WPC, echpgnc WP_TV07805499P6A)sports2tlerxsIWPTVWPC2 xcolumnlinetabmarglsxnmargrsxnmargtsxnmargbsxnt{WP}10{WP}01< Helvetica Helvetica8{WP}22PWP 6.0 captionM{WP}16 # >HP LaserJet 4SiHPPCL5MS,,,,,,0nLlHU:I,  AZ"Arial Regular %XU 0G(,$XoXXXNw@ DdgDDEӀ"4n~<$x AZ$3|x3;5'C  !"   XoXXX 1X Xo   Ad FILED XoX 1   August20,1998  CecilCrowson,Jr. ̉X XoAppellateCourtClerk HU:j,cAZ"Arial Regular_ AQ !"#%C<< CLevel 1Level 2Level 3Level 4Level 5R 0D(3$ !  R 0D(3$ !  R 0D C($$   1  = D/ ''' dxd+ B  d+ B P PdA D3 &&&&'dxd  HH  2$HH  Geneva  <Px443!#4$*$$*$ KK  Geneva  Geneva .,6 Geneva   inion Geneva  inion Geneva 4R3.5.2'3.5.2, 1996 Corel Corporation Limited,R3.5.2Created with WordPerfect 3.5.2. =o } Corel WordPerfectxHH(FG(HH(d'h W\A^PSetBPJobNStylZwp60versWDatSTR PtPtWӴW|6 (0 |  0$  W\ W8 WP WT [WӨ WҌ WT WL W` (W aWh Wl Wl! W" >WϬ# WϘ% WϜ& +WϠ' ZWψ( Wό Wʹ W͌WĿ 9WΘO{WP}10{WP}22WP 6.0 caption{WP}16{WP}01"Hl' '" x{WP}10 <<KK ..,,..,, x Helvetica۪HHlH  Ы(d(ìA 7oXXdXXd7A " x   Arial Regular" Э   xhQ'$' x{WP}10 <<KK  x Helvetica x0{WP}22 x x Helvetica x $Y@Y@Y@FILED$ 0$' '0F$$2' '$August 20, 199802@22' '0F@N Cecil Crowson, Jr.$N\'  '$  Appellate Court Clerk  x x x0' '0" xIN    THE COURT OF CRIMINAL APPEALS OF TENNESSEE$6' '$AT JACKSON06Q66' '0JULY 1998 SESSION0QlQQ' '0$l' '$ܪ  Ы0' '0$' '$STATE OF TENNESSEE,$$)0  ' '0$$$$$$)  $$Appellee,$$) C.C.A. No. 02C019710CC00397  $$$$$$)  vs.$$$$$) Hardeman County  $$$$$$)$' '$PATRICIA MORRIS,$$) HON. JON KERRY BLACKWOOD, 0' '0$$$$$$) JUDGE$!' '$$$$$$$)0!/!!' '0$$Appellant.$$) (Forgery)/=$$$$$$)=KKYYgguuFOR THE APPELLANT:$$ FOR THE APPELLEE:HARRIET S. THOMPSON$$ JOHN KNOX WALKUP101 W. Market Street$$ Attorney General & ReporterP.O. Box 331Bolivar, TN 38008 $$$ GEORGIA BLYTHE FELNER$$$$$$ Assistant Attorney General$$$$$$ Cordell Hull Building, Second Floor  $$$$$$ 425 Fifth Avenue North!!$$$$$$ Nashville, TN 372430493""##+$$$$$$ JERRY NORWOOD$$+9$$$$$$ Assistant Dist. Attorney General%%9G$$$$$ 302 Market Street&&GU $$ Somerville, TN 38068 ''Uc((cqJ))q qq)) HJܿ*J**r rr** HJܿ+$,' '$ x x x xOPINION FILED: _____________0-' '0 x x x x0.*' '0 x x x xAFFIRMED0/8' '00$1' '$CURWOOD WITT, JUDGE02b' '0 3 4 5* 6*8 78F$8FT' '$ xͪ  Ы x x   xOPINION09ToT' '0$:o' '$ xͪЫ x x x$$mThe defendant, Patricia Morris, appeals the Hardeman County' 'ffCircuit Courts sentencing determinations in six counts of forgery. The'bdefendant pleaded guilty in counts (1), (2), and (3) of the indictment to forgeryinvolving sums less than $500 and in counts (4), (5), and (6) to forgeryinvolving sums between $1,000 and $10,000. The trial court accepted the@pleas on all counts on October 2, 1997, conducted the sentencing hearing onthe same date, and imposed the following sentences:AG$$Counts 1 3 Class E 2 years each, concurrent;BGb$$Counts 4 6 Class D 4 years each, concurrent.Cb}UThe defendant was sentenced as a Range II multiple offender. The effectivetwoyear sentence for counts 1 3 runs consecutively to the effective fouryear;sentence for counts 4 6, for an aggregate effective sentence of six years;however, the trial court ordered split confinement with respect to the twoyear/sentences. It suspended the balance of the twoyear sentences after the6 YH} H6ffdefendant serves nine months in confinement. The fouryear sentences weretotally probated. These sentences run consecutively to unexpired sentencesjwhich were previously imposed in Hardin County. The trial court ordered theNpayment of restitution in the amount of    $3,637.00. In    this direct appeal, the/defendant complains that full probation should have been granted and that theFsentences imposed were excessive. After review of the record on appeal,UUincluding the briefs of the parties, the transcript of the sentencing hearing, thepresentence report, and a report submitted by Corrections ManagementCorporation, we affirm the judgment of the trial court.Q}R"$$The defendant pleaded guilty to the charged offenses whichincluded the forgery of checks in the amounts of $150, $300, $447.19, $2,500,and two for $1,500 each. At the time of sentencing, defendant was 30 years old,married, and a mother of three children aged twoyears, oneyear and one  month. She testified that her history of writing forged and worthless checks wasUthe result of previous drinking and financial problems. Her history of check  writing offenses    includes    two 1997 misdemeanor convictions in HardemanFCounty, a third misdemeanor in 1994 in Madison County, a fourth misdemeanorin 1992 in McNairy County, a fifth and sixth misdemeanor in 1992 in Hardinv'County, a 1994 felony in Madison County, and a 1992 felony in Hardin County. /At least two of the misdemeanor sentences were fully probated, and splitconfinement was ordered in other cases. Probation in Hardin County wasrevoked on February 13, 1995. Based upon testimony given at the sentencing6 fR_" H6ffhearing, the defendant remained on probation in Hardin County when theoffenses in the present case were committed. Furthermore, it appears that*previous to the offenses in the present case, the defendant twice offended whileon probation from prior convictions.c"d$$.When there is a challenge to the length, range, or manner ofservice of a sentence, it is the duty of this court to conduct a de novo review ofthe record with a presumption that the determinations made by the trial court arecorrect. Tenn. Code Ann. 4035401(d) (1997). This presumption ist] conditioned upon the affirmative showing in the record that the trial court9considered the sentencing principles and all relevant facts and circumstances. ;State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).  The burden of showingthat the sentence is improper is upon the appellant. Id. In the event the recordUUfails to demonstrate the required consideration by the trial court, review of thesentence is purely de novo. Id. If appellate review reflects the trial courtt]properly considered all relevant factors and its findings of fact are adequatelyOsupported by the record, this court must affirm the sentence,  even if we would'bhave preferred a different result. State v. Fletcher, 805 S.W.2d 785, 789 (Tenn.Crim. App. 1991).r s $$Initially, we note that the trial court made pertinent references tothe principles of sentencing contained in the Sentencing Reform Act and madedetailed findings of fact which support its sentencing determinations. As such,6 Rv H6the trial courts judgment is presumptively correct. State v. Ashby, 823 S.W.2d'b166, 169 (Tenn. 1991). Also, we find that the 1992 Hardin County felonyconviction and the 1994 Madison County felony conviction, both for forgery,]constitute two prior felony convictions which serve as predicates for the trialcourt declaring the defendant a Range II multiple offender.{ | $$8The trial court found three enhancement factors applicable. Itfound that    the defendant had    a prior history of criminal convictions or behaviorin addition to that necessary to establish the sentencing range, that theLFebruary 13, 1995 revocation of probation in Hardin County illustrated theqdefendants unwillingness to comply with sentences involving release in thecommunity, and that the present offenses were committed while the defendantwas on probation on a felony offense in Hardin County. SeeàTenn. Code Ann. 4035114(1), (8), (13) (1997). The court also found that the offenses weremitigated because the defendants conduct neither caused nor threatenedserious bodily injury and because the defendant admitted her guilt. SeeàTenn.ECode Ann. 4035113(1), (13) (1997). Further, the court found that theenhancement factors outweigh the mitigating factors.  $$qThe record supports the above findings. The defendant maintainsthat the trial court erred in not considering in mitigation the defendantswillingness to make restitution and her motivation in attempting to providenecessities for her family.J  { `R { HJܿ $$If, by her reference to her willingness to make restitution, thedefendant is referring to the statutory mitigation factor set forth in Tennessee33Code Annotated section 4035113(5) (1997), the record does not support thefclaim. Mitigating factor (5) applies when the defendant, before detection, compensated or made a good faith attempt to compensate the victim for thedamage or injury the defendant caused. Tenn. Code Ann.  4035113(5)(1997). The record reveals no predetection attempt to compensate any victim. The defendant makes a point, however, if her argument is submitted in the]context of the catchall factor, seeàTenn. Code Ann.  4035113(13) (1997)(any other mitigating factor consistent with the purposes of the sentencing/code), because her promise to pay restitution is buttressed by her successfulOpayment of restitution in some of the previous cases that were identified in herrecord of convictions. However, in light of the applicable enhancement factors,the mitigating factor is not of consequential weight.   ;$$UWe find that mitigating factor (7) does not apply. SeeàTenn. CodeUAnn.  4035113(7) (1997). There was no proof that the defendant wasFmotivated in committing the offenses by a desire to provide necessities forIherself and her family. She testified that the offenses were the result of financialproblems, but she offered no testimony nor any other proof that any familyexigency attended the commission of these crimes. Moreover, we note that theUthree checks upon which counts (4), (5) and (6) were based were made6 R H6payable to the defendant and totaled $5,500 in amount.;##>$$The defendants other complaint about the sentences imposed byI%the trial court is that probation should have been granted or that the period ofconfinement should have been less than nine months.>$$fThe defendant stood before the trial court presumed to be afffavorable candidate for alternative sentencing. Tenn. Code Ann.  4035  ;102(6) (1997). She was eligible for probation. Tenn. Code Ann.  4035  303(a) (1997). The defendant received the benefit of a sentencing alternative in;that the trial court ordered split confinement. SeeàTenn. Code Ann.  4035  L104(c) (1997); see also State v. David E. Johnson, No. 02C019609CR00305,UUslip op. at 4 (Tenn. Crim. App., Jackson, Aug. 22, 1997);    State    v. Judy R. Bailey,]No. 03C019706CC00204, slip op. at 6 (Tenn. Crim. App., Knoxville, Feb. 4,L1997). Moreover, we note that  [m]easures less restrictive than confinement9have frequently or recently been applied unsuccessfully to the defendant. *SeeàTenn. Code Ann.  4035103(1)(C) (1997). Such a finding overcomes thepresumption of suitability for alternative sentencing.  $$ffFinally, the defendants claim to probation must fail. The burdenrests upon the defendant to show that she merits probation. State v. Bingham,*910 S.W.2d 448, 455 (Tenn. Crim. App. 1995). Although this court issympathetic to the defendants plight as a mother of three small children and is6 ZR H6even more sympathetic to the plight of these children, this circumstance doesnot establish suitability for probation where the defendants proclivity to check  writing offenses is chronic and, to date, intractable. In short, there is nothing inthe record that overcomes the presumption that the trial courts split confinementsentence is correct.    '$$The judgment of the trial court is affirmed.'B$B]' '$ xͪ  Ы x x   x$$$$$$$]' '__________________________]y$$$$$$$CURWOOD WITT, JUDGEyCONCUR:     _________________________JOE G. RILEY, JUDGE!!/_________________________/=ROBERT W. WEDEMEYER, SPECIAL JUDGE=KKY$$