# FILED
September 11, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT JA CKSON JULY 31, 1998 SESSION

STATE OF TENN ESSEE, ) ) NO. 02C01-9707-CR-00251 Appellee, ) ) SHELBY COUNTY VS. ) ) HON. JOHN P. COLTON , JR., LATOYA A

NDERSON, ) JUDGE ) Appellant. ) (Denial of Probation)

FOR THE APPELLANT : MARVIN E. BA

LLIN MARK A . MESLER Ballin, Ballin & Fishman, P.C. 200 Jefferson Avenue, Suite 1250 Memphis, TN 38103-2328 FOR THE APPEL LEE : JOHN KNOX WALKUP Attorney General and Repor ter GEORGIA BLY

THE FELNER Assistant Attorney Gener al Cordell Hull Buildi ng, 2nd Floor 425 Fifth Avenue North Nashville, TN 37243-0493 WILLIAM L. GIBBONS District Attorney General JANE T L. SHI PMAN Assistant

District Attorney

General 201 Poplar Avenue, Suite 301 Memphis, TN 38103-1947

OPINION FI LED:

SENTENCES MODIFIED

JOE G. RILEY, JUDGE1 The record is unc lear as to the exac

t disposit ion of both charg

es against Peg

ues. However, the tri

al judge stated t

hat Pegues rec

eived an effec

tive sentence of

six (6) year

s. 2 OPINION

The defendant, Latoya Anderson, pled g uilty in the Shelby County Criminal Court to one (1) count of simple robbery, a Class C felony, and one (1) count of fraudulentuse of a credit card, a Clas s E felony. The trial cour t imposed concurrent Range I sentencesof three (3) years for robbery and one (1) year for fraudulent use of a credit card. The tria l court fu rther denied probation. In her sole issue on appeal, defendant challenges the trial court’s denial of prob ation. After a thorough review of the record, we affirm the denial of total probation but modify the sentence to split confinement.

I

A. On May 23, 1996, Susan Ray

was walking i n a Kroger parking l ot when an automobile occupied by the defendant and Reginald Pegues approached her. One of the occupants demanded Ray’s purse, to which sh e responded, “no.” Pegues then brandished a revolv er, and Ray handed over her purse. Approximately thirty (30) minutes later, defendant and Pegues u sed Ray’s VISA credit card to

purchase $10 in gas

in Mississippi. R

ay’s driver’s license and ATM card were found in the parking lot ofthe gas sta tion. Sub sequentl y that day, defendant and Pegueswere apprehended at a Goldsmith’s store in Shel by County while they were attempting to use Ray’s Goldsmith’s credit card to purchase items. The police searched their vehicle and recovered Pegues’ .32 caliber revolver. B. Defendant and Pegues were indicted on one (1) count of fraudulent use of
a credit car d and one (1) count of aggrava ted robb ery. 1 Defenda nt pled gu ilty to
one (1) count of fraudulent use of a credi t card and one (1) count of the les ser3

offense of simple robbery. The parties agreed to sentence s of three (3) years for robberyand one (1) year for fraudulent us e of a credit card, but submitted the issue of alternative sentencing to the trial judge.

C. At the s entencing hearing, defendant tes tified that she was not aw are that Pegues was planning to rob s omeone until the incident occurred. She stated that she and Pegueswere “just ri ding arou nd,” and suddenl y, Pegues pulled out his gu n and robb ed Ray. Defendant w as a twenty-one (21) year old high school

graduate with one year of college. She had no prior convictions or arrests and was

employed at the time of the hearing. She testified that the incident was a “mis take” and expressed remorse for the victim. The defendant requested judicial divers ion or , in the alternative, tot al probati on. The state opposed judicial diversion and noted that def endant was a good candidate for probation, but requested “shock incar ceration.” In rejecting the position of the defendant and the state, the trial court not ed that while defendant pled guilty to simple r obbery, a deadly we

apon was used in the
c ommi ssion of the offense. The trial court further det ermined that, although the defendant claimed that she did not know tha t a robbery would tak e place, she willingly attempted to obtain mercha ndise through the fraudulent use of a credit card obtained in the robbery. The t rial court also found a need for general deterrence. The trial court concluded tha t, in the interest of the “public” and the “victim,” a suspended sentence would not be appropr iate “in this kind of case” and ordered that defendant serve her entire three (3) year sentenc e in incarceration. From the trial court’s ruling, defendant brings this appeal.

II4 A. This Court’s review

of the sentence imposed by the tri al court is de novo with
a presumption of correctness. Tenn. Code Ann. § 40-35-401(d). This presumption is conditioned upon an affirmative sho wing in the record t hat the trial judge considered the sentencing principles and all relevant facts and circumstances. State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). The burden is upon the appealing party to show that the sentence is improper. Tenn. C ode Ann. § 40-35- 401(d) Sentencing Commission Comments. B. An especially mitigated or standard offender convicted of a Class C, D or E felony is presumed to be a favorable candidate for alternative s ent encing in the absence of evidence to the contrary . Tenn. Code Ann. § 40-35-102(6). It is further presumed that a sentence other than incar ceration woul d resul t in successful rehabilitation unless rebutted by sufficient evidence in the record. State v. Byrd , 861 S.W.2d 377, 380 (Tenn . Crim. App. 1993). Howeve r, although a defendant may be presumed to be a favorabl e candidate f or alternative sen tencing, the defendant has the burden of establishing suitabil ity for total probation. State v. Boggs , 932 S.W.2d 467, 477 (Tenn. Crim. App. 1996); see Tenn. Code Ann. § 40-35-303(b). In det ermining whether to g rant or deny probation, a t rial court shou l d consider the circumstances of the offense, the defendant's criminal record, the defendant’s social history and pr esent condition, the need for deterrence, and the best interest of the defendant and the public. State v. Grear , 568 S.W.2d 285, 286 (Tenn. 1978); State v. B oyd , 925 S.W.2d 237, 244 (Tenn. Crim. App. 1995); State
v. Black , 924 S.W.2d 912, 917 (Tenn. C rim. App. 1995). In determining if incarceration is appropriate, a trial cour t may consider the need to protect society byrestraining a defendant hav ing a long history

of criminal conduct, th e need to avoid depreciating the seriou sness of the offense, whether confinement i s particularlyappropriate to effectively deter others likely to commit similar offenses, and whether less restr

ictive measures have often or recently beenunsuccessfully applied to the defendant. Tenn. Code Ann. § 40-35-10 3(1); see also Sta te v.5

Ashby , 823 S.W.2d at 169. C. The trial court fou nd th at a suspended sentence would de preciate the seriousness of the offenses. In making this determi nation, the court observed that the robbery was committed with a deadly weapon. How ever, we must note that the defendant pled guilty to simple r obbery. Although she conceded that she k new the co-defendantalways carried a weapon, she deniedknowing that he intended to use it to accom p lish the robbery. It was not a stipulated fact that she knew a weapon would be used. We recognize that the trial c ourt ma y look behind a plea agr eement and consider the true nature of the offense committed. See State v. Hollingsw orth , 647 S.W.2d 937, 939 (Tenn. 1983); State v. Biggs , 769 S.W.2d 506, 507 (Tenn. Cr im. App. 1988). However, under these circumstances, defendant in essen ce pled guilty to simple robbery based upon criminal responsibility for the conduct of her codefendant (aider and abettor). This mitigatesagainst the seriousness of the offense factor considered by the tr ial court. The trial court further found the need for general deterrence. However, there
was no proof as to this factor. See State v. Davis , 940 S.W .2 d 558, 560 (Tenn. 1997); State v. Ashby , 823 S.W.2d at 170. The trial court initially

questioned defendant’s credibi lity and noted she and the co-defendant were in his car, and four (4) purses were seized from the trunk. The evidence at the hearing showed th at the car belongedto defendant’s mother and the purses were h ers. Th ese facts were brought to the court’s attention just prior to the trial cour

t’s announcing the denial of pr obation. To the defendant’s credit, the trial court found that the co-defendant was the “moving party” in these offenses. The trial court further noted that defendant had
no prior criminal hist

ory and her present condition and social history were positive factors. In summary, the def endant was a twenty-one (21) year old high school graduate with one (1) year of colleg e. She was gainfully employ ed and had no prior6

convictions

or arrests. Her soc

ial history and

present condition favored the granting of some form of alternative sentenci ng. She was not the leader but aid ed in the robberyoffense; however, she was actively invo lved i n the frau dulent use of the credit card. T he only incarceration factor set forth in Tenn. Code Ann. § 40-35- 103(1) that has limited application is the seriousness of the offense. Defe ndant is presumed to be a favorable candidate for alte rnative sentencing. Tenn. Code Ann. § 40-35-102(6). There is no evidence to indic ate negative rehabilitation potential. The state has failed to rebut the presump tion for some fo rm of alt ernative sentencing

short of inc

arceration

for the full three (3) y

ear term. We are, therefore, constrained to agree with the state’ s positi on at th e proba tion he aring; namely, the defendant i s a “candidate for probation” after she serves a limited time of i ncarceration.

CONCLUSION

After a careful review of the r ecord, we agree with the state’s position at the probation hearing. We affirm the de nial of total probation but modify the sentence to require the defendant to serv e a total of 120 days on each case followed by concurrent three (3) y

ear and one (1) year ter ms of supervised probation.

JOE G. RILEY, JUDGE

CONCUR:

PAUL G. SUMM ERS, JUDGE7

DAVID G. HA

YES, JUDGE