        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                          AT JACKSON

                        JULY 1998 SESSION         FILED
                                                   August 20, 1998

                                                  Cecil Crowson, Jr.
                                                  Appellate C ourt Clerk

STATE OF TENNESSEE,               )
                                  )
           Appellee,              )   C.C.A. No. 02C01-9710-CC-00397
                                  )
vs.                               )   Hardeman County
                                  )
PATRICIA MORRIS,                  )   HON. JON KERRY BLACKWOOD,
                                  )   JUDGE
                                  )
           Appellant.             )   (Forgery)
                                  )




FOR THE APPELLANT:                    FOR THE APPELLEE:

HARRIET S. THOMPSON                   JOHN KNOX WALKUP
101 W. Market Street                  Attorney General & Reporter
P.O. Box 331
Bolivar, TN 38008                     GEORGIA BLYTHE FELNER
                                      Assistant Attorney General
                                      Cordell Hull Building, Second Floor
                                      425 Fifth Avenue North
                                      Nashville, TN 37243-0493

                                      JERRY NORWOOD
                                      Assistant Dist. Attorney General
                                      302 Market Street
                                      Somerville, TN 38068




OPINION FILED: _____________

AFFIRMED


CURWOOD WITT, JUDGE




                               OPINION
              The defendant, Patricia Morris, appeals the Hardeman County Circuit

Court’s sentencing determinations in six counts of forgery. The defendant pleaded

guilty in counts (1), (2), and (3) of the indictment to forgery involving sums less than

$500 and in counts (4), (5), and (6) to forgery involving sums between $1,000 and

$10,000. The trial court accepted the pleas on all counts on October 2, 1997,

conducted the sentencing hearing on the same date, and imposed the following

sentences:

              Counts 1 - 3    Class E       2 years each, concurrent;

              Counts 4 - 6    Class D       4 years each, concurrent.

The defendant was sentenced as a Range II multiple offender. The effective two-

year sentence for counts 1 - 3 runs consecutively to the effective four-year sentence

for counts 4 - 6, for an aggregate effective sentence of six years; however, the trial

court ordered split confinement with respect to the two-year sentences.               It

suspended the balance of the two-year sentences after the defendant serves nine

months in confinement. The four-year sentences were totally probated. These

sentences run consecutively to unexpired sentences which were previously imposed

in Hardin County. The trial court ordered the payment of restitution in the amount

of $3,637.00. In this direct appeal, the defendant complains that full probation

should have been granted and that the sentences imposed were excessive. After

review of the record on appeal, including the briefs of the parties, the transcript of

the sentencing hearing, the presentence report, and a report submitted by

Corrections Management Corporation, we affirm the judgment of the trial court.



              The defendant pleaded guilty to the charged offenses which included

the forgery of checks in the amounts of $150, $300, $447.19, $2,500, and two for

$1,500 each. At the time of sentencing, defendant was 30 years old, married, and

a mother of three children aged two-years, one-year and one-month. She testified

that her history of writing forged and worthless checks was the result of previous

drinking and financial problems. Her history of check-writing offenses includes two

1997 misdemeanor convictions in Hardeman County, a third misdemeanor in 1994



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in Madison County, a fourth misdemeanor in 1992 in McNairy County, a fifth and

sixth misdemeanor in 1992 in Hardin County, a 1994 felony in Madison County, and

a 1992 felony in Hardin County. At least two of the misdemeanor sentences were

fully probated, and split confinement was ordered in other cases. Probation in

Hardin County was revoked on February 13, 1995. Based upon testimony given at

the sentencing hearing, the defendant remained on probation in Hardin County

when the offenses in the present case were committed. Furthermore, it appears

that previous to the offenses in the present case, the defendant twice offended

while on probation from prior convictions.



              When there is a challenge to the length, range, or manner of service

of a sentence, it is the duty of this court to conduct a de novo review of the record

with a presumption that the determinations made by the trial court are correct.

Tenn. Code Ann. §40-35-401(d) (1997). This presumption 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). “The burden of showing that the sentence is improper is

upon the appellant.” Id. In the event the record fails to demonstrate the required

consideration by the trial court, review of the sentence is purely de novo. Id. If

appellate review reflects the trial court properly considered all relevant factors and

its findings of fact are adequately supported by the record, this court must affirm the

sentence, “even if we would have preferred a different result.” State v. Fletcher, 805

S.W.2d 785, 789 (Tenn. Crim. App. 1991).



              Initially, we note that the trial court made pertinent references to the

principles of sentencing contained in the Sentencing Reform Act and made detailed

findings of fact which support its sentencing determinations. As such, the trial

court’s judgment is presumptively correct. State v. Ashby, 823 S.W.2d 166, 169

(Tenn. 1991). Also, we find that the 1992 Hardin County felony conviction and the

1994 Madison County felony conviction, both for forgery, constitute two prior felony



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convictions which serve as predicates for the trial court declaring the defendant a

Range II multiple offender.



              The trial court found three enhancement factors applicable. It found

that the defendant had a prior history of criminal convictions or behavior in addition

to that necessary to establish the sentencing range, that the February 13, 1995

revocation of probation in Hardin County illustrated the defendant’s unwillingness

to comply with sentences involving release in the community, and that the present

offenses were committed while the defendant was on probation on a felony offense

in Hardin County. See Tenn. Code Ann. § 40-35-114(1), (8), (13) (1997). The court

also found that the offenses were mitigated because the defendant’s conduct

neither caused nor threatened serious bodily injury and because the defendant

admitted her guilt. See Tenn. Code Ann.§ 40-35-113(1), (13) (1997). Further, the

court found that the enhancement factors outweigh the mitigating factors.



              The record supports the above findings. The defendant maintains that

the trial court erred in not considering in mitigation the defendant’s willingness to

make restitution and her motivation in attempting to provide necessities for her

family.



              If, by her reference to her willingness to make restitution, the

defendant is referring to the statutory mitigation factor set forth in Tennessee Code

Annotated section 40-35-113(5) (1997), the record does not support the claim.

Mitigating factor (5) applies when the defendant, before detection, “compensated

or made a good faith attempt to compensate the victim” for the damage or injury the

defendant caused. Tenn. Code Ann. § 40-35-113(5) (1997). The record reveals

no pre-detection attempt to compensate any victim. The defendant makes a point,

however, if her argument is submitted in the context of the catch-all factor,

see Tenn. Code Ann. § 40-35-113(13) (1997) (any other mitigating factor consistent

with the purposes of the sentencing code), because her promise to pay restitution



                                          4
is buttressed by her successful payment of restitution in some of the previous cases

that were identified in her record of convictions. However, in light of the applicable

enhancement factors, the mitigating factor is not of consequential weight.



              We find that mitigating factor (7) does not apply. See Tenn. Code

Ann. § 40-35-113(7) (1997). There was no proof that the defendant was motivated

in committing the offenses by a desire to provide necessities for herself and her

family. She testified that the offenses were the result of financial problems, but she

offered no testimony nor any other proof that any family exigency attended the

commission of these crimes. Moreover, we note that the three checks upon which

counts (4), (5) and (6) were based were made payable to the defendant and totaled

$5,500 in amount.



              The defendant’s other complaint about the sentences imposed by the

trial court is that probation should have been granted or that the period of

confinement should have been less than nine months.



              The defendant stood before the trial court presumed to be a favorable

candidate for alternative sentencing. Tenn. Code Ann. § 40-35-102(6) (1997). She

was eligible for probation. Tenn. Code Ann. § 40-35-303(a) (1997). The defendant

received the benefit of a sentencing alternative in that the trial court ordered split

confinement. See Tenn. Code Ann. § 40-35-104(c) (1997); see also State v. David

E. Johnson, No. 02C01-9609-CR-00305, slip op. at 4 (Tenn. Crim. App., Jackson,

Aug. 22, 1997); State v. Judy R. Bailey, No. 03C01-9706-CC-00204, slip op. at 6

(Tenn. Crim. App., Knoxville, Feb. 4, 1997). Moreover, we note that “[m]easures

less restrictive than confinement have frequently or recently been applied

unsuccessfully to the defendant.” See Tenn. Code Ann. § 40-35-103(1)(C) (1997).

Such a finding overcomes the presumption of suitability for alternative sentencing.



              Finally, the defendant’s claim to probation must fail. The burden rests



                                          5
upon the defendant to show that she merits probation. State v. Bingham, 910

S.W.2d 448, 455 (Tenn. Crim. App. 1995). Although this court is sympathetic to the

defendant’s plight as a mother of three small children and is even more sympathetic

to the plight of these children, this circumstance does not establish suitability for

probation where the defendant’s proclivity to check-writing offenses is chronic and,

to date, intractable. In short, there is nothing in the record that overcomes the

presumption that the trial court’s split confinement sentence is correct.



              The judgment of the trial court is affirmed.



                                                 __________________________
                                                 CURWOOD WITT, JUDGE


CONCUR:




_________________________
JOE G. RILEY, JUDGE



_________________________
ROBERT W. WEDEMEYER, SPECIAL JUDGE




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