State of Tennessee v. Olivia Williams ( 2002 )


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  •          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
    AT KNOXVILLE
    Assigned on Briefs October 29, 2002
    STATE OF TENNESSEE v. OLIVIA WILLIAMS
    Direct Appeal from the Circuit Court for Cocke County
    No. 8422    Ben W. Hooper, II, Judge
    No. E2002-00687-CCA-R3-CD
    November 22, 2002
    The defendant pled guilty to one count of Class D felony theft over $10,000, received an agreed
    three-year sentence, and agreed to allow the trial court to determine the manner in which her
    sentence would be served. The trial court ordered the sentence to be served in incarceration. In this
    appeal, the defendant argues the trial court erred in denying alternative sentencing. We affirm the
    judgment of the trial court.
    Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
    JOE G. RILEY, J., delivered the opinion of the court, in which GARY R. WADE, P.J., and ROBERT W.
    WEDEMEYER, J., joined.
    Susanna L. Thomas, Newport, Tennessee, for the appellant, Olivia Williams.
    Paul G. Summers, Attorney General and Reporter; Angele M. Gregory, Assistant Attorney General;
    Al C. Schmutzer, Jr., District Attorney General; and Ronald C. Newcomb, Assistant District
    Attorney General, for the appellee, State of Tennessee.
    OPINION
    On October 4, 2001, the defendant pled guilty to taking over $10,000 worth of furniture and
    other items from the home of the victim, her fiancé, in November 2000. As part of the plea
    agreement, she received a three-year sentence. The parties agreed the trial court would hold a
    sentencing hearing to determine the manner in which she would serve the sentence.
    At the conclusion of the sentencing hearing, the trial court ordered the defendant incarcerated
    for the term of her sentence. The trial court found the defendant had made “constant
    misrepresentations” to the court and stated the defendant had “absolutely no credibility.” The trial
    court also noted she failed to cooperate with the court during the pendency of her case and further
    failed to cooperate in the preparation of her presentence report.
    The trial court further found the offense to be “terribly serious” because she used a
    relationship of trust to take advantage of the victim, which caused the victim great emotional
    distress. The lower court stated, “The deviousness of this whole situation . . . goes far beyond the
    acts of an ordinary criminal and thief.” It found the defendant had “been in trouble before” and
    noted that none of the stolen property had been returned to the victim.
    The trial court denied any form of alternative sentencing, and the defendant challenges this
    denial on appeal. We reject defendant's arguments.
    STANDARD OF REVIEW
    This court’s review of the sentence imposed by the trial court is de novo with a presumption
    of correctness. 
    Tenn. Code Ann. § 40-35-401
    (d). This presumption is conditioned upon an
    affirmative showing in the record that the trial judge considered the sentencing principles and all
    relevant facts and circumstances. State v. Pettus, 
    986 S.W.2d 540
    , 543 (Tenn. 1999). If the trial
    court fails to comply with the statutory directives, there is no presumption of correctness and our
    review is de novo. State v. Poole, 
    945 S.W.2d 93
    , 96 (Tenn. 1997).
    The burden is upon the appealing party to show that the sentence is improper. 
    Tenn. Code Ann. § 40-35-401
    (d) Sentencing Commission Comments. In conducting our review, we are
    required, pursuant to Tennessee Code Annotated section 40-35-210, to consider the following factors
    in sentencing:
    (1) [t]he evidence, if any, received at the trial and the sentencing
    hearing; (2) [t]he presentence report; (3) [t]he principles of sentencing
    and arguments as to sentencing alternatives; (4) [t]he nature and
    characteristics of the criminal conduct involved; (5) [e]vidence and
    information offered by the parties on the enhancement and mitigating
    factors in §§ 40-35-113 and 40-35-114; and (6) [a]ny statement the
    defendant wishes to make in the defendant’s own behalf about
    sentencing.
    Under the Criminal Sentencing Reform Act of 1989, trial judges are encouraged to use
    alternatives to incarceration. An especially mitigated or standard offender convicted of a Class C,
    D or E felony is presumed to be a favorable candidate for alternative sentencing options in the
    absence of evidence to the contrary. 
    Tenn. Code Ann. § 40-35-102
    (6).
    In determining if incarceration is appropriate, a trial court may consider the need to protect
    society by restraining a defendant having a long history of criminal conduct, the need to avoid
    depreciating the seriousness of the offense, whether confinement is particularly appropriate to
    effectively deter others likely to commit similar offenses, and whether less restrictive measures have
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    often or recently been unsuccessfully applied to the defendant. 
    Tenn. Code Ann. § 40-35-103
    (1);
    see also State v. Ashby, 
    823 S.W.2d 166
    , 169 (Tenn. 1991).
    A court may also consider the mitigating and enhancing factors set forth in Tennessee Code
    Annotated sections 40-35-113 and 114 as they are relevant to the section 40-35-103 considerations.
    
    Tenn. Code Ann. § 40-35-210
    (b)(5); State v. Boston, 
    938 S.W.2d 435
    , 438 (Tenn. Crim. App. 1996).
    Additionally, a court should consider the defendant’s potential or lack of potential for rehabilitation
    when determining if an alternative sentence would be appropriate. 
    Tenn. Code Ann. § 40-35-103
    (5);
    Boston, 
    938 S.W.2d at 438
    . The trial court may consider the defendant's untruthfulness and lack of
    candor as they relate to the potential for rehabilitation. State v. Nunley, 
    22 S.W.3d 282
    , 289 (Tenn.
    Crim. App. 1999).
    There is no mathematical equation to be utilized in determining sentencing alternatives. Not
    only should the sentence fit the offense, but it should fit the offender as well. 
    Tenn. Code Ann. § 40-35-103
    (2); State v. Batey, 
    35 S.W.3d 585
    , 588-89 (Tenn. Crim. App. 2000). Indeed,
    individualized punishment is the essence of alternative sentencing. State v. Dowdy, 
    894 S.W.2d 301
    , 305 (Tenn. Crim. App. 1994). In summary, sentencing must be determined on a case-by-case
    basis, tailoring each sentence to that particular defendant based upon the facts of that case and the
    circumstances of that defendant. State v. Moss, 
    727 S.W.2d 229
    , 235 (Tenn. 1986).
    ANALYSIS
    In the instant case, the proof in the record shows the defendant was involved in a close
    relationship with the victim. Although the defendant denied she was engaged to the victim, she
    admitted she accepted an engagement ring from him and “went along with it” when he told others
    they were engaged. According to the victim’s statements included in the presentence report, the
    defendant asked the victim to wait until 9:00 p.m. to return home on the date of the offense because
    she had a surprise for him. When he arrived home, he discovered his furniture, big screen television,
    and numerous other household items were missing. The victim’s mother testified that virtually
    everything in the house was taken except the dining room table and four chairs.
    The defendant testified at sentencing that she was at the victim’s house when the theft
    occurred, but her live-in boyfriend, Shawn Meeks, actually committed the offense. The victim’s
    mother testified she confronted the defendant about the theft; the defendant said she took the
    furniture to a relative’s house and promised to return it. The proof indicated none of the stolen
    property was returned. At the plea hearing, the defendant’s counsel said the items might be returned
    shortly. At sentencing, the defendant testified she tried to contact the man who purchased the stolen
    property, and she provided all the information she had about the location of the stolen property.
    The victim, in his written statement, indicated he was “severely” depressed and in great
    emotional distress as a result of the offense. The victim’s mother testified the victim was “absolutely
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    an emotional wreck,” had to seek counseling, did not leave the house for three months following the
    offense, and was in a “deep, deep depression.”
    The record indicates the defendant made misstatements to the trial court regarding hiring an
    attorney. Further, the record shows the defendant failed to keep her appointment or make contact
    with the presentence investigator who was preparing her presentence report. The presentence report
    quoted the defendant as saying she received bad advice from a person whom the defendant declined
    to identify. The report also showed the defendant was convicted of misdemeanor theft in April 2001.
    After a thorough review of the record, we conclude the trial court considered the appropriate
    sentencing principles and all relevant facts and circumstances. Therefore, our review of the sentence
    imposed will be de novo with a presumption that the trial court’s determinations were correct. We
    conclude the state overcame the defendant’s presumption of being a favorable candidate for
    alternative sentencing and further conclude the defendant has failed to meet her burden of showing
    her sentence was improper.
    The evidence presented through the testimony of the witnesses at the sentencing hearing,
    including the defendant, and the information contained in the presentence report supported the trial
    court’s finding that incarceration was necessary in order to avoid the depreciation of the seriousness
    of the offense. Further, the trial court’s implicit consideration of enhancement factor (15), the
    defendant abused a position of private trust, see 
    Tenn. Code Ann. § 40-35-114
    (15), was appropriate.
    Finally, the trial court properly considered the defendant’s lack of potential for rehabilitation as
    demonstrated by her misrepresentations to the trial court, her total lack of credibility with the trial
    court, her failure to cooperate in the preparation of her presentence report, and her broken promises
    to restore the victim’s property. Given the facts contained in the record, we cannot conclude the
    defendant’s sentence is improper. In this regard, the trial court was in a much better position than
    this court to judge the defendant's credibility and rehabilitation prospects. We affirm the judgment
    of the trial court.
    _______________________________________
    JOE G. RILEY, JUDGE
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