         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                   February 13, 2001 Session

                      STATE OF TENNESSEE v. TRACY BARR

                 Direct Appeal from the Circuit Court for Williamson County
                        No. II-1299-416C    Timothy L. Easter, Judge


                      No. M2000-01502-CCA-R3-CD - Filed July 10, 2001


The Defendant pled guilty without a plea agreement to theft of property valued at more than $500.00
and to identity theft. Following a sentencing hearing, the trial court sentenced her to concurrent
sentences of one year incarceration for the theft of property conviction and three years incarceration
for the identity theft conviction. In this appeal as of right, the Defendant argues that the trial court
should have granted her some form of alternative sentencing. Because we conclude that the sentence
imposed is adequately supported by the record, we affirm the judgment of the trial court.


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

ROBERT W. WEDEMEYER , J., delivered the opinion of the court, in which GARY R. WADE, P.J., and
ALAN E. GLENN, J., joined.

Floyd N. Price, Nashville, Tennessee (on appeal); and Eric L. Davis, Franklin, Tennessee (at trial),
for the Appellant, Tracy A. Barr.

Paul G. Summers, Attorney General and Reporter; Jennifer L. Smith, Assistant Attorney General;
Ronald L. Davis, District Attorney General; and Sharon Guffey, Assistant District Attorney General,
for the Appellee, State of Tennessee.


                                              OPINION

        The Williamson County Grand Jury indicted the Defendant, Tracy Barr, for theft of property
valued at more than $500.00 and for identity theft. On February 4, 2000, the Defendant pled guilty
to both charges, with sentencing to be determined by the trial court. On May 15, 2000, the trial court
conducted a sentencing hearing and sentenced the Defendant as a Range I standard offender to
concurrent sentences of one year incarceration for the theft of property conviction and three years
incarceration for the identity theft conviction. The Defendant now appeals her sentences, arguing
that she should have received some form of alternative sentencing. Having reviewed the record, we
affirm the judgment of the trial court.
                                  I. FACTUAL BACKGROUND

        At the guilty plea proceeding, the State summarized the proof, with agreement by the
Defendant, as follows: On September 19, 1999, the Defendant and her two co-defendants entered
the Parisian department store in Franklin, Tennessee. They separated and each applied for instant
credit using false identification. After receiving credit authorization, the women proceeded to
purchase clothing from the store. The Defendant charged $543.42 worth of merchandise and then
attempted to leave the store. However, security guards detained the Defendant and her two friends
before they could leave. They were subsequently charged for their crimes.

        At the sentencing hearing, the Defendant testified that she was the mother of two children,
a twelve-year-old and a sixteen-year-old. She stated that if she became incarcerated, she would be
forced to send both children out of town. The Defendant explained that she was unemployed and
in debt at the time of the crimes. She insisted that since the time of the crimes, she realized that her
actions were wrong. She testified that she had begun working part-time and pursuing her G.E.D.

        The Defendant also reported a conviction that was not included in her presentence report.
She stated that she had a prior felony conviction for forgery from Texas and reported that the offense
had occurred three to four years earlier. She testified that she was serving probation in Shelby
County for this conviction both at the time of the crimes in this case and at the time of the sentencing
hearing. The Defendant also reported that there was a pending charge against her in Shelby County
for forgery stemming from an incident that occurred on December 17, 1999. The Defendant stated
that she had not yet informed her probation officer about the charges in this case because she was
“afraid of losing everything.” However, the Defendant testified that she had chosen to advise the
trial court about her Texas conviction and the pending charges in Shelby County, neither of which
were discovered by the presentence investigation officer who prepared the Defendant’s presentence
report, because she was afraid.

                                           II. ANALYSIS

         The Defendant argues that she was improperly sentenced. When a criminal defendant
challenges the length, range, or manner of service of a sentence, the reviewing court must conduct
a de novo review of the sentence with a presumption that the determinations made by the trial court
are correct. Tenn. Code Ann. § 40-35-401(d). This presumption, however, “is conditioned upon the
affirmative showing in the record that the trial court considered the sentencing principles and all
relevant facts and circumstances.” State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). In the event
that the record fails to show such consideration, the review of the sentence is purely de novo. State
v. Shelton, 854 S.W.2d 116, 123 (Tenn. Crim. App. 1992).

       In making its sentencing determination, the trial court, at the conclusion of the sentencing
hearing, determines the range of sentence and then determines the specific sentence and the propriety
of sentencing alternatives by considering (1) the evidence, if any, received at the trial and the
sentencing hearing, (2) the presentence report, (3) the principles of sentencing and arguments as to


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sentencing alternatives, (4) the nature and characteristics of the criminal conduct involved, (5)
evidence and information offered by the parties on the enhancement and mitigating factors, (6) any
statements the defendant wishes to make in the defendant's behalf about sentencing, and (7) the
potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-210(a), (b), -103(5); State v.
Williams, 920 S.W.2d 247, 258 (Tenn. Crim. App. 1995).

        The presumptive sentence to be imposed by the trial court for a Class B, C, D or E felony is
the minimum within the applicable range unless there are enhancement or mitigating factors present.
Tenn. Code Ann. § 40-35-210(c). If there are enhancement or mitigating factors, the court must start
at the presumptive sentence, enhance the sentence as appropriate for the enhancement factors, and
then reduce the sentence in the range as appropriate for the mitigating factors. Id. § 40-35-210(e).
The weight to be given each factor is left to the discretion of the trial judge. Shelton, 854 S.W.2d
at 123. However, the sentence must be adequately supported by the record and comply with the
purposes and principles of the 1989 Sentencing Reform Act. State v. Moss, 727 S.W.2d 229, 237
(Tenn. 1986).

        When imposing a sentence, the trial court must make specific findings of fact on the record
supporting the sentence. Tenn. Code Ann. § 40-35-209(c). The record should also include any
enhancement or mitigating factors applied by the trial court. Id. § 40-35-210(f). Thus, if the trial
court wishes to enhance a sentence, the court must state its reasons on the record. The purpose of
recording the court’s reasoning is to guarantee the preparation of a proper record for appellate
review. State v. Ervin, 939 S.W.2d 581, 584 (Tenn. Crim. App. 1996). Because the record in this
case indicates that the trial court adequately considered the enhancement and mitigating factors as
well as the underlying facts, our review is de novo with a presumption of correctness.

        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 proper weight to the
factors 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 result." State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991). The
defendant bears the burden of showing the impropriety of the sentence imposed. Ashby, 823 S.W.2d
at 169.

        The Defendant argues that she should have been granted some form of alternative sentencing.
She points out that she expressed remorse for her actions at the sentencing hearing and that she was
truthful about her crimes in this case. She also argues that the trial court should have considered her
admission of the conviction not included in her presentence report. Finally, she emphasizes her need
to provide for her two minor children.

        Tennessee Code Annotated § 40-35-102(5) provides as follows:
        In recognition that state prison capacities and the funds to build and maintain them
        are limited, convicted felons committing the most severe offenses, possessing
        criminal histories evincing a clear disregard for the laws and morals of society, and


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        evincing failure of past efforts at rehabilitation shall be given first priority regarding
        sentencing involving incarceration . . . .
A defendant who does not fall within this class of offenders “and who is an especially mitigated
offender or standard offender convicted of a Class C, D, or E felony is presumed to be a favorable
candidate for alternative sentencing in the absence of evidence to the contrary.” Tenn. Code Ann.
§ 40-35-102(6). Furthermore, unless sufficient evidence rebuts the presumption, “[t]he trial court
must presume that a defendant sentenced to eight years or less and not an offender for whom
incarceration is a priority is subject to alternative sentencing and that a sentence other than
incarceration would result in successful rehabilitation . . . .” State v. Byrd, 861 S.W.2d 377, 379-80
(Tenn. Crim. App. 1993); see also Tenn. Code Ann. § 40-35-303(a). The Defendant, as a standard
offender convicted of a Class D felony and a Class E felony, 1 is presumed to be a favorable candidate
for alternative sentencing.

         However, all offenders who meet the criteria are not entitled to relief; instead, sentencing
issues must be determined by the facts and circumstances of each case. See State v. Taylor, 744
S.W.2d 919, 922 (Tenn. Crim. App. 1987) (citing State v. Moss, 727 S.W.2d 229, 235 (Tenn.
1986)). Even if a defendant is presumed to be a favorable candidate for alternative sentencing under
Tennessee Code Annotated § 40-35-102(6), the statutory presumption of an alternative sentence may
be overcome if
                 (A) [c]onfinement is necessary to protect society by restraining a defendant
         who has a long history of criminal conduct;
                 (B) [c]onfinement 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) [m]easures less restrictive than confinement have frequently or recently
         been applied unsuccessfully to the defendant . . . .
Tenn. Code Ann. § 40-35-103(1)(A)-(C). In choosing among possible sentencing alternatives, the
trial court should also consider Tennessee Code Annotated § 40-35-103(5), which states, in pertinent
part, “The potential or lack of potential for the rehabilitation or treatment of a defendant should be
considered in determining the sentence alternative or length of a term to be imposed.” Id. § 40-35-
103(5); State v. Dowdy, 894 S.W.2d 301, 305 (Tenn. Crim. App. 1994).

         In sentencing the Defendant, the trial court first stated that the Defendant qualified for
classification as a Range II multiple offender. However, the court noted that the State had failed to
file a notice of intent to seek enhanced punishment, as required by Tennessee Code Annotated § 40-
35-202(a). Therefore, the court sentenced the Defendant as a Range I standard offender.

       The trial court next proceeded to consider enhancement and mitigating factors. The court
concluded that enhancement factor (1) applied in this case: “The defendant has a previous history
of criminal convictions or criminal behavior in addition to those necessary to establish the


        1
           Theft of property valued between $500.00 and $1,000 .00 is classified as a Class E felony. Tenn. Code Ann.
§ 39-14 -105(2) ; see also id. §39-14 -103. Ide ntity theft is classified as a C lass D felony. Id. § 39-14-150(c).

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appropriate range . . . .” Tenn. Code Ann. § 40-35-114(1). The court also applied enhancement
factor (13), that the felonies in this case were committed while the Defendant was on probation. See
id. § 40-35-114(13)(C). Following application of enhancement factors, the court determined that
the Defendant should receive a sentence of two years incarceration for the theft of property
conviction and a sentence of four years incarceration for the identity theft conviction. However, the
trial court then applied mitigating factor (1), that “[t]he defendant’s criminal conduct neither caused
nor threatened serious bodily injury . . . .” Id. § 40-35-113(1). Based upon this mitigating factor,
the court reduced the Defendant’s sentences to one year incarceration for theft of property and to
three years incarceration for identity theft. The trial court ordered that the sentences run
concurrently.

        The trial court then turned to consideration of alternative sentencing. It first noted that the
Defendant was presumed to be a favorable candidate for alternative sentencing. Nevertheless, it
concluded that in this case,
                (A) [c]onfinement is necessary to protect society by restraining a defendant
        who has a long history of criminal conduct;
                (B) [c]onfinement is necessary to avoid depreciating the seriousness of the
        offense . . . [and]
                (C) [m]easures less restrictive than confinement have frequently or recently
        been applied unsuccessfully to the defendant . . . .
Id. § 40-35-103(1)(A)-(C).

         The record in this case supports the denial of alternative sentencing. In her brief, the
Defendant correctly notes that to deny an alternative sentence solely based upon the nature of the
offense, the circumstances of the offense must be “‘especially violent, horrifying, shocking,
reprehensible, offensive, or otherwise of an excessive or exaggerated degree,’ and the nature of the
offense must outweigh all factors favoring probation.” State v. Hartley, 818 S.W.2d 370, 374-75
(Tenn. Crim. App. 1991) (citing State v. Cleavor, 691 S.W.2d 541, 543 (Tenn. 1985)); State v.
Zeolia, 928 S.W.2d 457, 462 (Tenn. Crim. App. 1996). Although the circumstances of the offenses
in this case are not sufficient alone to justify denial of an alternative sentence, other factors support
the trial court’s decision to deny alternative sentencing. The Defendant’s presentence report
indicates that at the time of sentencing, the Defendant had five previous felony convictions from
1988, one for the sale of cocaine and four for receiving stolen property. In addition, the Defendant
admitted at the sentencing hearing that at the time of the crimes in this case, she was serving
probation in Shelby County for a forgery conviction that she had received in Texas. She also stated
that there was a pending charge against her in Shelby County for forgery. Based on this evidence,
we conclude that the trial court did not err by ordering confinement in this case.

        Because the trial court followed the statutory sentencing procedure, because it imposed a
lawful sentence after giving due consideration and proper weight to the factors and principles set out
by our sentencing law, and because the court’s findings of fact are adequately supported by the
record, we may not modify the Defendant’s sentence. See Fletcher, 805 S.W.2d at 789.
Accordingly, we AFFIRM the judgment of the trial court.


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      ___________________________________
      ROBERT W. WEDEMEYER, JUDGE




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