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

              STATE OF TENNESSEE v. MONA RAY CLOUD
           ALIAS MONA R. HEADRICK, ALIAS MONA R. CLOUD,
                      ALIAS MONA HEADRICK

                      Appeal from the Circuit Court for Blount County
               Nos. C-13169, C-13170, C-13959    D. Kelly Thomas, Jr., Judge



                                 No. E2002-03002-CCA-R3-CD
                                       October 20, 2003

The defendant, Mona Ray Cloud, pled guilty in the Blount County Circuit Court to aggravated
burglary, a Class C felony; violating the Motor Vehicle Habitual Offender (MVHO) Act, a Class E
felony; and criminal impersonation, a Class A misdemeanor. Pursuant to the plea agreement, she
received four-year, one-year, and six-month sentences, respectively, with the one-year and six-month
sentences to be served concurrently to each other but consecutively to the four-year sentence for an
effective sentence of five years in the Department of Correction (DOC). The manner of service was
to be determined by the trial court. After a sentencing hearing, the trial court ordered the defendant
to serve her sentences in confinement. The defendant appeals, claiming that she should have
received alternative sentences. We affirm the judgments of the trial court.

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

JOSEPH M. TIPTON, J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS and
ALAN E. GLENN, JJ., joined.

Steve McEwen, Mountain City, Tennessee (on appeal); Raymond Mack Garner, District Public
Defender; and Stacey D. Nordquist, Assistant District Public Defender (at trial), for the appellant,
Mona Ray Cloud, alias Mona R. Headrick, alias Mona R. Cloud, alias Mona Headrick.

Paul G. Summers, Attorney General and Reporter; Brent C. Cherry, Assistant Attorney General;
Michael L. Flynn, District Attorney General; and James T. Brooks, III, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                             OPINION

        This case relates to the defendant’s being stopped for speeding in August 2000 and being
caught burglarizing a home in November 2000. Although the state did not give a factual account
of the crimes at the guilty plea hearing, the record reveals that on August 4, 2000, the defendant was
stopped for speeding and gave the police officer her sister’s name. When the defendant finally told
the officer her real name, a computer check revealed that she had been declared a habitual offender
pursuant to the MVHO Act. On November 11, 2000, the defendant was caught in her car a short
distance away from a home with an item that had been taken from the home.

        At the sentencing hearing, Milburn Waters testified that his parents used to live at 2311
Duncan Road. He said that although his parents no longer lived there, the home was full of
furnishings and family items. He said that on November 11, 2000, his daughter discovered that
items were missing from the house. He said he went to the scene and discovered that the house had
“just been ravaged really, just ripped off -- most of the articles gone.” He said he left the house and
returned sometime later that day. He said he parked on Duncan Road, walked toward the house, and
saw a car with its headlights turned on driving away from the house and toward him. He said that
the car almost hit him, that the defendant was driving, and that he did not know her. He said that his
mother’s cedar chest was in the defendant’s car and that the defendant jumped out of the car and ran
away. He said that he telephoned 9-1-1 and that the police used dogs to search for the defendant.
He said the police found her in a field and arrested her.

        On cross-examination, Mr. Waters testified that when he first went to the house on November
11, he saw that the back door glass had been broken and that the door’s lock had been removed. He
said that the house was in disarray and that furniture, jewelry, and cookware were missing. He said
that when he returned to the house, he caught the defendant “red-handed” with the cedar chest. He
said that the chest was the only item in her car and that the chest was returned to him. He said that
the police also recovered some other stolen property from pawn shops in Knoxville but that he got
very few of the missing items back.

         Pamela Waters Speed, Milburn Waters’ daughter, read her written statement to the trial court.
In the statement, she said that her family had suffered pain and anguish over the defendant’s actions
and that she was hurt and angry. She said the defendant did not work for a living, had stolen from
other people, and should have to serve her sentences in prison.

        The then forty-seven-year-old defendant testified that in August 2000, she had been visiting
a friend in Maryville and was returning home when the police stopped her for speeding. She said
that she gave the police officer her sister’s name because she had been declared a habitual offender
pursuant to the MVHO Act, did not have a driver’s license, and did not want to go to jail. She said
that she told the police officer her real name and that she had not had a driver’s license since 1995.
Regarding her aggravated burglary conviction, she testified that she saw Ruby Linginfelter, whom
she had known for many years, in Rockford, Tennessee. She said that she told Ms. Linginfelter she
was trying to furnish her apartment, that Ms. Linginfelter claimed to have access to plenty of curtains
and dishes, and that she bought a set of dishes and a quilt from Ms. Linginfelter. She said that one
day, Ms. Linginfelter asked the defendant to drive Ms. Linginfelter to an antique dealer in Knoxville.
She said that she met Ms. Linginfelter at the Waters’ house on Duncan Road and that Ms.
Linginfelter carried items out of the house and put them into the defendant’s car. She said Ms.
Linginfelter claimed that a woman who used to live in the home had died and that the woman’s son


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did not care about its contents. She said that Ms. Linginfelter claimed to have been taking things out
of the house for over a year and that she realized Ms. Linginfelter was stealing items from the home.
She said that she also took property from the house and that she knew the property was stolen.

         The defendant testified that in November 2000, Ms. Linginfelter offered to sell her a cedar
chest for fifty dollars. She said she paid for the chest and went to the house on Duncan Road to pick
it up. She said that as she was leaving, she saw Milburn Waters. She said that Mr. Waters’ car was
blocking the driveway and that she tried to drive around it. She said that Mr. Waters walked up to
her car, opened her door, and tried to pull her out. She said that she ran away and that she did not
try to hit him with her car. She said that Mr. Waters got his mother’s cedar chest back and that she
gave the set of dishes she had bought from Ms. Linginfelter to the police. She said that Ms.
Linginfelter had pawned many of the house’s contents and that she did not know what happened to
the jewelry and paintings that Ms. Linginfelter had taken from the home.

        The defendant testified that she has a drug problem and that her drug screen for her
presentence report tested positive for cocaine, marijuana, and morphine. She said that in 1992 or
1993, she was in a treatment program for alcohol abuse but that she relapsed almost immediately
after her release. She said that she still could not pass a drug screen; that she was ready to participate
in a drug treatment program; and that she could be an asset to the community, herself, and her
family. Upon being questioned by the trial court, the defendant testified that she took items from
the Waters’ house four or five times. She acknowledged having two prior burglary convictions. She
said that after committing one of the burglaries in 1985, she fled Tennessee and was not convicted
for the crime until 1992. She said that when she fled Tennessee, she spent time in Florida and
Alabama, owned her own businesses there, and was arrested for driving under the influence (DUI)
once in Alabama. She said that when she returned to Tennessee, she was convicted of burglary and
bail jumping. She said that she received one-year sentences for each conviction and was to serve her
sentences in a community corrections program. She said that her community corrections sentences
were revoked in 1993 and that she spent two years in prison.

         According to the defendant’s presentence report, the defendant is separated from her husband
and has three sons. In the report, she stated that she used cocaine once a week and smoked marijuana
about twice per month. She also stated that she used pain killers and was addicted to Dilaudid. The
report shows that in 1992, the defendant worked for Broke “N” Jeans in Alabama, KOA in Florida,
and Germantown Medical Center in Tennessee. The defendant stated that she had not been regularly
employed since 1992 and currently earned money by babysitting and cleaning houses. The report
shows that the defendant has two prior felony convictions for burglary, one prior felony conviction
for theft of property valued more than one thousand dollars but less than ten thousand dollars, and
one prior felony conviction for bail jumping. In addition, it shows that she has been convicted of
at least fifteen misdemeanors, including three convictions for theft of property valued less than five
hundred dollars, six convictions for DUI, two convictions for driving on a revoked license, two
convictions for public intoxication, and one conviction for reckless driving. According to the report,
the community corrections sentence the defendant received for her 1992 bail jumping conviction was
revoked in February 1993, and she “has not done well on previous release programs.”


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        The trial court determined that the defendant’s extensive criminal history and the fact that
she violated a prior sentence involving release into the community supported her serving her
sentences in confinement. In addition, it noted that despite years of drug abuse, the defendant had
only requested treatment for her drug problem when she faced confinement for the offenses in
question. Because the defendant had failed to seek treatment for her drug addiction, the trial court
ruled that she was not amenable to rehabilitation. The trial court took into consideration the fact that
since the defendant’s arrest for the offenses in question, she had testified against a drug dealer in
federal court. However, the trial court ruled that her criminal history, drug abuse, and failure to seek
treatment weighed in favor of her serving her sentences in confinement.

         The defendant contends that the trial court erred by denying her request for alternative
sentences. She argues that her criminal history involved only nonviolent offenses and did not justify
the trial court’s denying her alternative sentencing. She claims the trial court should have considered
the fact that the crimes in question did not cause or threaten serious bodily injury. Also, she argues
that the trial court should have given more weight to the fact that she helped federal authorities
prosecute a drug dealer, returned some of the stolen property to the police, and told the police where
Ms. Linginfelter had pawned many of the Waters’ stolen items.

        When a defendant appeals the manner of service of a sentence imposed by the trial court, this
court conducts a de novo review of the record with a presumption that the trial court’s
determinations are correct. Tenn. Code Ann. § 40-35-401(d). However, the presumption of
correctness 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 is on the appealing party to show that the sentence is improper. Tenn.
Code Ann. § 40-35-401(d), Sentencing Commission Comments. 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).

        When determining if incarceration is appropriate, a trial court should consider that (1)
confinement is needed to protect society by restraining a defendant who has a long history of
criminal conduct, (2) confinement is needed to avoid depreciating the seriousness of the offense or
confinement is particularly suited to provide an effective deterrence to people likely to commit
similar offenses, or (3) less restrictive measures than confinement have frequently or recently been
applied unsuccessfully to the defendant. Ashby, 823 S.W.2d at 169 (citing Tenn. Code Ann. §
40-35-103(1)(A)-(C)). Additionally, a trial court should consider a defendant’s potential or lack of
potential for rehabilitation. Tenn. Code Ann. § 40-35-103(5).

        Based upon our de novo review, we conclude that the trial court did not err by ordering the
defendant to serve her effective five-year sentence in confinement. The defendant has two prior
felony convictions for burglary and one prior felony conviction for theft. In addition, she has fifteen
prior misdemeanor convictions for various offenses, including three for theft of property, and has


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violated a community corrections sentence in the past. Although the defendant has been addicted
to drugs for many years, she has continued to commit crimes instead of seeking treatment. We
believe ample evidence exists to support the defendant’s sentences of confinement.

       Based upon the foregoing and the record as a whole, we affirm the judgments of conviction.



                                                    ___________________________________
                                                    JOSEPH M. TIPTON, JUDGE




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