State v. Cassandra McKissack

Opinion

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.

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JERRY L. SMITH, JUDGE

CONCUR:

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JOHN H. PEAY, JUDGE

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DAVID H. WELLES, JUDGE