Preview:

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE
November 14, 2000 Session STATE OF TENNESSEE v. LARRY WILKINS
Direct Appeal from the Circuit Court for Williamson County No. I-599-149 Donald P. Harris, Judge

No. M2000-01225-CCA-R3-CD - Filed June 22, 2001

The appellant, Larry Wilkins, pled guilty in the Williamson County Circuit Court to two counts of the class D felony of causing a computer system to be accessed for the purpose of obtaining $1,000 or more for himself or another by means of false or fraudulent pretenses, representations, or promises.1 For these offenses, the trial court imposed concurrent sentences of three years incarceration in the Tennessee Department of Correction, suspending all but one year of the appellant's sentences and placing him on supervised probation for four years. Additionally, the trial court imposed fines amounting to $1,5002 and ordered restitution amounting to $4,500. The appellant now appeals the trial court's sentencing determinations. Specifically, notwithstanding the trial court's imposition of alternative sentences of split confinement, the appellant contends that the trial court should have granted him either total probation or placement in a community corrections program. Following a review of the record and the parties' briefs, we affirm in part and reverse in part the judgments of the trial court, and we remand this case to the trial court for further proceedings consistent with this opinion. Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court are Affirmed in Part, Reversed in Part, and Remanded. NORMA MCGEE OGLE , J., delivered the opinion of the court, in which DAVID G. HAYES and JERRY L. SMITH, JJ., joined. Michael H. Sneed, Nashville, Tennessee; and C. Diane Crosier, Franklin, Tennessee, for the appellant, Larry Wilkins.
1 2

The co mbined j udgmen ts in this case refer to this offense as "T heft Over $ 1000 U sing Com puter."

The combined judgments suggest that the trial court imposed a fine of $1,500 for each offense to which the appellant pled guilty. However, the video cassette recording of the sentencing hearing clearly indicates that the trial court imposed a fine of $750 for each offense, resulting in a total amount of $1,500 in fines. "Where there is a conflict between a judgment form and the transcript of the proceedings, the transcript controls." State v. Charles A. Dailey, No. M1999-01075-CCA-R3-CD, 2000 WL 775585, *3 (T enn. Crim. App. at Nashville, June 16, 2000)(citing State v. Moore, 814 S.W.2d 381, 383 (Tenn. Crim. App. 1991), and State v. Dav is, 706 S.W.2d 96, 97 (Tenn. Crim. App. 1985)).

Paul G. Summers, Attorney General and Reporter; Marvin E. Clements, Jr., Assistant Attorney General; Ronald L. Davis, District Attorney General; Lee Dryer, Assistant District Attorney General; and Derek K. Smith, Assistant District Attorney General, for the appellee, State of Tennessee. OPINION I. Factual Background On May 10, 1999, a Williamson County Grand Jury indicted the appellant for two counts of the class D felony of causing a computer system to be accessed for the purpose of obtaining $1,000 or more for himself or another by means of false or fraudulent pretenses, representations, or promises. The indictment stemmed from the appellant's acquisition on October 27, 1998, of two computer codes authorizing access to expense accounts maintained by his employer, ComData Corporation, and the appellant's communication of those codes to an accomplice who thereby withdrew $2,000 from one account and $2,500 from another. The appellant pled guilty to the charged offenses on December 20, 1999. The appellant's pleas were unaccompanied by any agreement concerning sentencing other than the State's concession that the appellant was a Range I standard offender. Accordingly, the trial court conducted a sentencing hearing on February 11, 2000. At the sentencing hearing, the State submitted to the trial court a pre-sentence report, which indicates that the appellant was approximately twenty-five years old at the time of these offenses and did not possess a previous history of criminal convictions or criminal behavior. The report additionally reflects that the appellant graduated from Tennessee State University in 1998 with a bachelor of science degree in psychology. Following his graduation, the appellant was employed at ComData Corporation. Additionally, following his discharge by ComData until September 24, 1999, the appellant was employed by Cigna Medicare as a customer service representative earning $1,900 per month. Subsequently, from September 27, 1999, until the time of the sentencing hearing, the appellant was employed by Sprint PCS as an "analyst" earning $2,500 per month. At the time of the sentencing hearing, the appellant was unmarried but had one nine-year-old son who was living with the child's mother.3 According to the pre-sentence report, "[t]he [appellant] no longer pays child support but does provide financial support and have regular contact with the child." The State also presented the testimony of John Hasselbacher, the Vice-President for Corporate Security and Criminal Investigations at ComData Corporation. Hasselbacher testified that, at the time of these offenses, the appellant was employed by ComData in its "operations area," providing services to customers through the telephone. Hasselbacher explained that ComData maintains expense accounts for trucking companies, enabling the companies to wire money to truck drivers traveling across the country. Hasselbacher elaborated that, if a trucking company needs to wire money to a driver, the company can telephone ComData, provide a security password to a ComData employee, and request a code authorizing the disbursement of the desired amount of

At the sentencing hearing, the appellan t indicated tha t his son was eigh t years old and suggested tha t the child was currently in the care of the appellant's mother.

3

-2-

money. The ComData employee will then access the company's expense account via a computer, obtain an authorization code, and communicate the code to the trucking company. This authorization code can be affixed to a blank "draft" or check and cashed at any check cashing business. According to Hasselbacher, ComData began investigating the instant offenses when it received several complaints from customers concerning unauthorized withdrawals from their expense accounts. The investigation, including interviews with the appellant, revealed that the appellant had obtained customers' security passwords and communicated them to an accomplice during the months of September and October 1998. The accomplice then called ComData Corporation and obtained computer codes authorizing the disbursement of funds from the customers' expense accounts. Moreover, on October 27, 1998, the appellant himself acquired two authorization codes via a co-worker's computer terminal and communicated these codes to an accomplice. In all, the codes acquired by the appellant's accomplice or accomplices authorized the disbursement of $29,600 from ten different expense accounts. Hasselbacher testified that eight different individuals participated in cashing the drafts or checks to which the codes were affixed. The company was able to stop payment of all but $16,600. To Hasselbacher's certain knowledge, the appellant was the sole ComData employee involved in the criminal enterprise. Hasselbacher asserted that, therefore, the enterprise could not have been accomplished without the appellant's participation. Hasselbacher acknowledged that, upon ComData's discovery of the criminal enterprise, the appellant did provide information to the company's investigators concerning his accomplice or accomplices. However, the appellant subsequently retracted some information and also neglected to attend appointments with investigators.4 Finally, Hasselbacher testified that, at the time of the sentencing hearing, the appellant had not yet attempted to make restitution for his offenses. The appellant testified on his own behalf at the sentencing hearing. He largely confirmed the accuracy of information contained in the pre-sentence report, adding that he intended to return to school in August in order to obtain a master's degree in "organizational management" and was currently attempting to establish his own business. As to the instant offenses, the appellant
4

We note that the pre -sentence report likewise indicates: The investigating officer instructed the subject the day he entered the conditional guilty pleas in the instant case (12/20/99) to complete the personal questionnaire and statement a nd then ma ke an app ointment for a n interview at the F ranklin Probation and Parole Office. The subject failed to call as instructed and the investigating officer called the subject and set up an appointment for 1/31/00 at 10:00 AM. The subject failed to appear for the appointment and did not c all to reschedule or offer an explanation. *The subject faxed the c ompleted personal q uestionna[i]re and stateme nt along with numerous requested docume nts on 2/7/0 0. The sub ject repor ted that he wa s in a car accident and was unable to make his appointment. An amended report was filed on 2/10/00 .

-3-

explained that they were the result of poor judgment and peer pressure. Moreover, the appellant noted that he did not benefit monetarily from his commission of the offenses. He also claimed that, contrary to Hasselbacher's testimony, he fully cooperated in the investigation of his offenses. The appellant denied any responsibility for distributing security information other than the two computer codes that authorized the disbursement of funds amounting to $4,500 and resulted in his guilty pleas. However, the appellant subsequently conceded that an accomplice, Sean Carter, removed "notes" from the appellant's home that apparently contained additional security passwords or authorization codes. The appellant also conceded that Carter thereby obtained additional funds from expense accounts maintained by ComData and shared those funds with the appellant. The appellant asserted his willingness and ability to pay restitution for the offenses to which he pled guilty. Specifically, the appellant testified that he could pay $4,500 in installments. Moreover, he noted that, if necessary, he could borrow or otherwise acquire the full amount of restitution in one lump sum. The appellant conceded that he had made no attempt to make restitution prior to the sentencing hearing but explained that he had believed it necessary to act through the court. He further conceded that his bank account contained only $222 and observed that it was "hard" to save money. During the appellant's testimony, the trial court interjected inquiries concerning the appellant's employment since his commission of the instant offenses, noting the appellant's representation by the district public defender. In particular, the trial court inquired concerning the appellant's employment at the time he requested appointment of the district public defender. The appellant responded that he was employed by Cigna Medicare. Moreover, the appellant testified that his salary was $1,600 per month during his entire tenure at Cigna Medicare. Upon further questioning by the court, the appellant acknowledged that he had reported a salary of $1,300 per month on the Affidavit of Indigency that he submitted to the court on May 28, 1999. The appellant also acknowledged that he never reported to the court his subsequent employment by Sprint PCS and his consequent increase in salary. At the conclusion of the sentencing hearing, the trial court imposed concurrent sentences of three years incarceration in the Tennessee Department of Correction, suspending all but one year of the appellant's sentences and placing him on supervised probation for four years. Additionally, the trial court imposed fines amounting to $1,500 and ordered restitution amounting to $4,500. The trial court further ordered the appellant to pay the fines, restitution, and court costs in installments of $200 per month. In imposing the appellant's sentences, the trial court noted its consideration of the pre-sentence report, the testimony adduced at the sentencing hearing, sentencing principles, and any enhancement and mitigating factors. The trial court specifically noted its application of the enhancement factor set forth in Tenn. Code Ann.

Download wilkinslm.pdf

Tennessee Law