        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                          AT NASHVILLE           FILED
                     JANUARY SESSION, 1999         March 15, 1999

                                               Cecil W. Crowson
STATE OF TENNESSEE,       )                  Appellate Court Clerk
                              C.C.A. NO. 01C01-9711-CC-00543
                          )
      Appellee,           )
                          )
                          )   COFFEE COUNTY
VS.                       )
                          )   HON. GERALD EWELL
CASSANDRA MCKISSACK,      )   JUDGE
                          )
      Appe llant.         )   (Direct Appeal - Theft over $10,000)




FOR THE APPELLANT:            FOR THE APPELLEE:

CHARLES S. RAMSEY, JR.        JOHN KNOX WALKUP
114 North Spring Street       Attorney General and Reporter
Manchester, TN 37355
                              GEORGIA BLYTHE FELNER
                              Assistant Attorney General
                              425 Fifth Avenu e North
                              Nashville, TN 37243-0493

                              MICKEY LAYNE
                              District Attorney General

                              KENNETH SHELTON, JR.
                              Assistant District Attorney
                              P. O. Box 147
                              Manchester, TN 37355



OPINION FILED ________________________

AFFIRMED

JERRY L. SMITH, JUDGE
                                    OPINION


       On April 16, 1997, Appellant Cassandra McKissack pleaded guilty to one

count of theft over $10,000.00. On October 15, 1997, the trial court sentenced

Appellant as a Range I standard offender to a term of four years in the

Tennessee Department of Correction. Appellant challenges her sentence, raising

the following issues:

       1) whether her sentence is excessive; and

       2) whether she was entitled to probation.



       After a revie w of the re cord, we affirm the ju dgme nt of the trial co urt.



                                      I. FACTS




       The record ind icates tha t beginnin g in Aug ust of 199 5, Appe llant began

making regular visits to the hom e of her eighty-four-ye ar-old wheelchair-bound

uncle, J. C. Biles, in orde r to che ck on him a nd he lp take care o f his house. At

some time thereafter, Appellant began taking steps to have Biles put in a nursing

home and began discussions with oth er fam ily mem bers abou t who shou ld have

control of B iles’ assets .



       After some discussions between Appellant and her brother and sister,

Appellant’s brother took Biles to the office of a notary for the purpose of having

Biles grant a powe r of attorney to Appellant’s sister. While Appellant’s brother

was taking Biles in to the n otary’s office in order to complete the power of



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attorney, Appellant arrived, took the documents that granted the power of

attorney, a nd tore th em up .



      In August of 1996, Appellant forged Biles’ signature on a document which

purported to grant her a power of attorney. Appellant then took the docu ment to

her codefendant and had the codefendant notarize the docum ent. A few days

later, Appellant and her codefendant went to Biles’ bank and withdrew

$39,892.00 from Biles’ account. Appellant then took the money and deposited

it in another bank in an account under the names of Appellant and Biles.

Appellant subsequently gave $5,000.00 of the money to her codefendant and she

used another $2,000.00 to post their bond after they had been charged in this

matter.



                           II. LENGTH OF SENTENCE




      Appellant contends that the trial court erroneously sentenced her to a

longer term than she deserves. Specifically, Appellant argues that the trial court

misa pplied an enhancement factor when it determined the length of her

sentence.



      “When reviewing senten cing issu es . . . including the granting or denial of

probation and the length of senten ce, the ap pellate court shall cond uct a de novo

review on the record of such issues. Such review shall be conducted with a

presumption that the determinations made by the co urt from which the ap peal is

taken are correct.” Tenn . Code Ann. § 40-35-401(d) (1997). “However, the

presumption of correctness which accompanies the trial court’s actio n is

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conditioned upon the affirmativ e showing in th e record that the trial cou rt

considered the sentencing principles and all rele vant facts a nd circum stance s.”

State v. Ashby, 823 S.W .2d 166, 169 (Tenn. 199 1). In conducting our review, we

must cons ider all th e evide nce, th e pres enten ce rep ort, the s enten cing p rinciples,

the enha ncing and m itigating factors , argum ents o f coun sel, the defen dant’s

statem ents, the nature and character of the offense, and the defendant’s potential

for rehabilitation. Tenn. Code Ann. §§ 40-35-103(5), -210(b) (1997 & Supp.

1998); Ashby, 823 S.W .2d at 169 .                “The de fendant has the burden of

demonstrating that the sentenc e is imprope r.” Id. Because the record in this

case indicates that the trial court properly considered the sentencing principles

and all relevant facts and circumstances, our review is de novo with a

presumption of correctness.



       In this case, Appellant pleaded gu ilty to theft over $10,000, a Class C

felony. See Tenn. Code Ann. §§ 39-14-103, -105(4) (1997). The sentence for

a Range I offender convicted of a Class C felony is between three and six years.

Tenn. Code Ann. § 40-35-112(a)(3) (1997). When both enhancement and

mitigating factors are app licable to a senten ce, the court is directed to begin w ith

the minimum sentence, enhance the sente nce within the rang e as ap propriate for

the enhancement factors, and then reduce the sentence within the range as

approp riate for the mitigating factors. T enn. Cod e Ann. § 40 -35-210(e) (19 97).



       In enhancing Appellant’s sentence from three to four years, the trial court

found that enhancement factor (4) applied because the victim was p articula rly

vulner able due to age or physical or mental disa bility. See Tenn . Code Ann. §

40-35-114(4) (1997). The trial court also found that mitigating factor (1) applied

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because Appellant’s conduct neither caused nor threatened serious bodily injury.

See Tenn. C ode Ann . § 40-35-113 (1) (1997).



      Appellant claims that the trial court erred when it applied enhancement

factor (4) because there was no proof that Biles had any disability other than age.

Howeve r, the record indicates that Appellant stipulated at the sentencing hearing

that this factor w as app licable. Inde ed, the record indicates that the following

colloquy took place during the sentencing hearing:

             MR. SHE LTO N: [O]n e of the aggra vating c ircum stanc es, m ay it
      please the Co urt, in this case is the ph ysical c onditio n of the victim in this
      matter. That is addressed in the pre-sentence report itself[,] but for the
      purpose of sentencing in this matter, the enhan ceme nt factor tha t a victim
      of the offense was particularly vulnerable because of age or physical or
      mental disability, in essence, I am filing Mr. Biles as an exh ibit before the
      Court.
             THE COUR T: Bring Mr. Biles around.
             MR. RAM SEY: W e don’t dispute that, may it pleas e the C ourt. W e’ll
      stipulate that he is in a wheelchair and infirm.
             (Thereup on Mr. Biles wa s brought be fore the Cou rt.)
             THE COURT: Wh at age is the ge ntlem an? D oes a nybod y know his
      age?
             SPEC TATO R: Eighty-six.
             THE COUR T: Mr. Biles, how are you this morning?
             MR. BILES: All right, sir. How are you?
             THE COUR T: Fine. Mr. Shelton, do you want to swear him in?
             MR. SHELTON: No, sir, just for the Court’s observation and since
      Mr. Ram sey stipula tes that fac t—

The record also indicates that Appellant’s counsel made no further reference to

this enhancement factor in his clos ing arg ume nt. W e hold that, having stipulated

at the sentencing hearing that enhancement factor (4) was applicable, Appellant

cannot now attack the trial court’s ap plication of th at factor to h er sente nce. See

Tenn. R. Ap p. P. 36 (a) (“N othing in this rule shall be construed as requiring relief

be granted to a pa rty responsible for an error or who faile d to take whatever

action was reasonably available to prevent or nullify the error.”). Therefore, we

hold that a four year sentence is entirely appropriate in this case.

                                          -5-
                                         II. PROBATION




        Appellant contends that the trial court erred when it failed to grant

probation in this case.1 We disagree.



        Under Tennessee law, a d efend ant is e ligible for probation if the sentence

impo sed is eight years or less and further, the trial court is required to consider

probation as a sentencing alternative for eligible defendants. Tenn. Code Ann.

§ 40-35-303(a)–(b) (1997).                 However, even though probation must be

autom atically conside red, “the d efenda nt is not automatically entitled to probation

as a matter of law.”           Tenn. Code Ann. § 40-35-303(b) (1997) (Sentencing

Commission Com ments ); State v. Hartley, 818 S.W.2d 370, 373 (Tenn. Crim.

App. 1991). Indeed, a defendant seeking full probation bears the burden on

appeal of showing that the sentence actually imposed is imp roper and th at full

probation will be in both the best interest of the defendant and the pub lic. State

v. Bingham, 910 S.W.2d 448, 456 (Tenn. Crim. App. 1995). When determining

suitability for probation, the se ntencing cou rt considers the following factors: (1)

the nature and circumstances of the criminal conduct involved;                                 (2) the

defen dant’s potential or lack of potential for rehabilitation, including the risk tha t,

during the period of probation, the defendant will commit another crime; (3)

whether a senten ce of full prob ation wo uld und uly depre ciate the seriousness of

the offense; and (4) whether a sentence other than full probation would provide

an effective deterrent to othe rs likely to com mit similar crimes. Tenn. Code Ann.




        1
        We note that our review on appeal is limited to the narrow question presented by Appellant of
whether the trial court erred when it failed to grant probation. Accordingly, this review does not address
the appropriateness of other sentencing alternatives.

                                                  -6-
§§ 40-35-210(b)(4), -103(5), -1 03(1)(B ) (1997 & Supp. 1 998); Bingham, 910

S.W .2d at 456 (citations o mitted).



         Although the rec ord is n ot entire ly clear, the trial court appare ntly based its

denial of probation on both the circumstances of the criminal conduct and

Appellant’s lack of candor at the sentencing hearing. We agree with Appellant

that the circumstances of this offense, as reprehensible as they are, standing

alone, are not e nough to suppo rt a denial o f probation . See Bingham, 910

S.W.2d at 454 (“In order to d eny an a lternative sentence based on the

seriousness of the offense, the circumstances of the offenses as committed must

be especially violent, horrifying, shocking, reprehensive, offensive, or otherwise

of an exc essive or exagge rated de gree.”).



         Howeve r, we also conclude that the record supports the trial court’s finding

that Appellant had lie d to the court a nd we hold that this alone was a prope r basis

for the den ial of proba tion. Indee d, this Co urt has p reviously sta ted that a

defen dant’s lack of cando r to the co urt refle cts po orly on the de fenda nt’s

rehabilitative potential and thus, is a basis for denial of probatio n. State v. Leggs,

955 S.W.2d 845, 851–52 (Tenn. Crim. App. 1997). The record also indicates that

during the sentencing hearing, Appellant maintained that instead of stealing the

money for her own use, she only took the money in order to take care of Biles

and protect him from oth er relatives w hom s he feare d would waste the money by

spending it on themselves. Failure to accept responsibility for one’s criminal

conduct also reflects poorly on rehabilitative potential and thus, is a basis for

denial of proba tion. State v. Zeolia , 928 S.W.2d 457, 463 (Tenn. Crim. App.

1996).

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        Based on the circ umsta nces o f the offens e, Appe llant’s lack o f cando r to

the court, and Appellant’s failure to accept responsibility for her conduct, we hold

that the trial c ourt did not ab use its discre tion wh en it de nied p robatio n in this

case.



        Accordingly, the judgment of the trial court is AFFIRMED.



                                   ____________________________________
                                   JERRY L. SMITH, JUDGE



CONCUR:



___________________________________
JOHN H. PEAY, JUDGE


___________________________________
DAVID H. WELLES, JUDGE




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