State v. Shelly Perry ( 1998 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
MAY 1998 SESSION
FILED
July 28, 1998
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, )
) C.C.A. NO. 02C01-9707-CR-00285
Appellee, )
) SHELBY COUNTY
VS. )
) HON. CAROLYN WADE BLACKETT,
SHELLY S. PERRY, ) JUDGE
)
Appellant. ) (Denial of Probation)
FOR THE APPELLANT: FOR THE APPELLEE:
TIMOTHY JOEL WILLIAMS JOHN KNOX WALKUP
147 Jefferson, Ste. 909 Attorney General & Reporter
Memphis, TN 38103
(On Appeal) DOUGLAS D. HIMES
Asst. Attorney General
ALYSON CHENSASKY John Sevier Bldg.
142 N. Third 425 Fifth Ave., North
Memphis, TN 38103 Nashville, TN 37243-0493
(At Trial)
WILLIAM L. GIBBONS
District Attorney General
JAMES CHALLEN
Asst. District Attorney General
201 Poplar St., Suite 301
Memphis, TN 38103
OPINION FILED:____________________
AFFIRMED
JOHN H. PEAY,
Judge
OPINION
The defendant was indicted on two counts of theft of property worth more
than one thousand dollars ($1000) but less than ten thousand dollars ($10,000) and one
count of theft of property worth less than five hundred dollars ($500). After entering a
negotiated plea of guilty on all charges, the defendant was given an effective sentence
of two years imprisonment. The defendant now appeals, arguing that the trial court
should have granted her an alternative sentence in lieu of imprisonment. Finding no merit
in the defendant’s argument, we affirm.
In May 1996, while employed at Reed Jewelers, the defendant stole a total
of approximately two thousand dollars ($2000) worth of jewelry on two separate
occasions. She then gave her friends the jewelry to pawn, and they split the proceeds
of the sale. In July 1996, the defendant was hired by Freiden Company, another jewelry
store, for one to two weeks. During that time, the defendant stole jewelry on two or three
occasions. Again, her friends pawned the jewelry and shared the proceeds. On August
26, 1996, the defendant entered a Shoe Carnival shoe store and shoplifted a pair of
tennis shoes. The defendant was then arrested and indicted with three counts of theft.
Six months later, the defendant negotiated a plea with the State, agreeing
to plead guilty in exchange for two concurrent two-year sentences for the two counts of
theft over one thousand dollars ($1000) and one concurrent six-month sentence for theft
under five hundred ($500). The defendant petitioned for suspension of her sentence,
asking the court for probation in lieu of confinement. The cause proceeded to a
sentencing hearing, at which the defendant testified.
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According to the defendant, she had two small children and was four
months pregnant with her third child at the time of the sentencing hearing. She admitted
stealing jewelry from her employers and shoes from Shoe Carnival over a period of
several months. She also admitted that while she was employed at one of the jewelry
stores, she allowed her roommate to purchase jewelry with a stolen credit card. The
defendant had no prior record and had been employed with a temporary agency for two
weeks. At the time of the thefts, the defendant was experiencing difficult times in her life
and had become involved with the wrong people, but she felt sorry for committing the
thefts.
At the conclusion of the hearing, the trial court found that the defendant’s
testimony was “rehearsed,” that she maintained a sustained intent to violate the law
several times over a period of months, and that she was at the “center” of the offenses
that were committed by her and her codefendants. Based on this, the trial court found
that the defendant was not a favorable candidate for alternative sentencing and ordered
her to serve her sentence in confinement.
The defendant now argues that the trial court erred in refusing to place her
on probation or ordering some other type of alternative sentencing. It is undisputed that
due to the nature of the crime committed, the defendant is presumed to be a favorable
candidate for alternative sentencing under T.C.A. § 40-35-102(6). The record, however,
shows that the State effectively rebutted this presumption.
The trial court found that the defendant’s testimony during the sentencing
hearing was “rehearsed,” thus indicating that the trial court believed the defendant to be
untruthful in her testimony. Untruthfulness indicates that the defendant lacks potential
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for rehabilitation, and as such, it is a valid reason for denying probation. E.g., State v.
Bunch, 646 S.W.2d 158 (Tenn. 1983); State v. Dykes, 803 S.W.2d 250 (Tenn. Crim. App.
1990). Moreover, the record supports the trial court’s determination that the defendant
was at the “center” of the offenses that were committed, indicating that the defendant was
crucial to the thefts, and perhaps even suggesting that the defendant orchestrated them.
Under the circumstances of this case, this determination is also probative of the
defendant’s potential for rehabilitation, making it too a valid reason for denying probation.
Finally, by committing several thefts over a period of months, the defendant
demonstrated a sustained intent to violate the law, another valid reason for denying
probation. State v. David Lewis, C.C.A. No. 02C01-9512-CR-00363, Shelby County
(Tenn. Crim. App. filed July 25, 1997, at Jackson); see State v. Byrd, 861 S.W.2d 377(Tenn. Crim. App. 1993). Given these circumstances, the trial court was justified in
denying the defendant alternative sentencing. The defendant’s sentences are affirmed.
_______________________________
JOHN H. PEAY, Judge
CONCUR:
______________________________
PAUL G. SUMMERS, Judge
______________________________
THOMAS T. W OODALL, Judge
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