State v. Cassandra McKissack ( 1999 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
JANUARY SESSION, 1999 March 15, 1999
Cecil W. Crowson
STATE OF TENNESSEE, ) Appellate Court Clerk
C.C.A. NO. 01C01-9711-CC-00543
)
Appellee, )
)
) COFFEE COUNTY
VS. )
) HON. GERALD EWELL
CASSANDRA 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 Street Attorney General and Reporter
Manchester, TN 37355
GEORGIA BLYTHE FELNER
Assistant Attorney General
425 Fifth Avenu e North
Nashville, TN 37243-0493
MICKEY LAYNE
District Attorney General
KENNETH SHELTON, JR.
Assistant District Attorney
P. O. Box 147
Manchester, TN 37355
OPINION FILED ________________________
AFFIRMED
JERRY L. SMITH, JUDGE
OPINION
On April 16, 1997, Appellant Cassandra McKissack pleaded guilty to one
count of theft over $10,000.00. On October 15, 1997, the trial court sentenced
Appellant as a Range I standard offender to a term of four years in the
Tennessee Department of Correction. Appellant challenges her sentence, raising
the following issues:
1) whether her sentence is excessive; and
2) whether she was entitled to probation.
After a revie w of the re cord, we affirm the ju dgme nt of the trial co urt.
I. FACTS
The record ind icates tha t beginnin g in Aug ust of 199 5, Appe llant began
making regular visits to the hom e of her eighty-four-ye ar-old wheelchair-bound
uncle, J. C. Biles, in orde r to che ck on him a nd he lp take care o f his house. At
some time thereafter, Appellant began taking steps to have Biles put in a nursing
home and began discussions with oth er fam ily mem bers abou t who shou ld have
control of B iles’ assets .
After some discussions between Appellant and her brother and sister,
Appellant’s brother took Biles to the office of a notary for the purpose of having
Biles grant a powe r of attorney to Appellant’s sister. While Appellant’s brother
was taking Biles in to the n otary’s office in order to complete the power of
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attorney, Appellant arrived, took the documents that granted the power of
attorney, a nd tore th em up .
In August of 1996, Appellant forged Biles’ signature on a document which
purported to grant her a power of attorney. Appellant then took the docu ment to
her codefendant and had the codefendant notarize the docum ent. A few days
later, Appellant and her codefendant went to Biles’ bank and withdrew
$39,892.00 from Biles’ account. Appellant then took the money and deposited
it in another bank in an account under the names of Appellant and Biles.
Appellant subsequently gave $5,000.00 of the money to her codefendant and she
used another $2,000.00 to post their bond after they had been charged in this
matter.
II. LENGTH OF SENTENCE
Appellant contends that the trial court erroneously sentenced her to a
longer term than she deserves. Specifically, Appellant argues that the trial court
misa pplied an enhancement factor when it determined the length of her
sentence.
“When reviewing senten cing issu es . . . including the granting or denial of
probation and the length of senten ce, the ap pellate court shall cond uct a de novo
review on the record of such issues. Such review shall be conducted with a
presumption that the determinations made by the co urt from which the ap peal is
taken are correct.” Tenn . Code Ann. § 40-35-401(d) (1997). “However, the
presumption of correctness which accompanies the trial court’s actio n is
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conditioned upon the affirmativ e showing in th e record that the trial cou rt
considered the sentencing principles and all rele vant facts a nd circum stance s.”
State v. Ashby, 823 S.W .2d 166, 169 (Tenn. 199 1). In conducting our review, we
must cons ider all th e evide nce, th e pres enten ce rep ort, the s enten cing p rinciples,
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 offense, and the defendant’s potential
for rehabilitation. Tenn. Code Ann. §§ 40-35-103(5), -210(b) (1997 & Supp.
1998); Ashby, 823 S.W .2d at 169 . “The de fendant has the burden of
demonstrating that the sentenc e is imprope r.” Id. Because the record in this
case indicates that the trial court properly considered the sentencing principles
and all relevant facts and circumstances, our review is de novo with a
presumption of correctness.
In this case, Appellant pleaded gu ilty 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 felony is between three and six years.
Tenn. Code Ann. § 40-35-112(a)(3) (1997). When both enhancement and
mitigating 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 factors, and then reduce the sentence within the range as
approp riate for the mitigating factors. T enn. Cod e Ann. § 40 -35-210(e) (19 97).
In enhancing Appellant’s sentence from three to four years, the trial court
found that enhancement factor (4) applied because the victim was p articula rly
vulner able due to age or physical or mental disa bility. See Tenn . Code Ann. §
40-35-114(4) (1997). The trial court also found that mitigating factor (1) applied
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because Appellant’s conduct neither caused nor threatened serious bodily injury.
See Tenn. C ode Ann . § 40-35-113 (1) (1997).
Appellant claims that the trial court erred when it applied enhancement
factor (4) because there was no proof that Biles had any disability other than age.
Howeve r, the record indicates that Appellant stipulated at the sentencing hearing
that this factor w as app licable. Inde ed, the record indicates that the following
colloquy took place during the sentencing 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 addressed in the pre-sentence report itself[,] but for the
purpose of sentencing in this matter, the enhan ceme nt factor tha t a victim
of the offense was particularly vulnerable because of age or physical or
mental disability, in essence, I am filing Mr. Biles as an exh ibit before the
Court.
THE COUR T: Bring Mr. Biles around.
MR. RAM SEY: W e don’t dispute that, may it pleas e the C ourt. W e’ll
stipulate that he is in a wheelchair and infirm.
(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. Biles, how are you this morning?
MR. BILES: All right, sir. How are you?
THE COUR T: Fine. Mr. Shelton, do you want to swear him in?
MR. SHELTON: No, sir, just for the Court’s observation and since
Mr. Ram sey stipula tes that fac t—
The record also indicates that Appellant’s counsel made no further reference to
this enhancement factor in his clos ing arg ume nt. W e hold that, having stipulated
at the sentencing hearing that enhancement factor (4) was applicable, Appellant
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 rule shall be construed as requiring relief
be granted to a pa rty responsible for an error or who faile d to take whatever
action was reasonably available to prevent or nullify the error.”). Therefore, we
hold that a four year sentence is entirely appropriate in this case.
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II. PROBATION
Appellant contends that the trial court erred when it failed to grant
probation in this case.1 We disagree.
Under Tennessee law, a d efend ant is e ligible for probation if the sentence
impo sed is eight years or less and further, the trial court is required to consider
probation as a sentencing alternative for eligible defendants. Tenn. Code Ann.
§ 40-35-303(a)–(b) (1997). However, even though probation must be
autom atically conside red, “the d efenda nt is not automatically entitled to probation
as a matter of law.” Tenn. Code Ann. § 40-35-303(b) (1997) (Sentencing
Commission Com ments ); State v. Hartley, 818 S.W.2d 370, 373 (Tenn. Crim.
App. 1991). Indeed, a defendant seeking full probation bears the burden on
appeal of showing that the sentence actually imposed is imp roper and th at full
probation will be in both the best interest of the defendant and the pub lic. State
v. Bingham, 910 S.W.2d 448, 456 (Tenn. Crim. App. 1995). When determining
suitability for probation, the se ntencing cou rt considers the following factors: (1)
the nature and circumstances of the criminal conduct involved; (2) the
defen dant’s potential or lack of potential for rehabilitation, including the risk tha t,
during the period of probation, the defendant will commit another crime; (3)
whether a senten ce of full prob ation wo uld und uly depre ciate the seriousness of
the offense; and (4) whether a sentence other than full probation would provide
an effective deterrent to othe rs likely to com mit similar crimes. Tenn. Code Ann.
1
We note that our review on appeal is limited to the narrow question presented by Appellant of
whether the trial court erred when it failed to grant probation. Accordingly, this review does not address
the appropriateness of other sentencing alternatives.
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§§ 40-35-210(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 probation on both the circumstances of the criminal conduct and
Appellant’s lack of candor at the sentencing hearing. We agree with Appellant
that the circumstances of this offense, as reprehensible as they are, standing
alone, are not e nough to suppo rt a denial o f probation . See Bingham, 910
S.W.2d at 454 (“In order to d eny an a lternative sentence based on the
seriousness of the offense, the circumstances of the offenses as committed must
be especially violent, horrifying, shocking, reprehensive, offensive, or otherwise
of an exc essive or exagge rated de gree.”).
Howeve r, we also conclude that the record supports the trial court’s finding
that Appellant had lie d to the court a nd we hold that this alone was a prope r basis
for the den ial of proba tion. Indee d, this Co urt has p reviously sta ted that a
defen dant’s lack of cando r to the 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. Crim. App. 1997). The record also indicates that
during the sentencing hearing, Appellant maintained that instead of stealing the
money for her own use, she only took the money in order to take care of Biles
and protect him from oth er relatives w hom s he feare d would waste the money by
spending it on themselves. Failure to accept responsibility for one’s criminal
conduct also reflects poorly on rehabilitative potential and thus, is a basis for
denial of proba tion. State v. Zeolia , 928 S.W.2d 457, 463 (Tenn. Crim. App.
1996).
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Based on the circ umsta nces o f the offens e, Appe llant’s lack o f cando r to
the court, and Appellant’s failure to accept responsibility for her conduct, we hold
that the trial c ourt did not ab use its discre tion wh en it de nied p robatio n in this
case.
Accordingly, the judgment of the trial court is AFFIRMED.
____________________________________
JERRY L. SMITH, JUDGE
CONCUR:
___________________________________
JOHN H. PEAY, JUDGE
___________________________________
DAVID H. WELLES, JUDGE
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