        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                         Assigned on Briefs February 23, 2010

   STATE OF TENNESSEE v. RICKY LEE GANN, alias Rickey Lee Gann

              Appeal from the Criminal Court for Hamilton County
    Nos. 266161, 266582, 267011, 268375, & 268376 Barry A. Steelman, Judge




                  No. E2009-01272-CCA-R3-CD - Filed June 29, 2010


The Defendant, Ricky Lee Gann, alias Rickey Lee Gann, pled guilty to seven counts of theft
of property valued $1,000 or more, a Class D felony, two counts of theft of property valued
$500 or more, a Class E felony, and two counts of theft of property valued $500 or less, a
Class A misdemeanor. Following a sentencing hearing, the Defendant was sentenced to an
effective six-year term in the Tennessee Department of Correction, followed by twelve years
of probation. In this appeal as of right, the Defendant contends that the trial court erred in
ordering consecutive sentences and in denying alternative sentencing. Following our review,
we affirm the judgments of the trial court.

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

D. K ELLY T HOMAS, J R., J., delivered the opinion of the court, in which J OSEPH M. T IPTON,
P.J., and N ORMA M CG EE OGLE, J., joined.

Ardena J. Garth, District Public Defender; Richard Kenneth Mabee, Assistant Public
Defender; and Jane J. Buffaloe, Assistant Public Defender, attorneys for appellant, Ricky Lee
Gann.

Robert E. Cooper, Jr., Attorney General and Reporter; J. Ross Dyer, Assistant Attorney
General; District Attorney General; William H. Cox, District Attorney General; and Boyd
Patterson, Assistant District Attorney General, attorneys for appellee, State of Tennessee.

                                         OPINION

         The Defendant was indicted for eleven counts of theft and nine counts of
misapplication of contract payments. At the Defendant’s March 4, 2009 guilty plea hearing,
the State summarized the proof that it would have presented had the Defendant’s case gone
to trial:
              [H]ad these cases gone to trial, the proof would have shown that
              this was a particularly widespread scam where the victims in all
              these cases . . . provided this [D]efendant with money for the
              [D]efendant to construct and provide gravestones for the
              victims’ loved ones who are deceased, and the proof would
              show that this [D]efendant in none of these cases ever did that
              work.

The Defendant then pled guilty to eleven counts of theft of varying classes, and the State
dismissed all of the other counts of misapplication of contract funds.

       A sentencing hearing was held on May 18, 2009, in which several witnesses testified.
James Rox of the Board of Probation and Parole testified regarding the Defendant’s prior
criminal history. The Defendant had seven prior convictions arising out of similar
transactions that occurred in McMinn, Rhea, and Sequatchie counties. The Defendant also
had seven pending charges that related to similar transactions that occurred in Knox,
Whitfield, and Dade counties. The Defendant was still working at River City Monuments
when the offenses which led to these convictions and pending charges occurred. The
Defendant also had a 1996 federal conviction, which resulted in the Defendant’s
incarceration in federal prison from February 1997 to September 1998. The Defendant also
owed approximately $961,000 in restitution for his past federal conviction.

        Velma Masiers testified that the Defendant contacted her after her husband died and
that the Defendant sold her a headstone, which she never received. She did not know how
the Defendant obtained her personal information to contact her. Ms. Masiers paid the
Defendant $1,085 as a down payment for a headstone but was only able to reach the
Defendant one time. The Defendant told her that he would have the design for the headstone
very soon. After this contact, Ms. Masiers was not even able to contact the Defendant to pay
the remaining balance for her order.

       Linda Bottomley testified that she gave the Defendant $1,885 in cash when she
purchased a grave marker from the Defendant for her mother and father and that she never
received the marker. The Defendant told her that the marker should be ready in December;
however, the marker was not there the following April. Ms. Bottomley contacted the
Defendant, who told her that a marker was ready but that it was the wrong size. Ms.
Bottomley told the Defendant that she didn’t care about the size and that she would just take
what was completed. The Defendant insisted that he would install the right size, but the
Defendant never installed any markers.




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        Ms. Bottomley also testified that her son went to work for River City Monuments and
that he told her that he never saw the Defendant at the business. She then contacted several
granite companies and found the Defendant at another company. She stated that the
Defendant was the person who contacted her after her mother died and that the Defendant
came to her house to discuss the sale.

       James Daughetee testified that Billy Fairbanks contacted him a few weeks after his
son died and sold him a monument for his son, who was a firefighter. Mr. Daughetee paid
River City Monuments $3,300 and never received the monument. He contacted the business
several times and was referred to the Defendant, who assured him that he would have the
monument soon.

      Stacy Banther testified that his mother, who had laryngitis and was unable to testify,
bought a headstone from the Defendant for her mother, the witness’s grandmother. The
Defendant said that it would take eight weeks to set the stone. After approximately eight
weeks, they were unable to contact the Defendant.

        Patricia Essex testified that she bought a headstone for her husband’s grave. She
stated that the Defendant contacted her and that she paid him $1,311 for the headstone. The
Defendant told her it would take three months for the headstone to arrive. After three months
passed, Ms. Essex was unable to reach the Defendant.

      Betty Odmann testified that she bought a headstone for her brother from the
Defendant after the Defendant contacted her. She paid the Defendant $306 for the
headstone, and the check was made payable to the Defendant. After approximately two
months, she was unable to contact the Defendant.

       Clara Mae Pritchett testified that she purchased a headstone for her niece’s
grandfather and grandmother. Ms. Pritchett went to the Defendant’s office and asked him
about purchasing a headstone after her niece told her about the Defendant’s business. After
paying the Defendant the down payment, she was unable to contact the Defendant.

       Vicki Lowery testified that she purchased a headstone for her husband after the
Defendant called her house. The Defendant came to her house to discuss the sale, and Ms.
Lowery purchased a headstone for $620. Ms. Lowery eventually found the Defendant after
paying him, and the Defendant asked her to refrain from contacting the police. The
Defendant promised her that he would get the headstone for her but that it would take time.
She stated that she may not be able to be buried by her husband if she does not reserve her
place with the headstone.



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       The Defendant presented several witnesses on his behalf. The Defendant’s father,
Richard Gann, and mother, Cynthia Gann, both testified that the Defendant could live with
them without paying rent while the Defendant paid restitution to the victims. Richard Gann
further testified that the Defendant simply made a mistake in participating in the River City
Monument Company, which was undercapitalized from the start of the business. He stated
that the Defendant was trying to deliver the headstones but was simply unable fulfill the
contracts. He stated that the Defendant eventually went to work for another company so that
he could make more money and pay for the headstones that were never made at River City
Monuments.

        On cross-examination, Richard Gann admitted that the Defendant received checks for
the business that were payable to the Defendant. He then explained that the Defendant
received checks payable to him because “the company’s checking account had been shut
down due to a cancelled . . . check that put everything in the red.” He insisted that the
company did not have any money left even though they were receiving payments and not
fulfilling the contracts. When asked about the Defendant’s prior federal conviction, Richard
Gann stated, “Well, that was a different, a younger person, a younger person that was talked
into going into a legitimate business . . . .”

       Ms. Gann further testified that the Defendant would be required to stay at her house
“unless he goes to work or goes and sees his child” while fulfilling the terms of any
probationary sentence. However, she said that she would tell the Defendant “not to turn
himself in” if he were to break the terms of a probationary sentence.

       Stephanie Juntunen, the Defendant’s sister, testified that the Defendant is a good
husband and father and that she was aware of the problems at River City Monuments. She
insisted that the Defendant is a “good-hearted person” and that he left the company to work
for another company that would help him fulfill the contracts. She insisted that the
Defendant fulfilled some contracts.

        Ronnie Gann, the Defendant’s brother, testified that the Defendant is a man of
integrity and would “give you the last dime he has” and that “[h]e’ll pick you up for a ride
if you need it, he’ll give you the shirt off his back if need be.”

       Joel Davenport, the director of programs for the Transformation Project, testified that
the Defendant was welcome to participate in his program. Mr. Davenport said that the
Transformation Project is a “[C]hristian alternative sentencing and rehabilitation program”
that helps people “change their lives through . . . intensive structure and accountability and
character education.” He stated that he had worked with the Defendant extensively and that
he believed that the Defendant “got[] himself in a very big mess, and oftentimes that’s really

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when God can show off the most in changing people’s lives.” He stated that the program
would oversee the Defendant and ensure that he fulfilled the terms of his probationary
sentence and that if the Defendant were to fail to comply with any terms, he would have the
Defendant taken into custody.

       He admitted that he had concerns about the Defendant’s home plan given Ms. Gann’s
testimony. He also admitted that the Defendant’s family is “an enabling family that’s willing
to make excuses for him even when he himself is standing up to the plate and taking
responsibility.” He stated that the Defendant first came to work with the project in May 2008
and that the Defendant began to participate shortly after the Defendant arrived in Hamilton
County. Mr. Davenport also wrote a letter in support of the Defendant in which he stated that
“[m]any times [the Defendant] places his own desires and wants aside to serve the needs of
others around him.”

       Reverend Billy Smith, the chaplain at the Hamilton County Jail, testified that the
Defendant was an “inmate worker for about six months.” He stated that the Defendant was
“there every day five days a week that I was in the jail, probably at least eight hours every
day, and [he] spent a lot of time counseling with [the Defendant] and trying to mentor [the
Defendant].” He stated that he “really believe[s] [that the Defendant] wants to be
responsible.”

       On cross-examination, Reverend Smith admitted that he “believed [the Defendant’s]
intention was to complete the work.” He stated that “there were at least three other people
that probably should have been charged in the case.” He also admitted that he “was a little
bit alarmed” about the Defendant’s family and their attitudes about the Defendant’s
responsibility in his case.


       Following the sentencing hearing and the Defendant’s allocution, the trial court
sentenced the Defendant as follows:

 Case Number          Count & Charge                    Disposition & Sentence
 266161            Count 1 Theft,            3 years to serve
                   Class D felony

 266161            Count 3 Theft,            3 years to serve; consecutive to count 1
                   Class D felony

 266161            Count 5 Theft,            3 years; suspended to 12 years probation;
                   Class D felony            consecutive to count 3

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 266161             Count 7 Theft,            3 years; suspended to 12 years probation;
                    Class D felony            consecutive to count 3

 266161             Count 9 Theft,            11 months, 29 days; suspended to probation;
                    Class A misdemeanor       consecutive to count 3

 266161             Count 11 Theft,           3 years; suspended to 12 years probation;
                    Class D felony            consecutive to count 3

 266582             Count 1 Theft,            11 months, 29 days; suspended to probation;
                    Class A misdemeanor       consecutive to case number 266161, count 3

 266582             Count 3 Theft,            2 years; suspended to 6 years probation;
                    Class E felony            consecutive to case number 266161, count 3

 267011             Count 1 Theft,            2 years; suspended to 6 years probation;
                    Class E felony            consecutive to case number 266161, count 3

 268375             Count 1 Theft,            3 years; suspended to 12 years probation;
                    Class D felony            consecutive to case number 266161, count 3

 268376             Count 1 Theft,            3 years; suspended to 12 years probation;
                    Class D felony            consecutive to case number 266161, count 3



This appeal follows in which the Defendant contends that the trial court erred in imposing
consecutive sentences and in denying alternative sentencing.

                                        ANALYSIS

        An appellate court’s 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) (2003).
As the Sentencing Commission Comments to this section note, on appeal the burden is 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, the court 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



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circumstances.” State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). In this respect, for the
purpose of meaningful appellate review:

              [T]he 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 enhancement factors have been evaluated and
              balanced in determining the sentence. Tenn. Code Ann. § 40-
              35-210(f) (1990).

State v. Jones, 883 S.W.2d 597, 599 (Tenn. 1994).

       In conducting its de novo review, the appellate court 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, (7) the defendant’s potential
for rehabilitation or treatment, and (8) any statistical information provided by the
Administrative Office of the Courts as to sentencing practices for similar offenses in
Tennessee. Tenn. Code Ann. §§ 40-35-102, -103, -210; see also Ashby, 823 S.W.2d at 168;
State v. Moss, 727 S.W.2d 229, 236-37 (Tenn. 1986).

       The Defendant committed these offenses on various dates occurring in 2006 and 2007;
thus, he was sentenced under the revised sentencing act as enacted by the Tennessee General
Assembly in 2005. The act provides that:

              (c) The court shall impose a sentence within the range of
              punishment, determined by whether the defendant is a mitigated,
              standard, persistent, career, or repeat violent offender. In
              imposing a specific sentence within the range of punishment, the
              court shall consider, but is not bound by, the following advisory
              sentencing guidelines:

                     (1) The minimum sentence within the range of
                     punishment is the sentence that should be
                     imposed, because the general assembly set the
                     minimum length of sentence for each felony class
                     to reflect the relative seriousness of each criminal
                     offense in the felony classifications; and

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                     (2) The sentence length within the range should
                     be adjusted, as appropriate, by the presence or
                     absence of mitigating and enhancement factors set
                     out in §§ 40-35-113 and 40-35-114.

Tenn. Code Ann. § 40-35-210(c)(1)-(2).

                                A. Consecutive Sentencing

      The Defendant contends that the trial court erred in imposing consecutive sentences
because his record of criminal activity was not extensive. The State responds that the
Defendant has a criminal record that consists of ten prior convictions and seven pending
criminal charges.

        Consecutive sentencing is guided by Tennessee Code Annotated section 40-35-115(b),
which states in pertinent part that the trial court may order sentences to run consecutively if
it finds by a preponderance of the evidence that “[t]he defendant is an offender whose record
of criminal activity is extensive.” Tenn. Code Ann. § 40-35-115(b)(2). In all cases where
consecutive sentences are imposed, the trial court is required to “specifically recite [on the
record] the reasons” behind imposition of consecutive sentences. State v. Palmer, 10 S.W.3d
638, 647-48 (Tenn. Crim. App. 1999) (noting the requirements of Rule 32(c)(1) for purposes
of consecutive sentencing); See Tenn. R. Crim. P. 32(c)(1).

       In ordering that the Defendant serve two of his sentences consecutively followed by
a consecutive twelve-year term of probation, the trial court stated,

              The [c]ourt finds that the [D]efendant is an offender whose
              record of criminal activity is extensive. He has multiple
              convictions here, he has multiple convictions in Rhea county,
              multiple convictions in Sequatchie County, and he has a history
              that goes back to a [f]ederal episode where he . . . went to the
              [f]ederal penitentiary. So he does have an extensive criminal
              record, or his record of criminal activity is extensive. A lot of
              it is related to this particular case, but the [c]ourt does rely on
              that for purposes of the ability of the [c]ourt to find consecutive
              sentences.

In support of his contention that the trial court erred in ordering consecutive sentences for
two of the eleven counts, the Defendant argues that the trial court erroneously relied on the
fact that more than one victim was involved in the Defendant’s case. The record does not

                                              -8-
reflect that the trial court relied on the fact that more than one victim was involved. While
it is true that more than one victim was harmed by the Defendant, the Defendant was
convicted of separate offenses, each offense involving a different victim. Furthermore, the
record establishes that the Defendant has a criminal record consisting of a federal conviction
and several other convictions that are related to the instant offenses resulting from his
activities in other counties. Accordingly, we conclude that the record does not preponderate
against the trial court’s sentencing decision regarding consecutive sentencing.

                                 B. Alternative Sentencing

       The Defendant contends that the trial court erred in denying alternative sentencing.
The State responds that the Defendant received an alternative sentence in that most of his
sentences were suspended to probation following his limited period of incarceration. The
State also responds that the Defendant has failed to show how the record preponderates
against the trial court’s findings.

       The Defendant was convicted of a Class D felony (and several lesser classes of
offenses). Therefore, he was to be “considered as a favorable candidate for alternative
sentencing options in the absence of evidence to the contrary.” Tenn. Code Ann. § 40-35-
102(6). However, this consideration does not automatically entitle a defendant to alternative
sentencing; rather, sentencing issues “must be determined by the facts and circumstances
presented in each individual case.” State v. Taylor, 744 S.W.2d 919, 922 (Tenn. Crim. App.
1987) (citing Moss, 727 S.W.2d at 235). The defendant must establish his suitability for
alternative sentencing. Tenn. Code Ann. § 40-35-303(b). The defendant must demonstrate
that probation would promote justice and the best interest of the defendant and the public.
State v. Souder, 105 S.W.3d 602, 607 (Tenn. Crim. App. 2002).

        In determining a defendant’s suitability for alternative sentencing, the trial court
should consider whether (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)). A
trial court should also consider a defendant’s potential or lack of potential for rehabilitation
when determining if an alternative sentence would be appropriate. Tenn. Code. Ann. § 40-
35-103(5); State v. Boston, 938 S.W.2d 435, 438 (Tenn. Crim. App. 1996).

       In denying alternative sentencing, the trial court stated,



                                              -9-
              But the [c]ourt finds that the nature and the characteristics of the
              criminal conduct involved are such that confinement would be
              appropriate in this case . . . .

              The [c]ourt does find here that full probation here would unduly
              depreciate the seriousness of the offense.

              And the [c]ourt should also consider the potential or lack of
              potential for rehabilitation, and the [c]ourt finds the fact he was
              convicted of a felony in [f]ederal [c]ourt in 1996 that got him a
              21-month sentence, and here we are in 2006, 2007, dealing with
              alleged fraudulent behavior, admitted theft, that that goes a long
              way for the [c]ourt from the standpoint of determining whether
              or not that confinement should be ordered from the standpoint
              of his, his amenability to rehabilitation, his potential for it.

We must first note that all but two of the Defendant’s sentences were suspended to probation.
The Defendant pled guilty to eleven counts of theft of varying classes. The Defendant has
a prior history of criminal conduct as evidenced by his federal conviction and his convictions
from other counties occurring before the convictions in his case. Following our review, we
conclude that the trial court gave appropriate consideration to the sentencing factors in
arriving at its determination. Accordingly, we also conclude that the trial court’s decision
to deny alternative sentencing is supported by the record.


                                       CONCLUSION

       In consideration of the foregoing and the record as a whole, the judgments of the trial
court are affirmed.




                                                    ___________________________________
                                                    D. KELLY THOMAS, JR., JUDGE




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