State of Tennessee v. Jeffrey Wayne Hughes

01/08/2018

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs November 28, 2017

STATE OF TENNESSEE v. JEFFREY WAYNE HUGHES

Appeal from the Circuit Court for Lawrence County

No. 33792, 34049 Russell Parkes, Judge

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No. M2017-00057-CCA-R3-CD

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The defendant, Jeffrey Wayne Hughes, pled guilty to one count of theft over $250,000,

one count of theft between $10,000 and $60,000, and six counts of money laundering.

Following a sentencing hearing, the trial court imposed an effective sentence of twenty-

seven years in confinement. On appeal, the defendant contends the trial court erred when

failing to apply certain mitigating factors, denying probation on the money laundering

offenses, and ordering his theft convictions to be served consecutively to his money

laundering convictions. Following our review of the record, arguments of the parties, and

pertinent authorities, we affirm the sentences imposed by the trial court.

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

J. ROSS DYER, J., delivered the opinion of the court, in which THOMAS T. WOODALL, P.J.,

and ROBERT W. WEDEMEYER, J., joined.

Venus Niner, Franklin, Tennessee, for the appellant, Jeffrey Wayne Hughes.

Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Assistant Attorney

General; Brent Cooper, District Attorney General; and Gary Howell, Assistant District

Attorney General, for the appellee, State of Tennessee.

OPINION

Facts and Procedural History

On October 24, 2016, the defendant pled guilty to one count of theft over

$250,000 from victim Lawrence County Fire and Rescue, Inc. (“Lawrence County Fire

and Rescue”), one count of theft between $10,000 and $60,000 from victim Crossroads

Volunteer Fire Department (“Crossroads”), and six counts of money laundering. The

State agreed to dismiss eighty-one additional counts of money laundering as part of the

plea agreement. The offenses occurred between 2009 and 2016, while the defendant

served as the volunteer treasurer for both Lawrence County Fire and Rescue and

Crossroads. During this time period, the defendant was employed by the Tennessee

Department of Correction as a fiscal director, for which he earned $5,870 monthly.

The trial court held a sentencing hearing on December 5, 2016. During the

hearing, the State called Investigator Tommy Goetz, Teresa Purcell, Tyler McDow, T.R.

Williams, and Ricky Bishop to testify, and the defendant testified on his own behalf. The

parties presented the evidence summarized herein during the hearing.

Lawrence County Fire and Rescue is an umbrella organization over the thirteen

volunteer fire departments in Lawrence County, Tennessee, including Crossroads. The

fire departments are funded by Lawrence County and fundraisers held throughout the

year by the individual volunteer fire departments. The money Lawrence County annually

gives to the fire departments comes from the taxpayers of Lawrence County and is given

directly to Lawrence County Fire and Rescue. Lawrence County Fire and Rescue then

distributes the money to each volunteer fire department. The money given by Lawrence

County and raised by the fire departments pays for equipment, maintenance, training, and

insurance, with insurance being the largest expense. All chiefs and firefighters are

unpaid volunteers.

Investigator Goetz, a criminal investigator for the Twenty-Second Judicial District

Attorney General’s Office, served as the lead investigator in the matter. Investigator

Goetz testified that over the course of six years and ten months, the defendant stole

$255,066.84 from Lawrence County Fire and Rescue and $10,800 from Crossroads, for a

total of $265,866.84. This averaged $3,632 per month and $43,584.73 annually. The

money was taken via checks drawn from the bank accounts of the two organizations. As

treasurer for both organizations, the defendant was an authorized signatory on the

checking account. However, each check required two signatures, and the defendant

admitted to forging the second signature. Some of the checks were written for cash, and

others were used to purchase Walmart gift cards. The defendant sold some of these gift

cards on eBay, but gift cards worth $1,000 were used locally. Investigator Goetz was

unable to determine where the stolen money went, and the defendant never offered an

explanation for taking the money.

When Investigator Goetz initially approached the defendant regarding the

investigation, he waived his Miranda rights and cooperated with the investigation. The

defendant gave the investigators access to his home, including his computer, and

admitted to stealing the money. The defendant subsequently hired new counsel, and

when the investigators tried to speak with the defendant a second time, he declined. The

defendant did, however, turn himself into authorities after learning there was a warrant

out for his arrest.

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After discovering the theft, Lawrence County Fire and Rescue filed a claim with

its insurance carrier and received $100,000, less the deductible. The insurance payment

went directly to Lawrence County Fire and Rescue, who evenly distributed the proceeds

to each volunteer fire department. Had it not been for the insurance payment, two of

Lawrence County’s fire departments would have closed. Due to a delay in paying the

claim and a subsequent premium increase, Lawrence County Fire and Rescue later

changed insurance carriers, but its annual insurance premium remained higher than it had

been prior to the theft.

After the discovery of the theft, the Lawrence County Commission requested a

change in procedures. There are now periodic audits, and each fire department must

provide Teresa Purcell, the budget director for Lawrence County Government, with its

bank statements and copies of checks. This audit occurs annually prior to the Lawrence

County Commission’s approval of its monetary distribution to Lawrence County Fire and

Rescue.

The defendant testified that he was thirty-four years old, married, and had four

minor children. Prior to his arrest, he had worked continuously since the age of fifteen.

He was very active in his church and volunteered for various local nonprofit

organizations. The defendant was also a member of the Lawrence County Board of

Commissioners. While briefly out of jail on bond with an ankle bracelet, the defendant

worked at McDonald’s. Since being incarcerated, the defendant has tried to be a positive

influence on those around him. He mentors other men in his pod, attends church

regularly, and participates in Moral Recognition Therapy, a twelve-step program

designed to help offenders understand how their actions impacted others and prevent

reoccurrence. The defendant apologized for his actions and expressed a desire to repay

the money taken.

After the close of the proof, the State addressed the enhancement factors found in

Tennessee Code Annotated section 40-35-114 and argued the trial court should enhance

the sentences imposed because the offenses involved more than one victim and were

committed by virtue of the defendant’s position of trust within the victim organizations.

The State further argued that while the defendant pled guilty to only eight felonies, he

admitted to the commission of more than 200 criminal acts over the course of almost

seven years, making the defendant “a professional criminal who has knowingly devoted

[his] life to criminal acts as a major source of livelihood.” Accordingly, the State argued

the sentences for the crimes related to the two separate victims and related to the money

laundering should run consecutive to one another, with the sentences for the six Class B

felonies running concurrently.

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The defendant countered that he did not have a criminal history, did not have a

history of drug use, was an active participant in his community, and was involved with

his family’s activities. Further, the defendant expressed a desire to make restitution, and

his likelihood of doing so was higher with a shorter period of incarceration. With respect

to mitigating factors, the defendant asserted his actions did not cause or threaten bodily

injury, he cooperated with the police investigation, and he had been a model inmate since

incarceration. The defendant further contended his record of steady, gainful employment

abated any evidence that he was a professional criminal.

After considering the evidence presented at the hearing, including the presentence

report, the principals of sentencing, and the arguments of counsel, the trial court ordered

restitution of $3,107.69 to Cross Roads and $162,759.15 to Lawrence County Fire and

Rescue. With respect to the enhancement factors, the trial court found the offense

involved more than one victim, Cross Roads and Lawrence County Fire and Rescue. The

trial court further found the defendant abused a position of public and placed greater

weight on this factor.

With respect to mitigating factors set forth in Tennessee Code Annotated section

40-35-113, the trial court noted the defendant’s criminal conduct neither caused nor

threatened serious bodily injury but gave this factor little weight. The trial court then

considered the mitigating factors proposed by the defendant. With respect to the

defendant’s contention his sentence should be at the low end of the range because he was

cooperative with law enforcement and willing to assist from the beginning of the

investigation, the trial court found the defendant changed his cooperative position after

hiring new counsel and, accordingly, rejected the applicability of this proposed factor.

The defendant next argued the trial court should mitigate his sentence because he has

been a model inmate since being in custody. The trial court also rejected this assertion,

noting it anticipates all inmates to be model inmates and refused to use the defendant’s

good behavior and decision to mentor other inmates to reduce his sentence.

The trial court next considered the imposition of consecutive sentences. When

doing so, it noted the defendant turned eighteen in August of 2000, and the first episode

of criminal activity occurred less than nine years later. This criminal activity spanned

from May 4, 2009, through February 9, 2016, a time period of six years and ten months,

or 38.22 percent of the defendant’s adult life. The trial court noted it was “unrebutted

and uncontroverted that almost 40 percent of [the defendant’s] life was spent embezzling,

stealing, and doing acts specifically meant to cover up that crime.” Based on this

evidence, the trial court found the defendant’s record of criminal activity to be extensive,

and the imposition of consecutive sentences appropriate.

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After applying the above enhancing and mitigating factors and considering the

principals of the Sentencing Act, the trial court imposed the following sentences:

1. Case number 33792, Count 1, theft over $250,000, Class A felony, eighteen

years of confinement;

2. Case number 33792, Count 2, theft between $10,000 and $60,000, Class C

felony, four years of confinement to be served concurrent to Count 1; and

3. Case number 34049, six counts of money laundering, Class B felonies, nine-

years of confinement for each to be served concurrent with one another but

consecutive to the sentences imposed for case number 33792.

The trial court denied the defendant’s request for probation in case number 34049,

finding a probated sentence would unduly depreciate the seriousness of the offenses, and

ultimately imposed an effective sentence of twenty-seven years in confinement. The

defendant subsequently filed a timely notice of appeal.

Analysis

On appeal, the defendant alleges: the trial court erred in refusing to give due

consideration to the mitigating factors proposed by the defendant; the trial court erred

when denying the defendant probation for the money laundering convictions; and the trial

court erred when ordering consecutive sentences based on its finding the defendant was a

professional criminal. In response, the State asserts the trial court’s rulings regarding

sentence length, probation, and the imposition of consecutive sentences were

presumptively reasonable, and the defendant failed to overcome those presumptions.

Based on our review of the record and applicable authorities, we agree with the State.

A. Sentence Length

When the record clearly establishes the trial court imposed a within-range

sentence after “a proper application of the purposes and principles of [the Tennessee

Criminal Sentencing Reform Act of 1989, as amended in 2005 (‘Sentencing Act’)],” this

Court reviews the sentence under an abuse of discretion standard with a presumption of

reasonableness. State v. Bise, 380 S.W. 3d 682, 707 (Tenn. 2012); State v. Caudle, 388

S.W.3d 273, 278-79 (Tenn. 2012). Once the trial court has determined the appropriate

sentencing range, it “is free to select any sentence within the applicable range.” State v.

Carter, 254 S.W.3d 335, 343 (Tenn. 2008) (citing Tenn. Code Ann. § 40-35-210(d)).

When determining a defendant’s sentence and the appropriate combination of sentencing

alternatives, trial courts are to consider the following factors:

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(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 §§ 40-35-113 and 40-35-114;

(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 wishes to make in the defendant’s

own behalf about sentencing.

Tenn. Code Ann. § 40-35-210(b).

The enhancement factors set forth in Tennessee Code Annotated section 40-35-114

include: “[t]he offense included more than one (1) victim;” and “[t]he defendant abused

a position of public or private trust, or used a professional license in a manner that

significantly facilitated the commission or the fulfillment of the offense.” Tenn. Code

Ann. § 40-35-114(3), (14). The mitigating factors set forth in Tennessee Code Annotated

section 40-35-113 include: “[t]he defendant’s criminal conduct neither caused nor

threatened serious bodily injury;” and “[a]ny other factor consistent with the purposes of

[the Sentencing Act].” Tenn. Code Ann. § 40-35-113(1), (13). The trial court must state

on the record the statutory factors it considered and the reasons for the ordered sentence.

Tenn. Code Ann. § 40-35-210(e); Bise, 380 S.W.3d at 705-06. “Mere inadequacy in the

articulation of the reasons for imposing a particular sentence, however, should not negate

the presumption [of reasonableness].” Bise, 380 S.W.3d at 705-06. A trial court’s

sentence “should be upheld 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.” Id. at 709-10.

Here, the trial court first determined the defendant should be sentenced as a Range

I, standard offender. Then, after considering the principles of the Sentencing Act and the

arguments for and against the mitigating and enhancement factors proposed by the

parties, imposed within-range sentences. A Range I sentence for theft over $250,000, a

Class A felony, is fifteen to twenty-five years, and the trial court imposed a sentence of

eighteen years. See Tenn. Code Ann. § 39-14-105(a)(6); § 40-35-112(a)(1). A Range I

sentence for theft over $10,000, a Class C felony, is three to six years, and the trial court

imposed a sentence of four years. See Tenn. Code Ann. § 39-14-105(a)(3); § 40-35-

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112(a)(3). A Range I sentence for money laundering, a Class B felony, is eight to twelve

years, and the trial court imposed a sentence of nine years for each money laundering

conviction. See Tenn. Code Ann. § 39-14-903(a)(2); § 40-35-112(a)(2). The trial court

stated its reasons for imposing theses sentences on the record, and those reasons were

consistent with the principles and purposes of the Sentencing Act.

The defendant argues the trial court erred by failing to properly apply the

following mitigating factors: pursuant to Tennessee Code Annotated section 40-35-

113(1), the defendant’s criminal conduct neither caused nor threatened serious bodily

injury; pursuant to Tennessee Code Annotated section 40-35-113(13), the defendant was

cooperative with law enforcement; and again pursuant to Tennessee Code Annotated

section 40-35-113(13), the defendant had been a model inmate and a positive influence

since becoming incarcerated. The trial court agreed the first factor applied but gave it

little weight, which the defendant argues was error because the trial court should have

stated the reason for its ruling on the record. Based on our review of the record, however,

the trial court spent a significant amount of time addressing the proposed enhancement

and mitigating factors and gave the fact the defendant’s criminal conduct neither caused

nor threatened serious bodily injury little weight due to the egregiousness of the

defendant’s actions. Any deficiency in the trial court’s articulation of this reason was

harmless and did not remove the presumption of reasonableness.

The trial court found the second factor did not apply because the defendant

eventually quit cooperating with the investigation after hiring counsel. The defendant

contends this ruling erroneously punished the defendant for invoking his constitutional

right against self-incrimination. The defendant’s argument is without merit.

Enhancement and mitigating factors are advisory only, and the weighing of those factors

is within the discretion of the trial court. Carter, 254 S.W.3d at 346. Moreover, this

Court previously considered whether cooperation with a police investigation qualified as

a mitigating factor under Tennessee Code Annotated section 40-35-113(13) and

concluded the trial court properly refused to give the factor weight where evidence

suggested the defendant did not fully cooperate with the police. See State v. Kelly, 34

S.W.3d 471, 482 (Tenn. Crim. App. 2000) (concluding the defendant’s cooperation with

the police investigation was not a mitigating factor where his course of conduct did not

suggest full cooperation because he waited until his arrest to cooperate rather than

immediately reporting his actions to the police).

The defendant’s criminal activity spanned six years and ten months before the

police approached the defendant regarding the theft, at which point the defendant initially

cooperated. The defendant admitted to stealing the money, willingly let the police into

his home, gave the police access to his computer and other devices inside his home, and

expressed a willingness to speak with the police again following the search. When the

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police followed up with the defendant, however, he refused to further assist. The

evidence presented during the sentencing hearing supported the trial court’s finding the

defendant did not fully cooperate with the police investigation. The trial court did not

abuse its discretion when refusing to apply the defendant’s cooperation with the police

investigation as a mitigating factor under Tennessee Code Annotated section 40-35-113

(13).

The trial court next refused to use the defendant’s good behavior during

incarceration as a mitigating factor because “the Court anticipates all inmates to be model

inmates,” and it was not aware of any case law supporting the defendant’s assertion his

good behavior should serve as a mitigating factor. The defendant contends this was error

and points to an unpublished opinion of this Court finding the defendant’s model

behavior while incarcerated to be an appropriate mitigating factor under Tennessee Code

Annotated section 40-35-113(13). See State v. Daniel Christian Russell, No. M1999-

00202-CCA-R3-CD, 2000 WL 1130125, at * 10 (Tenn. Crim. App. July 27, 2000)

(stating, “Here, the record reflects that during this eight (8) month confinement, the

defendant has been a model inmate. We find this to be a mitigating factor pursuant to §

40-35-113(13).”). We are not persuaded by this case. In Daniel Christian Russell, a law

enforcement officer testified at the defendant’s sentencing hearing that since being in

custody, the defendant had not received any write-ups, had not violated the rules and

regulations of the jail, and never complained. Id. at *3. In the present matter, the

defendant did not call a law enforcement officer or any other witnesses who could

corroborate his claims of good behavior. Rather, the defendant testified as to his own

model conduct while in custody, which included mentoring other inmates, staying out of

fights, and participating in rehabilitative therapy. This matter is instead analogous to

State v. Edy Chavez Pantaleon, No. M2012-00575-CCA-R3-CD, 2013 WL 1790991, at

*7 (Tenn. Crim. App. April 25, 2013), perm. app. denied (Tenn. Oct. 17, 2013), where

this Court affirmed the trial court’s refusal to apply the defendant’s good conduct during

incarceration as a mitigating factor because “the defendant offered nothing in support of

his good behavior other than his own self-serving testimony.” The trial court did not err

when refusing to apply the defendant’s good behavior during incarceration as a

mitigating factor.

The record demonstrates the sentences imposed by the trial court complied with

the purposes and principles of the Sentencing Act. Pursuant to Tennessee Code

Annotated section 40-35-102, “[e]very defendant shall be punished by the imposition of a

sentence justly deserved in relation to the seriousness of the offense.” Tenn. Code Ann. §

40-35-102(1). Over the course of almost seven years, the defendant stole $265,866.84

from volunteer fire departments in Lawrence County, Tennessee, which averaged $3,632

per month. The defendant had access to these funds due to positions of trust within the

victim organizations. The defendant never offered a complete explanation for what

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happened to the money taken, but the investigation revealed he used a portion of it to

purchase Walmart gift cards that were then resold on eBay. The volunteer fire

departments in Lawrence County, Tennessee are funded by the Lawrence County Board

of Commissions via taxpayers and through fundraisers held by the individual

departments. This money is used to buy the equipment needed by the volunteer

firefighters to protect the citizens of Lawrence County from fire. As a result of the

defendant’s criminal acts, two volunteer fire departments in Lawrence County would

have closed had it not been for the receipt of insurance proceeds. Additionally, as a result

of the insurance claim filed to reimburse the victim organizations for the stolen money,

the premium paid by Lawrence County through its taxpayers increased. After

considering this evidence, the trial court imposed within-range sentences for the

defendant’s convictions of theft of property of $250,000, theft of property over $10,000,

and money laundering, and the defendant has not overcome the presumption these

sentences were reasonable. The defendant is not entitled to relief on this issue.

B. Denial of Probation

The defendant challenges only the trial court’s denial of probation for his money

laundering convictions. The defendant was eligible for probation on his money

laundering convictions because the trial court imposed a sentence of ten years or less for

each count.1 See Tenn. Code Ann. § 40-35-303(a). Money laundering, however, is a

Class B felony, so the defendant was not considered a favorable candidate for probation.

See Tenn. Code Ann. § 39-14-903(a)(2); § 40-35-102(6). Further, “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.”

Tenn. Code Ann. § 40-35-102(5).

The advisory sentencing guidelines provide that a defendant “who is an especially

mitigated 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.” Tenn. Code Ann. § 40-35-102(6). However, no criminal

defendant is automatically entitled to probation as a matter of law. State v. Davis, 940

S.W.2d 558, 559 (Tenn. 1997). Instead, the defendant bears the burden of proving his or

her suitability for alternative sentencing options. Carter, 254 S.W.3d at 347 (citing Tenn.

Code Ann. § 40-35-303(b)). To do so, the defendant must show the alternative

1

The defendant correctly points out the trial court did not address the possibility of probation for

the Class C felony conviction of theft of property over $10,000, presumably because the trial court

ordered the four-year-sentence imposed for this offense to run concurrent to the eighteen-year-sentence

imposed on theft of property over $250,000 conviction. Therefore, any error in failing to consider an

alternative sentence for theft of property over $10,000 was harmless.

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sentencing option imposed “will subserve the ends of justice and the best interests of both

the public and the defendant.” Hooper v. State, 297 S.W.2d 78, 81 (Tenn. 1956),

overruled on other grounds, State v. Hooper, 29 S.W.3d 1, 9-10 (Tenn. 2000).

Before imposing a sentence of full confinement, the trial court should consider

whether:

(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[.]

Tenn. Code Ann. § 40-35-103(1)(A)-(C). Our Supreme Court has noted that intentional

acts and those committed for profit are more deterrable than those not motivated by a

conscious effort to break the law, stating:

Actions that are the result of intentional, knowing, or reckless behavior or

those motivated by a desire to profit from illegal activity are probably more

deterrable than those which are not the result of a conscience effort to break

the law. Indeed, this is the very rationale that underlies the deterrence

aspect of punitive damages in tort law. See Hodges v. S.W. Toof & Co.,

833 S.W.2d 896, 901 (Tenn. 1992). Common sense tells us that we may

have less ability to deter crimes which are the result of provocation, sudden

and extreme passion, or even negligent behavior, irrespective of whether

others who commit similar crimes are incarcerated or given probation.

Hopper, 29 S.W.3d at 11.

“If the seriousness of the offense forms the basis for the denial of alternative

sentencing, Tennessee courts have held that the circumstances of the offense as

committed must be especially violent, horrifying, shocking, reprehensible, offensive or

otherwise of an excessive or exaggerated degree, and the nature of the offense must

outweigh all factors favoring a sentence other than confinement.” State v. Trotter, 201

S.W.3d 651, 654 (Tenn. 2006) (quotations omitted). In addition, the sentence imposed

should be (1) “no greater than that deserved for the offense committed,” and (2) “the least

severe measure necessary to achieve the purposes for which the sentence is imposed.”

Tenn. Code Ann. § 40-35-103(2), -103(4). The party appealing a sentence bears the

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burden of establishing that the sentence was improper. Tenn. Code Ann. § 40-35-401,

Sentencing Comm’n Cmts. Again, we review a trial court’s sentencing determinations,

including a denial of probation or another alternative sentence, under an abuse of

discretion standard, and grant a presumption of reasonableness to within-range sentences

reflecting an appropriate application of the purposes and principles of the Sentencing Act.

State v. Caudle, 388 S.W.3d 273, 278-79 (Tenn. 2012).

When denying the defendant probation on the money laundering offenses, the trial

court stated:

The Court finds that that particular offense, the facts and circumstances

surrounding the offense, and the nature and circumstances of the criminal

conduct weigh greatly in favor of denying probation. The prior criminal

history of the defendant, or lack thereof, weights greatly in favor of the

defendant in this case but does not outweigh the facts and circumstances

surrounding the offense and the nature of the criminal conduct.

The factor as to whether or not it reasonably appears that the

defendant will abide by the terms of probation weigh in favor of the

defendant and whether or not the interests of society in being protected

from possible future criminal conduct of the defendant are great. The Court

finds that the defendant’s position of trust, the defendant’s deceit in

covering up this particular crime coupled with the defendant’s positions

that he has held both with the State and the Tenessee Department of

Correction[], lead this Court to apply that and . . . construe it against the

defendant. The Court also finds that a sentence of full probation as it

relates to the nine year sentences would unduly depreciate the seriousness

of this particular offense.

We had [eighty-seven] counts of money laundering in this cause,

when I say this, I’m talking about 34049, to which the defendant has pled

guilty to six counts. I further find that confinement is particularly suited as

it relates to the nine year sentence to provide an effective deterrent to others

likely to commit similar offenses, and thus the defendant’s sentence, as it

relates to the nine year consecutive sentence, will not be subject to

probation.

The defendant contends the trial court erroneously denied probation on the money

laundering convictions due to his positions of trust within the victim organizations, his

deceit in covering his actions, and his lawful employment with the Tennessee Department

of Correction. According to the defendant, his positions of trust within the victim

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organizations are not relevant to the criteria set forth in Tennessee Code Annotated

section 40-35-103, and deceit, as an element of money laundering, could not be used by

the trial court as a reason to deny alternative sentencing. Further, the defendant argues

his lawful employment with the Tennessee Department of Correction was inappropriate

for the trial court to consider when denying his request for probation. The State counters

the defendant failed to meet his burden of proving entitlement to probation, and because

he has not overcome the presumption that his sentence of confinement was reasonable, he

is not entitled to relief. We agree with the State.

The trial court ultimlately denied probation on the money laundering offenses to

avoid depreciating the seriousness of the offenses and to provide an effective detterence

to others likely to commit similar offenses. When doing so, the trial court found any

factors supporting the appriopriatness of probation were heavily outweighed by the facts

and circumstances surrounding the offense and the nature of the criminal conduct, which

included the defendant’s abuse of his positions of trust within the victim organizations

and continued deceit in unlawfully taking and disposing of the money for the majority of

his adult life. Based on our review of the record, a large portion of the money taken and

disposed of by the defendant originated with the taxpayers of Lawerence County,

Tenneessee, and for the duration of the defendant’s criminal activity, he simultaneously

held financial positions with the Tennessee Department of Correction. The trial court

also referenced this deceit, abuse of trust, and employment in the public sector as

examples of why confinement was necessary to protect society from the continued

criminal conduct of the defendant. Consideration as to whether confinement is necessary

to avoid depreciating the seriousness of the offense and/or particularly suited to provide

effective deterrence to others likely to commit similar offenses are valid considerations

under Tennessee Code Annotated section 40-35-103.

Further, our Supreme Court recently addressed the propriety of denying probation

based on the seriousness of the defendant’s offense as committed in State v. Kevin E.

Trent, --- S.W.3d ---, 2017 WL 5022633, at *9 (Tenn. 2017). When doing so, the Court

noted “a trial court may not consider factors that constitute elements of the offense in

determining whether the circumstances of an offense are sufficient to deny an alternative

sentence.” Id. (citation and internal quotations omitted). Therefore, when denying

probation on the sole basis of the offense itself, “the circumstances of the offense as

particularly commited in the case under consideration must demonstrate that the

defendant committed the offense in some manner more egregious than is contemplated

simply by the elements of the offense.” Id. (emphasis in original). This necessarily

requires the trial court to examine and make findings regarding the particular

circumstances surrounding the defendant’s commission of the convicted offenses.

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The trial court did not base its denial of probation for the money laundering

convictions solely on the elements of that offense. Instead, the trial court denied the

defendant probation to avoid depreciating the seriousness of the money laundering

offenses and to provide effective detterence to others likely to commit similar offenses.

In the course of its ruling, the trial court properly examined and made findings regarding

the egregious circumstances of the crimes. “[A] trial court’s decision to grant or deny

probation will not be invalidated unless the trial court wholly departed from the relevant

statutory considerations in reaching its determination.” State v. Sihapanya, 516 S.W.3d

473, 476 (Tenn. 2014) (per curiam). The defendant has not shown such a departure. The

defendant is not entitled to relief on this issue.

C. Consecutive Sentencing

Finally, the defendant challenges the trial court’s imposition of consecutive

sentences. This Court reviews consecutive sentences under an abuse of discretion

standard with a presumption of reasonableness. State v. Bise, 380 S.W. 3d 682, 707

(Tenn. 2012); State v. Pollard, 432 S.W.3d 851, 859-60 (Tenn. 2013). The party

appealing a sentence bears the burden of establishing that the sentence was improper.

Tenn. Code Ann. § 40-35-401, Sentencing Comm’n Cmts.

This Court must give “deference to the trial court’s exercise of its discretionary

authority to impose consecutive sentences if it has provided reasons on the record

establishing at least one of the seven grounds listed in Tennessee Code Annotated section

40-35-115(b).” Pollard, 432 S.W.3d at 861. Those factors include “[t]he defendant is a

professional criminal who has knowingly devoted the defendant’s life to criminal acts as

a major source of livelihood,” and “[t]he defendant is an offender whose record of

criminal activity is extensive.” Tenn. Code Ann. § 40-35-115(b)(1), (2). “So long as a

trial court properly articulates reasons for ordering consecutive sentences, thereby

providing a basis for meaningful appellate review, the sentences will be presumed

reasonable and, absent an abuse of discretion, upheld on appeal.” Pollard, 432 S.W.3d

at 862 (citing Tenn. R. Crim. P. 32(c)(1); Bise, 380 S.W.3d at 705). When imposing

consecutive sentences, the court must consider the general sentencing principles that each

sentence imposed shall be “justly deserved in relation to the seriousness of the offense,”

“no greater than that deserved for the offense committed,” and “the least severe measure

necessary to achieve the purposes for which the sentence is imposed.” Tenn. Code Ann.

§§ 40-35-102(1), -103(2), (4); see State v. Imfield, 70 S.W.3d 698, 708 (Tenn. 2002).

Here, the trial court ordered the defendant’s sentences for the theft and money

laundering to be served consecutively after finding the defendant to be an offender with

an extensive record of criminal activity. In support of this finding, the trial court made

these observations:

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The defendant turned 18 in August of 2000. Less than nine years later,

according to the indictments and to which he was now pled, the defendant

started the first criminal activity, that being the beginning of the time period

for what we would have at one point called theft, embezzlement, now all

encompassed under theft. That criminal episode continued from May 4th,

2009 through February 9th of 2016, six years and ten months, or 38.22

percent of his adult life, was spent committing thefts. That is un-rebutted

and uncontroverted, that almost 40 percent of this man’s adult life was

spent embezzling, stealing, and doing acts specifically meant to cover up

that crime. The defendant is an offender whose record of criminal activity

is extensive. The Court finds that that particular consecutive sentencing

factor would be applicable in this case.

The Court can think of few things that would occur over a six –

almost seven year period that would be . . . more extensive than what has

gone on and what has been demonstrated to this Court now.

The defendant challenges the trial court’s imposition of consecutive sentences

because the State failed to trace the funds stolen to determine if they were used as a

“major source of livelihood,” the defendant had been lawfully employed since the age of

15, and the defendant had no prior criminal record, all of which weigh against a finding

of professional criminal status. The trial court, however, did not impose consecutive

sentences due to the defendant’s professional criminal status. See Tenn. Code Ann. § 40-

35-115(b)(1). Rather, it imposed consecutive sentences because it found the defendant

to be an offender with an extensive record of criminal activity. See Tenn. Code Ann. §

40-35-115(b)(2). This Court has previously held that for the purpose of consecutive

sentencing, the trial court may use the convictions for which the defendant is being

sentenced as evidence of an extensive record of criminal activity. See State v. Cummings,

868 S.W.2d 661, 667 (Tenn. Crim. App. 1992) (affirming the trial court’s imposition of

consecutive sentences based on the defendant’s current offenses as a record of extensive

criminal activity despite the lack of a prior criminal record). The defendant has not

established the trial court’s imposition of consecutive sentences was improper and is not

entitled to relief on this issue.

Conclusion

Based on the foregoing, we affirm the sentencing decisions of the trial court.

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____________________________________

J. ROSS DYER, JUDGE

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