### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON Assigned on Briefs M

ay 8, 2001
STATE OF TENNESSEE v. KATHLEEN MALLEY
Appeal from the Criminal Court for Shelby County No. 98-11653 Joseph B. Brown, Jr., Judge

No. W2000-01064-CCA-R3-CD - Filed July 16, 2001

The Defendant,

Kathleen Malley

, entered a gui

lty plea to the

ft of over $60,000

, a Class B felony, in exchange for an agr eed sentence of eight yea rs incarcerat

ion. Following a

sentencing hea

ring to determine the manner of service of that sentence, the Defendant was ordered to serve six

months in jail followed by twelve years of probation. She w

as also order ed to p ay $100 ,000 i n rest itut ion. In this appeal as of rig

ht, the Defendan

t argues that the

trial c our t erred by r

efusing to gra

nt her full probation. We find no error. Thus, we affirm the judgment of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

D AVID H. W ELLES , J., delivered the opinion of the court, in which A LAN E

. G LENN , J. and L.T. L AFFERTY , S R .J., joined.

Lesl ie I. Ball in, Mem phi s, T enn ess ee, f or t he ap pel lan t, K ath lee n Ma lle y.
Paul G. Summers, Attorney Gene ral and Re

porter; Kim R. Help

er, Assistant Attor

ney Gener

al; William L. Gibbons, District Attorney General; and Patience Branham, Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

The facts presented a t the Defend ant’s guilt y plea and sente ncing hearin gs establish that the Defendant

was employed as a bookkeeper for John R. Thompson, who owned a real estate busin

ess. She was hired in 1984 by

Greta Thompson, John Thompson’s wife. In 1997, the Thompsons began noticing irr egulariti es in their books. Following an investigation into the irregularities, the Thompsons discovered

that the Defendant had been stealing money from the company. According to Ms. Thompson, the irregularities dated back to sometime in 1992. During this t ime, the Defendant

had been taking payroll checks and making them payable to herself. She had also taken money from the escrow account. Although the Thompsons presented only about $60,000 in forged checks, Ms. Thompson believ ed that the actu

al loss was more than $200,000. The Thompsons-2-

asserted that they had to refinance their office building in order to stay in business, and that

if they had not had good credit, they would have been driven completely out of business.

Mr. Thompson testified that he was particularly troubled by the Def endant’s violation of his thirteen-year

trust. Because of the stress of the situation, Mr. Thompson has been taking medication for depression. He testified that the Defendant never even apologized for her actions. According to Ms. Thompson, all of the people working for the business felt sorry for the Defendant and tried to help her t hrough difficult times. Ms. Thompson testified that the Defendant moved into a new house with a $1,400 per month house payment, that she sent her children to

private school, and that she bragged at work about her “wonderful” husband. However, two y ears before they discovered tha tshe was stealing money, the Defendant filed for bankr uptcy. Ms. Thompson sai d that th e Defendant

made n o effort to move into a smaller house or otherwise reduce her bills. On one occasion the office took

up a collection fo

r the Defendant

because the Defendant reported that her purse had been stolen and that it cont ained $1,40 0 in cash. On another occasion Mr. Thompson loaned the Defendant money for two house pay ments, which she never repaid.

The Defendant admitted stealing mone y from her e mployer, John F

. Thompson, but she c

ould notremember when she started taking money or how much she took. She testified that she took the money to try to maintain a normal life for her children. She e xplained that she made only about $20,000 per year. Her husband owne d a business

which failed, an

d he quit helping h

er pay the b

ills. She eventually

filed for bankru

ptcy in an ef

fort to keep their

new home. The Defendant testified that she thought she would

be able to pay the money back

after she and her husband received a settlement from a court case in

volving her husband’s business, but the lawsuit was unsuccessful. The Defendant

testified that she had a nervous breakdown as a result of her personal problems, and her two teenage daughters have devel oped emot ional problems as well. The Defendant could not explain to the court

why filing for bankruptcy did not end her

financial difficulties. She testified that she still needed money to take care of her children and her mother.

At the time of sentenc

ing the Defenda

nt was fifty-

tw o years old. She is a high school graduate with some college studies. She reported a history of steady e mployment. The Defendant underwent

a psycholog

ical evaluati

on as part o f her pre-sentence evaluation. The psycholog ist found that the Defenda nt “may have slightly overstated the extent of her difficulties, possibly for the purpose of gaining assistance,” however the psychologist also found that “[i]ncarceration may be detrimental for [the Defendant] in light of her current age and psy chiatric symptomatology.”
Following the sentenc ing hearing, the trial court sentenced the Defendant to serve her eig

htyear sentence in

split confinement. At the time of sentencing, the Defendant had served forty- two days in jail. The trial court ordered her to spend an additional six months in jail, followed by twelve years probation. In so doing, the trial court state d, Now , The Court feels . . . conside ring violation of

trust and that the d

efendant is responsible

for this - - this is jus

t egregious, s

he’s gutted this b

usiness, ruined it

and caused s om e people who loved her and came to trust her, rely upon her a nd befriended her to be grievously harmed.-3- I have read the Psychological Report, all that’s well and good. She h a s mental health issues which are severe, however, it’s a matter of character. She seeks to acquire attention and such like for her problems, but there are way s that ar e acceptable and ways that are not acce ptable.

The Defendant asse

rts on appeal that she should have been granted full probation instead of split confinement. When an accused challenges the length, range, or manner of

service of a sentence, this Court has a duty to conduct a de novo review of the sentence with a presumption that the determinations made by the t rial court are c

orrect. Tenn. Co

de Ann. § 40-35-40 1(d). This presumption is “c onditioned upon the affirmative showing in the record that the trial court considered

the sentencing principles and all relevant facts and circumstances.” State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991).

When conducting a de novo review of a sentence, this Court must consider: (a) the evidence, if any, received at the trial and sentenc ing hearing; (b) the presentence report; (c) the principles of sentencing and arguments as to sentencing alternatives; (d) the nature and cha racte ristics of the
cr iminal con duct involved; (e) any statutory mitigating or enhancement factors; (f) any statement made by the defendant re garding sente

ncing; and (g)

the potential or la

ck of potential f

o r rehabilitation or treatment. See Tenn. Code Ann. §§ 4 0-35-102, -103, -

210; Stat e v. Bre wer , 875 S.W.2d 298, 302 (Tenn. Cri m. App. 1993); State v. Thom as , 755 S. W.2d 838, 844 (Tenn. Crim. App. 1988).

If our review reflects that

the trial court followed the statutory sentencing procedure, that the court imposed a lawful sentence af ter hav ing given due consideration and proper weight to the factors and principles set out under the sentencing law, and that the trial court’s findings of fact are adequately

supported by the record, then we may not modify the sentence even if we w ould hav e preferred a different re

sult. State v. Pike , 978 S.W.2d 904, 926-2 7 (Tenn. 1998); State v. Fletcher , 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).

A defendant is elig

ible for probatio

n if the actual se

ntence imp osed up on the defendant is eight years or le

ss and the offense

for which the defendant is sentenced is not specifically excluded b y statute. Tenn. Code Ann. § 40-35-303(a). Probation is to be automatically considere d as a sentence alternative for eligible defendants; however, the burden of proving suitability for probation rests with the defendant. Id. § 40-35-303(b).

In determining whether to grant pr oba tion, the court must consider the nature and circumstances of the offense; t he defendant’s

criminal reco rd; his or her background and social his tor y; his or her present condition, including physical and mental condition ; the dete rrent effect
on the defendant; and the likelihood that probation is in the best interests of b oth the public and the defendant. See Stiller v. State , 516 S.W.2d 617, 620 (Tenn. 1 974); State v. Kendrick , 10 S.W.3d 650, 656 (Tenn. Crim. App. 1999). If the court d etermines that a

period of probati

on is appropriate, it shall sent ence the defend ant to a specific sentence but then suspend that sentence and place the-4-

defendant on supervised or unsupervised probation either

immediately or after the service of a period of confinement. See Tenn. Code Ann. §§ 40-35-303(c), -306(a).

We first note that bec ause the Defendant was convicted of a Class B felony, she is not entitled to a presum ption that she is a favo rable candi date for alt ernative se ntencing. See id. § 40-35- 102(6). Nevertheless, because the actual sentence imposed upon the Defendant is eight years, she is eligible for probation. See id. § 40-35-303(a). The Defendant asserts that she should have been g rantedfull probation because she has no prior criminal history and she has a good potential fo r rehabilitation. She asserts that she is a college-educated fifty-two-y ear-old woman with two children to support; that she is willing and able to make restitution payments; a nd that she has ment

al health issues which would be aggravated by further incarceration. While we agree with the Defendant that these characteristics support a period of probation, we believe that the trial cour

t considered thes

e factors in its sentencing decision. In spite of these fac tors fa voring probation, the trial court was clearly troubled by the nature

of the offense and the Defendant’s attitude concerning her actions. The Defendant

occupied a positio

n of trust as a bookkee per for a real estate agency , and she systematica

lly abused that position of

trust during a period of several years by stealing money from the company. She

was convicted of

a Class B felony, which has a sentence range of e ight to twelve yearsfor a Range I, standard offender. See id. § 40-35-112(a)(2). Had the Defendant not received the minimum sentence in

the range, she

would not have even been eligible for probation. See id. § 40-35-303(a). Although the fac ts and circumstan

ces of the offen

se in this case ar

e not so egregious
as to outweigh all the other factors favoring partial probation, we conclude that they are “ sufficiently reprehensible to deny full probation.” State v. Bingham , 910 S.W.2d 448, 456 (Tenn. Crim. App. 1995), overruled on other grounds by State v. Hooper , 29 S.W.3d 1, 9-10 (Tenn. 2000).
Accordingly, we

conclude that the

trial court did not e

rr or abuse its

discretion by denying the Defendant full probation. The judgment of the trial court is affirmed.

___________________________________ DAVID H. WELLES, JUDGE