# FILED
March 14, 2000 Cecil Crowson, Jr. Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT JA CKSON DECEMBER 1999 SESSION

STATE OF TENN ESSEE, * No. W1999-01067-CCA-R3-CD Appellee * SHELBY COU NTY VS. * Hon. John P. Colt on, Jr., Judge PAMELA HOPPER, * (Denial of Probation) Appellant. *
For Appellant A. C. Wharton, Jr. Public Defender Latonya Burrow (At Hearing) Walker Gwinn (On Appeal) Assistant Public Defenders 201 Poplar Avenue, Ste. 201 Memphis, TN 38103-1947 For Appellee Paul G. Summers Attorney General and Repor ter Clinton J. Morgan Assistant Attorney Gener al Cordell Hull Buildi ng, 2nd Floor 425 Fifth Avenue North Nashville, TN 37243-0493 William L. Gibbons District Attorney General Daniel R. Woody Assistant

District Attorney

General 201 Poplar Avenue, Ste. 301 Memphis, TN 38103-1947

OPINION FILED:

AFFIRMED
NORMA MCGEE OGLE, JUD GE2 OPINION Defendant, Pamela Hopper, appeals the Shelb y Coun ty Criminal Court’s order denying her

probation following her guilty plea

to theft over $10,000. After our revi ewof the record, we conclude the trial court did not er r in denying probati on. We affirm the judgment of the trial court.

I. Procedural Issues

Prelimin arily, the state raises three procedu ral issues seeking a dismissal of the app eal. The state contends (1) defendant did not timely file her notice of app eal; (2) the trial court w as not authorized to enterta in a petition for probat io n afterthe judgment became final; and (3) defendant waived

her right to appeal upon entry of her guilty

plea. We reject the state’s contentions.

The record reflects that the defendant pl ed guilty to theft over $10,000 o n November

5, 1998. Althou gh the petition for entry of the g uilty plea does not reflect
an agreed sent ence of six y ears, the transcript of the g uilty plea reveals that the parties agreed to a six-year sentence with the trial c ourt to determine at a later date whether the defendant should be granted a suspended sentence. The petition for entryof the guilty plea reflects the standard form language for plea agreements in which the defendant waives her right to appeal.

The suspended sentence heari ng was held on January 4, 1999. At the conclusion of the hearing, the trial court orally

denied probation. The judgment is indeed confusing since there is no stamped filed date by the cler k’s office. At one place on t he jud gment a hand-written date of entry is shown to be N ovember 5, 1998, whereas in two other locations on the judgment the hand-wri tten dates of entryare shown to be January 4, 1999. A separate “Sentence Or der ” was also entered on January 4, 1999, reflecting a sentence of six years with a jai l report date of February 15, 1999.3 Firstly, we conclude the date of entry of the judgment was i nd eed January 4, 1999, which was cl early the intent of the tria l court. The notice of appeal filed January 27, 1999, was ti mely.

Secondl y, since we have conclud ed that the en try of final judgm ent w as January 4, 1999, we also reject the state’s contention th at judgment had become final for more than thirty day s prior to the probation hear ing. We also note that even if the judgment had become final on Nov embe r 5, 19 98, the trial court stil l had jurisdiction and authority to entertai n a request for a suspended sentenc e. The trial court may enter

ta in such a petition at any time prior to the defendant being transferred to the phy si cal custody of the Department of C orrection. See

Tenn. Code Ann. §§ 40-35-212; 40-35-314( c).
Finally, we reject the state’s argument that defendant waiv ed her right to appeal upon entry of

her guilty plea. The s

tate does correctly note that the petition to enter the guilty plea contains the standard waiver

of appeal language utiliz ed with plea agreements. This Co urt has previously noted that the use of this form language in cases in which the re is no t a to tal plea agreement is a rec urring problem. See State v. Carter, 986 S. W. 2d 596, 597 (Tenn. Crim. App. 1998). However, just as in Carter , the transcript of the guilty plea hearing clearly reveals that the defendant intended to seek probation at the subsequent

hearing. There is
no indication that she

waived her rig ht to appeal the trial court’s ruling at that future hearing. Accordingl

y, we reject the st

ate’s contention.

II. Facts

Defendant was employed by the victim, Iskiwitz Metal Company, Inc ., as its cashier/office manager in January 1997. O ne of her first responsibilities was to investigate thefts allegedly committed by her predecessor. Within a month of her employment, defendant began systematically stealing from the victim in substantial1 The victim also received $50,000 from its theft insurance carrier. 4 amounts. Based up on her com puter ski lls, she cr eated du mmy documents and false transactions in order to allow her to take cash

from the cash register. Over the
course of 41⁄2 months before her detection, she created so me 140 false transactions and stole approximately $156,000.

Defendant testified that shepurchased an autom obile fo r $18,00 0 and gave approximately $80,000 to her boyfriend’s aunt

. Shortly prior to arrest, the defendant purchased a computer. At no time did she offer the computer to the victim after her arrest. The record is silent a s to what happened to the balance of the $156, 000. Of the $156,000, the defendant m ade no money available to the victim after h er arrest. She did agree to convey title to the vehicle t

o the victim. Although she later considered transferring title to her boyfriend, she finally conveyed title to the victim approximately six months after her arrest. The victim sold the vehicle for $17,000. 1 After her arrest, appellant unabas hedly wrote the v ictim asking for four day ’s wages forwhich she had not been paid. At no time did the defendant exhibit any efforts to apologize to the v

ictim or otherwise s how remorse.

At the time of sentencing, the defendant had no prior criminal recor

d. The defendant stated at the time of her stealing she w as aware of the seriousness of her actions; understood she could go to jail if detect ed; had no particular reason to embezzle such large sums; and conceded her cri minal actions were based upon “greed.” At the time of senten cing, shehad no funds and offered to pay $100 per month toward restitution.

At the senten cing hear ing the trial court not ed its astonishment at the magnitude of the thefts committed for no apparent reason other than greed. The trial court noted the seriousness of the offense which involved approximately 140 separate fraudulent transactions amounting to over $150,000. He further not ed the5

defendant had shown no remors e and co ncluded that probation woul d be inappropriate.
III. Analy sis

Defendant contends the tria l court erred in denying her probation. This Court’s review of the sentence imposed by the trial court is de n ovo with a presumption of correctness. Tenn. Code Ann. § 40-35-401(d). This presumption is conditioned upon an affirmative sho wing in the record th at the t rial judge considered the sentencing principles and all relevant facts and circumstances. State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991).
Under the Criminal Sentencin g Ref orm Act of 1989, trial judges are encouraged to use alternatives to incarceration. An especially mitigated or standard offen der convicted of a Class C, D or E felony is presumed to be a favorable candidate for alternative se ntenc ing options in the absence of ev idence to the contrary. Tenn. Code Ann . § 40-35-102(6 ). We not e that although the defendant
was allowed to plead guil ty to the Class C felony of theft over $10,000, the undisputed proof reflects that t he amount of the the ft was o ver $150,000. Th eft
over $60,000 is a C lass B felony. Never theless, defendant is presumed to be a favorable candidate for alternative s entencing since the state allowed her to plead to the Class C felony.
In determining if incarcer ation is appropriate, a

trial court may

consider the need to protect society by restraininga defendant having a long history of cri minal conduct, the need to avoid depreciati ng the seriousne ss of th e offense, whether confinement is particularly appropriate to effectively deter others likely to co m mit similar offenses, and whether le ss restric tive meas ures have often or recently been unsuccessfully applied to the defendant. Tenn. Code Ann. § 40-35-103(1); see also State v. Ashby , 823 S.W.2d at 169.6 Although a defendant may be p res umed to be a favorable candidate for alternative sentencing , the defendanthas the burden of establishing suit ability for total probation. State v. Boggs , 932 S.W.2d 467, 477 (Tenn. Crim. App. 1996); see Tenn. Code Ann. § 40-35-303(b). Even though probation must be automatically considered, “the defendant is not automatically entitled t o probation as a matter of law.”Tenn. Code Ann. § 40-35-303(b) Sentencing Commission Comments; State
v. Hartley , 818 S.W.2d 370, 373 (Tenn. Crim.App. 1991). A defendant seeking full probation bears t he burden on appeal of showing the sentence impose d is improper, and that full probation wil l be in the best interest of the defendant and the public. State v. Baker , 966 S.W.2d 429, 43 4 (Tenn. Crim. App. 1997).

In determining a defendant’s suitability for totalprobation, the trial cour t may properlyconsider credibility, remorse, and candor as they reflect upon potential for rehabilitation. See

Tenn. Code Ann. § 40-35-103(5); State v. Bunch , 646 S.W.2d 158, 160 (Tenn. 1983); State v. Dowdy , 894 S.W.2d 301, 306 (Tenn. Crim. App. 1994). It is apparent that the trial judge, who was in a much better position than this Court to judg e the defe nda nt’s overall demeanor, w as unimpressed by the defendant’s post-arrest conduct and lack of remorse.

Gi ven the presumption of correctness that we attach to the tria l court’ s findings, we are unable to conclude the trial court erred in denying probation. The circumstances

of the offense, lack o f remorse by the defendant and the entire record convinces

us that the defendant has failed to establish that her sentence w as improper. Accordingly, we find no merit to the is sue.

Conclusion
We, therefore, affirm the judgment of the trial court.7 ____________________________ Norma McGee Ogle, Judge

CONCUR:

_______________________________ Gary R. Wad e, Presiding Judge

_______________________________ John Everett W illiams, Judge