                   IN THE SUPREME COURT OF TENNESSEE
                               AT MEMPHIS
                                  November 8, 2005 Session

STATE OF TENNESSEE v. JESSICA TROTTER AND ANDREW SHERIFF

                  Appeal by permission from the Court of Criminal Appeals
                              Shelby County Criminal Court
                         No. 03-02844    Arthur T. Bennett, Judge



                    No. W2004-00656-SC-R11-CD - Filed on June 29, 2006


Through forgery and credit card fraud, defendants, Trotter and Sheriff, stole approximately half a
million dollars from Trotter’s employer. After both defendants had pleaded guilty to theft of
property over sixty thousand dollars, a Class B felony, the trial court imposed an eight-year sentence
upon each defendant. The defendants applied for alternative sentencing; the trial court denied the
application on the grounds of general deterrence and depreciation of the seriousness of the offense.
On appeal, the intermediate court reversed the trial court’s judgment and imposed alternative
sentences of twelve months incarceration, with the balance to be served on probation. We accepted
the State’s petition for review of this cause under Rule 11 of the Tennessee Rules of Appellate
Procedure in order to determine whether the intermediate court erred in reversing the trial court’s
sentences of confinement and substituting alternative sentences. We conclude that the Court of
Criminal Appeals erred in modifying the defendants’ sentences. Accordingly, the judgment of the
Court of Criminal Appeals is reversed, and the judgment of the trial court is reinstated.

  Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Criminal Appeals
                               Reversed; Case Remanded

ADOLPHO A. BIRCH , JR., J., delivered the opinion of the court, in which WILLIAM M. BARKER, C.J.,
and E. RILEY ANDERSON , JANICE M. HOLDER , and CORNELIA A. CLARK, JJ., joined.

Paul G. Summers, Attorney General and Reporter; Rachel E. Willis, Assistant Attorney General, for
the Appellant, State of Tennessee.

Brett B. Stein, Memphis, Tennessee, Attorney for the Appellee, Jessica Trotter.
Garland Ergüden, Assistant Public Defender, Memphis, Tennessee, for the Appellee, Andrew
Sheriff.


                                             OPINION
                                   I. Facts and Procedural History

        Ms. Jessica Trotter, a defendant, was employed by the owners of a retail jewelry store in
August 2000. Initially, she managed the office, but after a few months she began to handle the
store’s finances as well as the personal finances of the owners. Shortly thereafter, she and Mr.
Andrew Sheriff, the co-defendant, began residing together. In December 2000, Trotter began writing
checks payable to herself and Sheriff from the store’s account. Initially, she deposited these forged
checks into a checking account belonging to her former husband. Then, in early 2001, Sheriff began
depositing these checks into a bank account he had opened. Trotter and Sheriff also forged company
checks to cover their personal expenses, including mortgage payments, vacations, medical expenses,
jewelry, and lavish presents for family and friends. Additionally, some of the checks were used to
pay credit card indebtedness, and a significant portion of the money was used to purchase illegal
drugs.

        In late 2002, the owners discovered Trotter’s scheme and determined that the defendants had
stolen approximately half a million dollars. Trotter and Sheriff were each indicted for theft of
property over sixty thousand dollars—a Class B felony—and each pleaded guilty. Under the terms
of a plea agreement, each defendant was sentenced to an eight-year term with the manner of service
to be determined by the trial court. The defendants petitioned for alternative sentencing, and, after
an evidentiary hearing, the trial court refused to grant the petition. On appeal to the Court of
Criminal Appeals, Trotter and Sheriff challenged the denial of alternative sentencing. The Court of
Criminal Appeals reversed the trial court’s judgment and remanded the case for entry of alternative
sentences for each defendant. We now consider the State’s appeal of that judgment.


                                        II. Standard of Review

       On appeal, our standard of review of sentencing issues is de novo with a presumption of
correctness afforded to the trial court’s determinations. Tenn. Code Ann. § 40-35-401(d) (2003 &
Supp. 2005); State v. Sutton, 166 S.W.3d 686, 689 (Tenn. 2005).


                                             III. Analysis

        In appealing the intermediate court’s reversal of the defendants’ eight-year sentence of
incarceration and remand for entry of a judgment of split confinement, the State contends that the
Court of Criminal Appeals ignored the seriousness of the offense as a basis of the sentencing court’s
denial of alternative sentencing and failed to accord the presumption of correctness to the sentencing
court’s judgment. The defendants, on the other hand, contend in their brief that the intermediate
court’s alternative sentence is appropriate because the committed offense was not “especially violent,
horrifying, shocking, reprehensible, offensive, or otherwise of an excessive or exaggerated degree”
and that “the nature of the offense . . . [did not] outweigh all factors favoring [a] sentence other than
confinement.”


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       A defendant’s sentence is based on “the nature of the offense and the totality of the
circumstances in which it was committed, including the defendant’s background.” State v. Ashby,
823 S.W.2d 166, 168 (Tenn. 1991) (citing Tenn. Code Ann. §§ 40-35-102(1),(2)).

        The Criminal Sentencing Reform Act of 1989 (“Act”) provides the guidelines for sentencing
courts to follow when deciding a defendant’s sentence and the manner in which it will be served.
The Act provides, in part:

       (5) In recognition that state prison capacities and the funds to build and maintain
       them are limited, convicted felons committing the most severe offenses, possessing
       criminal histories evincing a clear disregard for the laws and morals of society, and
       evincing failure of past efforts at rehabilitation shall be given first priority regarding
       sentencing involving incarceration; and

       (6) A defendant who does not fall within the parameters of subdivision (5), 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. A court shall consider, but is not bound by,
       this advisory sentencing guideline.

Tenn. Code Ann. § 40-35-102(5)-(6) (2003 & Supp. 2005). Because each defendant was convicted
of a Class B felony, the presumption that the defendants are favorable candidates for alternative
sentencing options under subsection (6) does not apply.

        Probation, however, as an alternative sentence shall be automatically considered by the court
for defendants whose sentence if actually imposed is eight years or less. Tenn. Code Ann. § 40-35-
303(a) (2003 & Supp. 2005). Although probation is automatically considered, the statute does not
mandate that trial courts impose such a sentence on eligible defendants.

        Furthermore, the Act includes sentencing principles to apply to each defendant. The
sentencing principle governing the justification for incarceration is particularly significant. The
statute reads, in part:

       Sentences involving confinement should be based on the following considerations:
       (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
       (C) Measures less restrictive than confinement have frequently or recently been
       applied unsuccessfully to the defendant;



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Tenn. Code Ann. § 40-35-103(1) (2003). The sentencing consideration we focus upon is subsection
(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.”
Here, the trial court found that the amount stolen was excessive and serious and that imposition of
a sentence less than confinement would depreciate the seriousness of the offense. The trial court
concluded that confinement was necessary under each of the two prongs set out in subsection (B).
The intermediate court apparently overlooked the “depreciation” prong as found by the trial court.

         Applying the relevant statutes, we find that the defendants are not presumptively favorable
candidates for alternative sentencing because of the class of the offense committed. Even so,
probation shall automatically be considered because the length of each defendant’s sentence is eight
years. The sentencing court considered probation, found that it was not appropriate in this case, and
stated its reasons on the record: to avoid depreciating the seriousness of the offense and deterrence.
See Tenn. Code Ann. § 40-35-210(e) (2003 & Supp. 2005) (requiring sentencing court to state
sentencing reasons on the record). Thus, the issue is whether the sentencing court’s reasons for
denying alternative sentencing comport with the Criminal Sentencing Reform Act of 1989.

        If the seriousness of the offense forms the basis for the denial of alternative sentencing,
Tennessee courts have held that “‘the circumstances of the offense as committed must be especially
violent, horrifying, shocking, reprehensible, offensive or otherwise of an excessive or exaggerated
degree,’ and the nature of the offense must outweigh all factors favoring a sentence other than
confinement.” State v. Grissom, 956 S.W.2d 514, 520 (Tenn. Crim. App. 1997) (citing State v.
Bingham, 910 S.W.2d 448, 454 (Tenn. Crim. App. 1995) and State v. Hartley, 818 S.W.2d 370, 374-
75 (Tenn. Crim. App. 1991)); State v. Millsaps, 920 S.W.2d 267 (Tenn. Crim. App. 1995) (citations
omitted). The defendants rely on Grissom and Millsaps to support their contention that the nature
of the offense did not outweigh all factors favoring a sentence other than confinement. Thus, we
must look to the record to consider the weight of the nature of the offense versus the favorable
factors for alternative sentencing.

        In the case under review, the defendants, over an approximate two-year period, stole nearly
half a million dollars from Trotter’s employer. Trotter and Sheriff used the stolen money to advance
and support a rather lavish lifestyle by purchasing a new home, a new car, jewelry, vacations, and
expensive gifts for others. Additionally, the stolen proceeds were used to reduce the balances owed
on several of their credit cards. Moreover, Sheriff used approximately one hundred thousand dollars
to purchase illegal drugs. Only twenty thousand dollars has been recouped from the defendants. At
the sentencing hearing, the trial court noted that Trotter had no previous criminal record and that
Sheriff had no prior record “to amount to anything.” Additionally, both defendants adduced
testimony of their good character, and each expressed remorse.

       While Trotter and Sheriff appear to have the potential for rehabilitation, in our view, the
evidence of the crime is “reprehensible, offensive or otherwise of an excessive or exaggerated
degree” to the extent that it outweighs their mitigating circumstances. We have reached the same
conclusion upon less egregious facts. See State v. Davis, 940 S.W.2d 558, 559-561 (Tenn. 1997)


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(upholding the denial of probation for the offense of vandalism where the estimated damage was
twelve hundred dollars based on the trial court’s considering the seriousness of the offense and
general deterrence where the vandalism was in retaliation for crossing a picket line).

        Because we have concluded that the circumstances here are indeed offensive, excessive, and
of an exaggerated degree, we hold the seriousness of the offense alone supports the denial of
alternative sentencing and that a sentence of confinement is necessary to avoid depreciating the
seriousness of the offense.

        The State also points out that on direct appeal, the Court of Criminal Appeals failed to
recognize that the trial court’s denial of alternative sentencing was based not only on deterrence but
also on the need to avoid depreciating the seriousness of the offense. Addressing the trial court’s
finding of deterrence as if it were the sole basis for the denial of alternative sentencing, the
intermediate court concluded that the “trial court’s unsubstantiated references to deterrence does [sic]
not satisfy the dictates of State v. Hooper, 29 S.W.3d 1 (Tenn. 2000).” Accordingly, the intermediate
court declined to presume the correctness of the trial court’s judgment because of its view that the
trial court’s reliance on the deterrence factor was not supported by any evidence.

        The concept of deterrence has, understandably, been a component of the sentencing equation
since the Criminal Justice Reform Act of 1978. See generally Boykins v. State, 584 S.W.2d 194,
196 (Tenn. 1979) (referencing the Legislature’s amendment by enactment of chapter 911 of the 1978
Tennessee Public Acts and citing Tenn. Code Ann. §40-2904). But, precisely how it should affect
the sentencing decision has been a source of vexation for Tennessee judges. At the crux of the
controversy is which sentencing decisions may be dictated or supported by a consideration of
deterrence alone. See State v. Hooper, 29 S.W.3d 1, 6 (Tenn. 2000) (citing Moten v. State, 559
S.W.2d 770 (Tenn. 1977)). “Deterrence is certainly a principle to consider in sentencing, but both
case law and the statute contemplate that that consideration should be qualified.” Ashby, 823
S.W.2d at 170.

       In Hooper, we held that a sentencing judge may impose confinement based solely on
deterrence when the evidence “would enable a reasonable person to conclude that (1) deterrence is
needed in the community, jurisdiction, or state; and (2) the defendant’s incarceration may rationally
serve as a deterrent to others similarly situated and likely to commit similar crimes.” Hooper, 29
S.W.3d at 13.

        Hooper addresses the issue of whether deterrence alone may support a denial of alternative
sentencing and articulates the criteria for such circumstances, but the instant case is easily
distinguished from Hooper. Here, deterrence was not the trial court’s sole basis for denying
alternative sentencing. In this regard, the trial court stated:

               The Court has to determine whether there’s a need, a compelling need to
       protect society by restraining the defendant’s conduct.



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               This type of activity of course is damaging to society. We heard about
       employees effected, [sic] other things effected, [sic] the Rozens effected [sic] in their
       relationship with other folk or businesses that they had to deal with, effected [sic]
       other folk or people. So that is detrimental to these defendants.

              The Court has to decide whether granting any relief in this matter would
       depreciate the seriousness of this offense. And this was a serious offense, as you
       know.

               ...

               . . . And the Court feels that the seriousness of this offense and the deterrent
       effect outweigh the fact that these persons have no prior record. Because of the
       amount, the way it was done. It apparently was not done just to get enough to
       survive, it was done to live close to what Donald Trump would want to live. So it
       goes beyond mere necessities of life.

        Clearly, the trial court based the denial of alternative sentencing on considerations other than
deterrence, i.e., the seriousness of the offense and the need to avoid depreciation of the offense.
Because the denial of alternative sentencing is amply supported by factors other than deterrence, we
need not further address the Hooper criteria in the case under submission. The trial court’s denial
of alternative sentencing was justified.


                                            V. Conclusion

        Although the class of the offense committed did not presumptively establish the defendants
as favorable candidates for alternative sentencing, under the facts of this case, the defendants were
eligible for alternative sentencing because the length of their sentences were eight years or less. The
sentencing court found that based on the seriousness and excessive nature of the offense, alternative
sentencing was inappropriate. Based on our de novo review, and according the judgment of the trial
court the presumption of correctness, we reinstate the defendants’ sentences imposed by the trial
court. The costs of this appeal are taxed to the State of Tennessee.



                                               ___________________________________
                                                 ADOLPHO A. BIRCH, JR., JUSTICE




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