         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                   Assigned on Briefs August 19, 2003 (at Knoxville)

          STATE OF TENNESSEE v. LILLIAN ILEENE THORNTON

                  Direct Appeal from the Circuit Court for Bedford County
                              No. 15117    Lee Russell, Judge



                   No. M2002-02913-CCA-R3-CD - Filed December 1, 2003


The defendant pled guilty to forgery and agreed to a sentence of eighteen months, with the manner
of service to be determined by the trial court. The trial court denied her request for alternative
sentencing based on her lack of potential for rehabilitation and her lack of honesty at the sentencing
hearing. The judgment of the trial court is affirmed.

      Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

JOHN EVERETT WILLIAMS , J., delivered the opinion of the court, in which JOSEPH M. TIPTON and
ALAN E. GLENN, JJ., joined.

Donna Leigh Hargrove, District Public Defender, and Curtis H. Gann and Andrew J. Dearing, III,
Public Defenders, for the appellant, Lillian Ileene Thornton.

Paul G. Summers, Attorney General and Reporter; Kathy D. Aslinger, Assistant Attorney General;
William Michael McCown, District Attorney General; and Michael D. Randles, Assistant District
Attorney General, for the appellee, State of Tennessee.


                                             OPINION

        The defendant, Lillian Ileene Thornton, pled guilty to forgery (Class E felony) and agreed to
accept a sentence of one year and six months as a standard offender. The manner of service of
sentence was to be determined at a sentencing hearing. After the sentencing hearing, the trial court
denied her any form of alternative sentencing. This appeal timely followed. The defendant contends
on appeal that the trial court erred in denying alternative sentencing. The judgment of the trial court
is affirmed.
                                               Facts

        The defendant admitted to creating a document purporting to be a chancery court order. She
created a document on her computer in an attempt to annul her marriage. The defendant forged the
signature of Chancellor J. B. Cox and Charles Edward Thornton, her husband at the time. The
defendant presented the forged document at the driver’s license bureau and stated that she wanted
to have her name changed on her license. The clerk noticed that the document had many
typographical errors and had not been filed in the chancery court. The clerk told the defendant to
file the document and return with a certified copy. The defendant walked away and threw the
document in the trash can. The clerk retrieved the document and contacted the police. The
defendant was arrested and pled guilty to forgery.

        The defendant testified at the sentencing hearing that her husband was abusive and would
not leave her alone. She said that she could not afford the cost of an actual annulment and her
husband would not cooperate, so she created the document herself. The defendant stated that her
intent was only to have her name changed on her driver’s license.

        The record indicates that the defendant has numerous medical problems, including severe
degenerative disk disease. She has been prescribed several different types of medications and
requires routine visits to the doctor for treatments. She stated that she did not want to be
incarcerated, because she was concerned about the level of medical attention she would receive in
jail. The trial court denied her request for alternative sentencing.

                                             Analysis

        The defendant contends on appeal that the trial court erred in denying her alternative
sentencing. This Court’s review of the sentence 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. Pettus, 986 S.W.2d 540, 543 (Tenn. 1999). If the
trial court fails to comply with the statutory directives, there is no presumption of correctness and
our review is de novo. State v. Poole, 945 S.W.2d 93, 96 (Tenn. 1997).

        The burden is upon the 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 Tennessee Code Annotated section 40-35-210, 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 the defendant’s own behalf about sentencing.


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        Under the Criminal Sentencing Reform Act of 1989, trial judges 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). With certain statutory
exceptions, probation must be automatically considered by the trial court if the sentence imposed is
eight years or less. Tenn. Code Ann. § 40-35-303(a), (b).

        In determining if incarceration is appropriate, a trial court should 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, 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 166, 169 (Tenn. 1991).

       A court may also consider the mitigating and enhancing factors set forth in Tennessee Code
Annotated sections 40-35-113 and -114 as they are relevant to the section 40-35-103 considerations.
Tenn. Code Ann. § 40-35-210(b)(5); State v. Boston, 938 S.W.2d 435, 438 (Tenn. Crim. App. 1996).
Additionally, a court should consider the 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);
Boston, 938 S.W.2d at 438.

        In determining whether to grant or deny probation, a trial court should consider the
circumstances of the offense, the defendant’s criminal record, the defendant’s social history and
present condition, the need for deterrence, and the best interest of the defendant and the public. State
v. Grear, 568 S.W.2d 285, 286 (Tenn. 1978); State v. Boyd, 925 S.W.2d 237, 244 (Tenn. Crim. App.
1995). The defendant’s lack of credibility is also an appropriate consideration and reflects on a
defendant’s potential for rehabilitation. State v. Nunley, 22 S.W.3d 282, 289 (Tenn. Crim. App.
1999).

        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. Batey, 35 S.W.3d 585, 588-89 (Tenn. Crim. App. 2000). Indeed,
individualized punishment is the essence of alternative sentencing. State v. Dowdy, 894 S.W.2d
301, 305 (Tenn. Crim. App. 1994). 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
circumstances of that defendant. State v. Moss, 727 S.W.2d 229, 235 (Tenn. 1986).

        The trial court denied the defendant’s request for alternative sentencing based on her lack of
potential for rehabilitation and her lack of honesty at the sentencing hearing. The trial court found
that “her track record for successfully completing periods of time when she has been released into
the public is not good.” The defendant was convicted of receiving stolen property, a felony offense,
in Indiana approximately four or five years prior to committing the current offense. The defendant


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was sentenced to six months incarceration and two years probation for that offense. While still on
probation in Indiana, she was convicted of sixteen counts of fraudulent use of a credit card and two
counts of criminal impersonation in Tennessee. The Tennessee court sentenced the defendant to
probation. The defendant absconded from probation and moved out of the state without permission.
She remained at large until she was arrested, and her probation was revoked.

        In addition to the defendant’s inability to comply with the terms of probation, the trial court
found that the defendant was not being honest at the sentencing hearing. Concerning the charge in
Indiana, the defendant stated that she merely used a forged check that someone else had given her.
She testified that she did not forge the signature on the check. The police report indicates that an
employee of the restaurant where the check was passed saw the defendant sign the check.
Concerning the charges in Tennessee, the defendant testified that she was caught using her
daughter’s credit card. The record reveals that the defendant had actually obtained credit cards in
her daughter’s name without her daughter’s knowledge and used them as her own. The trial court
noted that the defendant was “shading the truth.” The court stated that it was “concerned about the
magnitude of her medical problems,” but found that she could receive adequate treatment while
incarcerated.

                                             Conclusion

        The record adequately supports the trial court’s denial of alternative sentencing. Based on
the foregoing and the record as a whole, the judgment of the trial court is affirmed.




                                                       ___________________________________
                                                       JOHN EVERETT WILLIAMS, JUDGE




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