State v. Patricia Morris ( 1998 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
JULY 1998 SESSION FILED
August 20, 1998
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, )
)
Appellee, ) C.C.A. No. 02C01-9710-CC-00397
)
vs. ) Hardeman County
)
PATRICIA MORRIS, ) HON. JON KERRY BLACKWOOD,
) JUDGE
)
Appellant. ) (Forgery)
)
FOR THE APPELLANT: FOR THE APPELLEE:
HARRIET S. THOMPSON JOHN KNOX WALKUP
101 W. Market Street Attorney General & Reporter
P.O. Box 331
Bolivar, TN 38008 GEORGIA BLYTHE FELNER
Assistant Attorney General
Cordell Hull Building, Second Floor
425 Fifth Avenue North
Nashville, TN 37243-0493
JERRY NORWOOD
Assistant Dist. Attorney General
302 Market Street
Somerville, TN 38068
OPINION FILED: _____________
AFFIRMED
CURWOOD WITT, JUDGE
OPINION
The defendant, Patricia Morris, appeals the Hardeman County Circuit
Court’s sentencing determinations in six counts of forgery. The defendant pleaded
guilty in counts (1), (2), and (3) of the indictment to forgery involving sums less than
$500 and in counts (4), (5), and (6) to forgery involving sums between $1,000 and
$10,000. The trial court accepted the pleas on all counts on October 2, 1997,
conducted the sentencing hearing on the same date, and imposed the following
sentences:
Counts 1 - 3 Class E 2 years each, concurrent;
Counts 4 - 6 Class D 4 years each, concurrent.
The defendant was sentenced as a Range II multiple offender. The effective two-
year sentence for counts 1 - 3 runs consecutively to the effective four-year sentence
for counts 4 - 6, for an aggregate effective sentence of six years; however, the trial
court ordered split confinement with respect to the two-year sentences. It
suspended the balance of the two-year sentences after the defendant serves nine
months in confinement. The four-year sentences were totally probated. These
sentences run consecutively to unexpired sentences which were previously imposed
in Hardin County. The trial court ordered the payment of restitution in the amount
of $3,637.00. In this direct appeal, the defendant complains that full probation
should have been granted and that the sentences imposed were excessive. After
review of the record on appeal, including the briefs of the parties, the transcript of
the sentencing hearing, the presentence report, and a report submitted by
Corrections Management Corporation, we affirm the judgment of the trial court.
The defendant pleaded guilty to the charged offenses which included
the forgery of checks in the amounts of $150, $300, $447.19, $2,500, and two for
$1,500 each. At the time of sentencing, defendant was 30 years old, married, and
a mother of three children aged two-years, one-year and one-month. She testified
that her history of writing forged and worthless checks was the result of previous
drinking and financial problems. Her history of check-writing offenses includes two
1997 misdemeanor convictions in Hardeman County, a third misdemeanor in 1994
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in Madison County, a fourth misdemeanor in 1992 in McNairy County, a fifth and
sixth misdemeanor in 1992 in Hardin County, a 1994 felony in Madison County, and
a 1992 felony in Hardin County. At least two of the misdemeanor sentences were
fully probated, and split confinement was ordered in other cases. Probation in
Hardin County was revoked on February 13, 1995. Based upon testimony given at
the sentencing hearing, the defendant remained on probation in Hardin County
when the offenses in the present case were committed. Furthermore, it appears
that previous to the offenses in the present case, the defendant twice offended
while on probation from prior convictions.
When there is a challenge to the length, range, or manner of service
of a sentence, it is the duty of this court to conduct a de novo review of the record
with a presumption that the determinations made by the trial court are correct.
Tenn. Code Ann. §40-35-401(d) (1997). This presumption is “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). “The burden of showing that the sentence is improper is
upon the appellant.” Id. In the event the record fails to demonstrate the required
consideration by the trial court, review of the sentence is purely de novo. Id. If
appellate review reflects the trial court properly considered all relevant factors and
its findings of fact are adequately supported by the record, this court must affirm the
sentence, “even if we would have preferred a different result.” State v. Fletcher, 805
S.W.2d 785, 789 (Tenn. Crim. App. 1991).
Initially, we note that the trial court made pertinent references to the
principles of sentencing contained in the Sentencing Reform Act and made detailed
findings of fact which support its sentencing determinations. As such, the trial
court’s judgment is presumptively correct. State v. Ashby, 823 S.W.2d 166, 169
(Tenn. 1991). Also, we find that the 1992 Hardin County felony conviction and the
1994 Madison County felony conviction, both for forgery, constitute two prior felony
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convictions which serve as predicates for the trial court declaring the defendant a
Range II multiple offender.
The trial court found three enhancement factors applicable. It found
that the defendant had a prior history of criminal convictions or behavior in addition
to that necessary to establish the sentencing range, that the February 13, 1995
revocation of probation in Hardin County illustrated the defendant’s unwillingness
to comply with sentences involving release in the community, and that the present
offenses were committed while the defendant was on probation on a felony offense
in Hardin County. See Tenn. Code Ann. § 40-35-114(1), (8), (13) (1997). The court
also found that the offenses were mitigated because the defendant’s conduct
neither caused nor threatened serious bodily injury and because the defendant
admitted her guilt. See Tenn. Code Ann.§ 40-35-113(1), (13) (1997). Further, the
court found that the enhancement factors outweigh the mitigating factors.
The record supports the above findings. The defendant maintains that
the trial court erred in not considering in mitigation the defendant’s willingness to
make restitution and her motivation in attempting to provide necessities for her
family.
If, by her reference to her willingness to make restitution, the
defendant is referring to the statutory mitigation factor set forth in Tennessee Code
Annotated section 40-35-113(5) (1997), the record does not support the claim.
Mitigating factor (5) applies when the defendant, before detection, “compensated
or made a good faith attempt to compensate the victim” for the damage or injury the
defendant caused. Tenn. Code Ann. § 40-35-113(5) (1997). The record reveals
no pre-detection attempt to compensate any victim. The defendant makes a point,
however, if her argument is submitted in the context of the catch-all factor,
see Tenn. Code Ann. § 40-35-113(13) (1997) (any other mitigating factor consistent
with the purposes of the sentencing code), because her promise to pay restitution
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is buttressed by her successful payment of restitution in some of the previous cases
that were identified in her record of convictions. However, in light of the applicable
enhancement factors, the mitigating factor is not of consequential weight.
We find that mitigating factor (7) does not apply. See Tenn. Code
Ann. § 40-35-113(7) (1997). There was no proof that the defendant was motivated
in committing the offenses by a desire to provide necessities for herself and her
family. She testified that the offenses were the result of financial problems, but she
offered no testimony nor any other proof that any family exigency attended the
commission of these crimes. Moreover, we note that the three checks upon which
counts (4), (5) and (6) were based were made payable to the defendant and totaled
$5,500 in amount.
The defendant’s other complaint about the sentences imposed by the
trial court is that probation should have been granted or that the period of
confinement should have been less than nine months.
The defendant stood before the trial court presumed to be a favorable
candidate for alternative sentencing. Tenn. Code Ann. § 40-35-102(6) (1997). She
was eligible for probation. Tenn. Code Ann. § 40-35-303(a) (1997). The defendant
received the benefit of a sentencing alternative in that the trial court ordered split
confinement. See Tenn. Code Ann. § 40-35-104(c) (1997); see also State v. David
E. Johnson, No. 02C01-9609-CR-00305, slip op. at 4 (Tenn. Crim. App., Jackson,
Aug. 22, 1997); State v. Judy R. Bailey, No. 03C01-9706-CC-00204, slip op. at 6
(Tenn. Crim. App., Knoxville, Feb. 4, 1997). Moreover, we note that “[m]easures
less restrictive than confinement have frequently or recently been applied
unsuccessfully to the defendant.” See Tenn. Code Ann. § 40-35-103(1)(C) (1997).
Such a finding overcomes the presumption of suitability for alternative sentencing.
Finally, the defendant’s claim to probation must fail. The burden rests
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upon the defendant to show that she merits probation. State v. Bingham, 910
S.W.2d 448, 455 (Tenn. Crim. App. 1995). Although this court is sympathetic to the
defendant’s plight as a mother of three small children and is even more sympathetic
to the plight of these children, this circumstance does not establish suitability for
probation where the defendant’s proclivity to check-writing offenses is chronic and,
to date, intractable. In short, there is nothing in the record that overcomes the
presumption that the trial court’s split confinement sentence is correct.
The judgment of the trial court is affirmed.
__________________________
CURWOOD WITT, JUDGE
CONCUR:
_________________________
JOE G. RILEY, JUDGE
_________________________
ROBERT W. WEDEMEYER, SPECIAL JUDGE
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