                                                                                       03/29/2019
       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                        AT KNOXVILLE
                         Assigned on Briefs March 27, 2019

              STATE OF TENNESSEE v. SHAWNA N. HENSON

               Appeal from the Criminal Court for Campbell County
                   Nos. 17592, 17593 E. Shayne Sexton, Judge
                    ___________________________________

                          No. E2018-01266-CCA-R3-CD
                      ___________________________________

The Defendant-Appellant, Shawna N. Henson, was indicted by a Campbell County grand
jury for tampering with evidence and possession of drug paraphernalia in Case No.
17592, and for theft over $500 in Case No. 17593. See Tenn. Code Ann. §§ 39-14-103;
39-16-503; 39-17-425. Pursuant to a plea agreement, the Defendant pled guilty to all
three charges. The trial court sentenced her as a Range II, multiple offender to an
effective term of nine years’ imprisonment. On appeal, the Defendant challenges her
sentence as inconsistent with the purposes and principles of sentencing under Tennessee
Code Annotated sections 40-35-102 and 103. Upon review, we affirm the judgments of
the trial court.

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

CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which ALAN E. GLENN
and TIMOTHY L. EASTER, JJ., joined.

Corbin H. Payne, Knoxville, Tennessee, for the Appellant, Shawna N. Henson.

Herbert H. Slatery III, Attorney General and Reporter; Garrett D. Ward, Assistant
Attorney General; Jared R. Effler, District Attorney General; and Courtney H. Stanifer,
Assistant District Attorney General, for the Appellee, State of Tennessee.

                                       OPINION

       On March 19, 2018, the Defendant waived her rights to a jury trial and pled guilty
to tampering with evidence and possession of drug paraphernalia in Case No. 17592 and
to theft over $500 in Case No. 17593. The guilty plea colloquy is not included in the
appellate record. However, at the June 18, 2018 sentencing hearing, the State explained
the facts supporting the Defendant’s guilty pleas as follows:
      [The State]: Okay. And your Honor, in Case Number 17,592 - is the
                   attempted tampering with evidence charge.          The facts
                   underlying this case was an officer approached the vehicle,
                   [the Defendant] was an occupant of the vehicle, and there was
                   some drug paraphernalia, and she attempted to hide and/or
                   tamper with that evidence.

                    The facts underlying the second charge, the theft, are more
                    concerning. The facts underlying that case is that there was --
                    Kristen Leach was a victim of a vehicular homicide some
                    time ago. The victim in this case of [the Defendant] is her
                    11-year old sister. This theft occurred with the theft of a
                    purse at Kristen Leach’s funeral. Your Honor, the --

      The Court:    Let me make sure -- try to follow you here. While attending
                    Ms. Leach’s funeral, the victim in the theft -- the victim in the
                    theft was attending the funeral.

      [The State]: Yes.

      The Court:    And you -- and the proof was that [the Defendant] stole the
                    purse at the funeral?

      [The State]: Yes, your Honor. The proof would show that a purse was
                   located in the restroom. Detective John Long was attending
                   the rest -- attending the funeral. Upon his investigative work
                   in using the IPhone -- later on, upon his investigation using
                   the Apple IPhone app, the contents of the purse were located
                   at [the Defendant]’s home.          [The Defendant] was in
                   possession of the victim’s phone as well as various gift cards,
                   Build A Bear gift cards, things of that nature.

       The Defendant’s presentence investigation report, four prior felony judgments of
conviction, and a parole violation report were admitted as exhibits to the sentencing
hearing. The court was advised that the Defendant failed to appear for her presentence
investigation interview, that she was on parole at the time she committed the instant
offenses, and that she had a history of violating probation and parole.

      The victim impact statement was also read into evidence at the hearing, which
provided as follows:

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               This letter is to describe the hurt that you caused on the worse [sic]
       day of my life. I was 11 years old, and you chose to steal my purse while I
       was standing up with my family in the church receiving line at the casket of
       my sister, someone you claim to be friends with. You even went through
       the line twice just so you could steal it.

               You made me feel so violated and taken advantage of on the worse
       day of my life that I will not ever forget. You then stole what was inside
       and threw my purse into the toilet. My purse contained something very
       important to me, my grandfather’s dog tags from his time during the Army.
       I wore them daily and only took them off . . . for my sister’s funeral
       services. These were never recovered. You threw them away like trash. I
       still cannot understand how someone could take advantage of someone
       when they are most vulnerable. You took a horrible situation and made it
       worse. I hope you never do anything like this because no one should ever
       be taken advantage of or hurt the way you did me.

       In sentencing the Defendant, the trial court applied the Defendant’s “extensive”
criminal history, the vulnerability of the 11-year-old victim, the Defendant’s failure to
appear for her presentence investigation, and the Defendant’s violation of parole as
enhancement factors. The trial court also found that the Defendant’s criminal conduct
neither caused nor threatened serious bodily injury and applied that as a mitigating factor.
Finally, the trial court noted that rehabilitation was unlikely as the Defendant “has failed
to participate in the [rehabilitation] programs or take advantage of what we have had to
offer over the years, so I find that that consideration weighs heavily against her.”

       The parties agreed that the Defendant was a Range II, multiple offender and faced
a sentencing range of four to twelve years. The trial court sentenced the Defendant to six
years for the tampering with evidence conviction, three years for the theft over $500
conviction, and eleven months and twenty-nine days for the possession of drug
paraphernalia conviction. The trial court ordered the tampering with evidence and
possession of drug paraphernalia convictions to run concurrently with each other and
consecutively to the theft over $500 conviction, for an effective sentence of nine years’
incarceration.

                                       ANALYSIS

       The Defendant presents a general challenge to her sentence and argues that it was
inconsistent with the purposes and principles of sentencing under Tennessee Code
Annotated sections 40-35-102 and 103. She does not explain how her sentence is
inconsistent with sections 40-35-102 and 103, but rather, she asserts that the trial court
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improperly relied upon the location of the offense, a funeral, in enhancing her sentence.
The State contends, and we agree, that the trial court properly sentenced the Defendant.

       We review the length of a sentence imposed by the trial court under an abuse of
discretion standard with a presumption of reasonableness. State v. Bise, 380 S.W.3d 682,
707 (Tenn. 2012). “So long as there are other reasons consistent with the purposes and
principles of sentencing, as provided by statute, a sentence imposed by the trial court
within the appropriate range should be upheld.” Id. at 706. “If, however, the trial court
applies inappropriate mitigating and/or enhancement factors or otherwise fails to follow
the Sentencing Act, the presumption of correctness fails.” State v. Carter, 254 S.W.3d
335, 344-45 (Tenn. 2008).

      A trial court must consider the following when determining a defendant’s specific
sentence and the appropriate combination of sentencing alternatives:

      (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 the mitigating and
      enhancement factors set out in [sections] 40-35-113 and 40-35-114;

      (6) Any statistical information provided by the administrative office of the
      courts as to sentencing practices for similar offenses in Tennessee;

      (7) Any statement the defendant wishes to make on the defendant’s own
      behalf about sentencing; and

      (8) The result of the validated risk and needs assessment conducted by the
      department and contained in the presentence report.

Tenn. Code Ann. § 40-35-210(b)(1)-(8). In addition, “[t]he potential or lack of potential
for the rehabilitation or treatment of the defendant should be considered in determining
the sentence alternative or length of a term to be imposed.” Tenn. Code Ann. § 40-35-
103(5). The court must impose a sentence “no greater than that deserved for the offense
committed” and “the least severe measure necessary to achieve the purposes for which
                                           -4-
the sentence is imposed[.]” Tenn. Code Ann. §§ 40-35-103(2), (4). A trial court should
consider the following when determining whether an individual should be sentenced to
confinement:

       (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[.]

Id. § 40-35-103(1)(A)-(C); see State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).

       As relevant to the issue raised herein, in sentencing the Defendant, the trial court
stated as follows:

              The State has asked this Court to consider that the victim was
       particularly vulnerable because of age or physical or mental disability. The
       – I think it’s all agreed that the 11 – that the age was 11. And more
       compelling is that the setting in which the theft occurred, it was very
       emotionally vulnerable. Although that’s not – that language is not in that
       particular factor, it does have some bearing, and I’m gonna find that that
       enhancement factor has been shown.

              ....

               Abided by the terms of probation. Her failure on parole is of – is
       strong evidence that she would not abide to any release conditions. I don’t
       find she is particularly dangerous in a forceful sense; however, the
       opportunistic way that the theft occurred – that’s troubling under any set of
       circumstances. How someone would use that forum to take a child’s
       belongings, I find particularly cold. There’s something very chilly about
       that, and that certainly does not weigh in [the Defendant’s] favor.

       Here, there was no dispute that the Defendant was a Range II, multiple offender,
with a sentencing range of four to twelve years. See Tenn. Code Ann. §§ 39-14-103; 39-
16-503; 39-17-425; see also Tenn. Code Ann. §§ 40-35-106; 40-35-112(b). Thus, the
trial court’s effective nine-year sentence is within the statutory range and presumed
                                           -5-
reasonable. Contrary to the Defendant’s claim, the record shows the trial court noted
only that the location of the offense, a funeral, had “some bearing” on the vulnerability of
the victim. The trial court did not create and apply a new enhancement factor, as
suggested by the Defendant. Moreover, as detailed above, the trial court properly applied
several other enhancement factors, including the Defendant’s extensive criminal history,
the fact that previous efforts at rehabilitation had failed, and the fact that the Defendant
committed this offense while on parole. These factors alone more than support the
effective nine-year-within-range sentence imposed by the trial court. Accordingly, the
Defendant is not entitled to relief.

                                     CONCLUSION

       Based on the foregoing reasoning and analysis, the judgments of the trial court are
affirmed.


                                             ____________________________________
                                             CAMILLE R. MCMULLEN, JUDGE




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