State v. Riffey ( 1997 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
JANUARY 1997 SESSION
April 17, 1997
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, * C.C.A. # 03C01-9602-CC-00074
Appellee, * SULLIVAN COUNTY
VS. * Hon. Frank L. Slaughter, Judge
DANIEL EDWARD RIFFEY, * (Seven Counts of Forgery)
Appellant. *
For Appellant: For Appellee:
Leslie S. Hale Charles W. Burson
Assistant Public Defender Attorney General & Reporter
P.O. Box 839
Blountville, TN 37617 Sarah M. Branch
Assistant Attorney General
Criminal Justice Division
450 James Robertson Parkway
Nashville, TN 37243-0493
Edward E. Wilson
Asst. District Attorney General
P.O. Box 526
Blountville, TN 37617
OPINION FILED: __________________
AFFIRMED
GARY R. WADE, JUDGE
OPINION
The defendant, Daniel Edward Riffey, pled guilty to seven counts of
forgery. See Tenn. Code Ann. § 39-14-114. After classifying the defendant as a
Career Offender, the trial court imposed a sentence of six years for each count, all
to be served concurrently to each other but consecutively to a prior ten-year
sentence. The sole issue on appeal is whether the trial court erred by denying
probation. We find no error and affirm the judgment of the trial court.
Two of the forgeries occurred in January of 1995, when the defendant
altered the amount on his payroll check from Temporaries, Inc. In the first instance,
he changed the amount from $219.68 to $319.68;1 in the second, he changed the
amount from $81.04 to $281.04. The other five forgeries occurred a few months
later when the defendant intercepted an insurance check from Grange Mutual
Insurance Company and altered the check to show himself as the payee. He then
made copies of the altered check, passing forged checks for amounts of $283.00,
$224.00, $184.00, $354.00, and $145.00. The defendant explained that he
committed the last five forgeries because he had lost his job and needed to support
his family.
The presentence report established that the defendant had fifty-one
convictions for forgery in 1994, the offenses occurring throughout 1993. He
received an effective sentence of ten years and was apparently on some form of
release when he committed these seven offenses. Due to a birth defect, the
defendant has only one arm. Twenty-nine years old at the time of sentencing, the
defendant completed eleventh grade. His employment history is sporadic.
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The tra nscript of the guilty plea ind icates the defend ant cha nged the check from $219.68 to
$319.68. The presentence report indicates the original amount of the check was $119.68.
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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 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). 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 and 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 his own behalf; and (7) the defendant's
potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103, and -
210; State v. Smith, 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987).
Among the factors applicable to the defendant's application for
probation are the circumstances of the offense, the defendant's criminal record,
social history, and present condition, and the deterrent effect upon and best interest
of the defendant and the public. State v. Grear, 568 S.W.2d 285, 286 (Tenn. 1978).
Especially mitigated or standard offenders convicted of Class C, D, or
E felonies are presumed to be favorable candidates "for alternative sentencing
options in the absence of evidence to the contrary." Tenn. Code Ann. § 40-35-
102(6). With certain statutory exceptions, none of which apply here, probation must
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be automatically considered by the trial court if the sentence imposed is eight years
or less. Tenn. Code Ann. § 40-35-303(a), (b).
Alternative sentencing issues must be determined by the facts and
circumstances of the individual case. State v. Moss, 727 S.W.2d 229, 235 (Tenn.
1986). "[E]ach case must be bottomed upon its own facts." State v. Taylor, 744
S.W.2d 919, 922 (Tenn. Crim. App. 1987).
Here, the defendant has obviously failed to overcome the presumptive
correctness of the ruling in the trial court. See Tenn. Code Ann. § 40-35-401(d).
His lengthy prior record fully warranted the denial of probation. See Tenn. Code
Ann. § 40-35-103(1)(A). While the defendant is technically eligible for probation due
to a sentence of less than eight years, there is no presumption that a Career
Offender is a favorable candidate for probation. See Tenn. Code Ann. § 40-35-
102(6). "[T]he burden of establishing suitability for probation rests with the
defendant." Tenn. Code Ann. § 40-35-303(b). The defendant has failed to meet
this burden.
Accordingly, the judgment is affirmed.
________________________________________
Gary R. Wade, Judge
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CONCUR:
___________________________
William M. Barker, Judge
___________________________
Curwood Witt, Judge
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