        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                           Assigned on Briefs July 07, 2015


               STATE OF TENNESSEE v. SANDRA MITCHELL

                  Appeal from the Circuit Court for Gibson County
                       No. 18949    Clayburn Peeples, Judge




               No. W2015-00043-CCA-R3-CD - Filed August 28, 2015
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The defendant, Sandra Mitchell, pled guilty to theft of property of $60,000 or more but
less than $250,000, a Class B felony. She received a twelve-year sentence to be served
consecutively to a prior six-year sentence. On appeal, she challenges the trial court’s
decision to impose consecutive sentences. Upon our review, we affirm the judgment of
the trial court.

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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the Court, in which THOMAS T.
WOODALL, P.J. and D. KELLY THOMAS, JR., J., joined.

Harold E. Dorsey, Alamo, Tennessee, for the appellant, Sandra Mitchell.

Herbert H. Slatery III, Attorney General and Reporter; Caitlin Smith, Assistant Attorney
General; Garry Brown, District Attorney General; and Hilary Lawler Parham, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                       OPINION

                      FACTS AND PROCEDURAL HISTORY

       In July of 2013, the defendant was charged with stealing over $200,000 from the
victims, Ruth and Max Osborne. At the time, she was on probation for a prior conviction
of theft of property of $10,000 or more but less than $60,000. Based on the new charges
and her failure to make restitution in the prior case, a probation revocation warrant was
filed. The trial court revoked her probation and ordered her to serve her six-year sentence
in confinement. The defendant later entered an open guilty plea to the instant charge, and
the trial court held a sentencing hearing to determine whether her sentences would be
served concurrently or consecutively.

       The transcript of the defendant’s guilty plea hearing is not included in the record
on appeal. We glean the facts of this case from testimony given at the defendant’s
probation revocation hearing and sentencing hearing.

       The defendant came to work for the Osbornes in May of 2008. The Osbornes
were an elderly couple, and Ms. Osborne hired the defendant to assist with the housework
and to help care for Mr. Osborne, who suffered from dementia. The defendant worked
daily in the Osbornes’ home. The Osbornes trusted the defendant and considered her a
family friend.

       In May of 2013, Ms. Osborne discovered that she was missing some of her checks.
She learned that the defendant had been stealing her checks from her checkbook. The
defendant would make the check out to herself, forge Ms. Osborne’s signature, and
deposit the checks into her own bank account. The defendant would write the checks in
the amount of several hundred dollars, and her theft went undetected for several years.
During a five-year period from 2008 to 2013, the defendant stole over $200,000 from the
Osbornes. As a condition of her probation for her prior conviction, the defendant was
required to pay restitution to the victim. She used some of the funds taken from the
Osbornes to pay this restitution.

       The trial court imposed a twelve-year sentence and ordered it to be served
consecutively to her prior six-year sentence. In ordering consecutive sentencing, the trial
court stated:

              Normally, a single enhancement factor, quite frankly, particularly,
       the fact that an offense was committed on probation would not be an
       appropriate situation for consecutive sentences; however, the probation in
       this case being for an offense almost identical to this one, and, quite
       frankly, this offense being perpetrated and perpetuated it appears in an
       effort to survive that probation gives me no choice but to run these
       sentences consecutively. I’m sorry, but I have no choice but to do that.

The defendant filed a timely notice of appeal, and we proceed to consider her claim.




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                                      ANALYSIS


       The defendant argues that the trial court erred in imposing consecutive sentences.
Specifically, she contends that an eighteen-year aggregate sentence is a greater sentence
than deserved for her offense.

       The decision to impose consecutive sentences is reviewed for an “abuse of
discretion accompanied by a presumption of reasonableness.” State v. Pollard, 432
S.W.3d 851, 859 (Tenn. 2013). The trial court’s imposition of consecutive sentences is
given deference “if it has provided reasons on the record establishing at least one of the
seven grounds listed in Tennessee Code Annotated section 40-35-115(b).” Id. at 861.
The existence of only one of these grounds “is a sufficient basis for the imposition of
consecutive sentences.” Id. at 862. Consecutive sentencing is appropriate “if the court
finds by a preponderance of the evidence that: . . . [t]he defendant is sentenced for an
offense committed while on probation[.]” T.C.A. § 40-35-115(b)(6) (2010). “So long as
a trial court properly articulates reasons for ordering consecutive sentences, thereby
providing a basis for meaningful appellate review, the sentences will be presumed
reasonable and, absent an abuse of discretion, upheld on appeal.” Pollard, 432 S.W.3d at
862. Additionally, the sentence imposed shall be “justly deserved in relation to the
seriousness of the offense” and “should be no greater than that deserved for the offense
committed.” T.C.A. § 40-35-102(1); T.C.A. § 40-35-103(2).

       Here, the trial court imposed consecutive sentences on the sole basis that the
defendant was on probation when she committed the instant offense. The court found
that the offense for which the defendant was on probation was nearly identical to the
instant conviction. The court also found that the second theft was committed in part so
that the defendant could meet the restitution obligations of her probation for the first
theft. We conclude that the trial court did not abuse its discretion in aligning the
defendant’s sentences consecutively. The defendant is not entitled to any relief.


                                    CONCLUSION

      Based upon the foregoing analysis, we affirm the judgment of the trial court.




                                                _________________________________
                                                JOHN EVERETT WILLIAMS, JUDGE
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