             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                   AT KNOXVILLE               FILED
                            FEBRUARY 1999 SESSION
                                                                   May 4, 1999

                                                              Cecil Crowson, Jr.
                                                              Appellate C ourt Clerk


STATE OF TENNESSEE,            )
                               )      C.C.A. No. 03C01-9806-CR-00210
      Appellee,                )
                               )      Knox County
v.                             )
                               )      Honorable Mary Beth Leibowitz, Judge
DIANE TAYLOR,                  )
                               )      (Sentencing)
      Appellant.               )




FOR THE APPELLANT:                    FOR THE APPELLEE:

Mark E. Stephens                      John Knox Walkup
District Public Defender              Attorney General & Reporter
1209 Euclid Avenue                    425 Fifth Avenue North
Knoxville, TN 37921                   Nashville, TN 37243-0493

Paula R. Voss                         Todd R. Kelley
Assistant Public Defender             Assistant Attorney General
1209 Euclid Avenue                    425 Fifth Avenue North
Knoxville, TN 37921                   Nashville, TN 37243-0493
(On Appeal)
                                      Randall E. Nichols
Julia C. Auer                         District Attorney General
Assistant Public Defender             400 Main Street
1209 Euclid Avenue                    Knoxville, TN 37901-1468
Knoxville, TN 37921
(At Trial)                            William J. Blevins
                                      Assistant District Attorney General
                                      400 Main Street
                                      Knoxville, TN 37901-1468




OPINION FILED: ______________________________


AFFIRMED


L. T. LAFFERTY, SENIOR JUDGE
                                      OPINION

       The defendant, Diane Taylor, indicted for six counts of passing worthless checks,

a Class D felony, entered pleas of guilty in four of the six counts. A sentencing hearing

was requested for the trial court to determine if each count should be served concurrently

or consecutively with prior unserved sentences in Kentucky. The trial court ordered the

sentences to be served concurrently with each other but consecutively to the Kentucky

sentences.



       In this appeal of right, the defendant challenges the trial court’s imposition of

consecutive sentences. After a review of the record, briefs of the parties, and applicable

law, we affirm the judgment of the trial court.



                                     BACKGROUND



       In the July term of 1997, the Knox County grand jury returned a presentment

accusing the defendant of passing six worthless checks to various business in November,

1996. The worthless checks were in the amounts of $1,200.00, $2,381.49, $970.42,

$3,030.98, $2,527.57, and $1,604.02, totaling $11,714.48. On January 20, 1998, the

defendant entered four pleas of guilty, in counts 1, 2, 5, and 6, to passing worthless

checks, a Class D felony. Counts 3 and 4 were dismissed. The agreed sentences were

four years on each count to run concurrently; however, the trial court was to determine if

the sentences would be served concurrently or consecutively with present Kentucky

sentences. A presentence report was requested for the sentencing hearing of February

13, 1998. The record does not contain a transcript of the guilty plea hearing.



                                SENTENCING HEARING



       As of February 13, 1998, the defendant was serving a six-year sentence imposed

by the Circuit Court of Fayette County, Kentucky. The defendant also had a sentencing

hearing pending in the Circuit Court of Jefferson County, Kentucky to determine if a five-

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year sentence would be served concurrently or consecutively to the six-year sentence.

These sentences are for the defendant’s convictions of theft by deception, bad checks.



      The defendant testified she is a resident of Kentucky and that her family resides in

Lexington, Kentucky. The defendant verified she began serving her six-year sentence in

April, 1997. In October, 1996, the defendant was employed at a video store in Lexington,

Kentucky. The defendant, describing herself as having emotional problems and suffering

from depression and low self-esteem, developed a relationship with two of her bosses,

Branton Johnson and Clayton Lewis. The defendant had sought treatment for her mental

problems and so advised Johnson and Lewis.          The defendant developed a closer

relationship with Johnson, describing the relationship as “really good friends, or so I

thought.”



      In October and November, 1996, both Johnson and Lewis had the defendant write

bad checks in Kentucky and Tennessee. Johnson would tell the defendant where to go,

exactly what to buy, and then the defendant would write out the checks. During the

transactions, Johnson would maintain contact with her by a cellular phone. On each

occasion, at least one of the men would accompany her. She gave them the proceeds,

keeping nothing for herself. The defendant related that it was Johnson’s idea to come to

Tennessee and commit these offenses. The defendant testified that she was mentally

coerced into writing the various worthless checks. However, she admitted that she wrote

the checks, accepted her responsibility, and knew that it was wrong. The defendant

admitted she had a past history of misdemeanor convictions for passing worthless checks

in 1991. Also, the defendant advised the trial court that she had eight counts of theft by

deception dismissed in Fayette County, Kentucky. At the conclusion of the sentencing

hearing, the trial court ordered the sentences to be served consecutively to the Kentucky

sentences.



                          SENTENCING CONSIDERATIONS




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       The defendant contends her convictions do not meet the criteria required by law for

consecutive sentencing, and the trial court failed to place on the record the reasons for

consecutive sentencing in violation of the Sentencing Act of 1989. The state disagrees,

but concedes the trial court failed to fully comply with the statutory principles of sentencing,

and the presumption of correctness does not apply.



       When there is a challenge to the length, range, or matter of service of a sentence,

it is the duty of this Court to conduct a de novo review with a presumption that the

determinations made by the trial court are correct. Tenn. Code Ann. § 40-35-401(d). This

presumption 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); see State v. Jones, 883 S.W.2d 597, 600

(Tenn. 1994). The Sentencing Commission Comments provide that the burden is on the

defendant to show the impropriety of the sentence.



       Our review requires an analysis of: (1) the evidence, if any, received at the trial or

sentencing hearing; (2) the presentence report; (3) the principles of sentencing and the

arguments of counsel relative to sentencing alternatives; (4) the nature and characteristics

of the offense; (5) any mitigating or enhancing factors; (6) any statements made by the

defendant in her own behalf; and (7) the defendant’s potential for rehabilitation or

treatment. Tenn. Code Ann. §§ 40-35-102 to -103, -210; State v. Smith, 735 S.W.2d 859,

863 (Tenn. Crim. App. 1987). Although the defendant and the state contend the trial court

did not comply with the sentencing principles of the Sentencing Act of 1989, our review of

the record leads us to believe the trial court substantially complied with sentencing

principles. Thus, our review is with a presumption of correctness.



       Consecutive sentences may be imposed in the discretion of the trial court, based

upon a preponderance of the evidence, only upon a determination that one or more of the

following criteria exists:

               (1) The defendant is a professional criminal who has
                   knowingly devoted such defendant’s life to criminal

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                  acts as a major source of livelihood;

              (2) The defendant is an offender whose record of criminal
                  activity is extensive;

              (3) The defendant is a dangerous mentally abnormal
                  person so declared by a competent psychiatrist who
                  concludes as a result of an investigation prior to
                  sentencing that the defendant’s criminal conduct has
                  been characterized by a pattern of repetitive or
                  compulsive behavior with heedless indifference to
                  consequences;

              (4) The defendant is a dangerous offender whose
                  behavior indicates little or no regard for human life,
                  and no hesitation about committing a crime in which
                  the risk to human life is high;

              (5) The defendant is convicted of two (2) or more
                  statutory offenses involving sexual abuse of a minor
                  with consideration of the aggravating circumstances
                  arising from the relationship between the defendant
                  and victim or victims, the time span of defendant’s
                  undetected sexual activity, the nature and scope of
                  the sexual acts and the extent of the residual, physical
                  and mental damage to the victim or victims;

              (6) The defendant is sentenced for an offense committed
                  while on probation; or

              (7) The defendant is sentenced for criminal contempt.

Tenn. Code Ann. § 40-35-115(b).



       Our review of this issue reveals that Tenn. R. Crim. P. 32(c)(2) is also relevant. “If

the defendant has additional sentences or portions thereof to serve, as the result of

conviction in other states or in federal court, the sentence imposed shall be consecutive

thereto unless the court shall determine in the exercise of its discretion that good cause

exists to run the sentences concurrently and explicitly so orders.” State v. Michael S.

Holmes, No. 02C01-9802-CC-00048, 1998 WL 779612, at *6 (Tenn. Crim. App., Jackson,

November 10, 1998).



       At the sentencing hearing, the trial court found the defendant had several prior

convictions for theft by deception (worthless checks in Kentucky), the defendant had similar

offenses pending in a sentencing hearing in Kentucky, the defendant had eight similar

counts dismissed in Fayette County, Kentucky, and the defendant had a prior



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misdemeanor conviction for passing a worthless check in 1991. Furthermore, the trial

court found that the fraudulent checks were for an enormous amount of money, close to

$10,000,1 causing major harm to the victims in this state, and the defendant traveled to

Tennessee and engaged in writing these worthless checks, knowing full well that it was

wrong. The trial court also found that the defendant may have been threatened in

committing these offenses; that she did not receive any of the proceeds; and that the

incidents presented no physical injury to others. The trial court commented on the fact that

had the defendant never been in Kentucky but committed only the Tennessee offenses,

she would probably be eligible for probation, stating, “I wish I could do something in

between what I have here, in between the two. I’m not sure how I could possibly structure

such a thing. I really can’t.”



       There has been no showing of good cause which would dictate the running of these

sentences concurrently with the defendant’s Kentucky convictions. The trial court did not

find any, nor do we. The judgment of the trial court is affirmed.



                                          ________________________________________
                                          L. T. LAFFERTY, SENIOR JUDGE

CONCUR:



___________________________________
JERRY L. SMITH, JUDGE



___________________________________
THOMAS T. WOODALL, JUDGE




       1
           The actual amount totaled $11,714.48.

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