         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                    June 20, 2000 Session

                 STATE OF TENNESSEE v. RHONDA JENNINGS

             Appeal as of Right from the Criminal Court for Williamson County
                         No. II-397-92    Timothy L. Easter, Judge



                  No. M1999-01093-CCA-R3-CD - Filed November 30, 2000


On October 28, 1998, at the conclusion of a bench trial, Rhonda Jennings, the defendant and
appellant, was found guilty of one count of theft over five-hundred dollars and one count of theft
under five-hundred dollars. Following a sentencing hearing on February 26, 1999, the trial court
ordered the defendant to serve two years on community corrections after serving twenty days in jail.
On April 29, 1999, a warrant was filed against the defendant alleging that she had violated a
condition of her community corrections sentence. After an evidentiary hearing on July 12, 1999, the
trial court revoked the defendant's community corrections sentence and re-sentenced her to eighteen
months incarceration. On appeal, the appellant claims that her sentence is excessive. After a
thorough review of the record, we affirm the judgment of the trial court.

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

JERRY L. SMITH, J., delivered the opinion of the court, in which DAVID H. WELLES, J., and JOHN
EVERETT WILLIAMS, J., joined.

J. Timothy Street, Franklin, Tennessee, attorney for the appellant, Rhonda Jennings.

Paul G. Summers, Attorney General and Reporter, David H. Findley, Assistant Attorney General,
and Ron Davis, District Attorney General, Lee Dryer, Assistant District Attorney, attorneys for the
appellee, State of Tennessee.

                                            OPINION

                                       Factual Background

        A Williamson County Grand Jury indicted the defendant for one count of theft over one-
thousand dollars, five counts of theft under five-hundred dollars, one count of criminal
impersonation and one count of driving on a suspended license. Prior to trial, the State entered a
nolle prosequi as to four counts of theft under five-hundred dollars. The defendant later pled guilty
on a suspended license and criminal impersonation. At a bench trial on the remaining counts, the
defendant was found guilty of one count of theft over five-hundred dollars, a lesser included offense
of theft over one-thousand dollars, and one count of theft under five-hundred dollars. Following a
sentencing hearing, the defendant was sentenced to serve two years in the Community Corrections
Program after serving twenty days in jail. Subsequently, the defendant was charged with violating
her Community Corrections sentence for failing a drug screen. At an evidentiary hearing, the trial
court determined that the defendant had violated her community corrections sentence. The trial court
then sentenced the defendant to serve eighteen months for the theft over five hundred dollars
concurrently to eleven months and twenty-nine days for theft under five hundred dollars.

                                           Sentencing
        The defendant does not challenge the trial court’s revocation of her community corrections
sentence. Instead, she argues that in imposing a sentence of incarceration after revocation (1) the
trial court improperly weighed the enhancement factors, (2) that the trial court erroneously failed to
apply certain mitigating factors, and (3) that the trial court should have ordered alternative
sentencing.

                                                   I.
          When an appellant challenges the length, range, or manner of service of a sentence, this
Court conducts a de novo review with a presumption that the determination of the trial court was
correct. Tenn. Code Ann. § 40-35-401(d). However, this presumption of correctness is
"conditioned upon the affirmative showing that the trial court in the record considered the sentencing
principles and all relevant facts and circumstances." State v. Ashby, 823 S.W.2d 166, 169 (Tenn.
1991). If appellate review reflects that the trial court properly considered all relevant factors and
its findings of fact are adequately supported by the record, this Court must affirm the sentence even
if we would prefer a different result. State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App.
1991). In conducting a review, this Court must consider the evidence, the presentence report, the
sentencing principles, the arguments of counsel, the nature and character of the offense, mitigating
and enhancement factors, any statements made by the defendant, and the potential for rehabilitation
or treatment. State v. Holland, 860 S.W.2d 53, 60 (Tenn. Crim. App. 1993). The defendant bears
the burden of showing the impropriety of the sentence imposed. State v. Gregory, 862 S.W.2d 574,
578 (Tenn. Crim. App. 1993).

                                                 II.
        The defendant was found guilty of theft over five-hundred dollars, a Class E felony, and theft
under five-hundred dollars, a Class A misdemeanor. Following the sentencing hearing, the court
found the defendant to be a Range I, standard offender. The court then found that the following
enhancement factors applied: (1) that the defendant had a previous history of criminal convictions
or criminal behavior in addition to those necessary to establish the appropriate range, Tenn. Code
Ann. § 40-35-114(1); and (2) that the defendant had a previous history of unwillingness to comply
with the conditions of a sentence involving release in the community. Id. § 40-35-114(8). The trial
court also found as mitigating that the defendant’s actions neither caused nor threatened serious
bodily injury. Id. § 40-35-113(1). Then, the trial court imposed an eighteen-month sentence, the



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midpoint in the sentencing range for a Range I offender convicted of a Class E felony. Id. § 40-35-
112(a)(5).
        The defendant concedes the applicability of the enhancement factors. However, she argues
that the trial court gave the enhancement factors too much weight. The presumptive sentence for
a Class E felony is the minimum of the applicable range. Id. § 40-35-210(c). If enhancement and
mitigating factors do exist, a trial court should start at the presumptive sentence, enhance the
sentence within the range for enhancement factors and then reduce the sentence within the range for
the mitigating factors. Id. § 40-35-210(e). Furthermore, no particular weight for each factor is
prescribed by the statute, as the weight given to each factor is left to the discretion of the trial court
as long as its findings are supported by the record. State v. Palmer, 10 S.W.3d 638, 646 (Tenn.
Crim. App. 1999); see Tenn. Code Ann. § 40-35-210 Sentencing Commission Comments. In this
case, we find that the trial court properly weighed the enhancing factors. Thus, the court was acting
within its discretion by imposing an eighteen-month sentence.
        The defendant also argues that the trial court should have considered the defendant’s family
obligations mitigating under the “catch-all” provision of the statute. Tenn. Code Ann. § 40-35-
113(13). Specifically, the proof at the sentencing hearing showed that the defendant is the primary
caretaker of her two children, her sister, and her mother. We conclude that the trial court properly
declined to find the defendant’s family obligations mitigating. First, there was no evidence that the
defendant’s family needs played any role in her decision to commit these crimes. Furthermore, even
if there was such evidence, the trial court is in a much better position than this Court to determine
whether, given all of the circumstances, the defendant’s family obligations should be considered
mitigating. In short, we find the sentence imposed by the trial court appropriate.
This issue is without merit.
                                                  III.
         Finally, the defendant argues that she should have been granted probation. The Tennessee
Criminal Sentencing Reform Act of 1989 mandates that "convicted felons committing the most
severe offenses, possessing criminal histories evincing a clear disregard for the laws and morals of
society, and evincing failure of past efforts of rehabilitation shall be given first priority regarding
sentencing involving incarceration." Tenn. Code Ann. § 40-35-102(5). A defendant who does not
qualify as such and who is an especially mitigated or standard offender of a Class C, D, or E felony
is "presumed to be a favorable candidate for sentencing options in the absence of evidence to the
contrary." Id. § 40-35-102(6); However, this presumption may be rebutted by evidence to the
contrary. Such evidence may include the following sentencing considerations:
        (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.



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Id. § 40-35-103(1). A court may also apply the mitigating and enhancement factors set forth in
Tenn. Code Ann. § 40-35-113 and -114, as they are relevant to the § 40-35-103 considerations. Id.
§ 40-35-210(b)(5). Finally, the potential or lack of potential for rehabilitation of the defendant
should be considered in determining whether he should be granted an alternative sentence. Id. §
40-35-103(5).
       In this case, even if the defendant were entitled to the presumption that alternative sentencing
would be appropriate, the presumption was properly rebutted because measures less restrictive than
confinement have recently been applied unsuccessfully to the defendant.1 Indeed, in this case she
was being sentenced for violating community corrections. Thus, a sentence of incarceration is
appropriate for this defendant. This issue is without merit.
       Accordingly, the judgment of the trial court is AFFIRMED.



                                                                ___________________________________
                                                                JERRY SMITH, JUDGE




         1
          In this case, we need not decide whether the presumption in favor of an alternative sentence applies following
the revocation of a community corrections placement, because we find incarceration, in this case, appropriate in any
event.

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