Marilyn Elam appeals her conviction for forgery, a Class E felony, following a bench trial in the Lake County Circuit Court, where she was sentenced to one year of confinement as a Range I standard offender. Elam argues that the trial court erred by imposing continuous confinement. During the trial, evidence was presented showing that on May 20, 1997, Elam used a check bearing Cary Richardson's name and address to purchase beer and cigarettes at Huck’s Convenience store, despite not having permission from Richardson to sign his name. The check was declined by the bank due to Richardson’s account being closed.
At sentencing, it was revealed that Elam had a previous conviction for facilitation of the sale of cocaine and was under probation when she committed the forgery. Despite having previously violated conditions of her Community Corrections sentence, her probation officer testified that she complied with reporting requirements and had no issues while under supervision, as evidenced by her negative results on random drug tests. A presentence report indicated Elam's age (37), lack of employment since 1981, and reported disabilities, including mental health issues and chronic back pain from an incident in 1981. The court ultimately affirmed the conviction.
The trial court sentenced the defendant, classified as a Range I standard offender, to one year of confinement in the Department of Correction. In mitigation, it determined that the defendant's actions did not result in serious bodily injury. The court applied several enhancement factors per Tenn. Code Ann. 40-35-114, including the defendant's prior criminal history, a history of non-compliance with community release conditions, and the commission of the felony while on probation. The court mandated straight confinement, noting that less restrictive options had previously failed.
Appellate review of sentencing is de novo, with a presumption of correctness for the trial court’s decisions. The burden falls on the defendant to demonstrate that the sentence is improper. Sentencing procedures must adhere to statutory requirements, including documenting the trial court's rationale, identifying both mitigating and enhancement factors, and explaining their evaluation in the sentencing decision. For de novo review, considerations include trial evidence, presentence reports, sentencing principles, the defendant's statements, and rehabilitation potential. A Class E felony sentence is typically the minimum unless enhancement or mitigating factors justify adjustments. The trial court retains discretion regarding the weight of factors, provided its findings are supported by the record.
The defendant argues that the trial court made errors in imposing a sentence of continuous confinement. Key points of her contention include: (1) the alleged misuse of enhancement factor (8), regarding her history of noncompliance with community release conditions; (2) her claim of statutory ineligibility for continuous confinement based on the nature of her offenses; (3) the assertion that the presumption for alternative sentencing was not adequately rebutted; and (4) the belief that the denial of alternative sentencing, based on the unsuccessful application of less restrictive measures, constitutes double enhancement.
The state maintains that the continuous confinement sentence is justified. Regarding enhancement factor (8), the defendant acknowledges her Community Corrections sentence was revoked due to noncompliance but disputes that this reflects a general unwillingness to comply with non-confinement sentences. The court finds her past noncompliance relevant and appropriate for the trial court's consideration.
The defendant further argues she is statutorily ineligible for continuous confinement under Tenn. Code Ann. 40-35-104(c)(8)(B), asserting that since her forgery conviction is punishable as theft involving property valued under one thousand dollars, it should preclude continuous confinement. The state counters that this statute pertains specifically to theft convictions and not forgery. The interpretation of these statutes hinges on the legislative intent, which the court emphasizes must be respected while ensuring statutes are enforced as written when unambiguous.
Tenn. Code Ann. 40-35-104(c)(8)(B) is determined to apply strictly to convictions for theft under Tenn. Code Ann. 39-14-103, excluding forgery. The statute's language clarifies that it does not extend to crimes punished as theft, including forgery, which is addressed under Tenn. Code Ann. 39-14-105. The legislature's intent was not to exempt forgery convictions from continuous confinement. The court declines to broaden the statute's application beyond its clear language.
The defendant, a standard offender for a Class E felony, argues for a presumption favoring non-confinement, which the court finds is countered by evidence of her past failures with less restrictive measures, including a revoked Community Corrections sentence and being on probation when the current offense was committed.
Regarding the claim of "double enhancement," the court affirms that the trial court appropriately considered the defendant's probation status in both enhancing her sentence and justifying confinement, citing precedent that allows for such dual considerations without double jeopardy concerns. The court concludes that the trial court's decisions are supported by substantial evidence and affirms the conviction.
