          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



                                          2
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



                                          3
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.



                                          4
       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.

                                          5
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,



                                          6
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



                                          7
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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