        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                          Assigned on Briefs October 8, 2013

        STATE OF TENNESSEE v. KIMBERLY WILSON WENTZEL

                 Appeal from the Circuit Court for Marshall County
                      No. 11CR110      Robert Crigler, Judge




              No. M2012-02315-CCA-R3-CD - Filed December 10, 2013



A Marshall County jury convicted the Defendant, Kimberly Wilson Wentzel, of six counts
of prescription fraud and two counts of identity theft. After a sentencing hearing, the trial
court sentenced the Defendant as a persistent offender and imposed concurrent eleven-year
sentences for each of the Defendant’s eight felony convictions. The trial court ordered the
Defendant to serve her entire sentence in the Tennessee Department of Correction. The
Defendant now appeals, contending that the trial court erred when it denied her request for
alternative sentencing. After a thorough review of the record and applicable law, we
conclude that the trial court properly denied alternative sentencing.

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

R OBERT W. W EDEMEYER, J., delivered the opinion of the court, in which J AMES C URWOOD
W ITT, J R. and R OGER A. P AGE, JJ., joined.

Robert Dalton (at trial), Lewisburg, Tennessee, and Hershell D. Koger (at sentencing and on
appeal), Pulaski, Tennessee, for the Appellant, Kimberly Wilson Wentzel.

Robert E. Cooper, Jr., Attorney General and Reporter; Meredith DeVault, Senior Counsel;
Robert Carter, District Attorney General; Weakley E. Barnard, Assistant District Attorney
General, for the Appellee, State of Tennessee.

                                        OPINION

                                          I. Facts

       This cases arises from the Defendant’s fraudulent purchase of prescription drugs using
the Drug Enforcement Agency (“DEA”) number of a friend who was a nurse practitioner.
A Marshall County grand jury indicted the Defendant for seven counts of prescription fraud
and three counts of identity theft. The Defendant was tried April 25-27, 2012, and the jury
found her guilty of six counts of prescription fraud and two counts of identity theft. The trial
court sentenced the Defendant to concurrent eleven-year sentences for each of the eight Class
D felony convictions, to be served in the Tennessee Department of Correction (“TDOC”).
The Defendant now appeals the trial court’s denial of alternative sentencing.

                                           A. Trial

      Because the Defendant only challenges the denial of alternative sentencing, we
summarize the evidence presented at trial, viewed in the light most favorable to the State, as
follows:

       Jeffrey Mitchell, a pharmacist at Fred’s, testified that on June 18, 2011, a woman
claiming to be Summer Keasler called the pharmacy and asked that prescriptions for Lortab,
Xanax, and Phenteramine be filled for a patient named Kayla Coop. He stated that he knew
Ms. Keasler as a nurse practitioner in the area. He testified that he called the doctor’s office
where Ms. Keasler was employed to verify the prescriptions and was told that Ms. Keasler
had not called them in. He stated that he was not on duty when the prescriptions were picked
up.

       Raquel Gonzales, another pharmacist at Fred’s, testified that a woman identifying
herself as Kayla Coop came to the pharmacy on June 20, 2011, and stated that she was
picking up the three prescriptions. She stated that the woman paid cash for the prescriptions.
During her testimony, Ms. Gonzales identified the Defendant in the courtroom as the woman
who purchased the prescriptions. She testified that Mr. Mitchell called her later that day and
told her that the prescriptions were not verified by Ms. Keasler’s clinic. Ms. Gonzales called
the police and filed a report. The pharmacy technician working on June 20 also identified
the Defendant as the woman who came to the pharmacy to pick up the prescriptions.

        Randall Jean, a pharmacist at Kroger, testified that on March 5, 2011, she also
received a call from a woman purporting to be Ms. Keasler and that the caller provided Ms.
Keasler’s DEA number over the phone. The caller requested a prescription for Xanax to be
filled for Kim Wentzel, and the prescription was picked up the next day. The pharmacy
technician at Kroger also testified that a caller identifying herself as Ms. Keasler called to
request three prescriptions for Lortab, Xanax, and Phenteramine for “Kayla Roop.” The
technician stated that she recognized the caller’s voice as the Defendant’s because the
Defendant had been a customer at the pharmacy for a while and the technician had “seen her
and spoken to her” often enough to recognize the Defendant’s voice. The technician stated
that she later confirmed that the prescriptions were “forged.” The technician testified that

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the Defendant later came to the pharmacy to pick up the prescriptions and identified the
Defendant in the courtroom. Another Kroger pharmacist testified that after the technician
had received the phone call, she hung up the phone and told him that the woman on the
phone purporting to be Ms. Keasler “sounded just like Kim Wentzel.”

        Summer Keasler, the nurse practitioner and victim of the identity theft crime,
identified the Defendant as a patient she had seen at the Nashville Pain Center in Brentwood,
Tennessee, and at North Medical Clinic in Chapel Hill, Tennessee. Ms. Keasler stated that
the Defendant had used two different names at the clinics, Kimberly Wilson and Kimberly
Wentzel. Ms. Keasler stated that in June 2011, she was not actively treating the Defendant
as a patient and that she did not call in any prescriptions to Fred’s or Kroger for the
Defendant, or authorize any other person to do so.

        The Defendant testified that she and Ms. Keasler had a “close” relationship and that
Ms. Keasler frequently gave the Defendant medical advice. The Defendant testified that Ms.
Keasler had written many prescriptions for the Defendant. The Defendant denied calling
Kroger on March 5 to order a prescription for Xanax for herself, and she denied posing as
Ms. Keasler on the phone. The Defendant also denied picking up the prescription at Kroger,
claiming someone else had forged her signature. She later stated that the prescriptions
Kroger had on file for her were valid and that the prescriptions she picked up from Fred’s
were for Ms. Keasler. At the conclusion of the evidence, the jury found the Defendant guilty
of six counts of prescription fraud and two counts of identity theft.

                         B. Sentencing and Restitution Hearing

       At the sentencing hearing, the State entered a presentence report, which set forth the
following information about the Defendant: The Defendant, who was fifty years old at the
time of sentencing, was born and raised in Maury County, Tennessee. She reported
completion of two years of a pre-dental hygiene degree at Columbia State University but did
not obtain a degree. The Defendant married Darrell Wentzel in 1991, and together they had
two children. The Defendant reported having suffered a heart attack and further reported that
she had been diagnosed with manic depression, bipolar disorder, and several other mental
health conditions. She also reported having been diagnosed with breast cancer. The
Defendant reported that she became “addicted” to prescription drugs in 1995 and that she
successfully completed a twenty-one day inpatient rehabilitation program and remained part
of the program until 2009. She reported that neither she nor her husband had jobs but that
she receives a disability check since she resigned from her employment due to her breast
cancer diagnosis.

       From 1996 to 2003, the Defendant received four convictions for prescription fraud,

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one conviction for facilitating aggravated robbery, and one conviction for prescription
forgery. For her 1996 prescription forgery and facilitating aggravated robbery charges, the
Defendant was placed on Community Corrections in 1997 and ordered to serve thirty-days
in jail. Her Community Corrections sentence was subsequently revoked when the Defendant
did not report to jail, and she was ordered to serve out her sentence in TDOC. For her 2001
prescription fraud charge, the Defendant received a probation sentence, which was revoked
when she was charged with a felony in another county. The Defendant was re-released on
parole, which she subsequently violated in 2003 based upon another felony charge, as well
as her failure to maintain employment and report as instructed. In 2004, the Defendant was
placed on two years probation, and in 2006, a violation warrant was issued for the
Defendant’s failure to report and failure to pay probation fees. The warrant was subsequently
dismissed.

        In a statement given to the officer preparing her presentence report, the Defendant
stated that:

       [T]hese charges are from two prescriptions from June 2011 at Kroger
       Lewisburg, TN and Fred’s Lewisburg, TN. I did pick up the meds at Fred’s
       but did not at Kroger. After this happened was driving to the (?) [sic]. Once
       there, I was told I was talking to people not there. After getting back on my
       mental health meds and stabilizing, I was let go to come home. That is when
       I was arrested on Fred’s prescription. I was in court when I was given the
       other charges and re-arrested. While out on bond, I continued to Centerston
       [sic] and took mental health meds. Its not an easy [sic] to admit that I am a
       person with serious mental health disorders. The person that testified against
       me had been my friend, the nurse [practitioner]. I did not understand or I
       didn’t want to. I am an addict that fell weak after many years. Sad but true.

       At the hearing, the Defendant testified that she was guilty of the eight crimes for
which the jury had convicted her. She acknowledged that she had been on parole twice and
that both times her parole had been revoked. She also stated that she had violated a previous
probation sentence but that the judge had dismissed the violation warrant. The Defendant
admitted that on the day the violation warrant was dismissed, she called in a prescription for
herself from the courthouse and that as a result, her Community Corrections sentence was
revoked. The Defendant agreed that she had befriended Summer Keasler and that as a result
of their friendship she was able to obtain Ms. Keasler’s DEA number and use it to order
prescriptions for herself.

      The Defendant’s mother and a neighbor both testified that the Defendant was a good
mother and asked the trial court to order an alternative sentence so that she could be at home

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with her family, particularly her children. The Defendant’s husband testified that one of their
children had health problems and needed her mother to care for her. The Defendant’s
husband agreed that he had been convicted of aggravated robbery, in which the Defendant
had also been involved, and agreed that her parole had been revoked twice.

       At the conclusion of the hearing, the trial court denied the Defendant’s request for
alternative sentencing, citing the following reasons:

       [C]onfinement is needed to protect society by restraining a [D]efendant who
       has a long history of criminal conduct and also less restrictive measures than
       confinement have frequently or recently been applied to the [D]efendant.

       Again, as I mentioned before, apparently Community Corrections, that kind of
       rehabilitation, is something that [has been] tried and failed in the past for this
       [D]efendant.

       I know her family is here. At some point the public would have no respect for
       the court system for somebody to repeatedly commit felony offenses and to
       keep getting out on probation.

       In my opinion it is necessary under the facts and circumstances to deny
       alternative sentencing and a split sentence.

The trial court sentenced the Defendant to eleven years for each of her convictions, with the
sentences to be served concurrently. The trial court ordered the Defendant to serve her
effective eleven-year sentence in the TDOC. It is from this order that the Defendant now
appeals.

                                         II. Analysis

       On appeal, the Defendant contends that the trial court erred when it denied her an
alternative sentence. She contends that she was “eligible” for alternative sentencing because
her crimes were not crimes against persons and because she does not meet the three criteria
provided in Tennessee Code Annotated section 40-35-102(5). The State responds that the
Defendant did not and has not presented any evidence that she is a good candidate for
alternative sentencing, particularly based on her criminal history, and that the trial court did
not abuse its discretion in ordering her to serve her sentence in confinement. We agree with
the State.

       In State v. Bise, the Tennessee Supreme Court reviewed changes in sentencing law


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and the impact on appellate review of sentencing decisions. The Tennessee Supreme Court
announced that “sentences imposed by the trial court within the appropriate statutory range
are to be reviewed under an abuse of discretion standard with a ‘presumption of
reasonableness.’” Bise, 380 S.W.3d 682, 682 (Tenn. 2012). A finding of abuse of discretion
“‘reflects that the trial court’s logic and reasoning was improper when viewed in light of the
factual circumstances and relevant legal principles involved in a particular case.’” State v.
Shaffer, 45 S.W.3d 553, 555 (Tenn. 2001) (quoting State v. Moore, 6 S.W.3d 235, 242 (Tenn.
1999)). To find an abuse of discretion, the record must be void of any substantial evidence
that would support the trial court’s decision. Id.; State v. Grear, 568 S.W.2d 285, 286 (Tenn.
1978); State v. Delp, 614 S.W.2d 395, 398 (Tenn. Crim. App. 1980). The reviewing court
should uphold the sentence “so long as it is within the appropriate range and the record
demonstrates that the sentence is otherwise in compliance with the purposes and principles
listed by statute.” Bise, 380 S.W.3d at 709-10. So long as the trial court sentences within
the appropriate range and properly applies the purposes and principles of the Sentencing Act,
its decision will be granted a presumption of reasonableness. Id. at 707.

        Recently, our Supreme Court extended the Bise standard to appellate review of the
manner of service of the sentence. The Court explicitly held that “the abuse of discretion
standard, accompanied by a presumption of reasonableness, applies to within-range sentences
that reflect a decision based upon the purposes and principles of sentencing, including the
questions related to probation or any other alternative sentence.” State v. Caudle, 388
S.W.3d 273, 278-79 (Tenn. 2012). We are also to recognize that the defendant bears “the
burden of demonstrating that the sentence is improper.” State v. Ashby, 823 S.W.2d 166, 169
(Tenn. 1991).

       In determining the proper sentence, the trial court must consider: (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 Tennessee Code Annotated
sections 40-35-113 and -114; (6) any statistical information provided by the administrative
office of the courts as to sentencing practices for similar offenses in Tennessee; and (7) any
statement the defendant made in the defendant’s own behalf about sentencing. See T.C.A.
§ 40-35-210 (2010); State v. Taylor, 63 S.W.3d 400, 411 (Tenn. Crim. App. 2001). The trial
court must also consider the potential or lack of potential for rehabilitation or treatment of
the defendant in determining the sentence alternative or length of a term to be imposed.
T.C.A. § 40-35-103 (2010).

      With regard to alternative sentencing, Tennessee Code Annotated section 40-35-
102(5) (2010) provides as follows:

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       In recognition that state prison capacities and the funds to build and maintain
       them are limited, 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 at rehabilitation shall be given
       first priority regarding sentencing involving incarceration.

        A defendant who does not fall within subdivision (5) of Tennessee Code Annotated
section 40-35-102, “and who is an especially mitigated offender or standard offender
convicted of a Class C, D or E felony, should be considered as a favorable candidate for
alternative sentencing options in the absence of evidence to the contrary.” T.C.A. § 40-35-
102(6). Generally, defendants classified as Range II or Range III offenders are not to be
considered as favorable candidates for alternative sentencing. T.C.A. § 40-35-102(6).
Additionally, we note that a trial court is “not bound” by the advisory sentencing guidelines;
rather, it “shall consider” them. T.C.A.§ 40-35-102(6) (emphasis added).

       Even if a defendant is a favorable candidate for alternative sentencing under
Tennessee Code Annotated section 40-35-102(6), a trial court may deny an alternative
sentence because:

       (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.

T.C.A. § 40-35-103.

         At the conclusion of the sentencing hearing, the trial court discussed the factors that,
in its view, indicated that confinement was necessary for the Defendant. The trial court first
found that the Defendant was a Range III, persistent offender who had “failed to comply”
with conditions of prior sentences she had received involving her release into the community
and that she had violated parole and probationary sentences multiple times. The trial court
found that confinement was “necessary” in this particular case to protect society from
someone with an extensive history of criminal conduct and that alternative sentences had
clearly failed in the past for the Defendant.



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        In our view, the evidence at trial supports the trial court’s denial of the Defendant’s
request for alternative sentencing. The evidence proves that the Defendant is a persistent,
Range III offender, and that she has six prior felony convictions. As we have noted, Range
III offenders are generally not presumed to be considered favorable candidates for alternative
sentencing.1 The Defendant’s criminal history with prescription fraud is extensive and past
efforts at rehabilitation have clearly failed on multiple occasions. Additionally, the
Defendant has violated the terms and conditions of the alternative sentences afforded to her
in the past. The record supports the trial court’s determination that confinement was
necessary in this case based on the Defendant’s criminal history and repeated failures to
comply with alternative sentencing. The Defendant is not entitled to relief.

                                            III. Conclusion

       After a thorough review of the record and applicable law, we conclude that the trial
court properly denied the Defendant alternative sentencing. In accordance with the foregoing
reasoning and authorities, the judgment of the trial court is affirmed.


                                                         __________________________________
                                                            ROBERT W. WEDEMEYER, JUDGE




        1
          Further, the Defendant is not eligible for probation because her sentence is greater than ten years
and is, arguably, not eligible for community corrections because her prior conviction for facilitation of
aggravated robbery. See T.C.A. 40-35-106(a)(1).


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