State v. Shelly Perry

• Court: Court of Criminal Appeals of Tennessee
• Decided: July 28, 1998
• Docket: 02C01-9707-CR-00285
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

MAY 1998 SESSION FILED July 28, 1998

Cecil Crowson, Jr. Appellate C ourt Clerk STATE OF TENNESSEE, ) ) C.C.A. NO. 02C01-9707-CR-00285 Appellee, ) ) SHELBY COUNTY VS. ) ) HON. CAROLYN WADE BLACKETT, SHELLY S. PERRY, ) JUDGE ) Appellant. ) (Denial of Probation)

FOR THE APPELLANT: FOR THE APPELLEE:

TIMOTHY JOEL WILLIAMS JOHN KNOX WALKUP 147 Jefferson, Ste. 909 Attorney General & Reporter Memphis, TN 38103 (On Appeal) DOUGLAS D. HIMES 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 CHALLEN Asst. District Attorney General 201 Poplar St., Suite 301 Memphis, TN 38103

OPINION FILED:____________________

AFFIRMED

JOHN H. PEAY, Judge OPINION

The defendant was indicted on two counts of theft of property worth more

than one thousand dollars ($1000) but less than ten thousand dollars ($10,000) and one

count of theft of property worth less than five hundred dollars ($500). After entering a

negotiated plea of guilty on all charges, the defendant was given an effective sentence

of two years imprisonment. The defendant now appeals, arguing that the trial court

should have granted her an alternative sentence in lieu of imprisonment. Finding no merit

in the defendant’s argument, we affirm.

In May 1996, while employed at Reed Jewelers, the defendant stole a total

of approximately two thousand dollars ($2000) worth of jewelry on two separate

occasions. She then gave her friends the jewelry to pawn, and they split the proceeds

of the sale. In July 1996, the defendant was hired by Freiden Company, another jewelry

store, for one to two weeks. During that time, the defendant stole jewelry on two or three

occasions. Again, her friends pawned the jewelry and shared the proceeds. On August

26, 1996, the defendant entered a Shoe Carnival shoe store and shoplifted a pair of

tennis shoes. The defendant was then arrested and indicted with three counts of theft.

Six months later, the defendant negotiated a plea with the State, agreeing

to plead guilty in exchange for two concurrent two-year sentences for the two counts of

theft over one thousand dollars ($1000) and one concurrent six-month sentence for theft

under five hundred ($500). The defendant petitioned for suspension of her sentence,

asking the court for probation in lieu of confinement. The cause proceeded to a

sentencing hearing, at which the defendant testified.

2 According to the defendant, she had two small children and was four

months pregnant with her third child at the time of the sentencing hearing. She admitted

stealing jewelry from her employers and shoes from Shoe Carnival over a period of

several months. She also admitted that while she was employed at one of the jewelry

stores, she allowed her roommate to purchase jewelry with a stolen credit card. The

defendant had no prior record and had been employed with a temporary agency for 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 conclusion of the hearing, the trial court found that the defendant’s

testimony was “rehearsed,” that she maintained a sustained intent to violate the law

several times over a period of months, and that she was at the “center” of the offenses

that were committed by her and her codefendants. Based on this, the trial court found

that the defendant was not a favorable candidate for alternative sentencing and ordered

her to serve her sentence in confinement.

The defendant now argues that the trial court erred in refusing to place her

on probation or ordering some other type of alternative sentencing. It is undisputed that

due to the nature of the crime committed, the defendant is presumed to be a favorable

candidate for alternative sentencing under T.C.A. § 40-35-102(6). The record, however,

shows that the State effectively rebutted this presumption.

The trial court found that the defendant’s testimony during the sentencing

hearing was “rehearsed,” thus indicating that the trial court believed the defendant to be

untruthful in her testimony. Untruthfulness indicates that the defendant lacks potential

3 for rehabilitation, and 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 the trial court’s determination that the defendant

was at the “center” of the offenses that were committed, indicating that the defendant was

crucial to the thefts, and perhaps even suggesting that the defendant orchestrated them.

Under the circumstances of this case, this determination is also probative of the

defendant’s potential for rehabilitation, making it too a valid reason for denying probation.

Finally, by committing several thefts over a period of months, the defendant

demonstrated a sustained intent to violate the law, another valid reason for denying

probation. State v. David Lewis, C.C.A. No. 02C01-9512-CR-00363, Shelby County

(Tenn. Crim. App. filed July 25, 1997, at Jackson); see State v. Byrd, 861 S.W.2d 377

(Tenn. Crim. App. 1993). Given these circumstances, the trial court was justified in

denying the defendant alternative sentencing. The defendant’s sentences are affirmed.

_______________________________ JOHN H. PEAY, Judge

CONCUR:

______________________________ PAUL G. SUMMERS, Judge

______________________________ THOMAS T. W OODALL, Judge