconcerning her reason for enterin g the hospital on the e vening of the of

fense . The defendant’s untruthfulness reflects poorly upon her potential for rehabilitation. See United States

v. Grayson , 438 U.S. 41, 52, 98 S. Ct. 2610, 2616 (1978); State v. Bunch , 646 S.W.2d 158, 160-61 (Tenn. 1983); State v. Byrd , 861 S.W.2d 377, 380 (Tenn. Crim. App. 1993).

The defendant claims that the case should be remanded for a new probation hearing because the trial court did not consider her proof of employment. At the second probation hea ring, th e defendant pres

ented a letter fr

om the manager of

Ryan’s Steakhouse

confirming her e

mployment, and defense counsel reminded the court of the letter at the reconsideration hearing. Furthermor e, boththe defendant a

nd the defendant

’s aunt testified a

t the reconsid

e ration hearing that the defendant

was working. At the conclusion of the testimony, the court stated that it had considere d t he defendant’s social history, and it congratulated the de fendant for improving her life. Thus, we believe that the court considered the defendant’s employment but denied probation based upon the prior violations of probation. The trial court properly sentenced the defendant to confinement based upon her previous inability to conform to the requirements of probation. SeeTenn. Code Ann. 40- 35-103(1)(C).

Based upon the foregoing and the record as a whole, we affirm the trial court’s sentence of incarceration.