             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT JACKSON

                           APRIL 1999 SESSION
                                                        FILED
                                                        August 2, 1999

STATE OF TENNESSEE,            )                   Cecil Crowson, Jr.
                               )                 Appellate Court Clerk
             Appellee,         )    No. 02C01-9803-CC-00068
                               )
                               )    Lake County
v.                             )
                               )    Honorable J. Steven Stafford, Judge
                               )
MARILYN ELAM,                  )    (Forgery)
                               )
             Appellant.        )



For the Appellant:                  For the Appellee:

Jim W. Horner                       Paul G. Summers
District Public Defender            Attorney General of Tennessee
208 N. Mill Avenue                         and
P.O. Box 742                        Patricia C. Kussmann
Dyersburg, TN 38025-0742            Assistant Attorney General of Tennessee
(AT TRIAL)                          450 James Robertson Parkway
                                    Nashville, TN 37243-0493
C. Michael Robbins
46 North Third Street               C. Phillip Bivens
Memphis, TN 38103                   District Attorney General
(ON APPEAL)                                 and
                                    Mark L. Hayes
                                    Assistant District Attorney General
                                    115 E. Market St., P.O. Box E
                                    Dyersburg, TN 38025-2005




OPINION FILED:____________________



AFFIRMED

Joseph M. Tipton
Judge
                                       OPINION



               The defendant, Marilyn Elam, appeals as of right from her conviction

following a bench trial in the Lake County Circuit Court for forgery, a Class E felony.

The defendant was sentenced as a Range I, standard offender to one year of

confinement in the custody of the Department of Correction. The defendant contends

that the trial court erred in sentencing her to continuous confinement. We affirm the

judgment of conviction.



               The proof at trial established that Cary Richardson gave the defendant a

ride to Huck’s Convenience store on May 20, 1997. Angela Boehm was the cashier on

duty at Huck’s that day. The defendant purchased beer and cigarettes, and she

presented a check for forty dollars bearing the name and address of Cary Richardson.

In the presence of Ms. Boehm, the defendant signed the check, “Cary Richardson.”

The defendant was unable to produce identification, but Ms. Boehm accepted the

check. The bank did not honor the check written against Mr. Richardson’s account

because the account had been closed. Mr. Richardson testified that the defendant did

not have permission to sign his name on the check. The trial court found the defendant

guilty of forgery.



               At the sentencing hearing, Officer Gracie Ashley of Westate Corrections

Networks testified that she was assigned to supervise the defendant following her plea

of guilty to facilitation of the sale of cocaine on August 26, 1996. She testified that the

defendant was sentenced to two years in Community Corrections. She testified that the

defendant committed numerous violations of the conditions of her Community

Corrections sentence and that the sentence was revoked on February 3, 1997. She

said the defendant was then placed on probation, and the probation was in effect on

May 20, 1997.



                                             2
             Probation Officer Richard Perkins testified that he was assigned to

supervise the defendant’s probation following the revocation of her Community

Corrections sentence. He testified that the defendant was on probation at the time she

committed the present offense. On cross-examination, Officer Perkins testified that the

defendant reported to him every month as directed and that he had no problems from

the defendant. He testified that while under his supervision, the defendant was subject

to random drug testing and that the defendant never tested positive for alcohol or

drugs.



             A presentence report was introduced into evidence. It reflects that the

defendant was thirty-seven years old at the time of the sentencing hearing. The report

shows that the defendant has a previous conviction in 1996 for facilitation of the sale of

a Schedule II drug. It reflects that the defendant dropped out of school after completing

the eighth grade and has not been employed since 1981. The defendant reported that

she is disabled and receives disability checks. She reported that she has very poor

mental health and has had psychiatric counseling. She also reported that she suffers

from back pain resulting from a shooting in 1981. The defendant reported previous

difficulties with drug and alcohol dependence.



             The trial court sentenced the defendant as a Range I, standard offender

to one year of confinement to be served in the Department of Correction. In mitigation,

the trial court found that the defendant’s conduct neither caused nor threatened serious

bodily injury. Tenn. Code Ann. § 40-35-113(1). The trial court applied the following

enhancement factors, as listed in Tenn. Code Ann. § 40-35-114:

              (1) The defendant has a previous history of criminal
              convictions in addition to those necessary to establish the
              appropriate range;

              (8) The defendant has a previous history of unwillingness to
              comply with the conditions of a sentence involving release in
              the community; [and]



                                            3
              (13) The felony was committed while on any of the following
              forms of release status if such release is from a prior felony
              conviction:

              ....

              (C) Probation[.]


The trial court ordered that the defendant receive straight confinement, finding that

measures less restrictive than confinement had been frequently or recently applied

unsuccessfully to the defendant. Tenn. Code Ann. § 40-35-103(1)(C).



              Appellate review of sentencing is de novo on the record with a

presumption that the trial court's determinations are correct. Tenn. Code Ann. § 40-35-

401(d). As the Sentencing Commission Comments to this section note, the burden is

now on the defendant to show that the sentence is improper. This means that if the

trial court followed the statutory sentencing procedure, made findings of fact that are

adequately supported in the record, and gave due consideration and proper weight to

the factors and principles that are relevant to sentencing under the 1989 Sentencing

Act, we may not disturb the sentence even if a different result were preferred. State v.

Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).



              However, “the presumption of correctness which accompanies the trial

court's action 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). In this respect, for the purpose of

meaningful appellate review,

              the trial court must place on the record its reasons for arriving
              at the final sentencing decision, identify the mitigating and
              enhancement factors found, state the specific facts supporting
              each enhancement factor found, and articulate how the
              mitigating and




                                             4
              enhancement factors have been evaluated and balanced in
              determining the sentence. T.C.A. § 40-35-210(f) (1990).

State v. Jones, 883 S.W.2d 597, 599 (Tenn. 1995).


              Also, in conducting a de novo review, we must consider (1) the evidence,

if any, received at the trial and 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, (5) any mitigating or statutory enhancement

factors, (6) any statement that the defendant made on his own behalf and (7) the

potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103, -210;

see Ashby, 823 S.W.2d at 168; State v. Moss, 727 S.W.2d 229 (Tenn. 1986).



              The sentence to be imposed by the trial court for a Class E felony is

presumptively the minimum in the range when there are no enhancement or mitigating

factors present. Tenn. Code Ann. § 40-35-210(c). Procedurally, the trial court is to

increase the sentence within the range 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). 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, Sentencing Commission Comments; Moss, 727 S.W.2d at

237; see Ashby, 823 S.W.2d at 169.



              The defendant contends that the trial court erred by ordering a sentence

of continuous confinement. She argues that (1) the trial court erred by applying

enhancement factor (8), that the defendant has a previous history of unwillingness to

comply with the conditions of a sentence involving release in the community, (2) she is

statutorily ineligible for continuous confinement, (3) the presumption in favor of

alternative sentencing was not overcome, and (4) the trial court’s denial of alternative



                                             5
sentencing based on the unsuccessful application of measures less restrictive than

confinement results in double enhancement. The state contends, and we agree, that a

sentence of continuous confinement is supported by the record.



              First, the defendant challenges the trial court’s application of the

enhancement factor found in Tenn. Code Ann. § 40-35-113(8), that she has a previous

history of unwillingness to comply with the conditions of a sentence involving release in

the community, as it relates to the denial of a sentence alternative to confinement. See

Tenn. Code Ann. § 40-35-210(b)(5). Although she admits that her Community

Corrections sentence was revoked for failure to comply with its conditions, the

defendant nevertheless maintains that the record does not show an unwillingness to

comply with a sentence not involving confinement. Despite the defendant’s contention,

we believe that her previous inability to comply with a Community Corrections sentence

supports the application of enhancement factor (8), and we further believe that this was

an appropriate factor for the trial court to consider in determining the manner in which

the defendant is to serve her sentence. See Tenn. Code Ann. § 40-35-103(1)(C). This

issue is without merit.



              Next, the defendant contends that she is statutorily ineligible for

continuous confinement. She argues that pursuant to Tenn. Code Ann. § 40-35-

104(c)(8)(B), a sentence of continuous confinement is not authorized for standard

offenders convicted of theft in violation of Tenn. Code Ann. § 39-14-103, involving

property valued at less than one thousand dollars. She argues that this statute applies

to her forgery conviction because forgery is punishable as theft, and theft of property or

services valued at less than one thousand dollars is a Class E felony, as is her forgery

conviction. Tenn. Code Ann. §§ 39-14-114(c), -105(2). The state argues that Tenn.

Code Ann. § 40-35-104(c)(8)(B) applies to persons convicted of Tenn. Code Ann. § 39-




                                             6
14-103, not forgery. It contends that the defendant is eligible for a sentence of

continuous confinement.



               Pursuant to Tenn. Code Ann. § 39-14-114(c), a conviction for forgery “is

punishable as theft pursuant to § 39-14-105, but in no event shall forgery be less than a

Class E felony.” The defendant relies upon Tenn. Code Ann. § 40-35-104(c)(8)(B),

which states in pertinent part that a sentence of continuous confinement in the

Department of Correction is authorized for felony convictions of one year or more,

unless “[t]he defendant is convicted of a violation of § 39-14-103, involving property

valued at less than one thousand dollars ($1,000) and such defendant is sentenced

as . . . a standard offender . . . .”



               Because the defendant presents an issue requiring statutory

interpretation, we first turn to an analysis of the guiding principles. A court’s

interpretation of a statute must give effect to the legislature’s intent when enacting the

statute. Owens v. State, 908 S.W.2d 923, 926 (Tenn. 1995). Thus, the court’s role is

to “ascertain and give effect to the legislative intent without unduly restricting or

expanding a statute’s coverage beyond its intended scope.” Id.; see Hicks v. State, 945

S.W.2d 706, 707 (Tenn. 1997); State v. Davis, 940 S.W.2d 558, 561 (Tenn. 1997);

State v. Sliger, 846 S.W.2d 262, 263 (Tenn. 1995). When a statute is unambiguous,

the court should enforce the statute as written, without resorting to auxiliary rules of

construction. Browder v. Morris, 975 S.W.2d 308, 311 (Tenn. 1998). “Unambiguous

statutes must be construed to mean what they say.” Robertson v. University of

Tennessee, 912 S.W.2d 746, 747 (Tenn. 1995) (citation omitted).



               Viewed in this light, we conclude that Tenn. Code Ann. § 40-35-

104(c)(8)(B) applies only to convictions for Tenn. Code Ann. § 39-14-103, not forgery.

The statute providing an exemption from continuous confinement in the Department of



                                              7
Correction for Class E felony property theft convictions is unambiguous. By its plain

language, it does not apply to convictions for crimes that are punished as thefts but only

to convictions for violations of Tenn. Code Ann. § 39-14-103, i.e., theft of property. In

addition, the forgery statute provides that forgery is punished as theft pursuant to § 39-

14-105. It does not provide that forgery is punished as theft pursuant to Tenn. Code

Ann. § 40-35-104(c)(8)(B). An analysis of the plain language of Tenn. Code Ann. § 40-

35-104(c)(8)(B) and of the forgery statute leads us to conclude that the legislature did

not intend for forgery convictions to be exempt from a sentence of continuous

confinement in the Department of Correction.1 We decline the defendant’s invitation in

the present case to extend the scope of the statute beyond the plain meaning of its

terms. In addition, we note that although this issue was not raised, this court has

upheld sentences of confinement for Range I, standard offenders convicted of Class E

felony forgery. See State v. Franklin, 919 S.W.2d 362, 364 (Tenn. Crim. App. 1995);

State v. Paul Brent Baxter, No. 01C01-9311-CC-00389, Marshall County (Tenn. Crim.

App. July 28, 1994).



                Next, the defendant contends that as a standard offender convicted of a

Class E felony, she is entitled to a presumption in favor of a sentence alternative to

confinement. Tenn. Code Ann. § 40-35-102(6). She argues that this presumption is

not overcome by any evidence in the record. On the contrary, we agree with the trial

court that a sentence of confinement is justified because “[m]easures less restrictive

than confinement have frequently or recently been applied unsuccessfully to the

defendant[.]” Tenn. Code Ann. § 40-35-103(1)(C). The record shows that the

defendant’s previous Community Corrections sentence was revoked because of her

failure to comply with its conditions. Furthermore, the defendant was on probation at

the time she committed the present offense. We conclude that the record



                1
                 We note that the statute prohibits a sentence of continuous confinement only in the
Department of Correction. It does not prevent a one-year sentence to continuous confinement in a local
jail or workhouse.

                                                   8
demonstrates the defendant’s inability to abide by sentences involving release in the

community and supports the trial court’s denial of a sentence alternative to

confinement.



               Finally, the defendant also contends that the trial court “double enhanced”

her sentence because it relied upon the defendant’s being on probation at the time of

the present offense both to enhance her sentence within the range and to deny a

sentence alternative to confinement. See Tenn. Code Ann. §§ 40-35-103(1)(C),

-114(13)(C). First, we note that the trial court’s denial of alternative sentencing was

justified both because the defendant was on probation at the time of the present

offense and because the defendant failed to comply with the terms of her Community

Corrections sentence. Either of these facts, standing alone, support a conclusion that

less restrictive measures than confinement have been recently applied unsuccessfully

to the defendant and would justify the denial of a sentence alternative to continuous

confinement.



               In any event, we do not believe that the trial court’s reliance on the

defendant’s probation status for both enhancement within her range and imposition of a

sentence of confinement was improper. In State v. Davis, 825 S.W.2d 109, 113 (Tenn.

Crim. App. 1991), this court held that nothing in the 1989 Sentencing Act prohibited

consideration of prior criminal convictions and conduct for both enhancement and

consecutive sentencing purposes and that such consideration did not involve double

jeopardy. We believe that a similar conclusion applies to the present case. Pursuant to

Tenn. Code Ann. § 40-35-210(b)(5), the trial court is obligated to consider

enhancement factors in determining both the sentence and the manner in which it is to

be served. The use of the defendant’s probation status to enhance her sentence within

the range does not bar the use of such status to justify the sentence being served in

confinement.



                                              9
             In consideration of the foregoing and the record as a whole, we affirm the

judgment of conviction.


                                               ________________________________
                                               Joseph M. Tipton, Judge


CONCUR:


__________________________
David G. Hayes, Judge


__________________________
L.T. Lafferty, Senior Judge




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