IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
APRIL 1999 SESSION
May 14, 1999
Cecil W. Crowson
Appellate Court Clerk
STATE OF TENNESSEE, )
) C.C.A. NO. 01C01-9807-CC-00300
Appellee, )
) MARSHALL COUNTY
VS. )
) HON. CHARLES LEE,
ANGELA SUE TITUS, ) JUDGE
)
Appellant. ) (Sentencing)
FOR THE APPELLANT: FOR THE APPELLEE:
N. ANDY MYRICK JOHN KNOX WALKUP
116 West Market St. Attorney General & Reporter
Fayetteville, TN 37334
CLINTON J. MORGAN
Asst. Attorney General
John Sevier Bldg.
425 Fifth Ave., North
Nashville, TN 37243-0493
MIKE McCOWN
District Attorney General
WEAKLEY E. BARNARD
Asst. District Attorney General
Marshall County Courthouse
Suite 407
Lewisburg, TN 37901
OPINION FILED:____________________
AFFIRMED
JOHN H. PEAY,
Judge
OPINION
The defendant was charged with aggravated burglary, two counts of theft
of more than one thousand dollars ($1000) but less than ten thousand dollars ($10,000),
and two counts of criminal responsibility. When she entered an open plea of guilty to
aggravated burglary and one count of theft, the remaining counts were dismissed.
Following a sentencing hearing, the trial court sentenced her to five years imprisonment
for aggravated burglary and three years imprisonment for theft, to run concurrently. The
defendant now appeals, arguing that her sentence is excessive and that she is entitled
to alternative sentencing. Finding no merit to her arguments, we affirm her sentences.
When a defendant complains of his or her sentence, we must conduct a de
novo review with a presumption of correctness. T.C.A. § 40-35-401(d). This
presumption, however, “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 burden of showing that the
sentence is improper is upon the appealing party. T.C.A. § 40-35-401(d) Sentencing
Commission Comments.
A portion of the Sentencing Reform Act of 1989, codified at T.C.A. § 40-35-
210, establishes a number of specific procedures to be followed in sentencing. This
section mandates the court’s consideration of the following in determining the specific
sentence and the possible combination of sentencing alternatives:
(1) The 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 §§
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40-35-113 and 40-35-114; and (6) [a]ny statement the
defendant wishes to make in his own behalf about sentencing.
T.C.A. § 40-35-210(b)(1)-(6).
In addition, this section provides that the presumptive sentence for Class B,
C, D & E felonies is the minimum sentence within the range. If there are enhancing and
mitigating factors, the court must start at the minimum sentence in the range and enhance
the sentence as appropriate for the enhancement factors and then reduce the sentence
within the range as appropriate for the mitigating factors. If there are no mitigating factors,
the court may set the sentence above the minimum in that range but still within the range.
The weight to be given each factor is left to the discretion of the trial judge. State v.
Shelton, 854 S.W.2d 116, 123 (Tenn. Crim. App. 1992).
As a Range I standard offender, the defendant faced a possible sentence
of three to six years for aggravated burglary, a Class C felony, and two to four years for
theft of property more than one thousand dollars ($1000) but less than ten thousand
dollars ($10,000), a Class D felony. See T.C.A. §§ 40-35-112(a)(3)-(4), 39-14-105(3), 39-
14-403(b). In sentencing the defendant, the trial court applied enhancement factors (1),
that the defendant has a previous history of criminal convictions or criminal behavior in
addition to those necessary to establish the appropriate range, and (15), that the
defendant abused a position of trust. See T.C.A. § 40-35-114(1), (15). The trial court
judge also applied mitigating factor (1), that the defendant’s criminal conduct neither
caused nor threatened serious bodily injury, but he gave this factor “very little weight.”
See T.C.A. § 40-35-113(1). Weighing these factors, the trial court sentenced the
defendant to five years on the aggravated burglary count and three years on the theft
count, to be served concurrently.
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In considering the defense’s argument for probation, the trial court found that
confinement in this case was “necessary to provide an effective deterrence to others likely
to commit similar offenses.” The trial court also found that the defendant had lied in court
and implicated “an innocent person” in the commission of these crimes, which the judge
deemed to “be particularly reprehensible and shocking.” Based on this, the trial court
denied alternative sentencing and ordered the defendant to serve her sentence in prison.
The defendant argues that the imposed sentence is excessive. Specifically,
she argues that because she has no prior criminal record, the trial court erred in applying
enhancement factor (1), that the “defendant has a previous history of criminal convictions
or criminal behavior in addition to those necessary to establish the appropriate range.”
T.C.A. § 40-35-114(1).
In applying enhancement factor (1), the trial court relied upon bad check
charges pending against the defendant that the defendant admitted were committed to
support her drug habit, the defendant’s admitted illegal drug use for several years, and the
trial court’s conclusion that she committed perjury when testifying on behalf of her
codefendant in his trial. The defendant contends that the trial court erred in relying upon
pending charges to enhance her sentence. When there is no evidence in the record that
pending charges are anything more than mere charges, a court may not rely upon the
charges as evidence of criminal behavior in order to apply enhancement factor (1). State
v. Buckmeir, 902 S.W.2d 418, 424 (Tenn. Crim. App. 1995). Here, however, the record
reflects that the defendant admitted writing the bad checks that were the subject of her
pending charges in order to support her drug habit. The trial court properly relied upon
the defendant’s admissions as evidence of criminal behavior under enhancement factor
(1).
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The defendant also argues that if the trial court cannot rely upon pending
charges in order to apply enhancement factor (1), then her drug activities, which are not
even the subject of charges against her, cannot be used either. The defendant testified
she used marijuana, cocaine, and cocaine derivatives from the age of fourteen until she
was arrested and that her drug habit cost two to three hundred dollars ($200-300) per day
for a period of approximately two years. The presentence report states that the defendant
admitted she began to drink alcohol at the age of thirteen and continued drinking a fifth
of vodka “and about a six pack every day up until [she] was arrested.” These admissions
provide evidence of criminal behavior under enhancement factor (1).
The defendant also argues that the trial court erred in concluding she
committed perjury during her codefendant’s trial when there are no pending perjury
charges against her. As factfinder, the trial court judge is in the best position to evaluate
the defendant’s credibility and truthfulness. On appeal, we must assume that the record
supports the trial court’s conclusion that the defendant was untruthful because the record
does not contain a copy of the exhibited transcript from the codefendant’s trial, which
precludes our review of this argument. See, e.g., State v. Locust, 914 S.W.2d 554, 557
(Tenn. Crim. App. 1995). Thus, we presume that the trial court properly concluded the
defendant lied under oath during her codefendant’s trial and that this evidence constitutes
criminal behavior, which also supports the application of enhancement factor (1).
The defendant also argues that her sentence was excessive because the
trial court improperly applied enhancement factor (15), that the “defendant abused a
position of public or private trust, or used a special skill in a manner that significantly
facilitated the commission or the fulfillment of the offense.” T.C.A. § 40-35-114(15). The
defendant claims there is no evidence in the record to support application of this
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enhancement factor. In applying enhancement factor (15), the trial court apparently relied
upon testimony from the codefendant’s trial. Again, because the record does not contain
a copy of the transcript from the codefendant’s trial, we must presume that the judgment
of the trial court is correct. Locust, 914 S.W.2d at 557.
In arguing her sentence is excessive, the defendant also challenges the trial
court’s failure to apply statutory mitigating factor (6), that the defendant “because of youth
or old age, lacked substantial judgment in committing the offense.” T.C.A. § 40-35-113(6).
The defendant argues that the proof established she lacked judgment because she was
nineteen years old when she committed the offenses and quit school when she became
pregnant with the first of her two children. In determining whether mitigating factor (6)
applies, “courts should consider the concept of youth in context, i.e., the defendant’s age,
education, maturity, experience, mental capacity or development, and any other pertinent
circumstance tending to demonstrate the defendant’s ability or inability to appreciate the
nature of his conduct.” State v. Adams, 864 S.W.2d 31, 33 (Tenn. 1993). While the
defendant’s early pregnancies and decision to quit high school might reflect poor choices,
the record does not establish that the defendant lacked substantial judgment in
committing the offenses or that the defendant was unable to appreciate the nature of her
criminal conduct. Thus, we do not find error in the trial court’s refusal to apply this
mitigating factor.
The defendant also complains that the trial court should have given more
weight to mitigating factor (1), that her conduct neither threatened nor caused serious
bodily injury. The weight afforded to a particular enhancement or mitigating factor is left
to the trial court’s discretion. Shelton, 854 S.W.2d at 123. Here, because the record does
not contain a transcript of the guilty plea hearing or any other recitation of the facts
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underlying these offenses, the defendant has not shown that the trial court abused its
discretion in affording mitigating factor (1) “very little weight.” See Locust, 914 S.W.2d at
557.
Finally, the defendant argues that the trial court improperly denied
alternative sentencing. She points out that she has no prior criminal record, has never
been placed on alternative sentencing, and is not one of the “most serious criminals” for
whom confinement is reserved. She complains that the trial court erroneously relied upon
deterrence as a reason for denying alternative sentencing because the record fails to
contain any evidence of deterrence. She also contends that the trial court improperly
relied upon its conclusion she committed perjury as a basis for denying alternative
sentencing.
The defendant correctly contends that the trial court erred in relying upon
deterrence as a basis for denying alternative sentencing because the record does not
contain any evidence of deterrence. See State v. Bingham, 910 S.W.2d 448, 455 (Tenn.
Crim. App. 1995). Potential for rehabilitation, however, is an important consideration in
determining whether a defendant should be granted alternative sentencing, and
truthfulness relates to a defendant’s potential for rehabilitation. See State v. Chrisman,
885 S.W.2d 834, 840 (Tenn. Crim. App. 1994). Here, the trial court concluded that the
defendant should not be granted alternative sentencing because she lied during her
testimony at her codefendant’s trial and accused “an innocent person” of committing the
crimes in an attempt to exonerate her codefendant of guilt. To the extent the record is
incomplete, we must presume the trial court’s judgment was correct. Locust, 914 S.W.2d
at 557. Even so, the defendant admitted she was untruthful when she gave several
different versions of the facts underlying the offenses at different stages of this case. The
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evidence also shows that the defendant moved in with a convicted criminal while still
married to another man and has a poor employment record and a longterm, costly drug
habit for which she has never sought treatment and has been unable to break, even
during her two pregnancies, all of which reflects poorly on the defendant’s potential for
rehabilitation. Given these circumstances, we find no error in the trial court’s denial of
alternative sentencing.
In sum, the defendant has failed to prove that her sentence is excessive and
that she should have been granted alternative sentencing. Accordingly, we affirm her
sentences.
_______________________________
JOHN H. PEAY, Judge
CONCUR:
______________________________
DAVID H. WELLES, Judge
______________________________
J. CURWOOD WITT, JR., Judge
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