### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE STATE OF TENNESSEE v. KAREN BANDY Appeal from the Criminal Court for Robertson County No. 99-0243B Robert W. Wedemeyer, Judge

No. M1999-01870-CCA-R3-CD - Decided May 25, 2000

Def enda nt, Karen Bandy, app eals the denial of

alternative sen

tencing following h

er best interest guilty plea to attempted second degree murder, a Class B felony. As part of the plea agreement, the defendant received an eig

ht-year sentenc

e. The manner of

service was lef

t to the determination of the trial court. Following a sentencing hearing, the trialcourt held the def endant's sentenc

e should be served in confine

ment. Upon a thorough review of the record, we affirm the judgment of the trial court. Tenn. R. App. P. 3 Appeal as of Right; Judgmen

t of the Criminal C

ourt Affirmed.
R ILEY , J. delivered the opinion of the court, in which W ADE , P. J. and Ogle, J. joined.
Michael R. Jones, DistrictPublic Defender; and Ann M. Smith, Assistant District Public Defender, Springfield, Tennessee, for the appellant, Karen Bandy.
Paul G. Summe

rs, Attorney Genera

l and Reporter; Lu

cian D. Geise, As sistant Attorney Ge neral; John Wesley Carney, J

r., District Attor

ney General;

and Dent Morriss, Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION
FACTS
Defendant

was seventeen ye

ars old; how ever, she was married, pregnant with twins and living in a separate residence from her parents. On the morning of October 9, 1998, Lorna Jackson, who was the victim’s wi fe and the defe

ndant's mother, an

d Kimberly Bidwell discu ssed in the defendant’s presence plans to murder the victim. Later in the day the defendant and Bidwell went to Portland and Galla

tin to visit friends.

Upon their

return, Bidwell informed the defendant she had to "take care of something" she and "Lorna" had d iscussed ear lier. First, they stopped at the defe ndant's home and Bidwell re turned to the car

with a gun wrappe

d in a bundle of clo

th es
. Thereafter, Bidwell drove to the victim’s home. While defendant waited in the car, Bidwell entered the residence and f

atally shot the victim in the

head as he slept.

When Bidwell returned to the car,-2-

she informed the defendant she had shot defendant's father. Afterwards, the two drove to anearby lake and Bidwell disposed of the weapon. At some point defendant was given $ 100 from the victim’s wallet. Initially, the defendant claimed she was no t in volved in the shooting and did not know anything about it. However , she later gave a

statement in which she told officers she knew what Bidwell was talking abo ut when she state d "I have to take care of something when we get to the house; something to do with yourdaddy.” Although her statement is contradictory, defendant at one pointstated that when she and Bidwell starte d to go toher parents’ house, she noticed Bidwell had a gun. The degree of

the defendant’s

involvement in

the homicide was disputed. Pursuant to a plea agreement,

defendant entered a best interest guilty plea to attempted second degree murder and received an eight-year sentence. The man ner of service w as to be determine

d by the trial cour

t. Following the sentencing hearing, the trial court ordered the defendant to serve her sentence in the Tennessee Department of Cor rection. Defen

dant challenges t

he trial court' s r uling, claiming she should have received some form of alternative sentencing.

STANDARDS OF REVIEW
This Court’s review of the sentence imposed by the trial court is de novo with a presumption of correctness. Tenn. Code Ann. § 40-35-401(d). This presumption is conditioned upon an affirmative showing in the r ecord that the tr ial judge conside

red the sentenci

ng principles an

d all relevant facts and circumstances. State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991).
In determining if incarceration is appropriate, a trial court may consider the need to protect society by restrai

ning a defenda

nt having a long

history of c

riminal conduct, th

e need to avoid depreciating the ser iousness of the off ense, whether c

onfinement is par

ticularly a

ppropriate to effectively

deter others likely to commit similar offenses, and whether less restrictive measures have often or recently

been unsuccessf

ully applied

to the defendant.

Tenn. Code Ann. § 40-35-103(1); see also Ashby , 823 S.W.2d at 169. Additionally , a court should

consider the defendant’s potential or lack of potential for rehabilitation when determining if an alternative senten ce would b e appropriate. Tenn. Code Ann. § 40 -35-103(5); Boston , 938 S.W.2d 435, 4 38 (Te nn. Crim. App. 1996). The burden is upon the appealing party to show that the sentence is

improper. Tenn. Code Ann. § 40-35-401(

d) Sentencing Co

mmission Comments.
There is no mathematical equation to be utilized in determining sentencing alternatives. Not only should the sentence fit the offense, but it should f it the offender as well. Tenn. Code Ann. § 40-35-103(2); State v. Bogg s , 932 S.W. 2d 467, 476-77 (Tenn. Crim. App. 1996). Indeed, individu alized punishment is the essence of alternative sentencing. State v. Dowdy , 894 S.W.2d 301, 305 (Tenn. Crim. App. 1994). In summary, sentencing must be determined on a case-by -case basis, tailoring each sentence to that particular defendant

based upon the facts of that case and the circumstances of that defendant. State v. Moss , 727 S.W.2d 229, 235 (Tenn. 1986).-3- ANALYSIS
Defendant

argues the trial court

erred by not granting some form of alternat ive sentenc ing. Defendant

recognizes that

since she was convicted of a Class B felony, she is not presumed to be a favorable candidate for alternative sentencing. See Tenn. Code Ann. §40-35-102(6). However, she claims her involv ement in th e crime was l imited. In ad dition, s he asserts h er age , non-exi stent criminal hi story and her cooperation in the investigation of her co-defe ndants weigh in favor of alternative sentencing. In addition to not beingentitled to the pre sumption for alter

native sentencin

g, defendant is nota proper candidate for community corrections. Since defe ndant was convicted of a viole nt fel ony, she does not meet th e general elig

ib ility requirements for the community correc tions program. See Tenn. Code Ann. §40-36-106(a)(3). There is also no showing that she has special needs for community corrections pursuant to Tenn. Code Ann. § 40-36- 106(c). Theref ore, the only question remaining is whether defendant should have been granted full pr obation o r split confinement.
A defendant is elig

ible for probatio

n if the sentence re

ceived by th

e defendant is

eight years or less, subject to some statutory exclusions. Tenn. Code Ann. § 40-35-303(a). The defendant has the burden of establishing suitability for total probation. State v. Boggs , 932 S.W.2d 467, 477 (Tenn. Crim. App. 1996); Tenn. Code Ann. § 40-35-303(b). Ev en though proba

tion must be automati

cally considered, “the defendant is not automatically entitled to probation as a matter of law.” Tenn. Code Ann

. § 40-35-303(b) Se

ntencing Commissio

n Comments; State v. Hartley , 818 S.W.2d 370, 373 (Tenn. Crim. App. 1991). A defendant seeking full probation bears the burden on appeal of showing the sentence imposed

is improper, and th

at full probation w

ill be in the best interest of

the defendant and the public. State v. Baker , 966 S.W.2d 429, 434 (Tenn. Crim. App. 1997).

In the instant case, the defendant was sentenced to eight years; thus, she meets the statutory eligibility requirement for probation. In deciding whether or not to grant probation, the trial court recognized

the defendant ple

d guilty to

attempted second degree murder, but appropriately looked “behindthe plea agreement” and considered the “true nature of the off ense com mi tted.” State v. H ollingsw orth , 647 S.W.2d 937, 939 (T enn. 1983); State v. Bi ggs , 769 S.W.2d 506, 507 (Tenn. 1988). The trial court c oncluded confine

ment was necessary b oth to avoid depreciating the seriousness of the offense and to effectuate meaningful deterrence

. The state concedes there was no proof in the record to support the trial court’s conclusion that confinement

was ne cessa ry for de terre nce. In addition, the defendant has no p rio r cri min al h ist ory. See Tenn. Code Ann. § 40-35-103(1). However, p robation m ay be denied based solely upon the circumstances surrounding the offense. State v. Bingham , 910 S.W.2d 448, 456 (Tenn. Crim. App. 1995); Hartley , 818 S.W.2d a t 374. When the circumstances of the offense are the sole basis for denial, the circumstance s of the offe nse as comm itted mus t be especia lly violent, horrifying,-4-

shocking, reprehensible, offensive or otherwise of an excessive or exaggerated de g ree; and the natu

re of the offense must outweigh all factors favoring probation. Hartley , 818 S.W.2d at 374-75. In a statement to authorities following the murder, the defendant admitted that she heard conversations between her co-defendants regarding their pla n to kill her father. In addition, at the sentencing hearing the defendant testified that Bidwell told her she had to “take care of s

omething;” something “to do with your daddy.” The defe ndant claimed she knew then that Bidwell was going to shoot the victim. Subsequently, the two women stopped at the defendant’s house. At no time did the defendant attem

pt to dissuade Bidw

ell from the plan to

shoot her father

, nor did she attemp

t to contact the authorities. A

t one point in her sta

tement to auth orities, defendant stated she noticed Bidwell had a gun before entering the victim’s home. Again, defendant did nothing to prevent Bidwell from carrying out her plan and accompanied Bidwell to her parents’ home. Bidwell went inside and fatally shot the victim in the head as he lay sleeping. After

Bidwell returned to the car and informedthe defendant sh e had killed defe

ndant’s father,

defendant acc ompanied Bidwell to a nearby lake where Bidwell disposed of the weapon. Furthermore, defendant admits she accepted $100 of the money Bidwell took from the victim.
In addition, the defendant's lack of credibility is an appropriate consider ation and reflects on a defendant's potential for

rehabilitation. State v. Dowdy , 894 S.W.2d 301, 306 (Tenn. Crim. App. 1994). The defendant

initially gave

a statement to the police in which she denied any personal involvement

in or knowledge of

the murder. In her subsequent statement to police, she stated that she “didn’t know for sure” Bidwell was going to shoot the victim. Defendant also gave inconsistent s tatements

as to whether she saw the gun before Bidwell entered the victim’s residence. A t th e sentencing hearing she stated that she knew Bidwell “was going to go in there and shoot [her] dad.” She did not concede that she saw the gun before Bidwell entered the victim’s home. The trial court was free to consider the defendant’s credibility in determini ng defe ndant’s potential for rehabilitation.

CONCLUSION Considering the lack of a presumption of alternative sentencing; the true nature of the off ense being a violent murder; the defendant’s credibility; and the defendant’s burd en to est ablish her sentence as improper; we can only conclude the trial court did not err in denying al ternative sentencing. Thus, the judgment of the trial court is AFFIRMED.