        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                       Assigned on Briefs November 10, 2010

           STATE OF TENNESSEE v. VERONICA LYNN FLOYD

              Direct Appeal from the Circuit Court for Bedford County
                         No. 16865      Lee Russell, Judge


               No. M2010-00177-CCA-R3-CD - Filed December 8, 2010


The defendant, Veronica Lynn Floyd, pled guilty in the Bedford County Circuit Court to
three counts of theft of property over $10,000, Class C felonies, and one count of theft of
property over $1000, a Class D felony. She was sentenced as a Range I offender to five
years on each of the theft over $10,000 convictions, with two of the counts to be served
concurrently and one count consecutively to the others, and three years on the theft over
$1000 conviction, to be served consecutively to the other counts, for a total effective
sentence of thirteen years. The defendant was ordered to serve nine months of her sentence
in the county jail with the remaining term on community corrections. On appeal, she argues
that the trial court imposed an excessive sentence. After review, we affirm the judgments
of the trial court.

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

A LAN E. G LENN, J., delivered the opinion of the Court, in which T HOMAS T. W OODALL and
J AMES C URWOOD W ITT, J R., JJ., joined.

Gregory D. Smith, Clarksville, Tennessee (on appeal); and Michael J. Collins, Assistant
Public Defender (at trial), for the appellant, Veronica Lynn Floyd.

Robert E. Cooper, Jr., Attorney General and Reporter; Clark B. Thornton, Assistant Attorney
General; Charles Frank Crawford, Jr., District Attorney General; and Michael D. Randles,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                        OPINION

                                         FACTS

       The defendant was indicted on four counts of theft of property. Counts one, two and
three alleged that the defendant appropriated $10,000 or more but less than $60,000 from
the victim “on divers[e] days” in 2006, 2007, and 2008, respectively. Count four alleged
that the defendant appropriated $1000 or more but less than $10,000 from the victim “on
divers[e] days” in 2009. The underlying facts of the case were summarized by the State at
the guilty plea hearing as follows:

              The victim in this case is a gentlemen named Bobby Kirk. He’s an
       elderly gentlemen who, I believe, is also disabled . . . . [He] may have some
       beginning stages of Alzheimer’s, things like that. He lives here in Bedford
       County.

             Some years ago, the defendant became, essentially, a caregiver for him.
       She would help, I guess, get his groceries, [and] various other things . . . .

              [The victim] had a couple of sources of income. I think there was a
       pension and then maybe a disability payment, things like that, which, of
       course, his bills and such were supposed to be paid out of.

              Well, over the years, some of his bills would not get paid, but even the
       ones that would, you could look and see how much money he was bringing
       in each month and how much was getting paid that could be specifically
       attributed to him, and there would be, typically, well over $1,000 left over
       each month, but he had -- once this began, the investigation began and such,
       he had really nothing to show for it. So there’s not been an accumulation of
       savings over the years.

               And then over the years, the defendant began spending some of that
       money for things that would probably be generally associated just for her
       benefit, I think, towards a house, . . . some of her expenses associated with
       that house, such as cable television and telephone, and I think there was
       maybe a General Sessions charge, where she had a fine and cost or some
       restitution or something, and [the victim’s] money was applied towards that.
       So there was spending of the [victim’s] money by the defendant, which was
       not for the benefit of explicitly to [the victim].

       Under questioning by the court at the plea hearing, the defendant stated that she had
access to the victim’s money because she had a power of attorney “to pay his bills and stuff.”
She acknowledged that she could still commit theft even if she had a power of attorney if
she took the victim’s money without his permission with intent to deprive him of it.



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        The trial court accepted the defendant’s guilty pleas to the four counts as charged and
soon thereafter conducted a sentencing hearing. At the hearing, James Rodney Kirk, the
victim’s brother and conservator, testified that the victim was in a nursing home suffering
from early onset Alzheimer’s, diabetes, peripheral artery disease, pulmonary disease and five
other permanent diseases and illnesses. He said that the victim was hospitalized in
November 2008, near death, suffering from the aforementioned illnesses and twelve other
temporary, but serious, ailments. He explained that the ailments were the “culmination of
[the defendant’s] lack of care for [the victim] over the three year duration of their
relationship.” Kirk stated that the defendant’s “lies, deceit, manipulation, triangulation,
fraud and theft took [the victim] to this near death physical deterioration” as well as
requiring two psychiatric hospitalizations due to suicide threats. He said that the defendant
manipulated the victim to make him feel isolated, helpless, and hopeless. Kirk explained
that the defendant also led to the victim’s financial devastation because she diverted almost
$40,000 of the victim’s income for her own use and left him with thousands of dollars of
unpaid bills despite his having adequate income to pay them.

       After hearing the arguments of the parties, the trial court sentenced the defendant to
five years on each of the theft over $10,000 convictions, with the first two counts to be
served concurrently and the third count consecutively to the others, and three years on the
theft over $1000 conviction, to be served consecutively to the other counts, for a total
effective sentence of thirteen years. The court ordered a sentence of split confinement –
ninety days in confinement in the county jail with the remainder served on community
corrections.

                                        ANALYSIS

       The defendant argues that the sentence imposed by the trial court was excessive
because the trial court imposed consecutive sentences and ordered that she serve the non-
incarcerative portion of her sentence on community corrections instead of probation.

       When an accused challenges the length and manner of service of a sentence, it is the
duty of this court to conduct a de novo review on the record with a presumption that “the
determinations made by the court from which the appeal is taken are correct.” Tenn. Code
Ann. § 40-35-401(d) (2006). 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
presumption does not apply to the legal conclusions reached by the trial court in sentencing
the accused or to the determinations made by the trial court which are predicated upon
uncontroverted facts. State v. Butler, 900 S.W.2d 305, 311 (Tenn. Crim. App. 1994); State
v. Smith, 891 S.W.2d 922, 929 (Tenn. Crim. App. 1994); State v. Bonestel, 871 S.W.2d 163,

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166 (Tenn. Crim. App. 1993), overruled on other grounds by State v. Hooper, 29 S.W.3d
1, 9 (Tenn. 2000).

       In conducting a de novo review of a sentence, this court must consider (a) any
evidence received at the trial and/or sentencing hearing, (b) the presentence report, (c) the
principles of sentencing, (d) the arguments of counsel relative to sentencing alternatives, (e)
the nature and characteristics of the offense, (f) any mitigating or enhancement factors, (g)
any statistical information provided by the administrative office of the courts as to Tennessee
sentencing practices for similar offenses, (h) any statements made by the accused in his own
behalf, and (i) the accused’s potential or lack of potential for rehabilitation or treatment.
Tenn. Code Ann. §§ 40-35-103, -210 (2006); State v. Taylor, 63 S.W.3d 400, 411 (Tenn.
Crim. App. 2001). The party challenging the sentence imposed by the trial court has the
burden of establishing that the sentence is erroneous. Tenn. Code Ann. § 40-35-401 (2006),
Sentencing Commission Cmts.; Ashby, 823 S.W.2d at 169.

       In imposing a specific sentence within a range, a trial court “shall consider, but is not
bound by” certain advisory sentencing guidelines, including that the “minimum sentence
within the range of punishment is the sentence that should be imposed” and that “[t]he
sentence length within the range should be adjusted, as appropriate, by the presence or
absence of mitigating and enhancement factors[.]” Tenn. Code Ann. § 40-35-210(c)(1), (2).
The weighing of the various mitigating and enhancement factors is “left to the trial court’s
sound discretion.” State v. Carter, 254 S.W.3d 335, 345 (Tenn. 2008).

        In sentencing the defendant, the trial court noted that the defendant had a “slight”
criminal record, consisting of passing a worthless check and disorderly conduct, and gave
the factor very little weight. See Tenn. Code Ann. § 40-35-114(1). The court observed that
the victim was particularly vulnerable because of both a physical and mental disability, see
id. § 40-35-114(4), and that such factor was present “in a very dramatic way,” thus giving
it “great weight.” The court also found that the defendant abused a position of private trust,
see id. § 40-35-114(14), in that she was supposed to have been “taking care of [the victim’s]
resources for his benefit and instead, on a very major scale, over four years, was
appropriating money for herself.” The court determined that such factor was also present
“in a very dramatic way.” In response to the defendant’s argument regarding mitigating
factors, the trial court agreed that the taking of money did not cause nor threaten serious
bodily harm, see id. § 40-35-113(1), but gave the factor very little weight. As such, the trial
court reached a sentence of five years on each of the defendant’s C felony convictions and
three years on her D felony conviction. The defendant does not appear to contest the length
of sentence imposed by the trial court, and the term imposed was properly within the trial
court’s discretion.



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        Tennessee Code Annotated section 40-35-115(b) provides that a trial court may, in
its discretion, order sentences to run consecutively if it finds by a preponderance of the
evidence, as pertinent here, that the defendant is an offender whose record of criminal
activity is extensive. Tenn. Code Ann. § 40-35-115(b)(2) (2006). In this case, the trial court
found that the defendant had an extensive record of criminal activity as to the convictions
stemming from her 2008 and 2009 activities but not with regard to the convictions stemming
from her 2006 and 2007 activities. The court reasoned that by 2008 and 2009, the
defendant’s conduct over the previous two and three years, respectively, was applicable as
extensive criminal history to the subsequent conduct.

        We have previously held that the “[c]urrent offenses may be used in determining
criminal history for the purposes of consecutive sentencing.” State v. Carolyn J. Nobles, No.
M2006-00695-CCA-R3-CD, 2007 WL 677861, at *12 (Tenn. Crim. App. Mar. 7, 2007)
(citing State v. Cummings, 868 S.W.2d 661, 667 (Tenn. Crim. App. 1992)). Cummings
presented a situation where a defendant had no prior criminal record but pled guilty to eight
offenses. 868 S.W.2d at 663-64. In that case, this court affirmed the trial court’s imposition
of consecutive sentences on the basis of the defendant’s having an extensive record of
criminal activity. Id. at 667. Other panels of this court have also affirmed in similar
scenarios. See, e.g., State v. Mark Robert Carter, No. M2007-02706-CCA-R3-CD, 2009
WL 1349206, at *10 (Tenn. Crim. App. May 14, 2009), perm. to appeal denied (Tenn. Sept.
28, 2009); Carolyn J. Nobles, 2007 WL 677861, at *12; State v. Brian Lee Cable, No.
E2005-00608-CCA-R3-CD, 2006 WL 1381484, at *8 (Tenn. Crim. App. May 19, 2006),
perm. to appeal denied (Tenn. Sept. 25, 2006); State v. Monsanto Undrez Cannon, No.
M2005-01258-CCA-R3-CD, 2006 WL 16324, at *5 (Tenn. Crim. App. Jan. 4, 2006); State
v. Rachel N. Bennett, No. M2002-01215-CCA-R3-CD, 2003 WL 1562090, at *3 (Tenn.
Crim. App. Mar. 26, 2003).

        In arguing that consecutive sentencing was inappropriate, the defendant attempts to
distinguish Carolyn J. Nobles from the facts of her case on the ground that she only had four
theft convictions in contrast to Nobles’ seventy-one check forgery convictions. It is true that
the actual number of the defendant’s convictions is lower, but such is explained because
Nobles was charged per check forgery; whereas the defendant was charged of theft per year,
not for each discrete appropriation. In some regards, the defendant’s criminal activity was
more extensive than Nobles’ in that the defendant’s conduct took place over a four-year
period in contrast to Nobles’ “four months and a week.” See Carolyn J. Nobles, 2007 WL
677861, at *7. We conclude that the trial court did not abuse its discretion in imposing
consecutive sentences on two of the convictions.

       A defendant who receives a sentence of ten years or less is eligible for probation,
subject to certain exceptions. Tenn. Code Ann. § 40-35-303(a) (2006). Even if eligible,

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however, the defendant is not automatically entitled to probation as a matter of law. See
Tenn. Code Ann. § 40-35-303(b). The burden is on the defendant to show the denial of
probation was improper. Id.; see also State v. Summers, 159 S.W.3d 586, 599-600 (Tenn.
Crim. App. 2004) (citing Ashby, 823 S.W.2d at 169); State v. Baker, 966 S.W.2d 429, 434
(Tenn. Crim. App. 1997) (stating that “[a] criminal defendant seeking full probation bears
the burden on appeal of showing the sentence actually imposed is improper, and that full
probation will be in both the best interest of the defendant and the public”).

       There is no bright line rule for determining when a defendant should be granted
probation. State v. Bingham, 910 S.W.2d 448, 456 (Tenn. Crim. App. 1995), overruled on
other grounds by Hooper, 29 S.W.3d at 9-10. Every sentencing decision necessarily requires
a case-by-case analysis. Id. Factors to be considered include the circumstances surrounding
the offense, the defendant’s criminal record, the defendant’s social history and present
condition, the need for deterrence, and the best interests of the defendant and the public.
State v. Goode, 956 S.W.2d 521, 527 (Tenn. Crim. App. 1997). Another appropriate factor
for a trial court to consider in determining whether to grant probation is a defendant’s
credibility or lack thereof, as this reflects on the defendant’s potential for rehabilitation. Id.
Also relevant is whether a sentence of probation would unduly depreciate the seriousness
of the offense. See State v. Davis, 940 S.W.2d 558, 559 (Tenn. 1997); Bingham, 910
S.W.2d at 456.

        To qualify for consideration for punishment in the community, an offender must meet
all of the following criteria:

              (A) Persons who, without this option, would be incarcerated in a
       correctional institution;

              (B) Persons who are convicted of property-related, or drug-or
       alcohol-related felony offenses or other felony offenses not involving crimes
       against the person as provided in title 39, chapter 13, parts 1-5;

               (C) Persons who are convicted of nonviolent felony offenses;

             (D) Persons who are convicted of felony offenses in which the use or
       possession of a weapon was not involved;

             (E) Persons who do not demonstrate a present or past pattern of
       behavior indicating violence; [and]

               (F) Persons who do not demonstrate a pattern of committing violent

                                               -6-
         offenses[.]

Tenn. Code Ann. § 40-36-106(a)(1) (2006).

        In determining the manner of service of the defendant’s sentence, the trial court stated
that there appeared to be “little potential for rehabilitation in the absence of serving some
sentence.” The court observed the need of the victim to receive restitution for his loss and
the need of preventing the defendant from similar future employment. The court ordered
that the defendant serve nine months of her sentence with the remainder served on
community corrections.

        The defendant argues that the trial court should have ordered that she serve the
balance of her sentence on probation instead of community corrections. As the defendant
correctly points out, she is statutorily eligible for probation. However, we discern from the
trial court’s findings that the court was concerned about the defendant’s potential for
rehabilitation and that it considered the best interest of the public and the circumstances of
the offenses in apparently concluding that the increased supervision requirements of
community corrections were appropriate for the defendant. We cannot conclude that the
trial court abused its discretion in the manner of service of sentence imposed.

                                       CONCLUSION

         Based on the foregoing authorities and reasoning, we affirm the judgments of the trial
court.

                                                     _________________________________
                                                     ALAN E. GLENN, JUDGE




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