# FILED
March 15, 1999 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT NASHVILLE JANUARY SESSION, 1999 STATE OF TENNESSEE, ) C.C.A. NO. 01C01-9711- CC-00543 ) Appellee, ) ) ) COFFEE COUNTY VS. ) ) HON. GERALD EWELL CASSAND RA MCKISSACK, ) JUDGE ) Appe llant. ) (Direct Appeal- Theft over $10,000)

FOR THE APPELLANT : FOR THE APPELLEE : CHARLES S. RAMSEY, JR. JOHN KNOX WALKUP 114 North Spring St reet Attorney Generaland Reporter Manchester, TN 37355 GEORGIA BLYTHE FELNER Assistant Attorney General 425 Fifth Avenu e North Nashvill e, TN 37243-0493 MICKEY L

AYNE Distri ct Attor ney General KENNETH SHELTON, JR. Assistant Distri ct Attor ney P. O. Box 147 Manchester, TN 37355
OPINION FILED ________________________ AFFIRMED JERRY L . SMI TH, J UDGE-2- 

## OPINION

On April 16, 1997, Appellant Cassandr a McKissack pleaded gui lty to one count of theft

over$10,000.00. On October 15, 1997, the tri al court s entenced Appellant

as aRang e I stan dard of fen der to a term o f four year s in the Tennessee Departmen t of Correction. Appellant challenges her s entence, rai sing the following i ssues: 1) whether her

sentence is excessive; and 2) whether she was e ntitl ed to probati on.

After a revie w of the re cord, we affirm the ju dgme nt of the trial co urt.

I. FA CTS

The record ind icates tha t beginnin g in Aug ust of 199 5, Appe llant beg an making regular visits to the hom e of her eighty-four-ye ar-old wheelchair- bound uncle, J. C. Bil es, in orde r to che ck on him a nd he lp take care o f his house. At
some time thereafter, Appellant bega n taking steps to have Biles put in a nursi ng home and began discussi ons with oth er fam ily mem bers abou t who shou ld have control of B iles’ assets
.
After some discussions bet ween Appellant and her brother an d sister, Appellant’ s brother took Biles to the office of a notary for the purpose of having Biles grant a powe r of attorn ey to Appellant’ s sister . While Appellant’s brother
was taking Biles in to the n otary’s offic e in order to complete the power of-3-

attorney, A p pellant arrived, took the documents t hat granted t he power of attorney, a nd tore th em up .

In August of 1996, Appellant forged Bil es’ signature on a document which purported to grant her a power of attorney. Appell ant then took the docu ment to her codefendant and had t he codefenda nt notar ize the docum ent. A few days later, Appellant and her codefen dant we nt to Bil es’ bank and wit hdrew $39,892.00 from Biles’account. Appel lant then took the mone y and deposited it in ano ther ba nk in an account under the names of Appellant and Biles. Appellant

subsequently

gave $5,000.00 of

the mon ey to her codefendant and she used another $2,000. 00 to post t heir bond after they had been ch arged in this matter.

II.LENGTH OF SENTE NCE
Appellant

contends that

the tri al court er roneous l y sentenced her t o a longer term than she deser

ves. Specif icall y, Appell ant argues that the trial court misa ppli ed an enh ancement factor when it det ermined the l ength of her sentence.

“When reviewing senten cing issu es . . . incl uding the grant ing or deni al of probation and the length of senten ce, the ap pellate court shall cond uct a de novo review on the r eco rd of such i ssues. Such revi ew shall be conduc ted with a presumption that the determinati ons made by the co urt from which the ap peal is taken are correct.” Tenn . C ode Ann. § 40-35-401( d) (1997). “However, t he presumption of correctness which accompanies the tri al co urt’ s actio n is-4-

conditi oned upon the affir mativ e showing in th e record that the trial cou rt considered the sentencing pr incipl es and all rele vant facts a nd circum stance s.” State v. Ashby , 823 S.W .2d 166, 169 (Tenn. 199 1). In conduc ting ou r revi ew, we must cons ider all th e evide nce, th e pres enten ce rep ort, the s enten cing p rin ciple s, the enha ncing and m itigating factors , argum ents o f coun sel, the defen dant’s statem ents , the nature and character of the offens e, and the defendant’s potent ia l forrehabilitation. Tenn. Code Ann. §§ 40-35-103(5), -210( b) (1997 & Supp. 1998); Ashby , 823 S.W .2d at 169 . “The de fe ndant has the burden of demonstrating that the sentenc e is imprope r.” Id. Because the record in this case indicates that th e trialcourt properly consi dered the sente ncing pri nciples and all rel evant facts and circumstance s, our rev iew is de novo with a presumption of correctness.

In this case, Appellant pl ead ed gu ilt y to theft over $10,000, a Class C felony. See Tenn. Code Ann. §§ 39-14-103, - 105(4) (1997). The sentence for
a Range I offender

convicted of a Class C fel ony is between three and six years. Tenn. Code Ann. § 40-35-112(a) (3) (1997). When b oth en hancement and mitigati ng factors are app licable to a senten ce, the court is directed to begin w ith the minimum sentence, enhance the sente nce within the rang e as ap propriate for the enhancement factor s, and then reduce the senten ce with in the range as approp riate forthe mitigating factors. T enn. Cod e Ann. § 40 -35-210(e) (19 97).

In enhancing Appellant’s sentence fr om three to four years, the trial court found that enhancement factor (4) applied because t h e victim was p articula rly vulner able due to age or phys ical or ment al disa bilit y. See Tenn . Code Ann. § 40-35-114(4) (1997). The trial court als o found that mitigati ng factor ( 1) applied-5-

because Appellant’ s conduct neit her caused nor threatened serious bodily injury. See Tenn. C ode Ann . § 40-35-113 (1) (1997).
Appellant

claims that the trial co urt e rred when it applied enhancement factor (4) because there wasno proof that Biles had any disabil ity ot her than age. Howeve r, the record i ndicates t hat Appellant stipul ated at the sentencing hear ing thatthis factor w as app licable. Inde ed, th e record indi cates that the foll owing colloquy t

ook place duri ng the sentenci ng hearing: MR. SHE LTO N: [O]n e of the aggra vating c ircum stanc es, m ay it please the Co urt, in this case is the ph ysical c onditio n of the victim in this matter. That is ad dressed in t he pre-sentence report i tself[ ,] but f or the purpose of sentenci ng in thi s matter, t he enhan ceme nt factor tha t a victim of the offens e w as partic ularly vulnerabl e because of age or phy sical or mental disabil ity, in essence, I am fili ng Mr. Bile s as an exh ibit before the Court. THE COUR T: Bring Mr. Biles around. MR. RAM SEY: W e don’t di spute that, may it pleas e the C ourt. W e’ll sti pul atethat heis in a whe elc hai r an d in fi rm. (Thereup on Mr. Biles wa s brought be fore the Cou rt.) THE COURT: Wh at age is the ge ntlem an? D oes a nybod y know his age? SPEC TATO R: Eighty-six. THE COUR T: Mr. Bil es, how are you t his morning? MR. BILES: All right, si r. How are you? THE COUR T: Fine. Mr. Shelton, do y ou want to swear hi m in? MR. SHELTON: No, sir, just for the Court’s observati on and since Mr. Ram sey stipula tes that fac t— The record also indicates that Appell ant’s counsel made no further refer ence to this enhancement factor in his clos ing arg ume nt. W e hold that, hav ing sti pulated at the sentencing hear ing that e nhancement factor (4) was appli cable, Appell ant cannot now attack the trial court’s ap plication of th at factor to h er sente nce. See Tenn. R. Ap p. P. 36 (a) (“N othing in this rul e shall be construed as requi ring relief be granted to a pa rty responsible for an error or w ho faile d to take whatever action was reasonably avai lable to preventor null ify t he error .”). Therefor e, we hold that a four year

sentence is ent irely

appropriate in thi s case.1 We note that our revi ew on appeal i s limitedto the narr ow question pr

esented by Appel lant of whether the t rial co urt erred whenit fai led to gr ant probation. According ly, this review does not addr ess the appropri ateness of othe r sentencingalternatives. -6- II . PROBA

TION
Appellant

cont e nds that t he trialcourt err ed when it failed to grant probation i n this case. 1 We disagree.

Under Tennessee law, a d efend ant is e ligible for probation i f the sentence impo sed is eightyears or l ess and furt her, the t rial cour t is requi red to consi der probation as a sentencing alternative for eligi ble defendants. Tenn. Code Ann. § 40-35-303(a)– (b) (1997). However, even t hough probation must be autom atically conside red, “the d efenda nt i s not automa tically entit led to probat ion
as a matter of l aw.” Tenn. Code Ann. § 40- 35-303(b) (199 7) (Sentenci ng Commission Com ments ); State v. Hartley , 8 18 S .W.2 d 370 , 37 3 (Te nn. Cri m. App. 1991) . Ind eed, a defendant seeking ful l probati on bears the burde n on appeal of showing that the sentence actual ly impose d is imp roper and th at full probation will be in both t he best interest of t he defendant and the pub lic. State
v. Bingham , 910 S.W.2d 448, 456 (Tenn. Cr im. App. 1995). When determining suitability for probation, the se ntencing cou rt considers the followi ng factors: (1) the nature and ci rcumstances of t he c riminal conduct involved; (2) the defen dant’s potentialor lack of potentialforrehabilitation, including the risk tha t, during the period of probati on, the defendant willcommit another cr ime; ( 3) whethera senten ce of full prob ation wo uld und uly depre ciate the seriousness of the offense; and (4) whether a sentenceother than f ull probat ion would prov ide
an effective deterrent

to othe rs likely to com mit similar crimes. Tenn. Code Ann.-7-

§§ 40-35-21 0(b)(4 ), -103(5), -1 03(1)(B ) (1997 & Supp. 1 998); Bingham , 910 S.W .2d at 456 (citations o mitted).
Although the rec ord is n ot entire ly clear, the trial court appare ntly based its denial of probati on on both the ci rcumstances of t he c riminal co nduct and Appellant ’s l ack of candor at the sentenci ng hearing. We agree with Appellant thatthe circumstances of this of fense, as reprehensibl e as they are, standing alone , are not e nough to suppo rt a denial o f probation
. See Bingham , 91 0 S.W.2d at 454 (“In order to d eny an a lternati ve sentence based on the seriousness of the off

ense, the circumstances of the offenses as committed must be especially vi olent, horri fying, shocking, reprehensive, offensive, or otherwi se of an exc essive or exagge rated de gree.”).

Howeve r, we also conclude that the r ecord supports

the tri al court’ s findi ng thatAppellant

had lie d to the court a nd we hold that this alone was a prope r basis f or the den ial of proba tion. Indee d, this Co urt has p reviously sta te d that a defen dant’s lack of cando r to t he co urt refle cts po orly on the de fenda nt’s rehabilitative potential and thus, is a basis for denial of

probatio n. State v. Leggs , 955 S.W.2d 845, 851–52 (Tenn. Cri m. App. 1997). The record also i ndicates t hat during the sentenci ng hearing, Appel lant maintained that instead of steali ng the
mone y for her own use, she only to ok the money in or der to take care of Bil es and protect him from oth er relatives w hom s he feare d would waste the money by
s pending it on themselves. Fail ure to accept responsibil ity for one’ s cr imina l conduct also refl ects poorl y on rehabil itative p ot ential a nd thus, i s a basis for denial of proba tion. State v. Zeolia , 928 S.W.2d 457, 463 (Tenn. Cr im. App. 1996).-8- Based on the circ umsta nces o f the offens e, Appe llant’s lack o f cando r to the court, and Appell ant’s fail ure to accept res ponsibi lit y for h er conduct , we hold thatthe trial c ourt did not ab use its discre tion wh en it de nied p robatio n in th is
case.

According ly, the j udgment of t he tr ial cour

t is AFFIRMED
.

____________________________________ JERRY L . SMI TH, J UDGE

CONCUR:

___________________________________ JOHN H. PEAY, JUDGE

___________________________________ DAVID H. WELLES , JUD GE