# FILED
February 20, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT NASHVILLE DECEMBER 1997 SESSION

STATE OF TENNESSEE, ) ) APPELLEE, )

) No. 01-C-01-9702-CC-0 0062 ) ) Marshall County v. ) ) Charles Lee, Jud ge ) ) (Sentencing) MATTIE MARCELLA DAVIS, ) aka MATTIE HILL, ) ) APPELLANT. )

FOR THE APPE LLANT: FOR THE APPELLEE: Hershell D. Koger John Knox Walkup Attorney at Law Attorney General & Repor ter P.O. Box 1148 425 Fifth Avenue, North Pulaski, TN 38478 Nashville, TN 37243-0497 Georgia B. Felner Counsel for the State 450 James Robertson Parkwa y Nashville, TN 37243-0493 W. Michael McCown District Attorney General P. O. Box 904 Fayetteville, TN 37334 Weakley E. Barnard Assistant District A

ttorney General Marshall County Courthouse, Fourth F loor Lewisburg, TN 37091

OPINION FILED:_______________________________

_ AFFIRMED PURSUANT TO R ULE 20 Joe B. Jones, Pre siding Judge2 

## O P I N I O N

The appellant, Mattie Marcel la Davis, also know n as Mattie Hill (defendant) , was convicted of theft over the value of $1,000, a Class D felony, fol lowing her plea of gui lty to this offense. The trial court found the defendant was a standa rd offender and imposed a Range I sentence consisting of confin ement for twenty-five (25) months in the Department of Correction pursuant to a plea agreement.In this court, the defendant contends the trial court abused its discretion by refusing to impose an alternative sentence. After a thorou gh review of the record, the briefs submitt ed by the parties, and

the law governin g the issue presented for review, itis the opinion of this court that the judgment of the trial cou rt should be affirmed pursuant to Rule 20, Ten nessee Court of Criminal Appeals. This court has conducted a de novo review of the rec o rd pursuant to Tenn. Code Ann. § 40-35-401(d). This task is difficult because the subm issio n heari ng proceedings were not memorialized and included in the record. Nevertheless, this court can address whether the trial court abused

its discre tion or vio lated th e senten cing laws by refusing to impose an alternative senten ce in this case. The defendant was entitled to the pr esumption she was

a favorable candidate for alternat ive sentencing. Tenn. Code Ann . § 40-35-102(6). How ever, the State of Tennessee rebutted this presumption. The record reflects the de fe ndant smoked crack cocaine and mar ijuana for an extended period of time. Evidence was intr oduced which established the defendant was guilty of shoplifting in Bedford County and she had either a shoplifting or theft offe nse in Rutherford County. She has been conv icted of assault, disorderly conduct,driving with out
a license, criminal responsibil ity, and assaulting a minor. She hasbeen given fines, a short period of confinement, and probation . She has a prior revocation of pr obation and an outstanding capias for her arrest in the Rutherford County case. The trial court found the de fendant was less than candid w hen she testified at the sentencing hearing and she committed crimes after she wa s released on bail for the offense in q uestion. Confinementin this case is required for several reasons. Fi rst, the trial court found the defendant would continue to engage in criminal conduct if an alternative sentence was3

imposed and the defendant was released i nto the community. Tenn. Code Ann. § 40-35- 103(1)(A). Second, confinement is required both to avoid depreciating the seriousness of the offense and to provide an effective dete rrent tot he defendant and others likely to commit similar offenses. Tenn. Code Ann. § 40- 35-103(1)(B). Third, measure s less restricti ve than confinement have been applied unsuccessfully. Tenn. Code A nn. § 40-35- 103(C). Fourth, the defendant was not truthful when sh e tes tified at the sentencing hearing.

______ ______________________________ __ _ JOE B. JONES, PRESI DING JUDGE

CONCUR:

______________________________________ PAUL G. SUMM ERS, JUDGE

______________________________________ WILLIAM M. BARKER, JUDGE