        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                          Assigned on Briefs on April 26, 2011

                   STATE OF TENNESSEE v.
       KEELE CAMILLE MAYNOR a/k/a KEELE CAMILLE PAYNE

             Direct Appeal from the Criminal Court for Hamilton County
                        No. 270962     Don W. Poole, Judge


               No. E2010-01816-CCA-R3-CD - Filed November 21, 2011


Pursuant to a negotiated plea agreement, Defendant, Keele Camille Maynor (a/k/a Payne),
pled guilty to nine charges and was sentenced as follows: in Count 1, Defendant pled guilty
to Class C felony theft and was sentenced to serve 42 months in the Tennessee Department
of Correction (TDOC); in Count 2, Defendant pled guilty to Class C felony theft and was
sentenced to five years in TDOC, suspended with probation for ten years; in Count 3,
Defendant pled guilty to Class D felony theft and was sentenced to three years in TDOC,
suspended with probation for six years; in Count 4, Defendant pled guilty to Class D felony
theft (although the judgment, in error, reflects a conviction for Class E felony theft) and was
sentenced to three years in TDOC, suspended with probation for six years; in Count 5,
Defendant pled guilty to Class E felony theft and was sentenced to two years in TDOC,
suspended with probation for four years; in Count 6, Defendant pled guilty to Class D felony
theft and was sentenced to three years in TDOC, suspended with probation for six years; in
Count 7, Defendant pled guilty to Class E felony theft and was sentenced to two years in
TDOC, suspended with probation for five years; in Count 8, Defendant pled guilty to Class
E felony theft and was sentenced to two years in TDOC, suspended with probation for five
years; and in Count 9, Defendant pled guilty to Class E felony forgery and was sentenced to
serve two years in TDOC. Pursuant to the plea agreement, Defendant was to receive
concurrent Range I sentences, but the trial court, following a sentencing hearing, determined
the length, range, and manner of Defendant’s sentences. The trial court also imposed an
agreed upon amount of restitution. On appeal, Defendant challenges the trial court’s
imposition of a 42-month sentence of incarceration in Count 1 and asserts that the sentence
structure imposed by the trial court results in consecutive, rather than concurrent, sentences.
We affirm the convictions and sentences imposed in all counts, except for Count 4, which
we remand for entry of a corrected judgment.

                       Tenn. R. App. P. 3 Appeal as of Right;
        Judgments of the Criminal Court Affirmed in Part, Remanded in Part
T HOMAS T. W OODALL, J., delivered the opinion of the Court, in which J OHN E VERETT
W ILLIAMS, J., joined. D AVID H. W ELLES, S P.J., not participating.

Ardena J. Garth, District Public Defender; and Richard Kenneth Mabee, Assistant District
Public Defender, Chattanooga, Tennessee, for the appellant, Keele Camille Maynor.

Robert E. Cooper, Jr., Attorney General and Reporter; Matthew Bryant Haskell, Assistant
Attorney General; William H. Cox, III, District Attorney General; and Neal Pinkston,
Assistant District Attorney General, for the appellee, the State of Tennessee.

                                        OPINION

Sentencing Hearing

       Sergeant Toby Hewitt, of the Chattanooga Police Department, testified that he began
investigating allegations of fraud by Defendant in December, 2008. At that time, Defendant
was employed with the Regional Planning Agency of the City of Chattanooga. Defendant
had claimed that she had cancer and as a result she received financial assistance for medical
treatment from the city and city employees. Other organizations also offered Defendant
support, including over $8,100 in funds for rent and utilities from the Helen Distefano Fund;
free counseling, massage therapy, and a weekend retreat from the Memorial Hospital Cancer
Support; monetary assistance for car payments from an individual named Kathy Jones; $250
worth of grocery gift cards from the New Salem Baptist Church; and $966 worth of
Christmas gifts from the Red Bank High School Quarterback Club. Defendant maintained
a blog by which she updated others as to her cancer treatment.

        Stan Sewell, the director of the Internal Audit Division of the City of Chattanooga,
testified that Defendant received leave time, for which she was compensated, which was
donated by other city employees.

        Sandy Hughes testified that she worked with Defendant. She believed that she and
Defendant shared a bond because Ms. Hughes was a cancer survivor. Ms. Hughes offered
to take Defendant to her chemotherapy treatments, but Defendant refused. Ms. Hughes “put
the word out” about Defendant’s needs and helped organize a “Black and Pink Affair” to
auction donated items. At the event, over $4,000 was raised. Ms. Hughes also testified that
Defendant told her that her children were in counseling and that Defendant’s daughter
sometimes stayed home from school because she was afraid that Defendant would die while
she was at school.




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        Kelly Dempsy, of the Department of Human Services investigations division, testified
that Defendant pled guilty to food stamp and welfare fraud in 2000 and was ordered to pay
restitution. The Department intercepted Defendant’s tax refund and obtained a civil
judgment and garnished her wages; however, a probation violation warrant was not filed for
Defendant’s failure to pay restitution.

       James Rox, of the Tennessee Board of Probation and Parole, prepared the presentence
report. Mr. Rox testified that Defendant’s medical records were contrary to Defendant’s
public and private statements about her having cancer. In fact, he testified that Defendant
told him that she had cancer in 2000 and was in remission and that she had lied about her
cancer having returned. Defendant had a history of criminal convictions, including
disorderly conduct, AFDC fraud, and food stamp fraud. Mr. Rox testified that, should
Defendant be placed on probation by the trial court, he recommended low-level supervision,
as well as a mental health evaluation.

       Several witnesses testified on behalf of Defendant. Richard Coleman testified that
he was Defendant’s pastor and spiritual counselor. He testified that Defendant was honest
and attentive and that she was taking responsibility for her actions. Angie Wynn testified that
she had known Defendant since January, 2009. Defendant was referred to Ms. Wynn for
counseling by Love Your Neighbor Ministries. She testified that Defendant was remorseful,
honest, and repentant about her actions. Tim Dempsey, of Chattanooga Endeavors, testified
that Defendant was referred to him for a “work readiness” program. Defendant had
successfully completed the program and found employment at M&M Industries. Mr.
Dempsey described Defendant as dependable, reliable, and responsible. Sherry Blevins was
a manager at M&M Industries, where Defendant had been employed for ten months at the
time of the hearing. Ms. Blevins testified that Defendant was a dependable and loyal
employee. Mimi Neighbors attended Bible study classes with Defendant at CCA Silverdale
Correctional Facility in February, 2009. After Defendant’s release, Ms. Neighbors and
Defendant maintained a “mentoring relationship.” She also described Defendant as
responsible.

        Yvonne Kennemore, Defendant’s aunt, also testified that Defendant was remorseful
and that Defendant had experienced financial hardship, and she believed Defendant had
committed the crimes in order to provide for her children. Cecil Barber, Defendant’s father,
testified that he supported his daughter even though she lied about having cancer. Mr.
Barber testified that Defendant had shown remorse for her conduct.

       Defendant testified that she lied about having cancer and that she had never had
cancer. She testified that her parents divorced when she was 12 or 13 years old. She was
sexually abused at the age of 15. Her mother used drugs and alcohol. Defendant became

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pregnant while she was still in high school and later married her son’s father, who was
abusive. They had another child together and later divorced. She moved to Chattanooga and
later had a daughter. Defendant testified that she struggled financially. She testified that she
felt “very down” and “unloved” and told others that she had cancer in order to feel supported.
Defendant testified that she knew taking financial assistance from others was wrong. She
testified that she used the money raised at the “Black and Pink” event, which was
approximately $4,000, to buy Christmas gifts for her children. Defendant expressed her
remorse and testified that she was able to pay restitution if ordered by the court. Defendant
testified that she was relieved when it was discovered that she had lied about having cancer,
but she admitted that, even after her lie was discovered, she lied again to Mr. Rox.

Analysis

       Defendant asserts that the trial court erred by imposing a sentence of incarceration as
to her 42-month sentence for her Class C felony theft conviction in Count 1. We note that
incarceration was also ordered for the two-year sentence in Count 9. Even though Defendant
does not specifically mention the sentence in Count 9 in her brief, our decision and analysis
as to Count 1 equally applies to Count 9.

       On appeal, the party challenging the sentence imposed by the trial court has the burden
of establishing that the sentence is erroneous. See Tenn. Code Ann. § 40-35-401, Sentencing
Comm’n Comments; see also State v. Arnett, 49 S.W.3d 250, 257 (Tenn. 2001). When a
defendant challenges the length, range, or manner of service of a sentence, it is the duty of
this Court to conduct a de novo review on the record with a presumption that the
determinations made by the court from which the appeal is taken are correct. Tenn. Code
Ann. § 40-35-401(d). However, this presumption is “conditioned upon the affirmative
showing in the record that the trial court considered the sentencing principles and all relevant
facts and circumstances.” State v. Pettus, 986 S.W.2d 540, 543-44 (Tenn. 1999); see also
State v. Carter, 254 S.W.3d 335, 344-45 (Tenn. 2008). If our review reflects that the trial
court failed to consider the sentencing principles and all relevant facts and circumstances,
then review of the challenged sentence is purely de novo without the presumption of
correctness. State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991); see also Carter, 254 S.W.3d
at 344-45.

       Generally, as to offenses which occur after June 7, 2005, in conducting a de novo
review of a sentence, this Court must consider (a) the evidence adduced at the trial and the
sentencing hearing; (b) the presentence report; (c) the principles of sentencing and arguments
as to sentencing alternatives; (d) the nature and characteristics of the criminal conduct
involved; (e) evidence and information offered by the parties on the enhancement and
mitigating factors set forth in Tennessee Code Annotated sections 40-35-113 and 40-35-114;

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(f) any statistical information provided by the Administrative Office of the Courts as to
Tennessee sentencing practices for similar offenses; and (g) any statement the defendant
wishes to make in the defendant’s own behalf about sentencing. Tenn. Code Ann. § 40-35-
210(b); see also Carter, 254 S.W.3d at 343; State v. Imfeld, 70 S.W.3d 698, 704 (Tenn.
2002).

       A defendant is eligible for probation if the actual sentence imposed upon the
defendant is ten years or less and the offense for which the defendant is sentenced is not
specifically excluded by statute. See Tenn. Code Ann. § 40-35-303(a). The trial court shall
automatically consider probation as a sentencing alternative for eligible defendants; however,
the defendant bears the burden of proving his or her suitability for probation. See Tenn.
Code Ann. § 40-35-303(b); see also Carter, 2008 WL 2081247, at *10. No criminal
defendant is automatically entitled to probation as a matter of law. See Tenn. Code Ann. §
40-35-303(b), Sentencing Comm’n Comments; State v. Davis, 940 S.W.2d 558, 559 (Tenn.
1997). Rather, the defendant must demonstrate that probation would serve the ends of justice
and the best interests of both the public and the defendant. See Carter, 2008 WL 2081247,
at *10; State v. Souder, 105 S.W.3d 602, 607 (Tenn. Crim. App. 2002).

       In determining whether to grant probation, the court must consider the nature and
circumstances of the offense; the defendant’s criminal record; his or her background and
social history; his or her present condition, both physical and mental; the deterrent effect on
the defendant; and the defendant’s potential for rehabilitation or treatment. See id. If the
court determines that a period of probation is appropriate, it shall sentence the defendant to
a specific sentence but then suspend that sentence and place the defendant on supervised or
unsupervised probation either immediately or after the service of a period of confinement.
See Tenn. Code Ann. §§ 40-35-303(c), -306(a).

        We note that the offense for which Defendant was convicted in Count 1, Class C
felony theft from the victim the city of Chattanooga, was committed over a period of time
between 2003 and 2008, while Defendant was an employee of the city. For offenses
committed prior to June 7, 2005, a defendant convicted of a Class C, D, or E felony and
sentenced as an especially mitigated or standard offender was “presumed to be a favorable
candidate for alternative sentencing options in the absence of evidence to the contrary.”
T.C.A. § 40-35-102(6) (2003). Effective June 7, 2005, our legislature amended Tennessee
Code Annotated section 40-35-102(6) by deleting the statutory presumption that an eligible
defendant is presumed to be a favorable candidate for alternative sentencing, and our
sentencing law now provides that a defendant who does not possess a criminal history
showing a clear disregard for society’s laws and morals, who has not failed past rehabilitation
efforts, and who “is an especially mitigated or standard offender convicted of a Class C, D
or E felony, should be considered as a favorable candidate for alternative sentencing options

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in the absence of evidence to the contrary. A court shall consider, but is not bound by, this
advisory sentencing guideline.” Tenn. Code Ann. § 40-35-102(5), (6) (emphasis added).
Because it appears from the record that the offense occurred over a period of time both
before and after the change in the law, we will afford Defendant the benefit of the
presumption which existed in the law prior to the June 7, 2005 amendment.

       Although a defendant may be presumed a favorable candidate for alternative
sentencing, the defendant has the burden of establishing suitability for total probation.
T.C.A. § 40-35-303(b) (2003); State v. Boggs, 932 S.W.2d 467, 477 (Tenn. Crim. App.
1996). Even though probation must be automatically considered, “the defendant is not
automatically entitled to probation as a matter of law.” T.C.A. § 40-35-303(b), Sentencing
Comm’n Comments; State v. Hartley, 818 S.W.2d 370, 373 (Tenn. Crim. App. 1991). 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). A trial court must acknowledge one of the following
considerations before imposing a sentence of total confinement:

        (A) Confinement is necessary to protect society by restraining a defendant
        who has a long history of criminal conduct;

        (B) Confinement is necessary to avoid depreciating the seriousness of the
        offense or confinement is particularly suited to provide an effective
        deterrence to others likely to commit similar offenses; or

        (C) Measures less restrictive than confinement have frequently or recently
        been applied unsuccessfully to the defendant[.]

T.C.A. § 40-35-103(1) (2003).

       At the conclusion of the sentencing hearing, as to the manner of service of
Defendant’s sentence, the trial court found that Defendant was eligible for probation and
further stated:

        The law also says if you’re convicted of a C, D, or E felony, that you are
        considered a favorable person for alternative sentencing. So, under the law,
        [Defendant] is considered a favorable person for alternative sentencing, but
        this is what we run into in [Defendant]’s case and I think the real problem
        that we have, in regard to confinement, confinement is necessary to avoid

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        depreciating the seriousness of the offense or confinement is particularly
        suited to provide an effective deterrence. It goes further than that, we just
        can’t pull that out of the sky, because it says in regard to depreciating, the
        act must be reprehensible. This act was reprehensible. I think even both
        lawyers have argued that it’s reprehensible. It must be offensive or
        exaggerated.

        So these acts that [Defendant] committed were reprehensible, they were
        offensive, they were excessive and it seems like to me that to avoid
        depreciating, some confinement is necessary.

       In denying probation in Counts 1 and 9, the trial court also noted Defendant’s history
of criminal conduct, her previous unwillingness to make restitution payments, and her
continued deception by lying to the probation officer who prepared the presentence report.

       In State v. Hooper, 29 S.W.3d 1, 10-12 (Tenn. 2000), our supreme court stated that
“since the ‘science’ of deterrence is imprecise at best,” trial courts should consider the
following factors in weighing the deterrence issue:

        (1) Whether other incidents of the charged offense are increasingly present
        in the community, jurisdiction, or in the state as a whole;

        (2) Whether the defendant’s crime was the result of intentional, knowing,
        or reckless conduct or was otherwise motivated by a desire to profit or gain
        from the criminal behavior;

        (3) Whether the defendant’s crime and conviction have received substantial
        publicity beyond that normally expected in the typical case;

        (4) Whether the defendant was a member of a criminal enterprise, or
        substantially encouraged or assisted others in achieving the criminal
        objective;

        (5) Whether the defendant has previously engaged in criminal conduct of
        the same type as the offense in question, irrespective of whether such
        conduct resulted in previous arrests or conviction.

“These factors are meant to serve only as a guide, and a court need not find that all of these
factors are present before ordering incarceration based on a need to deter similar crimes.”
Id. at 12.

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       In this case, Defendant was motivated by a desire to profit or gain from her criminal
behavior. She benefitted both monetarily and from in-kind donations by her victims.
Defendant took advantage of donated services and donated leave time from work. Defendant
also engaged in previous criminal conduct of the same nature as the convictions in this case.


        We conclude that the trial court properly considered the evidence presented and the
sentencing principles, and the record supports the trial court’s findings. Defendant is not
entitled to relief. The offense in Count 9 occurred in 2008, and the law as amended in 2005,
thus applies. Under this standard, Defendant is not entitled to relief from the trial court’s
order to serve that sentence by incarceration.

       Finally, Defendant asserts, as we understand it, that by imposing a sentence of
incarceration in one (actually two) of Defendant’s convictions, and the remaining sentences
suspended on probation, somehow Defendant’s sentences have been effectively ordered to
run consecutively, although the trial court ordered that her sentences be served concurrently,
pursuant to the negotiated plea agreement. Defendant posits that, after serving her 42-month
sentence, she could “be subject to serving the entire 5[-]year sentence, and the other
sentences if she did not complete the ten[-]year probation period. This means the sentences
are actually to some degree ‘consecutive.’” However, Defendant cites no authority for this
argument. See Tenn. Ct. Crim. App. R. 10(b). Defendant is not entitled to relief on this
issue.

                                      CONCLUSION

      Based upon the foregoing, we affirm the convictions and sentences, except as to
Count 4, which we remand for entry of a corrected judgment.


                                                   _________________________________
                                                   THOMAS T. WOODALL, JUDGE




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