# FILED
July 28, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT JA CKSON MAY 1998 SESSION

STATE OF TENN ESSEE, ) ) C.C.A. NO. 02C 01-9707-CR-00285 Appellee, ) ) SHELBY COUNTY VS. ) ) HON. CAROLYN WADE BLA CKETT, SHELLY S. PERRY, ) JUDGE ) Appellant. ) (Denial of Probation)

FOR THE APPE LLANT: FOR THE APPELLEE:
TIMOTHY JOEL WILLIAMS JOHN KNOX WALKUP 147 Jefferson, Ste. 909 Attorney General & Repor ter Memphis, TN 38103 (On Appeal) DOUGLAS D. H IMES 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 CHA

LLEN Asst. District Attor

ney General 201 Poplar St., Suite 301 Memphis, TN 38103

OPINION FILED:____________________

AFFIRMED JOHN H. PEAY, Judge2 

### O P I N I O N

The defendant was indicted on tw o counts of theft of property worth more than one thousand dollars ($1000) b ut less than ten thousand dollars ($10,000) and one countof theft of property worth less than five hundred dollars ($50 0). After ente ring a negotiated plea of

guilty onall charges, the defendant was given an effective sentence of two years impris

onment. The defendant now appeals, arg uing that t he t rial court should have granted her analternative sentence in lieu of imprisonment. Finding no merit in the defendant’s argument, we affirm.

In May 1996, while emplo yed at Reed Jewelers, the defendant stole a total of approximately tw

o thousand dollars ($2000) worth of jewel ry on two separate occasions. She then gave her fr iends the jewelry to pawn, and they split the proceeds of the sale. In July 1996, the defendant was hired by Fr eiden Company, another jewelry store, for one to two weeks. During tha t time, the defendant stole jewel ry on two or three occasions. Again, her friends pawned the jew elry and shared the

proceeds. On August 26, 1996, the defendant entered a Sho e Carniv al sho e store and shoplifted a pair of tennis shoes. The defendant was then arrested and indicted with three c

ounts of theft.

Sixmonths later, the defendant negotiate d a plea with the State, agreeing to plead guilty in ex

change for two concurrent two-year

sentenc es for th e two counts of theft over one thousand dollars ($1000) and one concurrent six-m onth sentence for theft under five h undred ($500). The defendant petitioned for suspension of her sentence, asking the court for probati on in lie u of confinement. The cause proceeded to a sentencing hearing, at w hich the defendant testified.3 According to the d efendan t, she had two small children and was four months pregnant with her thi rd child at the time of the sentencing hearing . She admitted stealing jewelry from her employers and shoes from Sh oe Carnival over a period of several months. She also admitted that w hile she was employed at one of the jewelry stores, she allowed her roommate to purch ase jewelr y with a stolen credit card. The defendant had no pri or record and had b een emp loyed with a tempora ry agency fo r 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 conclusio n of the hearin g, the trial court found that the defendant’s testimony

was “rehearsed,” that she maintained a sustai n ed intent to violate the l aw several times over a period of months, and that she was at the “center” of the offenses thatwere committed by her and her codefendants. Based on this, the trial court found thatthe defendant was not a favorable candidate for alternative sent encing and ordered her to serve her sentence in confinement.

The defendant now argues that the trial court erred in refusing to plac e her
on probation or ordering s ome other type of alternativ e sentencing. It

is undisputed that due to the nature of

the crime committed, the defendant is presumed to be a favorable candidate foralternative sentencing under T.C.A. § 40-35-102(6). The record, however, shows that the State effectivel y rebutted this presumpti on.

The trial court found that the defendant’s testimony durin g the sentencing hearing was“rehearsed,” thus indic ating that the trial cour

t believed the defendant to be untruthful in her testimony. Untr uthfulness indicates tha t the def endant lacks potential4

forrehabilitation, a nd 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 thetrial court’s determi nation that the defendant
wasat the “center” of the offenses that were committed, indicating that the defendant was crucial to the thefts, and perhaps even suggesti ng that the d efendant orche strated them. Under the circumstances of this cas e, this determination i s also p robative of the defendant’s potential for rehabilitatio n, making it too a vali d reason for denying probation. Finally, by committing several thefts o ver a per iod of months, the defendant demonstrated a sustain ed inten t to vi olate the l aw, another valid r eason for denying probation. State v. David Lewis , C.C. A. No. 02C01-9512-CR-00363, Shelby County (Tenn. Crim. App. filed July 2 5, 1997, at Jackson); see State v. Byrd , 861 S.W.2d 377 (Tenn. Crim . App. 1993). Given these c ircumstances, the trial c ourt was justified i n denying the defendant alternative sentencing. The def endant’s sentences are affirmed.

_______________________________ JOHN H. PEAY, Judge

CONCUR:

______________________________ PAUL G. SUMMERS, Ju dge

______________________________ THOMAS T. W OODALL, Judge