         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                            Assigned on Briefs October 29, 2002

                  STATE OF TENNESSEE v. OLIVIA WILLIAMS

                    Direct Appeal from the Circuit Court for Cocke County
                            No. 8422    Ben W. Hooper, II, Judge



                                  No. E2002-00687-CCA-R3-CD
                                       November 22, 2002

The defendant pled guilty to one count of Class D felony theft over $10,000, received an agreed
three-year sentence, and agreed to allow the trial court to determine the manner in which her
sentence would be served. The trial court ordered the sentence to be served in incarceration. In this
appeal, the defendant argues the trial court erred in denying alternative sentencing. We affirm the
judgment of the trial court.

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

JOE G. RILEY, J., delivered the opinion of the court, in which GARY R. WADE, P.J., and ROBERT W.
WEDEMEYER, J., joined.

Susanna L. Thomas, Newport, Tennessee, for the appellant, Olivia Williams.

Paul G. Summers, Attorney General and Reporter; Angele M. Gregory, Assistant Attorney General;
Al C. Schmutzer, Jr., District Attorney General; and Ronald C. Newcomb, Assistant District
Attorney General, for the appellee, State of Tennessee.


                                             OPINION

        On October 4, 2001, the defendant pled guilty to taking over $10,000 worth of furniture and
other items from the home of the victim, her fiancé, in November 2000. As part of the plea
agreement, she received a three-year sentence. The parties agreed the trial court would hold a
sentencing hearing to determine the manner in which she would serve the sentence.

        At the conclusion of the sentencing hearing, the trial court ordered the defendant incarcerated
for the term of her sentence. The trial court found the defendant had made “constant
misrepresentations” to the court and stated the defendant had “absolutely no credibility.” The trial
court also noted she failed to cooperate with the court during the pendency of her case and further
failed to cooperate in the preparation of her presentence report.
        The trial court further found the offense to be “terribly serious” because she used a
relationship of trust to take advantage of the victim, which caused the victim great emotional
distress. The lower court stated, “The deviousness of this whole situation . . . goes far beyond the
acts of an ordinary criminal and thief.” It found the defendant had “been in trouble before” and
noted that none of the stolen property had been returned to the victim.

        The trial court denied any form of alternative sentencing, and the defendant challenges this
denial on appeal. We reject defendant's arguments.


                                   STANDARD OF REVIEW

        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.

        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).

        In determining if 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, whether confinement is particularly appropriate to
effectively deter others likely to commit similar offenses, and whether less restrictive measures have



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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. The trial court may consider the defendant's untruthfulness and lack of
candor as they relate to the 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).


                                            ANALYSIS

        In the instant case, the proof in the record shows the defendant was involved in a close
relationship with the victim. Although the defendant denied she was engaged to the victim, she
admitted she accepted an engagement ring from him and “went along with it” when he told others
they were engaged. According to the victim’s statements included in the presentence report, the
defendant asked the victim to wait until 9:00 p.m. to return home on the date of the offense because
she had a surprise for him. When he arrived home, he discovered his furniture, big screen television,
and numerous other household items were missing. The victim’s mother testified that virtually
everything in the house was taken except the dining room table and four chairs.

        The defendant testified at sentencing that she was at the victim’s house when the theft
occurred, but her live-in boyfriend, Shawn Meeks, actually committed the offense. The victim’s
mother testified she confronted the defendant about the theft; the defendant said she took the
furniture to a relative’s house and promised to return it. The proof indicated none of the stolen
property was returned. At the plea hearing, the defendant’s counsel said the items might be returned
shortly. At sentencing, the defendant testified she tried to contact the man who purchased the stolen
property, and she provided all the information she had about the location of the stolen property.

      The victim, in his written statement, indicated he was “severely” depressed and in great
emotional distress as a result of the offense. The victim’s mother testified the victim was “absolutely



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an emotional wreck,” had to seek counseling, did not leave the house for three months following the
offense, and was in a “deep, deep depression.”

        The record indicates the defendant made misstatements to the trial court regarding hiring an
attorney. Further, the record shows the defendant failed to keep her appointment or make contact
with the presentence investigator who was preparing her presentence report. The presentence report
quoted the defendant as saying she received bad advice from a person whom the defendant declined
to identify. The report also showed the defendant was convicted of misdemeanor theft in April 2001.

        After a thorough review of the record, we conclude the trial court considered the appropriate
sentencing principles and all relevant facts and circumstances. Therefore, our review of the sentence
imposed will be de novo with a presumption that the trial court’s determinations were correct. We
conclude the state overcame the defendant’s presumption of being a favorable candidate for
alternative sentencing and further conclude the defendant has failed to meet her burden of showing
her sentence was improper.

        The evidence presented through the testimony of the witnesses at the sentencing hearing,
including the defendant, and the information contained in the presentence report supported the trial
court’s finding that incarceration was necessary in order to avoid the depreciation of the seriousness
of the offense. Further, the trial court’s implicit consideration of enhancement factor (15), the
defendant abused a position of private trust, see Tenn. Code Ann. § 40-35-114(15), was appropriate.
Finally, the trial court properly considered the defendant’s lack of potential for rehabilitation as
demonstrated by her misrepresentations to the trial court, her total lack of credibility with the trial
court, her failure to cooperate in the preparation of her presentence report, and her broken promises
to restore the victim’s property. Given the facts contained in the record, we cannot conclude the
defendant’s sentence is improper. In this regard, the trial court was in a much better position than
this court to judge the defendant's credibility and rehabilitation prospects. We affirm the judgment
of the trial court.



                                                       _______________________________________
                                                       JOE G. RILEY, JUDGE




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