                                                                                           09/06/2017
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                           Assigned on Briefs June 27, 2017

             STATE OF TENNESSEE v. KIMBERLY REYNOLDS

                 Appeal from the Criminal Court for Sullivan County
                         No. S65100 R. Jerry Beck, Judge



                             No. E2016-01934-CCA-R3-CD



Following the Defendant’s, Kimberly Reynolds, guilty-pleaded convictions for one count
of theft of property valued at $1,000 or more and six counts of obtaining a controlled
substance by fraud, the trial court imposed a sentence of three years’ incarceration for the
theft charge and three years on community corrections for the fraud convictions to be
served consecutively. Regarding her sentence of confinement, the Defendant appeals,
arguing that she is a suitable candidate for alternative sentencing pursuant to the statutory
considerations outlined in Tennessee Code Annotated section 40-35-103. Following our
review, we affirm the trial court’s alternative sentencing decision.

 Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed

D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which CAMILLE R.
MCMULLEN, and ROBERT L. HOLLOWAY, JR., JJ., joined.

Stephen M. Wallace, District Public Defender; and Terry L. Jordan, Assistant District
Public Defender, for the Appellant, Kimberly Reynolds.

Herbert H. Slatery III, Attorney General and Reporter; Robert W. Wilson, Assistant
Attorney General; Barry P. Staubus, District Attorney General; and Gene Perrin,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                        OPINION

                               FACTUAL BACKGROUND

      The Defendant in this case was employed as a nurse at Bristol Regional Medical
Center, and this case arises from her improperly withdrawing drugs from medication
dispensers. On July 10, 2015, the Defendant was charged by information with one count
of theft of property valued at $1,000 or more and six counts of obtaining a controlled
substance by fraud. See Tenn. Code Ann. §§ 39-11-402; -14-103. The Defendant
waived her right to indictment or presentment and entered a guilty plea on all seven
counts. By agreement, the Defendant received a three-year sentence for her theft
conviction and a three-year sentence for each of her convictions for obtaining a
controlled substance by fraud. The convictions for obtaining a controlled substance by
fraud were to run concurrently with each other but consecutively to the conviction for
theft for a total effective six-year sentence. The trial court would determine the
Defendant’s manner of service.

       Following the guilty plea in this case but prior to the sentencing hearing, the
Defendant pled guilty in another case to one count of forgery, one count of leaving the
scene of an accident, and one count of failing to use due care.1 The Defendant received
an effective sentence of two years for these convictions, which was to run consecutively
with her convictions for theft and obtaining a controlled substance by fraud. Thus, the
Defendant had a total effective sentence of eight years.

        The sentencing hearing to determine the Defendant’s manner of service proceeded
as follows. At the beginning of the hearing, the trial court acknowledged the presentence
report and noted several important factors. The Defendant was employed at Bristol
Regional Medical Center as a nurse. The hospital’s human resources manager in a victim
impact statement, said that the Defendant did “not appear to be a truthful person” and that
“even after the Defendant’s resignation, the Defendant continued to attempt to defraud
her former co-workers into giving her money for alleged cancer and detailed stories of
her husband leaving her because she was dying.” The “agency statement” of the pre-
sentence report indicated that the Defendant had “a drug problem” and was ordered to
pay restitution to the hospital in the amount of $1,094.73. The Defendant also had a
record of criminal charges including: a “$50 fine out of the Bristol, Virginia General
District Court”; “speeding”; and “allowing [a] dog to run at large.” Regarding the
Defendant’s mental and physical health, the report indicated that it was “poor to fair”
“due to a multitude of health problems.” The report also stated that the Defendant
suffered from “depression and obsessive compuls[ive] disorder.” According to the
report, the Defendant had an alcohol problem and “opiate abuse” problems. At the time
of the presentence report, the Defendant was in “drug treatment and counseling.”

      Prior to the beginning of testimony, the prosecutor referred to the Defendant’s plea
agreement. As stipulated in the agreement, the Defendant pled guilty to six counts of

1
    We note that the judgment forms for these convictions are not included in the record on appeal.

                                                     -2-
obtaining a controlled substance by fraud, but she also stipulated that “483 times she
diverted medication, controlled substances, from the dispensing system at Bristol
Regional Medical Center.”

       The Defendant testified that she lived in Abingdon, Virginia, with her husband and
grown children. The Defendant agreed that she illegally took Dilaudid from the Bristol
Regional Medical Hospital, but she said that she never “deprived any patients of any
medication.” The Defendant explained that she took what was left after patients received
their proper dosage. She said that she took drugs that would otherwise “be wasted.” The
Defendant said that her addiction to Dilaudid began “after it was prescribed to” her. She
said that her nursing license was suspended and that she had not been able “to gain
employment.” The Defendant also admitted to having a problem with alcohol abuse and
said that she attempted suicide. Following her suicide attempt, she was hospitalized at
the “New River Valley Medical Center in Virginia.” She agreed that she stayed in the
hospital from December 23, 2015, to December 28, 2015, and was treated for “a history
of depression, anxiety, major depressive disorder, [and] unresolved grief.” The
Defendant testified that she was taking several prescribed medications, but none of those
were narcotics. The Defendant admitted that she was “an addict” but claimed that she
“could pass a drug test.” The Defendant stated that she was still seeing a psychiatrist and
that she would continue to “go to meetings” regarding her drug and alcohol abuse.

       On cross-examination, the Defendant agreed that she lied to her probation officer
on multiple occasions. The Defendant confirmed that she repeatedly lied to the probation
officer by telling the probation officer that her father had died and she was unable to
report to the officer. The Defendant also confirmed that she told former co-workers that
she had cancer. The Defendant agreed that while she was working in the emergency
room “dealing with people who were coming in with medical emergencies,” she was
“under the influence of Dilaudid[.]” She confirmed that she injected herself with drugs
“multiple times during the shifts while [she] was treating patients.” The Defendant
confirmed that on numerous occasions, she “went into the automatic medical dispensing
system and fraudulently and falsely entered a patient, a doctor, and a dosage” in order to
obtain drugs.

       Following the arguments of counsel, the trial court imposed a sentence of three
years for her theft conviction and a community corrections sentence for her convictions
for fraudulently obtaining a controlled substance. This timely appeal followed.

                                       ANALYSIS

       On appeal, the Defendant takes exception to the trial court’s complete denial of
any alternative sentence regarding her conviction for theft of property valued at $1,000 or
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more, arguing that she “is a favorable candidate for an alternative sentence” pursuant to
the statutory criteria of Tennessee Code Annotated section 40-35-103. She notes that her
addiction occurred “after being legally prescribed a drug[,]” she has no “serious prior
criminal record[,]” she suffered from “mental problems[,]” and she has a “suspended
license so that she does not have access to drugs[.]” Specifically, the Defendant argues
that “the circumstances of her offense, her lack of significant criminal record, and [her]
drug addiction” support her contention that she “meets all the eligibility requirements for
community corrections as set out in [Tennessee Code Annotated section] 40-36-106(a).”
The State responds that the trial court properly exercised its discretion when it ordered
the Defendant to serve her three-year sentence in confinement based on her criminal
history and lack of potential for rehabilitation. We agree with the State.

        Before a trial court imposes a sentence upon a convicted criminal defendant, it
must consider: (a) the evidence adduced at the trial and the sentencing hearing; (b) the
presentence report; (c) the principles of sentencing and arguments as to sentencing
alternatives; (d) the nature and characteristics of the criminal conduct involved; (e)
evidence and information offered by the parties on the enhancement and mitigating
factors set forth in Tennessee Code Annotated sections 40-35-113 and 40-35-114; (f) any
statistical information provided by the Administrative Office of the Courts as to
Tennessee sentencing practices for similar offenses; and (g) any statement the defendant
wishes to make in the defendant’s own behalf about sentencing. Tenn. Code Ann. § 40-
35-210(b). When an accused challenges the length and manner of service of a sentence,
this court reviews the trial court’s in-range sentencing determination under an abuse of
discretion standard accompanied by a presumption of reasonableness. State v. Bise, 380
S.W.3d 682, 707 (Tenn. 2012). This standard of review also applies to “the questions
related to probation or any other alternative sentence.” State v. Caudle, 388 S.W.3d 273,
278-79 (Tenn. 2012).

       This court will uphold the trial court’s sentencing decision “so long as it is within
the appropriate range and the record demonstrates that the sentence is otherwise in
compliance with the purposes and principles listed by statute.” Bise, 380 S.W.3d at 709-
10. Moreover, under such circumstances, appellate courts may not disturb the sentence
even if we had preferred a different result. See State v. Carter, 254 S.W.3d 335, 346
(Tenn. 2008). The burden of showing that a sentence is improper is upon the appealing
party. See Tenn. Code Ann. § 40-35-401, Sentencing Comm’n Cmts.; see also State v.
Arnett, 49 S.W.3d 250, 257 (Tenn. 2001).

       A defendant who is an especially mitigated or standard offender convicted of a
Class C, D, or E felony should be considered a favorable candidate for alternative
sentencing absent evidence to the contrary. See Tenn. Code Ann. § 40-35-102(6)(A).
However, no longer is any defendant entitled to a presumption that he or she is a
                                            -4-
favorable candidate for alternative sentencing. Carter, 254 S.W.3d at 347. Tennessee
Code Annotated section 40-35-102(6) is now only advisory. See Tenn. Code Ann. § 40-
35-102(6)(D).

       A trial court should consider the following when determining any defendant’s
suitability for alternative sentencing:

      (A) Confinement is necessary to protect society by restraining a defendant
      who has a long history of criminal conduct;
      (B) Confinement is necessary to avoid depreciating the seriousness of the
      offense or confinement is particularly suited to provide an effective
      deterrence to others likely to commit similar offenses; or
      (C) Measures less restrictive than confinement have frequently or recently
      been applied unsuccessfully to the defendant[.]

Tenn. Code Ann. § 40-35-103(1). A trial court should also consider a defendant’s
potential or lack of potential for rehabilitation when determining if an alternative
sentence would be appropriate. Tenn. Code Ann. § 40-35-103(5); State v. Boston, 938
S.W.2d 435, 438 (Tenn. Crim. App. 1996). Ultimately, in sentencing a defendant, a trial
court should impose a sentence that is “no greater than that deserved for the offense
committed” and is “the least severe measure necessary to achieve the purposes for which
the sentence is imposed.” Tenn. Code Ann. § 40-35-103(2), (4).

       The Community Corrections Act of 1985 was enacted to provide an alternative
means of punishment for “selected, nonviolent felony offenders in front-end community
based alternatives to incarceration.” Tenn. Code Ann. § 40-36-103. Tennessee Code
Annotated section 40-36-106(a)(1) provides that an offender who meets all of the
following minimum criteria shall be considered eligible for community corrections:

      (A) Persons who, without this option, would be incarcerated in a
      correctional institution;
      (B) Persons who are convicted of property-related, or drug- or alcohol-
      related felony offenses or other felony offenses not involving crimes
      against the person as provided in title 39, chapter 13, parts 1-5;
      (C) Persons who are convicted of nonviolent felony offenses;
      (D) Persons who are convicted of felony offenses in which the use or
      possession of a weapon was not involved;
      (E) Persons who do not demonstrate a present or past pattern of behavior
      indicating violence;
      (F) Persons who do not demonstrate a pattern of committing violent
      offenses.
                                          -5-
An offender is not automatically entitled to community corrections upon meeting the
minimum requirements for eligibility. State v. Ball, 973 S.W.2d 288, 294 (Tenn. Crim.
App. 1998).

       In this case, the trial court identified the specific factors it considered in its
decision:

             The Defendant, beyond any doubt is a drug addict.
             ....
             And has been a dope addict for a few years as compared with the
      first 44, 45 years she wasn’t a problem. She did become addicted, and
      basically the world caved in on her. But nonetheless, she . . .

              Let’s put it this way. I – I get a lot of these people through here.
      This is not an unusual event to have somebody addicted to drugs. Recently
      I had a male nurse from Bristol Memorial, Bristol’s hospital. When he was
      arrested, he immediately got into drug treatment, got control of the
      program. I can’t remember his name now. You may have been here when
      I did it. And he did everything you could expect somebody to do once he
      got charged and convicted. And he went through a help program through
      the licensing board, I believe. And even they came and testified or
      submitted a written statement.

             Now, after [the Defendant’s] criminal activity became apparent, she
      met with her probation officer, did about everything she can think of to
      mislead the probation officer, which does not indicate she’s wanting to get
      cured.

            Now, the [c]ourt is not a fool. I know there’s an addiction problem.
      Now, how to address that.

              The law indicates that it’s better to treat people than to incarcerate
      them and the court – judges are instructed not to put somebody in jail if
      they can be handled out of the jail situation. And somebody might point
      out in the past I’ve done it directly.

             But in this case what really concerns the [c]ourt, . . . is the fact she
      sent my probation officer on a roundabout, and did for some time. Wasn’t
      just once, it was, well, multiple situations. She was injecting waste as

                                           -6-
      described in the statements or arguments or testimony. She continued to do
      so at a time she was working in the emergency room.

               I think she does deserve some sentencing. I’m going to order her to
      serve her first three years. She will receive credit for all time served. Once
      she completes that sentence and is released, which will probably be about a
      – a year, 30% most likely[.]
               ....
               Okay. In [counts] 2 through 7 I’m going to place [the Defendant] on
      . . . a true community corrections sentence of three years, which is already
      consecutive under the plea agreement.
               ....
               When [the Defendant] gets out of prison, it’ll be a residential
      program at the John R. Hay House residential community correction
      sentencing center. And she’ll have to go through the residential program
      which is usually about six months. And they work with you. They have
      counselors there, drug specialists, and to help you defeat your [problem].
      They also do things vocationally to try to get you back on [your] feet, get
      you employed, and things like that.
               ....
               That’s the purpose of it. It’s not perfect but at least it’s a step
      forward.

             Then generally, after six months being in the treatment program,
      you’ll be released out on the street. And now on all your other cases where
      I’ve sentenced you, you’ll be placed on regular probation on those cases.

               But I want to emphasize I don’t think she was truthful with me today
      . . . . [The prosecutor] asked her, “You do this? You do this?”

              “I can’t remember. I can’t remember. I can’t remember.” Seeming
      like things you could remember.

             But anyway, that’s the reason for my ruling. I’m required to state
      into the record[.]

       Upon review, we conclude that the trial court had more than substantial evidence
to order the Defendant to serve her three-year sentence in confinement. The Defendant
admitted to taking drugs from the hospital over 483 times and to being intoxicated while
working with patients in the emergency room. After pleading guilty to one count of theft
of property valued at $1,000 or more and six counts of obtaining a controlled substance
                                           -7-
by fraud, the Defendant obtained and pled guilty to three new criminal charges. The
Defendant repeatedly lied to her probation officer and she lied to her co-workers. Given
these facts, confinement is necessary to avoid depreciating the seriousness of the offense.
The trial court properly considered the sentencing principles in its alternative sentencing
decision. Accordingly, the Defendant has failed to establish an abuse of discretion or
otherwise overcome the presumption of reasonableness.

                                     CONCLUSION

       Based upon the foregoing, the judgments of the trial court are affirmed.


                                                   ______________________________
                                                  D. KELLY THOMAS, JR., JUDGE




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