State v. Riffey

• Court: Court of Criminal Appeals of Tennessee
• Decided: April 17, 1997
• Docket: 03C01-9602-CC-00074
• Status: Published

Opinion

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.

1 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.

2 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

3 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

4 CONCUR:

___________________________ William M. Barker, Judge

___________________________ Curwood Witt, Judge