         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT JACKSON            FILED
                         JULY 31, 1998 SESSION      September 11, 1998

                                                     Cecil Crowson, Jr.
                                                      Appellate C ourt Clerk
STATE OF TENNESSEE,                )
                                   )    NO. 02C01-9707-CR-00251
      Appellee,                    )
                                   )    SHELBY COUNTY
VS.                                )
                                   )    HON. JOHN P. COLTON, JR.,
LATOYA ANDERSON,                   )    JUDGE
                                   )
      Appellant.                   )    (Denial of Probation)



FOR THE APPELLANT:                      FOR THE APPELLEE:

MARVIN E. BALLIN                        JOHN KNOX WALKUP
MARK A. MESLER                          Attorney General and Reporter
Ballin, Ballin & Fishman, P.C.
200 Jefferson Avenue, Suite 1250        GEORGIA BLYTHE FELNER
Memphis, TN 38103-2328                  Assistant Attorney General
                                        Cordell Hull Building, 2nd Floor
                                        425 Fifth Avenue North
                                        Nashville, TN 37243-0493

                                        WILLIAM L. GIBBONS
                                        District Attorney General

                                        JANET L. SHIPMAN
                                        Assistant District Attorney General
                                        201 Poplar Avenue, Suite 301
                                        Memphis, TN 38103-1947




OPINION FILED:



SENTENCES MODIFIED



JOE G. RILEY,
JUDGE
                                        OPINION



       The defendant, Latoya Anderson, pled guilty in the Shelby County Criminal

Court to one (1) count of simple robbery, a Class C felony, and one (1) count of

fraudulent use of a credit card, a Class E felony. The trial court imposed concurrent

Range I sentences of three (3) years for robbery and one (1) year for fraudulent use

of a credit card. The trial court further denied probation. In her sole issue on

appeal, defendant challenges the trial court’s denial of probation. 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 in a Kroger parking lot when an

automobile occupied by the defendant and Reginald Pegues approached her. One

of the occupants demanded Ray’s purse, to which she responded, “no.” Pegues

then brandished a revolver, and Ray handed over her purse.

       Approximately thirty (30) minutes later, defendant and Pegues used Ray’s

VISA credit card to purchase $10 in gas in Mississippi. Ray’s driver’s license and

ATM card were found in the parking lot of the gas station. Subsequently that day,

defendant and Pegues were apprehended at a Goldsmith’s store in Shelby 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 card and one (1) count of aggravated robbery.1 Defendant pled guilty to

one (1) count of fraudulent use of a credit card and one (1) count of the lesser



       1
       The record is unclear as to the exact disposition of both charges against Pegues.
However, the trial judge stated that Pegues received an effective sentence of six (6) years.

                                             2
offense of simple robbery. The parties agreed to sentences of three (3) years for

robbery and one (1) year for fraudulent use of a credit card, but submitted the issue

of alternative sentencing to the trial judge.

                                          C.

       At the sentencing hearing, defendant testified that she was not aware that

Pegues was planning to rob someone until the incident occurred. She stated that

she and Pegues were “just riding around,” and suddenly, Pegues pulled out his gun

and robbed Ray.

       Defendant was 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 “mistake” and expressed

remorse for the victim.

       The defendant requested judicial diversion or, in the alternative, total

probation. The state opposed judicial diversion and noted that defendant was a

good candidate for probation, but requested “shock incarceration.”

       In rejecting the position of the defendant and the state, the trial court noted

that while defendant pled guilty to simple robbery, a deadly weapon was used in the

commission of the offense. The trial court further determined that, although the

defendant claimed that she did not know that a robbery would take place, she

willingly attempted to obtain merchandise through the fraudulent use of a credit card

obtained in the robbery. The trial court also found a need for general deterrence.

The trial court concluded that, in the interest of the “public” and the “victim,” a

suspended sentence would not be appropriate “in this kind of case” and ordered

that defendant serve her entire three (3) year sentence in incarceration.

       From the trial court’s ruling, defendant brings this appeal.




                                          II




                                          3
                                          A.

       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 record that 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. Code 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 sentencing in the

absence of evidence to the contrary. Tenn. Code Ann. § 40-35-102(6). It is further

presumed that a sentence other than incarceration would result in successful

rehabilitation unless rebutted by sufficient evidence in the record. State v. Byrd, 861

S.W.2d 377, 380 (Tenn. Crim. App. 1993). However, although a defendant may be

presumed to be a favorable candidate for alternative sentencing, the defendant has

the burden of establishing suitability 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 determining whether to grant or deny probation, a trial court should

consider the circumstances of the offense, the defendant's criminal record, the

defendant’s social history and present 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. Boyd, 925 S.W.2d 237, 244 (Tenn. Crim. App. 1995); State

v. Black, 924 S.W.2d 912, 917 (Tenn. Crim. App. 1995).              In determining if

incarceration is appropriate, a trial court may consider the need to protect society

by restraining a defendant having a long history of criminal conduct, the need to

avoid depreciating the seriousness of the offense, whether confinement is

particularly appropriate to effectively deter others likely to commit similar offenses,

and whether less restrictive measures have often or recently been unsuccessfully

applied to the defendant. Tenn. Code Ann. § 40-35-103(1); see also State v.


                                          4
Ashby, 823 S.W.2d at 169.

                                         C.

       The trial court found that a suspended sentence would depreciate the

seriousness of the offenses. In making this determination, the court observed that

the robbery was committed with a deadly weapon. However, we must note that the

defendant pled guilty to simple robbery. Although she conceded that she knew the

co-defendant always carried a weapon, she denied knowing that he intended to use

it to accomplish the robbery. It was not a stipulated fact that she knew a weapon

would be used.

       We recognize that the trial court may look behind a plea agreement and

consider the true nature of the offense committed. See State v. Hollingsworth, 647

S.W.2d 937, 939 (Tenn. 1983); State v. Biggs, 769 S.W.2d 506, 507 (Tenn. Crim.

App. 1988). However, under these circumstances, defendant in essence pled guilty

to simple robbery based upon criminal responsibility for the conduct of her co-

defendant (aider and abettor). This mitigates against the seriousness of the offense

factor considered by the trial 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.2d 558, 560 (Tenn.

1997); State v. Ashby, 823 S.W.2d at 170.

       The trial court initially questioned defendant’s credibility 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 that the car belonged to defendant’s mother

and the purses were hers. These facts were brought to the court’s attention just

prior to the trial court’s announcing the denial of probation.

       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 history and her present condition and social history were positive

factors.

       In summary, the defendant was a twenty-one (21) year old high school

graduate with one (1) year of college. She was gainfully employed and had no prior



                                          5
convictions or arrests. Her social history and present condition favored the granting

of some form of alternative sentencing. She was not the leader but aided in the

robbery offense; however, she was actively involved in the fraudulent use of the

credit card. The only incarceration factor set forth in Tenn. Code Ann. § 40-35-

103(1) that has limited application is the seriousness of the offense. Defendant is

presumed to be a favorable candidate for alternative sentencing. Tenn. Code Ann.

§ 40-35-102(6). There is no evidence to indicate negative rehabilitation potential.

The state has failed to rebut the presumption for some form of alternative

sentencing short of incarceration for the full three (3) year term.

       We are, therefore, constrained to agree with the state’s position at the

probation hearing; namely, the defendant is a “candidate for probation” after she

serves a limited time of incarceration.



                                  CONCLUSION



       After a careful review of the record, we agree with the state’s position at the

probation hearing. We affirm the denial of total probation but modify the sentence

to require the defendant to serve a total of 120 days on each case followed by

concurrent three (3) year and one (1) year terms of supervised probation.




                                                 JOE G. RILEY, JUDGE




CONCUR:




PAUL G. SUMMERS, JUDGE




                                          6
DAVID G. HAYES, JUDGE




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