         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                               Assigned on Briefs July 9, 2002

                STATE OF TENNESSEE v. TONI YVONNE HUNT

                  Direct Appeal from the Circuit Court for Madison County
                           No. 01-372    Donald H. Allen, Judge



                   No. W2001-02654-CCA-R3-CD - Filed October 28, 2002


The defendant appeals her sentence of confinement after pleading guilty to theft under $500.00, a
Class A misdemeanor, in violation of Tennessee Code Annotated section 39-14-103. The trial court
sentenced the defendant to 11 months, 29 days at 75% release eligibility, with 150 days of shock
incarceration. The defendant argues that the trial court erred in not granting her full probation.
However, the defendant did not meet her burden necessary to prove the impropriety of her sentence.
Our supreme court acknowledges that trial courts have more flexibility in misdemeanor sentencing
than in felony sentencing. Given the defendant’s prior criminal history and the flexibility granted to
trial courts in misdemeanor sentencing, the judgment of the trial court is affirmed.

      Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which NORMA MCGEE OGLE and
ALAN E. GLENN, JJ., joined.

Jeff Mueller, Jackson, Tennessee (at trial), and Marcus M. Reaves, Denmark, Tennessee (on appeal),
for the appellant, Toni Yvonne Hunt.

Paul G. Summers, Attorney General and Reporter; John H. Bledsoe, Assistant Attorney General;
James G. (Jerry) Woodall, District Attorney General; and Shaun H. Brown, Assistant District
Attorney General, for the appellee, State of Tennessee.


                                             OPINION

                                              I. Facts

        The defendant, Toni Yvonne Hunt, appeals her sentence of incarceration and the trial court’s
denial of full probation. The trial court sentenced the defendant to 11 months, 29 days and set the
release eligibility date at 75%, with 150 days to be served in confinement and the remainder of the
sentence served on probation. The defendant contends that the incarceration is excessive.
        On January 4, 2001, Target department store security personnel observed the defendant
switch merchandise tags on several clothing items to benefit from a lower sale price. The defendant
gave the merchandise to her friend to purchase on her behalf. The defendant’s friend was not
charged. Store security personnel recovered the clothing and held the defendant until local police
arrived to make an arrest. The defendant was later indicted for theft of property under $500.00, in
violation of Tennessee Code Annotated section 39-14-103 (1997). The defendant entered an open
plea of guilty preceding her sentencing hearing.

        At the sentencing hearing, the trial court considered the presentence report, the circumstances
surrounding the offense, and the defendant’s testimony. The defendant testified regarding her
criminal record as set forth in the presentence report. The presentence report reflected a long history
of convictions for criminal trespass, shoplifting, assault, disorderly conduct, violation of the bad
check law, minor traffic violations, and driving with a revoked license. The defendant attempted to
explain her bad check conviction by testifying that her sister gained unauthorized access to her
checking account. The defendant testified that she was convicted for criminal trespass and disorderly
conduct in connection with her previous shoplifting charge at J. C. Penney’s department store.
Although she was ordered not to enter J. C. Penney’s after her shoplifting conviction, the defendant
stated that she was arrested for criminal trespass and disorderly conduct after entering the store.
When asked on cross-examination if she thought she had a problem with shoplifting, the defendant
stated she does not have a problem.

       The defendant testified that she has a stable work history, as evidenced by her one-year
employment at Shoe Carnival and seven years prior employment at Ryan’s Steakhouse. The
defendant stated that her annual salary prior to her arrest for this conviction was $33,000.00.

        The defendant asked the trial court to consider her role as a single mother in determining her
sentence. The defendant testified that she has sole custody of her seven-year-old son and receives
no outside financial assistance for his care. The defendant also asked the court to consider that she
is the legal guardian for her roommate’s two children until her roommate returns from a drug
rehabilitation program.

        The trial court sentenced the defendant to 11 months, 29 days in the county jail and set her
release eligibility at 75%. Said sentence was ordered to be served with 150 days confinement as
shock incarceration and the balance on probation. During the 150 days in confinement, the trial
court will consider the defendant for work release.

                                            II. Analysis

                                        A. Issue Presented

        The sole issue in this appeal is whether the trial court erred by imposing incarceration. The
defendant contends that she is entitled to full probation. We disagree and affirm the judgment of the
trial court.


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                                     B. Standard of Review

        When an accused challenges the length, range or manner of service of a sentence, this Court
has a duty to conduct a de novo review of the sentence with the presumption that the determinations
made by the trial court are correct. See Tenn. Code Ann. §§ 40-35-401(d), 40-35-402(d) (1997).
If our review “reflects that the trial court followed the statutory sentencing procedure, imposed a
lawful sentence after having given due consideration and proper weight to the factors and principles
set out under the sentencing law, and that the trial court’s findings are adequately supported by the
record, then we may not modify the sentence even if we would have preferred a different result.”
State v. Pike, 978 S.W.2d 904, 926-27 (Tenn. 1998); State v. Fletcher, 805 S.W.2d 785, 789 (Tenn.
Crim. App. 1991).

        On appeal, the defendant has the burden of establishing that the sentence is improper. See
Tenn. Code Ann. § 40-35-401(d), Sentencing Comm’n Comments. To conclude whether the
defendant has met her burden, this Court must consider the following: (a) the evidence, if any,
received 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 ) any statutory, mitigating and/or enhancement factors; (f) any
statement made by the defendant regarding sentencing; and (g) the potential or lack of potential for
rehabilitation or treatment. State v. Thomas, 755 S.W.2d 838, 844 (Tenn. Crim. App. 1988); Tenn.
Code Ann §§ 40-35-102, -103, and -210 (supp. 2001). We conclude that the defendant has not met
her burden of establishing that her sentence is improper.

                                           C. Sentence

        The defendant argues that her sentence is excessive and requests full probation. The
Criminal Sentencing Reform Act of 1989, Tenn. Code Ann. § 40-35-101 (1997), et seq., requires
three criteria of trial judges in sentencing misdemeanor offenders. First, trial courts must sentence
misdemeanor offenders in accordance with the principles, purposes, and goals of the Sentencing
Reform Act of 1989. Tenn. Code Ann. §§ 40-35-104(a) (1997), 40-35-117 (1997), 40-35-302
(supp.2001). Thus, the sentence must be within the penalty provided for the offense. Tenn. Code
Ann. § 40-35-111(e)(1) (1997). Second, the trial court must either conduct a sentencing hearing or
provide an opportunity for the parties to testify regarding the length and manner of service of the
sentence. Tenn. Code Ann. § 40-35-302(a) (1997). Third, in addition to sentencing based on the
principles, purposes, and goals of the Act, the trial court must set a release eligibility percentage
which cannot exceed 75% of the imposed sentence. Tenn. Code Ann. § 40-35-302(d). The court
can grant probation immediately or after a period of split or continuous confinement. Tenn. Code
Ann. § 40- 35-302(e)(1).

        Having concluded that a misdemeanor offender’s sentence must be in accord with the
Criminal Sentencing Reform Act of 1989, we turn to the relevant statutes and facts of this case. The
trial court ordered the defendant to serve 150 days in confinement and the balance on probation.


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Under Tennessee Code Annotated section 39-14-105(1) (1997), theft of property is graded as a Class
A misdemeanor offense if the value of the property or services is $500.00 or less. According to
Tennessee Code Annotated section 40-35-111(e), the authorized terms of imprisonment and fines
for Class A misdemeanors are not to exceed 11 months, 29 days or fines not to exceed $2,500.00,
or both, unless otherwise provided by statute. Tenn. Code Ann. § 40-35-111(e)(1). The trial court
sentenced the defendant within the guidelines of the statute.

         The trial court conducted a sentencing hearing and provided the defendant with the
opportunity to testify regarding her sentence. The defendant argues that she should not serve her
sentence in a correctional facility, but should be granted full probation. A defendant seeking full
probation bears the burden on appeal of showing that the sentence imposed is improper and that full
probation will be in the best interest of the defendant and the public. State v. Baker, 966 S.W.2d
429, 434 (Tenn. Crim. App. 1997). The trial court considered the defendant’s extensive criminal
history, which qualified as an enhancement factor in determining sentencing. The defendant testified
that her annual salary is sufficient to provide for herself and her children, but offered the court no
reason for shoplifting. The defendant has shown that she is employed and has children in her charge.
 However, this information is not enough to demonstrate the impropriety of her sentence.

        The trial court sentenced the defendant to a determinate sentence within the guidelines of the
relevant statutes and ordered 150 days of shock incarceration, due to her prior criminal history. The
trial court presented the defendant with the possibility of work release subject to her immediate
incarceration and counseling accompanying her probation. Our supreme court has noted that trial
courts have more flexibility in misdemeanor sentencing than in felony sentencing. State v.
Troutman, 979 S.W.2d 271, 273 (Tenn. 1998). Given the flexibility traditionally granted to trial
courts in misdemeanor sentencing and based upon the defendant’s prior criminal history, we find no
error in the sentence imposed.

                                          III. Conclusion

       Accordingly, we affirm the judgment of the trial court.




                                               ___________________________________
                                                JOHN EVERETT WILLIAMS, JUDGE




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