        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                        Assigned on Briefs September 28, 2010

                  STATE OF TENNESSEE v. MITZI ROLLINS

               Direct Appeal from the Circuit Court for Moore County
                         No. 1134     Robert Crigler, Judge


               No. M2010-00566-CCA-R3-CD - Filed February 14, 2011


The appellant, Mitzi Rollins, pled guilty in the Moore County Circuit Court to one count of
initiating a false report under Tennessee Code Annotated section 39-16-502. The plea
agreement provided that she would be sentenced to two years and ten months, with the trial
court to determine the manner of service. After a hearing, the trial court denied the
appellant’s request for alternative sentencing, citing her lengthy criminal history and the
repeated unsuccessful attempts to use less restrictive sentencing. The appellant contends the
trial court erred by ordering her to serve her sentence in confinement. We affirm the
judgment of the trial court.

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

N ORMA M CG EE O GLE, J., delivered the opinion of the Court, in which J AMES C URWOOD
W ITT, J R., and C AMILLE R. M CM ULLEN, JJ., joined.

A. Jackson Dearing, III (at trial) and Gregory D. Smith (on appeal), Clarksville, Tennessee,
for the appellant, Mitzi M. Rollins.

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

                                         OPINION

                                  I. Factual Background

       According to the facts recited by the State at the plea hearing, the appellant reported
to a sheriff’s deputy that several items had been stolen from her. In particular, she claimed
that two guns, some prescription drugs, and cash had been taken. Upon investigation, the
deputy learned that the appellant had in fact pawned the guns and had either sold or ingested
all of the medication.

       The appellant was indicted on one count of initiating a false report under Tennessee
Code Annotated section 39-16-502. After reaching a plea agreement with the State, the
appellant pled guilty to the indictment. The agreement set the length of her sentence at two
years and ten months, but it left the manner of service to be determined by the court.

       At the sentencing hearing, the State relied upon the evidence presented at the plea
hearing and the presentence investigation report.

       The appellant testified that she was thirty-nine years old and was married but in the
midst of a divorce. She testified that she had two children: one nine years old and one twenty
years old.

        The appellant testified that she had extensive and debilitating health problems. She
stated that she had surgery six years earlier to remove a brain tumor and that she still had an
inoperable tumor in her right frontal lobe that caused seizures. Additionally, she testified that
she had emphysema, which required constant oxygen; was a diabetic; and had high blood
pressure. She said she saw a family doctor once a week and a neurologist once a month. The
appellant also testified that she had a number of mental health issues and had previously been
hospitalized for suicide attempts. The appellant testified that she took twelve-to-fifteen
prescription medications for her physical and psychological conditions.

       The appellant also discussed her work history. She explained that prior to her brain
surgery, she had always held a job. However, she had been unable to work since the surgery.
The appellant said that she had received Social Security disability benefits; however, the
benefits were terminated after her husband reported that she had been working. The
appellant denied the allegation and said she was trying to get her benefits reinstated.

       On cross-examination, the appellant acknowledged that she was previously on
probation for a driving under the influence conviction and that her probation had been
revoked.

       At the conclusion of the appellant’s testimony, the State argued that she was not a
good candidate for alternative sentencing. The State reasoned that the appellant’s criminal
record, which was detailed by the presentence report, and the revoked DUI probation
strongly counseled against alternative sentencing.

       The defense argued that alternative sentencing was appropriate because of the

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appellant’s significant health issues. It explained that, “[q]uite frankly [Appellant] is dying,”
and therefore her health concerns outweighed her prior history.

        The trial court detailed the appellant’s lengthy criminal history, which included two
DUIs; forgery; theft; passing worthless checks; and traffic, drug, and alcohol offenses. The
court noted that the appellant had been placed on probation at least seven times (one of which
was revoked), that she had two convictions that resulted in only fines, and that she also had
been given a pretrial diversion for another offense. The court thus found that, “[c]ertainly,”
less restrictive means had been frequently and unsuccessfully applied to the appellant. It
therefore concluded that incarceration was necessary. The appellant now argues that the trial
court erred in denying alternative sentencing.

                                         II. Analysis

        Appellate review of the manner of service of a sentence is de novo. See Tenn. Code
Ann. § 40-35-401(d). In conducting its de novo review, this court considers the following
factors: (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 sentencing
alternatives; (4) the nature and characteristics of the criminal conduct involved; (5) evidence
and information offered by the parties on enhancement and mitigating factors; (6) any
statistical information provided by the administrative office of the courts as to sentencing
practices for similar offenses in Tennessee; (7) any statement by the appellant in her own
behalf; and (8) the potential for rehabilitation or treatment. See id. §§ -102, -103 & -210; see
also State v. Ashby, 823 S.W.2d 166, 168 (Tenn. 1991). The burden is on the appellant to
demonstrate the impropriety of her sentence. See Tenn. Code Ann. § 40-35-401, cmts. If
the record reveals that the trial court adequately considered the sentencing principles and all
relevant facts and circumstances, this court will accord the trial court’s determinations a
presumption of correctness. See id. at (d); Ashby, 823 S.W.2d at 169.

       The Sentencing Reform Act of 1989 encourages judges to utilize non-incarceration
sentencing alternatives. See Tenn. Code Ann. § 40-35-103(6); see also State v. Ring, 56
S.W.3d 577, 585 (Tenn. Crim. App. 2001). Because the appellant is a non-violent class D
offender, she is considered “a favorable candidate for alternative sentencing.” Tenn. Code
Ann. § 40-35-102(6). However, even if the appellant is considered “a favorable candidate”
under subsection (6), she may nonetheless be sentenced to incarceration based upon the trial
court’s determination that:

       (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

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       offense or confinement is particularly suited to provide an effective deterrence
       to others likely to commit similar offenses; or
       (C) Measures less restrictive than confinement have frequently or recently
       been applied unsuccessfully to the defendant.

Tenn. Code Ann. § 40-35-103(1). Further, the trial court may consider the applicable
mitigating and enhancing factors under sections -113 and -114 and “the potential or lack of
potential for rehabilitation” to determine if incarceration is appropriate. State v. Zeolia, 928
S.W.2d 457, 461 (Tenn. Crim. App. 1996); see also Tenn. Code Ann. § 40-35-103(5).

        The trial court did not err in denying alternative sentencing. It carefully evaluated the
principles of sentencing and the relevant facts. In doing so, the trial court paid particular
attention to the appellant’s extensive criminal history. The court also noted that the record
revealed that she had repeatedly been placed on probation or been given other, non-custodial
sentences. Thus, the record supports the trial court’s finding that less restrictive measures
have been tried frequently and unsuccessfully. Finally, the trial court considered the
appellant’s health condition; however, it concluded that the Department of Correction could
adequately address the appellant’s needs. The record supports the trial court’s conclusion
that the appellant is not a good candidate for alternative sentencing.

                                       III. Conclusion

       For the foregoing reasons we affirm the judgment of the trial court.


                                                     _________________________________
                                                     NORMA McGEE OGLE, JUDGE




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