        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                           Assigned on Briefs April 10, 2012

      STATE OF TENNESSEE v. HARRIET ROBERTSON FORREST

                  Appeal from the Circuit Court for Madison County
                        No. 10634     Donald H. Allen, Judge




                 No. W2011-01754-CCA-R3-CD - Filed June 11, 2012


The Defendant, Harriet Robertson Forrest, was indicted on nine counts of identity theft, a
Class D felony. The Defendant pleaded guilty to all nine counts. As part of the plea
agreement, the Defendant received a four-year sentence for each conviction as a Range II
multiple offender with the sentences to run concurrently. The plea agreement provided that
the manner of service would be determined by the trial court. Following a sentencing
hearing, the trial court ordered the Defendant to serve her effective four-year sentence in
confinement. The Defendant appeals, arguing that the trial court erred by denying her
request for an alternative sentence. Upon review, we affirm the judgments of the trial court.

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

J EFFREY S. B IVINS, J., delivered the opinion of the Court, in which J OHN E VERETT W ILLIAMS
and C AMILLE R. M CM ULLEN, JJ., joined.

Gregory D. Gookin, Assistant Public Defender, Jackson, Tennessee, for the appellant, Harriet
Forrest.

Robert E. Cooper, Jr., Attorney General & Reporter; Meredith Devault, Senior Counsel; Jerry
Woodall, District Attorney General; Brian Gilliam, Assistant District Attorney General, for
the appellee, State of Tennessee.

                                         OPINION

                             I. Background Facts & Procedure

       On October 4, 2010, the Madison County Grand Jury indicted the Defendant on nine
counts of identity theft. See Tenn. Code Ann. § 39-14-150. The Defendant pleaded guilty
to all nine counts as a Range II multiple offender at a plea submission hearing on March 7,
2011. The plea agreement provided that the length of the Defendant’s sentence would be
four years at 35% with each sentence to run concurrently. The manner of service and amount
of restitution were to be determined by the trial court at a sentencing hearing.

       At the plea submission hearing, the State gave the following summary of the factual
basis for the Defendant’s plea:

              [T]he State would show . . . that these are nine counts all of the same
       charge of [i]dentity [t]heft. The difference is the dates.

       ....

               The State would show that in this case the [D]efendant was actually
       employed by Ms. [Claudia] Baucum and her step-daughter, Ms. Brenda
       Fowler, who is present in the courtroom. [The Defendant] was employed to
       sit with Ms. Baucum who had had a stroke and needed some care and this
       [D]efendant was employed to come into the home and sit with her. That
       employment ended on January the 4th of 2010. At that time no one had
       noticed the debit card of Ms. Baucum was actually missing. Nobody knew
       until later when Region’s Bank informed Ms. Fowler, Ms. Baucum’s step-
       daughter, that some charges had been made on her Region’s checking account
       using her debit card and they were showing that the PIN number was actually
       used to make some transactions. Investigators with the Jackson Police
       Department were able to trace the charges . . . and also found some video tape
       from the Eastgate Package and Liquor Store selling to this [D]efendant on
       those nine occasions using the debit card of Ms. Baucum and entering the PIN
       number to make some purchases. These are nine counts for the nine different
       times that she purchased items from the Eastgate Package and Liquor Store
       back in April of 2010. Ms. Baucum[,] the victim in this case, she did pass
       away back in August of last year and so that’s why representing her is Ms.
       Fowler, her step-daughter, who’s present in the courtroom.

        The trial court accepted the plea. In admitting her guilt of the charged offenses, the
Defendant said, “I’m very remorseful and willing to do whatever I have to do to make th[is]
up to [the victim].” At the conclusion of the plea hearing, the trial court ordered the
Defendant to submit to drug testing later that day, and the Defendant intimated to the court
that she would be able to pass a drug test. However, the Defendant did not appear for drug
testing as ordered, and the court issued an instanter capias for the Defendant’s arrest.



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        A sentencing hearing was held July 25, 2011. The Defendant testified that she worked
“private duty sitting” with the victim after the victim suffered a stroke. The Defendant
worked in the victim’s stepdaughter’s home and was employed in that capacity from August
2009 until January 2010. On a prior occasion, the victim gave the Defendant permission to
use her debit card. However, the Defendant admitted that she later took the debit card and
used it without the victim’s permission. The Defendant estimated that she had taken $3,000
through the use of the victim’s debit card.

       In addition to employing the Defendant, the victim’s stepdaughter also had helped the
Defendant obtain employment as a janitor at a local church. After the victim died, the
Defendant met with the victim’s stepdaughter and their church pastor and apologized. In her
victim impact statement, the victim’s stepdaughter said that she felt betrayed after hiring the
Defendant to take care of her ailing stepmother. The Defendant told the court that she had
not paid anything to the victim yet because she had been told to wait to do so until the matter
was resolved in court.

        The Defendant admitted that she had not appeared for the court-ordered drug test on
the day of the guilty plea hearing. She claimed that her husband had spinal stenosis and had
fallen and been taken to the emergency room. The Defendant, however, admitted that she
would have tested positive for marijuana had she taken the drug test on the day of the plea
submission hearing. She acknowledged that she had a drug problem and that she had used
cocaine off and on for twenty years. Although the Defendant had been to two in-patient drug
treatment facilities in the past, she continued to use illegal drugs. She also had been in prison
twice but had not participated in drug treatment programs while incarcerated. Yet, she told
the court that she did not want to do drugs anymore.

        Reviewing the presentence report, the trial court found that the Defendant had six
prior felony convictions and three prior misdemeanor convictions. Moreover, the trial court
found that eight of the nine prior convictions “involve the same type of dishonesty for which
[the Defendant is] being . . . sentenced for here today.” The trial court found that the
Defendant’s convictions fit “[a] pattern that has existed for many, many years.” The trial
court also found the Defendant’s illegal drug use troubling. Specifically, the trial court noted
that the Defendant had failed to appear for a court-ordered drug screen after telling the court
she would be able to pass a drug test, which she later admitted was untrue. Based on these
facts, the trial court applied as an enhancement factor that the Defendant had a previous
history of criminal convictions or criminal behavior in addition to those necessary to establish
the appropriate sentencing range. See Tenn. Code Ann. § 40-35-114(1).

       The trial court also noted from the presentence report the Defendant’s history of
probation violations and found as an enhancement factor that before trial or sentencing in this

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case the Defendant had failed to comply with the conditions of a sentence involving release
into the community. See Tenn. Code Ann. § 40-35-114(8). Lastly, the trial court found as
an enhancement factor that the Defendant had abused a position of private trust by stealing
from an elderly victim in poor health whom the Defendant had been hired to care for. See
Tenn. Code Ann. § 40-35-114(14).

        In looking at possible mitigating factors, the trial court acknowledged the Defendant’s
request for alternative sentencing, the fact that she pleaded guilty, and her expressed desire
for drug treatment and rehabilitation. The trial court, however, ultimately concluded that no
mitigating factors applied because the Defendant had not made restitution and continued to
use illegal drugs even after her arrest.

       After reviewing the purposes and principles of the sentencing guidelines, the trial
court found that the Defendant’s continued drug use and dishonesty to the court reflected
poorly on her potential for rehabilitation. See Tenn. Code Ann. § 40-35-103(5). The trial
court also determined that other measures less restrictive than confinement had been
unsuccessful in the past and concluded that the Defendant would not follow the terms of
probation. See Tenn. Code Ann. § 40-35-103(1)(C). The trial court ultimately decided that
the Defendant should serve her negotiated sentence of four years at 35% in complete
confinement. The trial court also set restitution in the amount of $4,350.82.1

       On appeal, the Defendant argues that the trial court erred by denying her request for
alternative sentencing. Specifically, the Defendant argues that the trial court should have
granted her request for alternative sentencing because she showed remorse for her actions,
admitted that she abused her position of private trust, expressed a willingness to repay the
victim, and “asked for drug treatment and strict probationary supervision as tools to help her
accomplish her goals.”

                                        II. Standard of Review

        The applicable standard of review when a defendant challenges the length, range, or
manner of service of a sentence is de novo on the record with a presumption of correctness.
Tenn. Code Ann. § 40-35-401(d) (2006). However, 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). If the trial court did not do so, then the presumption fails, and this Court’s review is
de novo with no presumption of correctness. State v. Pierce, 138 S.W.3d 820, 827 (Tenn.
2004). However, if the trial court considered the statutory criteria, imposed a lawful but not

       1
           The Defendant does not appeal the amount of restitution as determined by the trial court.

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excessive sentence, stated its reasons for the sentence on the record, and its findings are
supported by the record, then this Court is bound by the trial court’s decision. State v. Carter,
254 S.W.3d 335, 346 (Tenn. 2008). On appeal, the party challenging the sentence has the
burden of demonstrating that it is improper. Tenn. Code Ann. § 40-35-401, Sentencing
Comm’n Cmts.; Carter, 254 S.W.3d at 344.

        In conducting a de novo review of a sentence, this Court must consider the following:
(a) any evidence adduced at the trial and the sentencing hearing; (b) the presentence report;
(c) the principles of sentencing and arguments of counsel regarding sentencing alternatives;
(d) the nature and characteristics of the criminal conduct; (e) any enhancement or mitigating
factors as provided in Tennessee Code Annotated sections 40-35-113 and 40-35-114; (f) any
statistical information provided by the Administrative Office of the Courts as to Tennessee
sentencing practices for similar offenses; and (g) any statement made by the defendant on his
or her own behalf about sentencing. Tenn. Code Ann. § 40-35-210(b) (2006); see also
Carter, 254 S.W.3d at 343.

                                         III. Analysis

        A court no longer presumes that a defendant is a favorable candidate for alternative
sentencing under the revised Tennessee sentencing statutes. Carter, 254 S.W.3d at 347
(citing Tenn. Code Ann. § 40-35-102(6)). Rather, the advisory sentencing guidelines now
provide that a defendant who does not possess a criminal history showing a clear disregard
for society’s laws and morals, who has not failed past rehabilitation efforts, and who “is an
especially mitigated or standard offender convicted of a Class C, D or E felony, should be
considered as a favorable candidate for alternative sentencing options in the absence of
evidence to the contrary.” Tenn. Code Ann § 40-35-102(5)-(6)(A) (Supp. 2007).
Additionally, a trial court is “not bound” by the advisory sentencing guidelines; rather, it
“shall consider” them. Id. § 40-35-102(6)(D).

      In determining whether to impose a sentence of confinement, the trial court should
consider the following:

       (A) Confinement is necessary to protect society by restraining a defendant who
       has a long history of criminal conduct;

       (B) Confinement 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




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       (C) Measures less restrictive than confinement have frequently or recently
       been applied unsuccessfully to the defendant.

Tenn. Code Ann. § 40-35-103(1) (2006); see also Carter, 254 S.W.3d at 347. Additionally,
the principles of sentencing reflect that the sentence should be no greater than that deserved
for the offense committed and should be the least severe measure necessary to achieve the
purposes for which the sentence is imposed. Tenn. Code Ann. § 40-35-103(2), (4). The
court also should consider a defendant’s potential for rehabilitation or lack thereof when
determining whether an alternative sentence is appropriate. Id. § 40-35-103(5).

       By the terms of her plea agreement, the Defendant was sentenced as a Range II
multiple offender. Thus, she is not a favorable candidate for alternative sentencing. See
Tenn. Code Ann. § 40-35-102(6)(A). Even though the Defendant is not a favorable
candidate, she is nonetheless eligible for an alternative sentence because her sentence was
ten years or less and the offenses for which she was convicted are not specifically excluded
by statute. See Tenn. Code Ann. §§ 40-35-102(6), -303(a).

       After a careful review of the record and the sentencing guidelines, we conclude that
the evidence presented supports the trial court’s decision and that the trial court did not err
in ordering the Defendant to serve her sentence in confinement. The trial court properly
considered the principles and purposes of the sentencing act. Thus, we review the trial
court’s findings with a presumption of correctness.

        Regarding enhancement factors, the trial court found the Defendant to have an
extensive criminal history, including six prior felony convictions and three misdemeanor
convictions in addition to the nine felony convictions in the present case. The record clearly
supports the application of this factor. Likewise, the record shows that the Defendant has
failed to abide by the terms of probation in the past. The trial court also found that the
Defendant abused a position of private trust by victimizing an elderly woman who was in
failing health and whom the Defendant had been employed to help, not harm. Again, the
record supports application of this factor.

        Additionally, the Defendant has a long history of illegal drug use and has been unable
thus far to rehabilitate herself notwithstanding multiple trips to in-patient treatment facilities
and prison. Moreover, the Defendant continued to use illegal drugs even after her arrest in
the present case. She failed to appear for a court-ordered drug screen on the day of her guilty
plea submission hearing after telling the court that she would pass such a test. These actions
led the trial court to conclude that the Defendant presented a poor potential for rehabilitation.
In summary, the record supports all of the findings of the trial court on these enhancement



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factors. Likewise, the record supports the trial court’s rejection of the mitigating factors
advanced by the Defendant.

                                     CONCLUSION

       We conclude that the trial court properly ordered the Defendant to serve her sentence
in confinement. Accordingly, we conclude that the Defendant is not entitled to relief, and
we affirm the judgments of the trial court.




                                                  _________________________
                                                  JEFFREY S. BIVINS, JUDGE




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