        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                            Assigned on Briefs March 19, 2003

                    STATE OF TENNESSEE v. RHONDA ROCK

                 Direct Appeal from the Criminal Court for Sullivan County
                            No. S43,086    R. Jerry Beck, Judge



                                No. E2002-01580-CCA-R3-CD
                                      August 29, 2003

The defendant appeals her sentence of four years for voluntary manslaughter. The defendant
contends that the trial court erred in denying her any form of alternative sentencing. We
conclude that the trial court did not err in sentencing and affirm the judgment of the trial court.

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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which DAVID G. HAYES and
THOMAS T. WOODA LL, JJ., joined.

Raymond C. Conkin, Jr., Kingsport, Tennessee; Stephen M. Wallace, District Public Defender;
and Richard A. Tate, Assistant Public Defender, for the appellant, Rhonda Rock.

Paul G. Summers, Attorney General and Reporter; Angele M. Gregory, Assistant Attorney
General; H. Greeley Wells, Jr., District Attorney General; and Robert H. Montgomery, Assistant
District Attorney General, for the appellee, State of Tennessee.


                                           OPINION

        The defendant, Rhonda Rock, appeals from the sentencing determination of the Sullivan
County Criminal Court. The defendant pleaded guilty to the Class C felony of voluntary
manslaughter and agreed to accept a Range I sentence, with the length and manner of service to
be determined by the trial court following the completion of the presentence report and a
sentencing hearing. After the hearing, the trial court ordered the defendant to serve a four-year
sentence in the Tennessee Department of Correction. On appeal, the defendant argues that the
trial court erred in imposing a four year sentence instead of a three-year sentence. The defendant
also argues that the trial court erroneously denied all forms of alternative sentencing.

       In May of 1998, the victim, Mark S. Cody, was invited to the home of the defendant and
her husband, Tim Rock. Aaron Cody, Joel Gideon, and Liz Cody were present at the
defendant’s home at the time of the incident. The group had been in the defendant’s garage
when an argument broke out, and the victim chased Liz Cody with a .38 gun. The victim then
pointed the gun in the direction of the defendant, Tim Rock, Aaron Cody, and Joel Gideon. The
defendant handed a .38 gun to Gideon, who fired two shots at the victim. Aaron Cody also fired
shots at the victim.

        On August 31, 1999 a Sullivan County Grand Jury indicted the defendant, Rhonda Rock,
on one count of second degree murder. On August 6, 2001, the defendant entered a blind plea to
one count of voluntary manslaughter. The trial court sentenced the defendant as a Range I,
standard offender to four years in the Tennessee Department of Correction. The defendant
brings this timely appeal.

                                              Analysis

        The defendant appeals the length of her sentence and the trial court’s denial of an
alternative sentence.

        When there is a challenge to the length, range, or manner of service of a sentence, it is
the duty of this Court to conduct a de novo review of the record with a presumption that the
determinations made by the trial court are correct. Tenn. Code Ann. § 40-35-401(d)(1997). 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 burden of showing that the sentence is improper is
upon the appellant.” Id. If the record does not demonstrate the required consideration by the
trial court, review of the sentence is de novo with no presumption of correctness. Id. If our
review reflects that the trial court properly considered all relevant factors and its findings of fact
are adequately supported by the record, we must affirm the sentence, “even if we would have
preferred a different result.” State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).

       In making its sentencing determination, the trial court, at the “conclusion of the
sentencing hearing” and after determining the range of sentence and the specific sentence, then
determines the propriety of sentencing alternatives by considering:
       (1) [t]he evidence, if any, received at the trial and the sentencing hearing; (2) [t]he
       presentence report; (3) [t]he principles of sentencing and arguments as to
       sentencing alternatives; (4) [t]he nature and characteristics of the criminal
       conduct involved; (5) [e]vidence and information offered by the parties on the
       enhancement and mitigating factors in § 40-35-113 and 40-35-114; and (6) [a]ny
       statement the defendant wishes to make in the defendant’s own behalf about
       sentencing; and (7) the potential for rehabilitation or treatment.
Tenn. Code Ann. § 40-35-210(a), (b) (1997); Tenn. Code Ann. § 40-35-103(5) (1990); State v.
Holland, 860 S.W.2d 53, 60 (Tenn. Crim. App. 1993).

A. Length of Sentence

       The defendant was convicted of voluntary manslaughter, a Class C felony, and was
sentenced to four years in the Tennessee Department of Correction. The defendant argues that


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the trial court erred in sentencing her to four years instead of the minimum sentence of three
years.

        The sentence to be imposed for a Class C felony is presumptively the minimum in the
range unless there are enhancement factors present. Tenn. Crim. App. § 40-35-210(c)(1990).
The trial court is to increase the sentence within the range as appropriate based upon the
existence of enhancement factors and then reduce the sentence as appropriate for any mitigating
factors. Tenn. Code Ann. § 40-35-210(d), (e) (1990). The weight to be afforded an existing
factor is left to the trial court’s discretion so long as it complies with the purposes and principles
of the 1989 Sentencing Act and its findings are adequately supported by the record. Tenn. Code
Ann. § 40-35-210 (1990), Sentencing Comm’n Comments; State v. Moss, 727 S.W.2d 229, 237
(Tenn. 1986); see Ashby, 823 S.W.2d at 169.

        In the instant case, the trial judge granted a significant amount of weight to the
defendant’s conviction of assault with the intent to commit armed robbery. The presentence
report reveals the defendant had an extensive criminal history of writing worthless checks in
addition to her convictions of simple assault, assault to commit armed robbery, public
drunkenness, and disorderly conduct. Given the defendant’s prior criminal history, we conclude
that the trial court’s application of enhancement factor (1) is proper.

        The defendant argues that the circumstances surrounding the crime deserve mitigation
from the trial court and the imposition of a minimum sentence. The defendant did not request
mitigation regarding the circumstances surrounding the incident, and the defendant did not offer
any evidence that the crime was “committed under such unusual circumstances that it is unlikely
that a sustained intent to violate the law motivated the criminal conduct.” Tenn. Code Ann. §
40-35-113(11). However, the trial court applied the mitigating factors proposed by the
defendant, her poor health and the fact that she cooperated with authorities.

       Given the trial judge’s proper application of enhancing and mitigating factors, this Court
cannot find that the trial court erred in sentencing the defendant to four years of incarceration.

B. Alternative Sentencing

       The defendant argues that the trial court erred in denying her any form of alternative
sentencing.

        An especially mitigated or standard offender convicted of a Class C, D, or E felony is
presumed to be a favorable candidate for alternative sentencing in the absence of evidence to the
contrary. Tenn. Code Ann. § 40-35-102(6). However, this presumption is not available to a
defendant who commits the most severe offenses, has a criminal history showing clear disregard
for the laws and morals of society, and has failed past efforts at rehabilitation. Tenn. Code Ann.
§ 40-35-102(5); State v. Fields, 40 S.W.3d 435, 440 (Tenn. 2001). The burden rests with the
defendant to show that she should be placed on probation. State v. Bingham, 910 S.W.2d 448,
455 (Tenn. Crim. App. 1995).


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         In determining if incarceration is appropriate, a trial court may consider the need to
protect society by restraining a defendant having a long history of criminal conduct, the need to
avoid depreciating the seriousness of the offense, whether confinement is particularly
appropriate to effectively deter others likely to commit similar offenses, and whether less
restrictive measures have often or recently been unsuccessfully applied to the defendant. Tenn.
Code Ann. § 40-35-103(1); see Ashby, 823 S.W.2d at 169. Sentencing issues must be decided in
light of the unique facts and circumstances of each case. See State v. Taylor, 744 S.W.2d 919,
922 (Tenn. Crim. App. 1987).

       There is no mathematical equation to be utilized in determining sentencing alternatives.
Not only should the sentence fit the offense, but it should fit the offender as well. Tenn. Code
Ann. § 40-35-103(2); State v. Batey, 35 S.W.3d 585, 588-89 (Tenn. Crim. App. 2000). Indeed,
individualized punishment is the essence of alternative sentencing. State v. Dowdy, 894 S.W.2d
301, 305 (Tenn. Crim. App. 1994). In summary, sentencing must be determined on a case-by-
case basis, tailoring each sentence to that particular defendant based upon the facts of that case
and the circumstances of that defendant. Moss, 727 S.W.2d at 235.

        In the instant case, the trial court denied the defendant alternative sentencing due to the
defendant’s criminal history, probation violation, and the nature of the offense. We conclude
there is no indication the trial court erred in denying the defendant an alternative sentence.

        The defendant also argues that the trial court erroneously refused to consider a statement
from the mother of the victim requesting leniency in sentencing. The defendant argues that the
trial court considered the impact the victim’s death had on his family, but did not take into
consideration the statements made by the victim’s mother.

         The record indicates that the trial court properly considered the victim impact
information when determining enhancement and mitigation in sentencing. The trial court stated
that, in addition to other factors, it considered the “injury to the victims, for those limited things
of emotional, psychological effects upon the victim’s family.” In the case of State v. Ring, 56
S.W.3d 577, 583-84 (Tenn. Crim. App. 2001), this Court concluded that victim testimony
showing the emotional, psychological, and physical effects of the victim’s death on the victim’s
family could be considered as evidence of the nature and circumstances of the crime when
determining the appropriate sentence. Here, the trial court used such information in regards to
the nature and circumstance of this crime. Therefore, we conclude that the trial court did not err.

                                            Conclusion

       Accordingly, we affirm the judgment of the trial court.



                                                          _________________________________
                                                           JOHN EVERETT WILLIAMS, JUDGE

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