         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                              Assigned on Briefs May 15, 2002

              STATE OF TENNESSEE v. ROMANIA ANN GADSON

                  Appeal from the Circuit Court for Montgomery County
         Nos. 40811, 40000089, 40000380, 49900072, 40100017, 40100053, 40100068
                               John H. Gasaway, III, Judge



                    No. M2001-01212-CCA-R3-CD - Filed October 25, 2002


The defendant, Romania Ann Gadson, pled guilty in the Montgomery County Circuit Court to seven
felonies. While she was on probation for those crimes, the defendant committed and was convicted
of three additional felonies and one misdemeanor. After a sentencing hearing, the trial court revoked
the defendant’s probation, determined that her effective sentence for the “old” convictions was
twelve years, and ordered that she serve the twelve-year sentence in incarceration. The trial court
also sentenced the defendant to an effective sentence of five years in confinement for the “new”
convictions and ordered that she serve the five-year sentence consecutively to the twelve-year
sentence. The defendant appeals, claiming (1) that the trial court incorrectly calculated the effective
sentence for her old convictions to be twelve years; (2) that the trial court erred in sentencing her to
the maximum punishment in the range for one of her new convictions; and (3) that she should have
received a community corrections sentence for her new convictions. As to the defendant’s claim that
the trial court incorrectly calculated her twelve-year sentence, we remand the judgments of
conviction to the trial court. As to the defendant’s new convictions, we conclude that the trial court
properly sentenced the defendant and affirm those judgments of conviction.

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

JOSEPH M. TIPTON, J., delivered the opinion of the court, in which JOE G. RILEY and JAMES
CURWOOD WITT, JR., JJ., joined.

Lonna K. Hildreth, Nashville, Tennessee, attorney for appellant, Romania Ann Gadson.

Paul G. Summers, Attorney General and Reporter; Renee W. Turner, Assistant Attorney General;
John Wesley Carney, Jr., District Attorney General; and Lance A. Baker, Assistant District Attorney
General, for the appellee, State of Tennessee.
                                                   OPINION

        Between August 1999 and October 2000, the defendant pled guilty in four cases to seven
felonies. The trial court sentenced her as a Range I, standard offender to the following:

    Case          Count                Offense                   Offense                     Sentence
   Number                                                     Classification
 40811               1       Theft of property valued         Class E felony      1 year to be served as 118
                             over $500                                            days in jail, the remainder
                                                                                  on probation
                     2       Aggravated burglary              Class C felony      3 years to be served as
                                                                                  118 days in jail, the
                                                                                  remainder on probation
                     3       Theft of property valued         Class E felony       1 year to be served as 118
                             over $500                                             days in jail, the remainder
                                                                                   on probation
 49900072            3       Aggravated burglary              Class C felony       4 years to be served as 1
                                                                                   year in jail, the remainder
                                                                                   on probation
                     4       Theft of property valued         Class D felony       2 years to be served as
                             over $1,000                                           120 days in jail, the
                                                                                   remainder on probation
 40000089            1       Forgery                          Class E felony       2 years to be served on
                                                                                   probation
 40000380            1       Possession of                    Class C felony       3 years to be served on
                             contraband in a penal                                 probation
                             institution

The sentences within case numbers 40811 and 49900072, respectively, were to be served
concurrently. The effective three-year sentence for case number 40811, the effective four-year
sentence for case number 49900072, and the two-year sentence for case number 40000089 were to
be served consecutively. The three-year sentence for case number 40000380 was purportedly to be
served concurrently to case number 49900092.1




        1
           There is no judgment of conviction or any other information regarding case number 499 00092 in the record
on ap peal.

                                                        -2-
       On April 5, 2001, the defendant pled guilty to aggravated burglary, burglary, theft of property
valued over five hundred dollars, and theft of property valued less than five hundred dollars. The
defendant admitted that she had violated the probation she was serving for her old convictions and
waived a probation violation hearing. On May 15, 2001, the trial court held a sentencing hearing for
the four new convictions.

        At the hearing, Cathy Gadson, the defendant’s mother, testified that the then twenty-year-old
defendant had been a good child and was not violent. Then, Ms. Gadson’s son was killed, and his
death destroyed the family. The defendant had idolized her brother and blamed herself for his death.
Although the defendant got counseling, it did not help her, and she started using drugs. According
to Ms. Gadson, if the trial court granted the defendant an alternative sentence, the defendant would
live with her and get help for her drug problem.

         The defendant testified that she started committing crimes when she was eighteen years old
because after her brother died, no one had been around to keep her in line and out of trouble. The
defendant had never used a weapon or threatened anyone during her crimes, and no one was in the
homes that she burglarized. The defendant had returned stolen property to one of her victims and
had been accepted into an alcohol and drug rehabilitation program at Turning Point. The defendant
testified that her drug addiction caused her to commit her crimes, and she acknowledged that if the
trial court allowed her to get treatment for her addiction, she would stay away from a life of crime.

         The defendant’s presentence report reflects that the defendant is single and obtained a high
school diploma while she was incarcerated in a juvenile facility. The defendant reported being in
fair physical health and having skin cancer. The report shows that the defendant has a history of
drug and alcohol abuse and that she started using crack cocaine when she was eighteen years old.
In the report, the defendant stated that she started smoking crack cocaine “everyday, all day” and that
she wanted help for her drug addiction.

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

    Case        Count             Offense                 Offense                  Sentence
   Number                                              Classification
 40100017          1      Aggravated burglary          Class C felony    3 years
                   2      Theft of property valued     Class E felony    2 years
                          over $500
 40100053          1      Burglary                     Class D felony    2 years
 40100068          1      Theft of property valued     Class A           11 months, 29 days
                          less than $500               misdemeanor




                                                 -3-
The trial court ordered that the sentences in case number 40100017 be served concurrently for an
effective sentence of three years. It also determined that the defendant was on bail for the aggravated
burglary and felony theft offenses in case number 4010017 when she committed the burglary offense
in case number 40100053. It, therefore, held that under Rule 32(c)(3)(C), Tenn. R. Crim. P., she had
to serve the sentence for the latter case consecutively to those for the former. See Tenn. R. Crim.
P. 32(c)(3)(C) (providing for mandatory consecutive sentencing when a defendant commits a felony
while released on bail for another offense and the defendant is convicted of both offenses). Finally,
it ordered that the sentence in case number 40100068 be served concurrently to the sentence in case
number 40100053 for an effective sentence of five years. The trial court revoked the defendant’s
probation for her old convictions and ordered that she serve the five-year sentence consecutively to
the effective twelve-year sentence that she had received for the old convictions. The defendant
appeals, raising several sentencing issues.

       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 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. 1994).

        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
her own behalf and (7) the potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102,
-103, and -210; see Ashby, 823 S.W.2d at 168; State v. Moss, 727 S.W.2d 229, 236-37 (Tenn.
1986).


                                                 -4-
         The sentence to be imposed by the trial court is presumptively the minimum in the range for
a Class B, C, D, or E felony unless there are enhancement 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) and (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.

                      I. TWELVE-YEAR SENTENCE CALCULATION

         The defendant contends that the trial court erred by calculating the effective sentence for her
old convictions to be twelve years. She claims that her effective sentences in case numbers 40811,
49900072, 40000089, and 40000380 were three, four, two, and three years, respectively. She asserts
that although the sentences for the first three cases were to be served consecutively, the trial court
ordered that she serve her three-year sentence in case number 40000380 concurrently to “the
sentence that she was then serving.” She contends that upon revoking her probation, the trial court
should have ordered her to serve an effective sentence of nine years in confinement. The state claims
that the twelve-year sentence is correct. Based upon the record before us, we cannot determine
whether the trial court correctly calculated the defendant’s effective sentence.

         During the sentencing hearing for the defendant’s new convictions, the trial court read the
defendant’s sentences for her old convictions and stated that the defendant was to serve her three-
year sentence in case number 40000380 concurrently to her sentence in case number 49900092. The
judgment for case number 40000380 also reflects that the three-year sentence for that case was to
be served concurrently with her sentence in case number 49900092. However, we have no judgment
or any other information about case number 49900092. Although we suspect that the trial court
intended for the defendant’s sentence in case number 40000380 to be served concurrently with case
number 49900072, we cannot make that assumption. Therefore, we remand the case to the trial
court. If the trial court determines that the defendant was to serve her sentence for case number
40000380 concurrently to case number 49900072, then upon revoking the defendant’s probation,
the trial court should have ordered her to serve an effective sentence of nine years in confinement
for the old convictions.

         We note that the state’s brief claims in a footnote that under Rule 32(c), Tenn. R. Crim. P.,
the trial court correctly ordered the defendant to serve twelve years because the defendant committed
the offense in case number 40000380 while she was on probation in case numbers 40811, 49900072,
and 40000089. However, as the defendant’s reply brief points out, Rule 32(c)(3)(A) provides for
mandatory consecutive sentencing when a defendant commits a felony while on parole, not
probation, for another felony. There is no evidence that the defendant was on parole at the time she
committed the offense in case number 40000380.



                                                  -5-
         We also note that the judgment for count four in case number 49900072 reflects that the
defendant was convicted of theft of property over $1,000, a Class C felony. However, that offense
is a Class D felony. See Tenn. Code Ann. § 39-14-405(3). Because the indictment states that the
defendant was indicted for Class D felony theft and the defendant was sentenced to the minimum
in the range for a Class D felony, we believe the trial court made a clerical error on the judgment.
Therefore, we also remand count four in case number 49900072 for correction of the judgment to
reflect the correct offense classification.

                II. SENTENCE FOR THE FELONY THEFT CONVICTION

       Next, the defendant contends that the trial court erred by sentencing her to the maximum
punishment in the range for her theft of property valued over five hundred dollars conviction in case
number 40100017. Specifically, she contends that the applicable mitigating factors outweighed the
enhancement factors. The state claims that the trial court properly sentenced the defendant. We
agree with the state.

        In sentencing the defendant, the trial court noted that as a Range I, standard offender, the
appropriate statutory ranges of punishment were three to six years for aggravated burglary, a Class
C felony; two to four years for burglary, a Class D felony; one to two years for theft of property
valued more than five hundred dollars, a Class E felony; and up to eleven months, twenty-nine days
for theft of property valued less than five hundred dollars, a Class A misdemeanor. The trial court
determined that enhancement factor (1), that the defendant has a previous history of criminal
convictions in addition to those necessary to establish the appropriate range, and factor (8), that the
defendant has a previous history of unwillingness to comply with the conditions of a sentence
involving release into the community, applied to all four convictions. See Tenn. Code Ann. § 40-35-
114(1), (8). The trial court also applied enhancement factor (13), that the defendant committed a
felony while on release status, to the aggravated burglary, burglary, and theft of property valued over
five hundred dollars convictions. See Tenn. Code Ann. § 40-35-114(13). In mitigation, the trial
court applied the following factors to all four of the convictions: (1) the defendant’s criminal conduct
did not cause or threaten serious bodily injury; (5) the defendant, before detection, compensated the
victim of criminal conduct for the damage or injury the victim sustained; (6) the defendant, because
of her youth, lacked substantial judgment in committing the offenses; and (13) the defendant, by
pleading guilty, saved the state the time, effort, and expense of going to trial. See Tenn. Code Ann.
§ 40-35-113(1), (5), (6), (13).

        The trial court weighed the enhancement and mitigating factors and sentenced the defendant
to the minimum in the range for the aggravated burglary and burglary convictions, three years and
two years, respectively. For the felony and misdemeanor theft of property convictions, the trial court
sentenced the defendant to the maximum in the range, two years and eleven months, twenty-nine
days, respectively.

        Although the defendant contends that the mitigating factors outweighed the enhancement
factors and that the trial court should have sentenced her to the minimum in the range for her felony


                                                  -6-
theft conviction, we believe that the trial court properly sentenced the defendant. As previously
stated, 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; Ashby, 823 S.W.2d at 169. In sentencing the defendant to the maximum
punishment in the range for a Class E felony, the trial court determined that the enhancement factors
outweighed the mitigating factors. The record before us, especially the defendant’s extensive
criminal history, supports the weight that the trial court gave to the applicable enhancement and
mitigating factors and the trial court’s sentencing her to the maximum punishment available for the
offense.

                               III. ALTERNATIVE SENTENCING

        Finally, the defendant contends that the trial court erred by ordering her to serve her effective
five-year sentence in confinement. She claims that she is eligible for community corrections under
Tenn. Code Ann. § 40-36-106(a). In addition, she claims that her drug addiction and skin cancer
constitute “special needs” pursuant to Tenn. Code Ann. § 40-36-106(c) that “make her more
qualified for the Community Corrections Program.” The state contends that the trial court properly
denied alternative sentencing. We agree with the state.

        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)). The trial court may also consider the mitigating and enhancing factors set
forth in Tenn. Code Ann. §§ 40-35-113 and -114. Tenn. Code Ann. § 40-35-210(b)(5); State v.
Boston, 938 S.W.2d 435, 438 (Tenn. Crim. App. 1996). Additionally, a trial court should 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); Boston, 938 S.W.2d at 438.

        In denying the defendant’s request for alternative sentencing, the trial court stated,

                        And the Court finds that there is no reasonable expectation
                that Ms. Gadson can rehabilitate herself in a probated status. She has
                been on probation for multiple, multiple offenses. She simply cannot
                follow the rules and regulations, and she’s demonstrated that over and
                over and over.

                        A release status through community correction would not be
                any different than to be in a release status under a probated sentence.



                                                   -7-
               She has to be confined, so she’s [ordered] to serve this effective 15
               year sentence at TDOC. That’s all.

        Based upon our de novo review, we conclude that the trial court did not err in ordering the
defendant to serve her entire five-year sentence in incarceration. The defendant had seven prior
felony convictions, and while she was on probation for those offenses, she committed three more
felonies and one misdemeanor. Although the defendant blamed her actions on her drug problem,
she continued to commit crimes without seeking treatment. According to the presentence report, the
defendant “advised she has skin cancer and she takes medication for itching, but otherwise defendant
reported being healthy.” The defendant did not testify about her skin cancer at the sentencing
hearing. We believe the record demonstrates that the defendant’s previous sentences involving
release into the community have been unsuccessful and that the defendant does not reflect a high
potential for rehabilitation. Moreover, the defendant has not demonstrated that she has special needs
that can best be treated in the community. We affirm the trial court’s denial of a community
corrections sentence.

         Based upon the foregoing and the record as a whole, we remand the judgments of conviction
in case numbers 40811, 49900072, 40000089, and 40000380 to the trial court to determine whether
the defendant’s effective sentence for those convictions is nine or twelve years and to correct the
judgment for count four in case number 49900072. As to the defendant’s remaining convictions,
we affirm the judgments of the trial court.



                                                      ___________________________________
                                                      JOSEPH M. TIPTON, JUDGE




                                                -8-
