IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
MARCH 1997 SESSION
April 24, 1997
Cecil W. Crowson
Appellate Court Clerk
STATE OF TENNESSEE, )
) NO. 01C01-9605-CC-00212
Appellee, )
) COFFEE COUNTY
VS. )
) Hon. Gerald L. Ewell, Judge
JEFFERY L. RIGNEY and )
HERMAN EUGENE HALE, ) (Sentencing - Theft of
) Property Over $1,000)
Appellants. )
FOR APPELLANT RIGNEY: FOR THE APPELLEE:
JEFFREY K. SECKLER CHARLES W. BURSON
Seckler, Bramlett & Durard Attorney General and Reporter
724 North Main Street
P.O. Box 967 MERRILYN FEIRMAN (brief)
Shelbyville, TN 37160 Assistant Attorney General
500 Charlotte Avenue
Nashville, TN 37243
FOR APPELLANT HALE:
LISA NAYLOR (oral argument)
ROBERT S. PETERS Assistant Attorney General
Swafford, Peters & Priest 450 James Robertson Parkway
100 First Avenue, S.W. Nashville, TN 37243-0493
Winchester, TN 37398
C. MICHAEL LAYNE
District Attorney General
KENNETH SHELTON
Assistant District Attorney General
307 S. Woodland
P.O. Box 147
Manchester, TN 37355
OPINION FILED:
AFFIRMED
JOE G. RILEY,
JUDGE
OPINION
The appellants, Jeffery L. Rigney and Herman Eugene Hale, appeal the
sentences imposed by the Circuit Court of Coffee County following their guilty plea
to theft of property over $1,000. Both defendants were sentenced to four years,
provided that upon the expiration of Rigney’s service of nine (9) months and Hale’s
service of twelve (12) months in the county jail, they could serve the remainder of
their sentences in the community corrections program. Both appeal the manner in
which they are to serve their sentences, claiming that they should not be confined
for any period of time. Appellant Rigney also asserts that a sentence of four (4)
years is excessive and inappropriate under the 1989 Criminal Sentencing Reform
Act. We disagree and affirm the judgment of the trial court.
I. BACKGROUND
Rigney and Hale, along with Jacob Hart, Steve Heifner and Franz Hickertz,
were involved in a scheme to take merchandise from the Food Lion grocery store
in Manchester. At that time all of the defendants were employees of that store,
except Hale. For at least six weeks, Rigney, Hart, Heifner and Hickertz would
smuggle merchandise from the store and then take that merchandise to Hale, who
would store the goods in a warehouse or at his residence. Apparently, Hale would
give a list to Rigney or Hart requesting certain items from the store. In his statement
to the police, Rigney confessed that the items were taken for resale.
All five defendants were indicted for theft of property over $10,000, a Class
C felony. Subsequently, Rigney and Hale pled guilty to theft of property over
$1,000, a Class D felony. Both were sentenced as Range I, Standard Offenders.
Although the trial judge sentenced both to four (4) years, Rigney was required to
serve nine (9) months in the county jail before being put on community corrections.
Hale was ordered to serve twelve (12) months in the county jail before serving the
remainder of his sentence on community corrections. Each defendant was also
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required to pay $8,000 in restitution. Both are appealing their sentences.
II. REVIEW OF SENTENCING
This Court’s review of the sentences imposed by the trial court is de novo
with a presumption of correctness. Tenn. Code Ann. § 40-35-401(d). This
presumption is conditioned upon an affirmative showing in the record that the trial
judge considered the sentencing principles and all relevant facts and circumstances.
State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). The burden is upon an
appealing party to show that the sentence is improper. Tenn. Code Ann. § 40-35-
401(d) Sentencing Commission Comments. In conducting our review, we are
required, pursuant to Tenn. Code Ann. § 40-35-210(b), to consider the following
factors in sentencing:
(1) [t]he 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 §§ 40-35-113 and 40-35-114; and (6) [a]ny statement the
defendant wishes to make in his own behalf about sentencing.
If no mitigating or enhancing factors for sentencing are present, Tenn. Code
Ann. § 40-35-210(c) provides that the presumptive sentence shall be the minimum
sentence within the applicable range. See State v. Fletcher, 805 S.W.2d 785
(Tenn. Crim. App. 1991). However, if such factors do exist, a trial court should start
at the minimum sentence, enhance the minimum sentence within the range for
aggravating factors and then reduce the sentence within the range for the mitigating
factors. Tenn. Code Ann. § 40-35-210(e). No particular weight for each factor is
prescribed by the statute, as the weight given to each factor is left to the discretion
of the trial court as long as its findings are supported by the record. State v. Moss,
727 S.W.2d 229 (Tenn. 1986); State v. Santiago, 914 S.W.2d 116 (Tenn. Crim.
App. 1995); see Tenn. Code Ann. § 40-35-210 Sentencing Commission Comments.
If our review reflects that the trial court followed the statutory sentencing
procedure, imposed a lawful sentence after giving due consideration and proper
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weight to the factors and principles set out under the sentencing law, and 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 result. State v.
Fletcher, 805 S.W.2d at 789.
A. Length of Sentence - Rigney
Appellant Rigney asserts that the trial judge erred in imposing the maximum
sentence of four (4) years for this Class D felony. Specifically, he claims that the
trial judge misapplied enhancement factors. Thus, he argues that the mitigating
factors suggest that a minimum sentence is appropriate.
In a written Sentencing Order, the trial court noted the enhancing and
mitigating factors that were applicable to Rigney. The listed enhancement factors
were: (1) the defendant has a previous history of a criminal conviction in addition to
that necessary to establish the appropriate range; and (2) the defendant was a
leader in the commission of an offense involving two or more actors. See Tenn.
Code Ann. § 40-35-114(1) and (2). The trial court also considered as mitigating
factors that: (1) the defendant’s criminal conduct neither caused nor threatened
serious bodily injury; (2) the defendant assisted the authorities in uncovering
offenses committed by other persons or in detecting or apprehending other persons
who had committed the offenses; and (3) the defendant assisted the authorities in
locating or recovering any property or person involved in the crime. See Tenn.
Code Ann. § 40-35-113(1), (9) and (10).
Rigney initially argues that he does not have a prior conviction and
enhancement factor (1) was wrongly applied. He was charged in 1985 with grand
larceny and was put on pre-trial diversion. Thus, he asserts that pre-trial diversion
is not a conviction and cannot be used to enhance his sentence. The state does
not dispute this, and we agree. Pre-trial diversion provides a procedural alternative
to prosecution and disposition by normal methods. Dearborne v. State, 575 S.W.2d
259 (Tenn. 1978). The trial court improperly applied this enhancement factor.
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Rigney further claims that he was not the leader in this scheme and
enhancement factor (2) was misapplied. He quotes the Sentencing Order wherein
the trial judge refers to Hale and Rigney respectively as “Master-Mind Number One”
and “Master-Mind Number Two.” Therefore, Rigney contends that because the trial
judge specifically found that Hale’s role was more culpable than his own, he cannot
be considered the leader in the commission of an offense involving two or more
actors.
This Court has previously held that enhancement for being a leader in the
commission of an offense does not require that the defendant be the sole leader but
only that he be "a" leader. State v. Hicks, 868 S.W.2d 729, 731 (Tenn. Crim. App.
1993); see Tenn. Code Ann. § 40-35-114(2). The trial court properly applied this
enhancement factor.
The trial court should have applied enhancement number (6) under Tenn.
Code Ann. § 40-35-114 in that the amount of property taken from the victim was
particularly great. This Court, in conducting our de novo review, is authorized to
consider any enhancement factors not relied upon by the trial court which are
supported by the record. State v. Adams, 864 S.W.2d 31, 34 (Tenn. 1993); State
v. Pearson, 858 S.W.2d 879, 884-885 (Tenn. 1993); State v. Jernigan, 929 S.W.2d
391, 397 (Tenn. Crim. App. 1996).
It is apparent from the videotaped confessions of all involved and the written
statement of Rigney that the dollar amount of the property stolen far exceeded
$1,000. Rigney estimated that his part in the theft totaled around $15,000 -
$20,000.1 Although this enhancement factor was not articulated as such, the trial
judge noted in the Sentencing Order that the amount of property stolen was
particularly great. In fact, the amount of property stolen approaches, if not exceeds,
the Class C theft amount of $10,000. Therefore, we find that the amount of
property stolen was exceptionally great, and this could be considered as a proper
enhancement factor. See State v. Barbara D. Frank, C.C.A. No. 03C01-9209-CR-
1
Rigney later recanted this estimation in his written statement to the police.
In his written statement, he claimed that his part amounted to between $8,000 and
$10,000.
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00303 (Tenn. Crim. App. filed December 22, 1993, at Knoxville).
Additionally, the trial judge noted that Rigney was an employee of Food Lion
at the time he was stealing the merchandise. As such, he abused a position of
private trust. Tenn. Code Ann. § 40-35-114(15). This would be an appropriate
enhancement factor as well.
Presumably, the trial court gave little weight to the enumerated mitigating
factors in light of the dollar amount of property that was stolen and Rigney’s role in
the overall scheme. We conclude that the trial court gave proper weight and
consideration to the sentencing factors and principles. Accordingly, Rigney has
failed to overcome the presumption of correctness afforded the trial court in its
sentencing determination. This issue is without merit.
B. Manner of Sentence
Both appellants contest the manner in which they are to serve their sentence.
They claim that incarceration is inappropriate and instead suggest that they should
receive no jail time.
Under the Criminal Sentencing Reform Act of 1989, trial courts are
encouraged to use alternatives to incarceration. An especially mitigated or standard
offender convicted of a Class C, D or E felony is presumed to be a favorable
candidate for alternative sentencing options in the absence of evidence to the
contrary. Tenn. Code Ann. § 40-35-102(6). A trial court must presume that a
defendant sentenced to eight years or less who is not an offender for whom
incarceration is a priority is subject to alternative sentencing. State v. Byrd, 861
S.W.2d 377, 379-380 (Tenn. Crim. App. 1993). It is further presumed that a
sentence other than incarceration would result in successful rehabilitation unless
rebutted by sufficient evidence in the record. Id. at 380.
In determining whether incarceration is appropriate, a trial court may consider
the need to protect society by restraining a defendant having a long history of
criminal conduct, the need to avoid depreciating the seriousness of the offense,
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whether confinement is particularly appropriate to effectively deter others likely to
commit similar offenses, and whether less restrictive measures have often or
recently been unsuccessfully applied to the defendant. Tenn. Code Ann. § 40-35-
103(1); see also State v. Ashby, 823 S.W.2d at 169. Furthermore, the potential or
lack of potential for rehabilitation should be considered in determining the sentence
alternative or length of a term to be imposed. Tenn. Code Ann. § 40-35-103(5).
In the present case, the trial court found that the appellants were essentially
the leaders in the plan to steal from Food Lion. The amount of property taken was
extensive. Furthermore, these thefts were ongoing for at least six (6) weeks and
likely would have continued if the authorities had not discovered the fraudulent
scheme.
Additionally, the trial court found that appellant Hale had a prior criminal
history. He had a prior conviction for passing worthless checks up to $100 and four
(4) prior convictions for driving under the influence of an intoxicant.
Significantly, the trial court found that both Rigney and Hale gave untruthful
testimony at the sentencing hearing and neither accepted full responsibility for his
actions. A defendant’s truthfulness while testifying on his own behalf is probative
of his attitude towards society and prospects for rehabilitation and is a relevant
factor in the sentencing process. State v. Dowdy, 894 S.W.2d 301, 306 (Tenn.
Crim. App. 1994). A defendant’s “credibility and willingness to accept responsibility
for his crime are circumstances germane to his rehabilitation potential.” State v.
Zeolia, 928 S.W.2d 457, 463 (Tenn. Crim. App. 1996); see State v. Dowdy, 894
S.W.2d at 306.
There is no mathematical equation to be utilized in determining sentencing
alternatives. Not only should the sentence fit the offense, but it should fit the
offender as well. Tenn. Code Ann. § 40-35-103(2); State v. Boggs, 932 S.W.2d 467
(Tenn. Crim. App. 1996). Indeed, individualized punishment is the essence of
alternative sentencing. State v. Dowdy, 894 S.W .2d at 305. In summary,
sentencing must be determined on a case-by-case basis, tailoring each sentence
to that particular defendant based upon the facts of that case and the
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circumstances of that defendant. State v. Moss, 727 S.W.2d at 235.
Both appellants are able to serve the majority of their sentences in the
community corrections program and receive the benefit of alternative sentencing.
We find that the trial court’s imposition of a period of incarceration was appropriate
for both appellants. See Tenn. Code Ann. § 40-36-106(f). Therefore, this issue has
no merit.2
Because we find that neither issue raised by the appellants has any merit,
the judgment of the trial court is affirmed.
JOE G. RILEY, JUDGE
CONCUR:
JOSEPH M. TIPTON, JUDGE
THOMAS T. WOODALL, JUDGE
2
See Op. Att’y Gen. 91-96 (1991) for a discussion of proper sentencing
credits to be applied toward jail time during split confinement.
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