State v. Keffer

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE FILED OCTOBER SESSION, 1998 February 10, 1999

Cecil Crowson, Jr.

Appellate C ourt Clerk

STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9709-CC-00413 )

Appellee, )

)

) SEVIER COUNTY

VS. )

) HON. REX HENRY OGLE

BRENDA KAY KEEFER, ) JUDGE )

Appe llant. ) (Sentencing)

ON APPEAL FROM THE JUDGMENT OF THE CRIMINAL COURT OF SEVIER COUNTY

FOR THE APPELLANT: FOR THE APPELLEE:

DENNIS C. CAMPBELL JOHN KNOX WALKUP Assistant Public Defender Attorney General and Reporter 140A Court Avenue Sevierville, TN 37862 ELLEN H. POLLACK Assistant Attorney General 425 Fifth Avenu e North

Nashville, TN 37243

AL SCHMUTZER, JR.

District Attorney General

STEVE HAWKINS

Assistant District Attorney General Sevierville, TN 37682

OPINION FILED ________________________ AFFIRMED DAVID H. WELLES, JUDGE

OPINION

This is an appeal as of right pursuant to Rule 3 of the Tennessee Rules of Appe llate Proced ure. The D efenda nt, Brend a Kay K eefer, plea ded gu ilty to one count of Class B felon y theft. Sentencing was left to the discretion of the trial judge. After conducting a sentencing hearing, the trial judge sentenced the Defendant to ten yea rs in the D epartm ent of Correction. On appeal, the Defendant argue s that s he sh ould have received the minimum sentence of eight years and sho uld have been a llowed to s erve the s entenc e on pro bation. W e affirm the ju dgme nt of the trial co urt.

When an accused challenges the length, range, or manner of service o f a sentence, this Cou rt has a du ty to cond uct a de novo review of th e sente nce with a presumption that the determinations made by the trial co urt are co rrect. Tenn. Code Ann. § 40-35-401(d). This presumption is ?conditioned u pon the affirma tive showing in the record that the trial court considered the sentencing principles and all relevant facts and circumstanc es.” State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 19 91).

In conducting a de novo review of a sentence, this court must consider: (a)

the evidence, if any, receive d at the trial and sen tencing hea ring; (b) the presentence report ; (c) the p rinciples of senten cing and argum ents as to sentencing alternatives; (d) the nature and characteristics of the criminal conduct involved; (e) any statutory mitigating or enhancement factors; (f) any statement made by the defendant regarding sentencing; and (g) the potential or lack of

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potential for rehab ilitation or treatm ent. State v. S mith, 735 S.W .2d 859, 863 (Tenn . Crim. A pp. 198 7); Ten n. Cod e Ann. §§ 40-35-102, -103, -210.

If our review reflects that the trial court followed the statutory sentencing procedure, that the court imposed a lawful sentence after having given due consideration and pro per weig ht to the fac tors and principles set out under the sentencing law, and that the trial court’s findings of fact are adequately supported by the record, then we may not modify the sentence even if we would have preferred a different re sult. State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991 ).

The Defen dant wa s emp loyed as the boo kkeep er for a bu siness e ntity known as Delozier Management, which essentially operated and maintained the payro ll for several re tail establish ments , both in the Sevier C ounty area and out of state. Apparently, the Defendant’s primary responsibility was writing the checks and m aintaining the payroll accounts. Between 1993 and 1995, the Defendant develop ed and utilized a fraudulent check-writing scheme through which she stole almost a quarter of a million d ollars from her em ployer. Because she kept the company’s books, she was able to conceal her theft during the two and one-half year period in which the thievery occurred. The theft e ventu ally forced her employer into bankruptcy and obviously caused the owners of the business financial ha rdship. O ne of the b usiness owners testified that the amou nt of mo ney em bezzled by the De fendan t totaled $2 48,441 .37.

At the time of sentencing, the Defendant was forty years old, married, and had two adult children. She graduated from high s choo l and h ad be en ste adily

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employed all of he r adult life. She was des cribed as very smart, capable, and a good employee. She testified that once she started taking the money, she thought she would pay it back later, “and then it just got easier and easier from that, and I just got in way o ver my hea d.” She said she did not spend all of the money on hers elf, but let some o ther employe es share in her schem e and gave some of the money to members of her family. Although she did not keep up with how much she took, at the time the theft was detected she told the police that she thought she took ab out $120,00 0.00. She sa id that she had always had trouble dealing with finances. During this time the Defendant and he r husba nd built a house for about ninety-eight thousand dollars, but she testified that there was a ninety-two thousand dollar mo rtgage o n it. Other than saying that she spent the money on bills, clothing, furniture, and general expenses, the Defendant never explaine d where all the stolen mone y went.

The Defendant had no history of prior criminal convictions. On direct examination she stated that she left her prior job with the Sevierville Housing Author ity to work for Delozier Management because she “wanted a change of job.” On cross-examination, however, she admitted that she was forced to quit the previous job be cause she had been caught stealing from petty cash. She also admitted that earlier in her employment with Delozier Management, she had used checks from her employer to pay personal expenses amounting to about fifteen hundred dollars. When confron ted with this, the Defendant admitted her mistake and eventually paid the money back. Her employer allowed her to keep her job because she was a good, smart employee.

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W hile the Defendant was out on bond on these charges, and obvio usly after having been terminated from her employment, the Defendant utilized the services of United Parcel Service (UPS) to deliver personal items for her but charged the service s to her form er emp loyer’s UP S acco unt. She also wrote some bad checks during the time she was out on bond awaiting disposition of and sentencing for these charges.

In senten cing the D efenda nt, the court found and applied three enhancement factors: (1) that the Defendant ?has a previous history of criminal convictions or criminal behavior in addition to those necessary to establish the approp riate range”; (2) that the am ount of prope rty taken from the victim was particu larly great; and (3) that the D efenda nt ?abuse d a pos ition of . . . private trust, or used a specia l skill in a manner that significantly facilitated the commission . . . of the offense.” See Tenn. Code Ann. § 40-3 5-114(1), (6), (15).

Because the punishment for theft is enhanced based upon the amount taken, the Defendant argues that the trial judge erred by applying as an enhancement factor that the amount of property taken from the victim was particu larly great. See State v. Grissom, 956 S.W.2d 514, 518 (Tenn. Crim. App. 1997). In Grissom, the Defendant pleaded guilty to one count of Class C felony theft, which is the theft of property valu ed at ten thousand dollars or more, but less than sixty tho usand dollars. Id. at 516. The Defendant had embezzled appro ximate ly twenty-nine thousand dollars. The Grissom court pointed out that enhancement had b een a llowed in othe r case s whe n the a mou nt stole n had approached the amount necessary to put the offense into the next higher grade of theft. Id. at 518 n.4. Here, even though the Defendant pleaded guilty to the

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highest grade of theft, same being a Class B felony when the value of the property stolen is sixty thousand dollars or more, the proof at the sentencing hearing showed that the Defend ant stole over four tim es the am ount neces sary to qualify as a Class B felony. Under the c ircumstanc es of this case, we believe the trial court correctly applied th is enhance ment factor.

Concerning mitiga ting fac tors, the trial cou rt found that the Defe ndan t’s conduct neither caused nor threatened serious bodily injury and that the Defendant had assisted in recovering some of the property involved in the crime. Tenn. Code Ann. § 40-35-113(1), (10). At the time the Defendant was confronted with her crime, she voluntarily turned over three thousand nine-hundred eleven dollars in cash which she had on her person at the time.

The sentencing range for a standard offender convicted of a Class B felony is from eight to twelve years. The trial judge set the Defendant’s sentence at ten years — the midpoint in her range — and ordered that the sentence be served in the Department of Correction.

Because stealing over sixty thousand dollars is a Cla ss B fe lony, the re is no presumption that the Defendant is a suitable candidate for alternative sentencing options as afforded those convicted of a Class C, D , or E felony. See Tenn. Code Ann. § 4 0-35-10 2(6). Gu idance in determ ining wha t factors are to be conside red for altern ative sentences may be found in Tennessee Code Annotated § 40-35-103(1), which states:

Sente nces involving confinement should be based on the following considerations:

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(A) Confinement is necessary to protect society by restraining a defend ant who has a lon g history of c riminal co nduct;

(B) Confine ment is n ecessa ry to avoid depreciating the seriousness of the offense or confinement is particularly suited to provide a n effective deterrence to others likely to commit similar offenses; or (C) Measures less restrictive than confinement have frequently or recently b een ap plied uns uccess fully to the de fendan t . . . .

Tenn. Code Ann. § 4 0-35-10 3(1); see Ashby, 823 S.W.2d at 169. A court may also apply the mitigating and enhancing factors set forth in Tennessee Code Annotated §§ 40-35-113 and -114, as they are relevant to the § 40-35-103 considerations. Tenn . Code Ann. § 40-35-2 10(b)(5) ; State v. Zeolia , 928 S.W.2d 457, 461 (T enn. C rim. App . 1996). F inally, ?the potential or lack of potential for rehabilitation of a defendant should be considered in determining whether [she] shou ld be granted a n alternative senten ce.” State v. Boston, 938 S.W.2d 435, 438 (Ten n. Crim. App . 1996) (citing Ten n. Code A nn. § 40-35-1 03(5)).

For a denial to occur ba sed on the circum stance s of the offe nse, ?the criminal act, as committed, must be <espec ially violent, horrifying, shocking, reprehensible, offensive, or otherwise of an excessive or exaggerated degree,’ and the nature of the offense m ust outweigh a ll factors favoring probation .” State v. Cleavor, 691 S.W.2d 541, 543 (Tenn. 1985) (quoting State v. Trav is, 622 S.W.2d 529, 534 (Tenn. 1981)). This principle has been codified in § 40-35- 103(1)(B), which provides for confinement to avoid depreciating the seriousness of the offens e. State v. Hartley, 818 S.W .2d 370, 375 (Tenn. Crim . App. 1991 ); see also State v. Fletcher, 805 S.W.2d 785, 787 (Tenn. Crim. App. 1991). Sentencing decisions should n ot, however, turn on a generalization of the crime committed, such as the fact that a d eath oc curred. State v. Bingham, 910 S.W .2d 448, 456 (Tenn. Crim . App. 1995 ).

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When a defen dant is no t afforded the pres umptio n of suitability for alternative sente ncing , the de fenda nt bea rs the b urden solely to establish that a sentence alterna tive wou ld “<subserve the ends of justice and the best intere sts of both the public and the defendant.’” Bingham, 910 S.W.2d at 456 (quoting Hooper v. State, 297 S.W.2d 78, 81 (Tenn.1956)). After sentencing the Defen dant, the tria l judge sta ted,

[j]ust let the Co urt say that if this person does n ot dese rve to go to the penitentiary for stealing $248,000.00 over several years’ period, to continue to commit crimes, to continue to steal from the same victims after you’ve been charged on the se offe nses , if she d oesn ’t deserve to go to the penitentiary, there’s not a person who has ever lived who deserve s to go to th e peniten tiary.

W e interpret this stateme nt to reflect the trial judge’s rather stron g concern with Defendant’s history of theft, the seriousness of the offense, the need for deterrence, and the Defendant’s questionable potential for rehabilitation.

Based upon our rev iew of th is record, we simply cannot conclude that the trial judge erred or abused his discretion by sen tencing the D efendant to se rve ten years in the Department of Correction as a Range I standard offender. The judgment of the trial court is accordingly affirmed.

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DAVID H. WELLES, JUDGE

CONCUR:

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GARY R. WADE, PRESIDING JUDGE

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THOMAS T. WOODALL, JUDGE