State v. Diane Taylor ( 2010 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
FEBRUARY 1999 SESSION
May 4, 1999
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, )
) C.C.A. No. 03C01-9806-CR-00210
Appellee, )
) Knox County
v. )
) Honorable Mary Beth Leibowitz, Judge
DIANE TAYLOR, )
) (Sentencing)
Appellant. )
FOR THE APPELLANT: FOR THE APPELLEE:
Mark E. Stephens John Knox Walkup
District Public Defender Attorney General & Reporter
1209 Euclid Avenue 425 Fifth Avenue North
Knoxville, TN 37921 Nashville, TN 37243-0493
Paula R. Voss Todd R. Kelley
Assistant Public Defender Assistant Attorney General
1209 Euclid Avenue 425 Fifth Avenue North
Knoxville, TN 37921 Nashville, TN 37243-0493
(On Appeal)
Randall E. Nichols
Julia C. Auer District Attorney General
Assistant Public Defender 400 Main Street
1209 Euclid Avenue Knoxville, TN 37901-1468
Knoxville, TN 37921
(At Trial) William J. Blevins
Assistant District Attorney General
400 Main Street
Knoxville, TN 37901-1468
OPINION FILED: ______________________________
AFFIRMED
L. T. LAFFERTY, SENIOR JUDGE
OPINION
The defendant, Diane Taylor, indicted for six counts of passing worthless checks,
a Class D felony, entered pleas of guilty in four of the six counts. A sentencing hearing
was requested for the trial court to determine if each count should be served concurrently
or consecutively with prior unserved sentences in Kentucky. The trial court ordered the
sentences to be served concurrently with each other but consecutively to the Kentucky
sentences.
In this appeal of right, the defendant challenges the trial court’s imposition of
consecutive sentences. After a review of the record, briefs of the parties, and applicable
law, we affirm the judgment of the trial court.
BACKGROUND
In the July term of 1997, the Knox County grand jury returned a presentment
accusing the defendant of passing six worthless checks to various business in November,
1996. The worthless checks were in the amounts of $1,200.00, $2,381.49, $970.42,
$3,030.98, $2,527.57, and $1,604.02, totaling $11,714.48. On January 20, 1998, the
defendant entered four pleas of guilty, in counts 1, 2, 5, and 6, to passing worthless
checks, a Class D felony. Counts 3 and 4 were dismissed. The agreed sentences were
four years on each count to run concurrently; however, the trial court was to determine if
the sentences would be served concurrently or consecutively with present Kentucky
sentences. A presentence report was requested for the sentencing hearing of February
13, 1998. The record does not contain a transcript of the guilty plea hearing.
SENTENCING HEARING
As of February 13, 1998, the defendant was serving a six-year sentence imposed
by the Circuit Court of Fayette County, Kentucky. The defendant also had a sentencing
hearing pending in the Circuit Court of Jefferson County, Kentucky to determine if a five-
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year sentence would be served concurrently or consecutively to the six-year sentence.
These sentences are for the defendant’s convictions of theft by deception, bad checks.
The defendant testified she is a resident of Kentucky and that her family resides in
Lexington, Kentucky. The defendant verified she began serving her six-year sentence in
April, 1997. In October, 1996, the defendant was employed at a video store in Lexington,
Kentucky. The defendant, describing herself as having emotional problems and suffering
from depression and low self-esteem, developed a relationship with two of her bosses,
Branton Johnson and Clayton Lewis. The defendant had sought treatment for her mental
problems and so advised Johnson and Lewis. The defendant developed a closer
relationship with Johnson, describing the relationship as “really good friends, or so I
thought.”
In October and November, 1996, both Johnson and Lewis had the defendant write
bad checks in Kentucky and Tennessee. Johnson would tell the defendant where to go,
exactly what to buy, and then the defendant would write out the checks. During the
transactions, Johnson would maintain contact with her by a cellular phone. On each
occasion, at least one of the men would accompany her. She gave them the proceeds,
keeping nothing for herself. The defendant related that it was Johnson’s idea to come to
Tennessee and commit these offenses. The defendant testified that she was mentally
coerced into writing the various worthless checks. However, she admitted that she wrote
the checks, accepted her responsibility, and knew that it was wrong. The defendant
admitted she had a past history of misdemeanor convictions for passing worthless checks
in 1991. Also, the defendant advised the trial court that she had eight counts of theft by
deception dismissed in Fayette County, Kentucky. At the conclusion of the sentencing
hearing, the trial court ordered the sentences to be served consecutively to the Kentucky
sentences.
SENTENCING CONSIDERATIONS
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The defendant contends her convictions do not meet the criteria required by law for
consecutive sentencing, and the trial court failed to place on the record the reasons for
consecutive sentencing in violation of the Sentencing Act of 1989. The state disagrees,
but concedes the trial court failed to fully comply with the statutory principles of sentencing,
and the presumption of correctness does not apply.
When there is a challenge to the length, range, or matter of service of a sentence,
it is the duty of this Court to conduct a de novo review with a presumption that the
determinations made by the trial court are correct. Tenn. Code Ann. § 40-35-401(d). 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); see State v. Jones, 883 S.W.2d 597, 600
(Tenn. 1994). The Sentencing Commission Comments provide that the burden is on the
defendant to show the impropriety of the sentence.
Our review requires an analysis of: (1) the evidence, if any, received at the trial or
sentencing hearing; (2) the presentence report; (3) the principles of sentencing and the
arguments of counsel relative to sentencing alternatives; (4) the nature and characteristics
of the offense; (5) any mitigating or enhancing factors; (6) any statements made by the
defendant in her own behalf; and (7) the defendant’s potential for rehabilitation or
treatment. Tenn. Code Ann. §§ 40-35-102 to -103, -210; State v. Smith, 735 S.W.2d 859,
863 (Tenn. Crim. App. 1987). Although the defendant and the state contend the trial court
did not comply with the sentencing principles of the Sentencing Act of 1989, our review of
the record leads us to believe the trial court substantially complied with sentencing
principles. Thus, our review is with a presumption of correctness.
Consecutive sentences may be imposed in the discretion of the trial court, based
upon a preponderance of the evidence, only upon a determination that one or more of the
following criteria exists:
(1) The defendant is a professional criminal who has
knowingly devoted such defendant’s life to criminal
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acts as a major source of livelihood;
(2) The defendant is an offender whose record of criminal
activity is extensive;
(3) The defendant is a dangerous mentally abnormal
person so declared by a competent psychiatrist who
concludes as a result of an investigation prior to
sentencing that the defendant’s criminal conduct has
been characterized by a pattern of repetitive or
compulsive behavior with heedless indifference to
consequences;
(4) The defendant is a dangerous offender whose
behavior indicates little or no regard for human life,
and no hesitation about committing a crime in which
the risk to human life is high;
(5) The defendant is convicted of two (2) or more
statutory offenses involving sexual abuse of a minor
with consideration of the aggravating circumstances
arising from the relationship between the defendant
and victim or victims, the time span of defendant’s
undetected sexual activity, the nature and scope of
the sexual acts and the extent of the residual, physical
and mental damage to the victim or victims;
(6) The defendant is sentenced for an offense committed
while on probation; or
(7) The defendant is sentenced for criminal contempt.
Tenn. Code Ann. § 40-35-115(b).
Our review of this issue reveals that Tenn. R. Crim. P. 32(c)(2) is also relevant. “If
the defendant has additional sentences or portions thereof to serve, as the result of
conviction in other states or in federal court, the sentence imposed shall be consecutive
thereto unless the court shall determine in the exercise of its discretion that good cause
exists to run the sentences concurrently and explicitly so orders.” State v. Michael S.
Holmes, No. 02C01-9802-CC-00048, 1998 WL 779612, at *6 (Tenn. Crim. App., Jackson,
November 10, 1998).
At the sentencing hearing, the trial court found the defendant had several prior
convictions for theft by deception (worthless checks in Kentucky), the defendant had similar
offenses pending in a sentencing hearing in Kentucky, the defendant had eight similar
counts dismissed in Fayette County, Kentucky, and the defendant had a prior
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misdemeanor conviction for passing a worthless check in 1991. Furthermore, the trial
court found that the fraudulent checks were for an enormous amount of money, close to
$10,000,1 causing major harm to the victims in this state, and the defendant traveled to
Tennessee and engaged in writing these worthless checks, knowing full well that it was
wrong. The trial court also found that the defendant may have been threatened in
committing these offenses; that she did not receive any of the proceeds; and that the
incidents presented no physical injury to others. The trial court commented on the fact that
had the defendant never been in Kentucky but committed only the Tennessee offenses,
she would probably be eligible for probation, stating, “I wish I could do something in
between what I have here, in between the two. I’m not sure how I could possibly structure
such a thing. I really can’t.”
There has been no showing of good cause which would dictate the running of these
sentences concurrently with the defendant’s Kentucky convictions. The trial court did not
find any, nor do we. The judgment of the trial court is affirmed.
________________________________________
L. T. LAFFERTY, SENIOR JUDGE
CONCUR:
___________________________________
JERRY L. SMITH, JUDGE
___________________________________
THOMAS T. WOODALL, JUDGE
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The actual amount totaled $11,714.48.
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