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