# FILED
October 2, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT JACKSON MAY 1998 SESSION

) STATE OF TENN ESSEE, ) ) C.C.A. No. 02C01-9708- CC-00296 Appellee, ) ) Henry County V. ) ) Honorable Julia n P. Guinn, Judge ) SARA LEIGHA

NE WISDOM, ) (Aggravated Bur glary; Theft over ) $1,000) Appellant. )

CONCURRING A

ND DISSENTING OPINION I both concur and dissent from my learned colleagues’ opi nion. I would affirm the convicti ons but modify the appellant’s s entence.
The trial judge partiall

y based his decision to deny probation on the ground that the appellant ex hibited an arrogant attitu de and would “tell any thing any way which seem[ed] to best benefit her at the moment.” The court is referring to the confusion regarding the appellant’s theft c onviction in Benton County, which she co ntends had been expunged. While on the witness stand, she denied having a cri minal record when the pr osecutor questioned her about that conviction. The tri al judge became irritated when the appellant denied having the convict ion. The appellant and her attorney argued that the convict ion had been expunged, but the distr ict attorney and the tri al court noted that nothing in the record indicated that the conviction had actuallybeen expunged.
From my review of the record, I can understand the appellant’s obvious confusion, considering that even the attorneys and the court were apparent ly confused as well. In her testimony before the court, the appellant does not appear to be intentionally lying to the court. The record indicates that she w as-2- confused, as were those around h er, as to whether or not she was required to acknowledge the charg e if it had been expunged.

The court also based its decis ion to deny full probation on t he deterrent effect, as well as the need to av oid depreciating the ser iousness of the crimes. The record must contain some ev idence that the sentence imposed w ill have a deterren t effec t within th e jurisdic tion bef ore a tria l court can deny alte rnative sentencing based on this g round. State v. Bonestel , 871 S.W.2d 163, 169 (Tenn. Crim. App. 1993). Fur thermore, conclusory s tatements are insufficient, and only when there is proof of the deterrent effe ct within the jurisdiction will denial be upheld. State v. Ashby , 823 S.W.2d 166, 170 (Tenn. 1991).
I agree with the tri al court that the theft of guns is a serious offense and that confineme nt would pr ovide some d eterrent effec t. Also, I a

gree that s

ome period of confinement is necessary to avoid depreciating

the seriousness of the offense. What the appellant and her codefendants did was clearly wrong. However, according to the presentence report, the appellant’s codefend ants, Steven Wisdom, and his friend, Glenn Axley , received 250 days of cont inuous confinement with the balance of their sentences to be served on C ommunity Corrections. I cannot r econcile how the appellant should receive the fines imposed by the jury, the restitution imposed by the court, and greater time in jail than her codefendants who wer e the principals in the cr imes, who admitted that they planned the crime, and who benefitted from the crimes as much or more so than she did. She was the one who voluntarily went to the authorities in Benton County, confessed to her inv olvement, implicated her c odefendants, and worked with law enforcement author ities to recover as many of Mr. Futrell’s guns as possible. One of the witnesses testified that the appellan t was very helpful in getting Mr. Futrel l’s guns returned. To puni sh more severely someone who confessed and who tried to correct her wrongs by helping the police would likely-3- deter others in our societ y from coming forward, ad mitting their wrongs, and working with authorities to correct t heir misdeeds.
Accordingly, I conc

lude that in the best interest of the public and the appellant, the appellant’s sent ence should be modified. I woul d order that she serve 180 days in the c ounty jail for her agg ravated burglary conviction and 180 days in the county jai l for her theft conviction, with the balances of her ori ginal sentences of three years and tw o years, respectiv

ely, to be served on Community Corrections. I would order these se ntences to run concurrently with each other for a total effective sentence of 180 days in the local jail, with the balance of her sentences to be served on Community Corrections.
In all other respects, I w ould affirm her convictions a nd concur with the results of my colleagues.

______________________________ PAUL G. SUMMERS, Ju dge