              IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                   AT KNOXVILLE           FILED
                              JUNE, 1997 SESSION
                                                           October 9, 1997

                                                          Cecil Crowson, Jr.
                                                          Appellate C ourt Clerk
     STATE OF TENNESSEE,            )
                                    )
                 Appellee,          )   No. 03C01-9611-CR-00416
                                    )
     vs.                            )   Sullivan County
                                    )
     KAREN A. DOWNEY,               )   Honorable Frank L. Slaughter, Judge
                                    )
                 Appellant.         )
                                    )   (Misdemeanor Sentencing)



     FOR THE APPELLANT:                 FOR THE APPELLEE:

     DAVID L. LEONARD (on appeal)       JOHN KNOX WALKUP
     Leonard & Kershaw                  Attorney General & Reporter
     128 So. Main St. Ste. 102
     Greeneville, TN 37743              GEORGIA BLYTHE FELNER
                                        Counsel for the State
     FRANK X. SANTORE (at trial)        Criminal Justice Division
     P.O. Box 113                       450 James Robertson Parkway
     Greeneville, TN 37744              Nashville, TN 37243-0493

                                         H. GREELEY WELLS, JR.
                                         District Attorney General

                                         JACK LEWIS COMBS, JR.
                                         Assistant District Attorney General
                                         P.O. Box 526
                                         Blountville, TN 37617-0526


     OPINION FILED: ____________________


     Affirmed as modified


     CURWOOD WITT
     JUDGE




downeyk.opn
                                          OPINION



                   The defendant, Karen A. Downey,1 pleaded guilty in the Sullivan

     County Criminal Court to one count of theft of property valued at five hundred

     dollars or less, a Class A misdemeanor. Tenn. Code Ann. § 39-14-105(1). The

     conviction arose out of a shoplifting incident that occurred on March 29, 1996 in

     which the defendant took a watch, an ankle bracelet and various earrings and pins,

     worth $24.41 altogether, from Hill’s Department Store. At the conclusion of the

     sentencing hearing, the trial judge denied probation and sentenced her to serve

     eleven months and twenty-nine days in the county jail. In this direct appeal, the

     defendant alleges that the sentence is excessive and that the trial court erred in not

     granting her probation.



                   For the reasons discussed below, we affirm appellant’s sentence but

     modify the service of that sentence to require that she serve the entire period on

     intensive probation.



                   When an accused challenges the length, range, or manner of service

     of a sentence, it is the duty of this court to conduct a de novo review with a

     presumption that the determinations made by the trial court are correct. Tenn.

     Code Ann. § 40-35-401(d)(1990). 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. Ashby, 823 S.W.2d

     166, 169 (Tenn. 1991).       In conducting our review, we must consider all the



              1
                   In her brief and in some pleadings, the defendant’s name is given
     as “Karan Ann Downey.” However, it is the policy of this court to use the name
     as it appears in the indictment, and the indictment lists the defendant’s name as
     “Karen A. Downey.”

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     evidence, the presentence report, the sentencing principles, the enhancing and

     mitigating factors, arguments of counsel, the appellant’s statements, the nature and

     character of the offense, and the appellant’s potential for rehabilitation. Tenn. Code

     Ann. §§ 40-35-103(5), -210(b) (1990); State v. Ashby, 823 S.W.2d at 169. The

     defendant has the burden of demonstrating that the sentence is improper. Tenn.

     Code Ann. § 40-35-210 sentencing commission comments. If the record fails to

     demonstrate the appropriate consideration by the trial court, appellate review of the

     sentence is purely de novo. State v. Ashby, 823 S.W.2d at 169. However, if our

     review reflects that the trial court properly considered all relevant factors and the

     record adequately supports its findings of fact, this court must affirm the sentence

     even if we would have preferred a different result. State v. Fletcher, 805 S.W.2d

     785, 789 (Tenn. Crim. App. 1991).



                          A misdemeanant, unlike the felon, is not entitled to the

     presumption of a minimum sentence. State v. Randall C. Conner, No. 03C01-9401-

     CR-00024, slip op. at 6 (Tenn. Crim. App., Knoxville, Aug. 12, 1994); State v.

     Bernell B. Lawson, No. 63, slip op. at 7 (Tenn. Crim. App., Knoxville, May 23, 1991).

     Misdemeanor sentencing is controlled by Tennessee Code Annotated section 40-

     35-302. The statue requires the court to impose a “specific number of months,

     days or hours . . . consistent with the purposes and principles of the [Criminal

     Sentencing Reform Act of 1989],” Tenn. Code Ann. § 40-35-302(b)(Supp. 1996),

     and to determine a percentage of the sentence which the misdemeanant must

     serve before becoming eligible for certain release programs.2 Tenn. Code Ann. §

     40-35-302(d). In determining the percentage, the court must consider enhancement

     and mitigating factors as well as the legislative purposes and principles related to


              2
                  Upon service of that percentage, the administrative agency
     governing the rehabilitative programs determines which among the lawful
     programs available is appropriate. Tenn. Code Ann. § 40-35-302(d).

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     sentencing. Tenn. Code Ann. § 40-35-302(d); State v. Palmer, 902 S.W.2d 391,

     393-94 (Tenn.1995); State v. Gilboy, 857 S.W.2d 884, 888-889 (Tenn. Crim. App.

     1993).



                  The misdemeanor sentencing statute authorizes the court to place a

     defendant on probation immediately or after service of a portion of the sentence.

     Tenn. Code Ann. § 40-35-402(e). The trial court maintains jurisdiction over a

     defendant placed in jail and may reduce or modify the sentence or place the

     defendant on probationary supervision. Tenn. Code Ann. § 40-35-314(c). The

     statute is designed to provide a trial court with continuing jurisdiction in

     misdemeanor cases and a wide latitude of flexibility. State v. Dwight Johnson, No.

     03C01-9209-CR-00328, slip op. at 7 (Tenn. Crim. App., Knoxville, May, 18, 1993),

     perm. to appeal denied (Tenn. 1994).



                  In this case, Karen Downey pleaded guilty to a Class A misdemeanor.

     Theft of property valued at five hundred dollars or less is punishable by a maximum

     sentence of eleven (11) months and twenty-nine (29) days. Tenn. Code Ann. § 40-

     35-111(e)(2)(1990). The trial court imposed the maximum sentence and denied

     probation. Although the record demonstrates that the trial court made findings

     concerning both enhancement and mitigating factors, we cannot determine from the

     record whether the trial court gave appropriate consideration to the purposes and

     principles of sentencing. His denial of probation was conclusory. 3 Therefore, we

     review the defendant’s sentence without the presumption of correctness.




              3
                   The judge said, “Now, two concepts, of being a criminal court
     judge, one is to punish people who do mean things, and the other is to protect
     people. In this case I deny probation.”

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                   In considering whether the trial court erred in sentencing the

     defendant, we must consider de novo the evidence presented as well as the

     sentencing principles and considerations embodied by our sentencing laws. We

     must also evaluate the mitigating and enhancing factors that are applicable to this

     case. Finally, we must examine the sentence in light of the nature and character

     of the offense and Downey’s potential for rehabilitation. See State v. Ashby, 823

     S.W.2d at 169.



                   The foremost purpose of sentencing is to promote justice by imposing

     sentences that are “justly deserved in relation to the seriousness of the offense.”

     Tenn. Code Ann. § 40-35-102 (1). The sentence should be designed to encourage

     respect for the law, to prevent further criminal conduct, and to encourage effective

     rehabilitation where it is reasonably feasible. Tenn. Code Ann. § 40-35-102(3).

     Courts must consider the effect a sentence will have on the individual defendant as

     well as on society at large. State v. Gilboy, 857 S.W.2d at 889.       Practical fiscal

     limitations require that confinement be reserved for those with long criminal histories

     who have failed under less restrictive punishments and for offenses which require

     confinement to avoid depreciating the seriousness of the offense.         Tenn. Code

     Ann. § 40-35-103 (1). The sentence imposed should be the minimum necessary

     to achieve the sentencing purpose. Id. at (2).



                   The record in this case consists of a transcript of the sentencing

     hearing and exhibits, including the presentence report, the defendant’s medical

     history, and notes from her therapist and psychiatrist. The defendant, her mother,

     and the defendant’s therapist testified at the sentencing hearing. The record

     discloses that the forty-seven year old defendant was married and divorced twice.

     Her first husband abused her sexually. She has no children and suffers from a


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     thyroid disorder and lupus. She has been disabled since 1987 or 1988 when her

     leg was badly broken in a horseback riding accident. At the time of the sentencing

     hearing, she lived with and cared for her elderly mother who is in poor health. Her

     father died two weeks before her last arrest on March 29, 1996. As a result of an

     arrest in 1991, the defendant became a patient at the Nolachuckey-Holston Mental

     Health Center in Greeneville, Tennessee, where she has received individual and

     group therapy and medication on a regular basis through the date of the sentencing

     hearing.



                   The clinic diagnosed her as having a mixed personality disorder with

     borderline traits; major, reoccurring depression that is moderate to severe; alcohol

     dependence that is in remission; and kleptomania. At the time of the hearing, she

     was taking prozac, vistaril, and trazodone. Joy White, her therapist, testified that

     kleptomania is a recognized disorder listed in the American Psychiatric

     Association’s Diagnostic and Statistical Manual of Mental Disorders, Number 4

     Revised (DSM-IV-R).         She described kleptomania as an incorrect coping

     mechanism to which the defendant resorts in times of tension, stress, anxiety and

     grief. According to her testimony, large doses of prozac had recently been found

     useful in controlling the impulsive behavior of kleptomaniacs. The psychiatrist was

     gradually increasing defendant’s dosage of prozac, and the therapist reported that

     she was displaying less impulsive behavior.          She recommended a continuing

     intensive treatment program involving therapy as well as continued medication. She

     testified that incarceration “won’t stop the behavior, if anything it will enhance it ....

     The problem is psychological ... not physical or practical.” Also, the therapist stated

     that there are “some medical problems involved.”




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                  The trial judge found that two enhancement and five mitigating factors

     apply to the defendant’s sentence. The record sustains the trial court’s conclusion

     that the defendant has “a previous history of criminal convictions or criminal

     behavior.” Tenn. Code Ann. § 40-35-114(1). The defendant admitted that she had

     two prior convictions for shoplifting, one in 1988 and one in 1992. She also

     admitted to numerous shoplifting incidents throughout her life.4 The evidence in the

     record, however, does not support the trial judge’s finding that she has “a previous

     history of unwillingness to comply with the conditions of a sentence involving

     release in the community.” The defendant was placed on probation both in 1988

     and in 1992. In 1992, she served 15 days in jail and the rest of her eleven month

     and twenty-nine day sentence on probation. The trial judge assumed that, since

     she admitted to many shoplifting incidents in her life, some of them must have

     occurred when she was on probation.           Nothing in the record supports this

     assumption. She apparently completed her probationary periods without incident.5



                   As mitigating factors, the trial court found that

                   1.     The defendant’s conduct neither caused
                          nor threatened any serious bodily injury.
                          Tenn. Code Ann. § 40-35-113(1).

                   2.     The defendant suffers from kleptomania,
                          a well-diagnosed psychiatric illness not
                          caused by any misconduct on her part.

                   3.     The defendant cares for and helps her
                          elderly mother who needs considerable
                          care.


              4
                  According to her medical records, she told her psychiatrist that she
     had probably shoplifted one thousand or fifteen hundred times in her life. At the
     sentencing hearing, she denied making this statement. She said she had stolen
     many times but not that many.
              5
                    The medical records indicate that she was assigned to some kind
     of community service as result of her 1992 conviction. The record is not entirely
     clear, but she may have been excused from this portion of her sentence due to
     her disability and other health problems.

downeyk.opn                                    7
                   4.     The defendant suffers from depression
                          and has physical ailments including a
                          disability resulting from a kick by a horse.

                   5.     The defendant had an unfortunate
                          marriage during which she suffered
                          considerable abuse.

     The trial judge refused to consider the stressful situation caused by her father’s

     recent death as a mitigating factor because he had died “on or about the time of this

     offense.”    We agree that the defendant’s mental and physical condition are

     significant mitigating factors. Moreover, the therapist testified that stressful events

     such as death, divorce, and illness could trigger the impulsive behavior that leads

     to shoplifting, and the death of the defendant’s father may well have led to the

     shoplifting for which she was arrested just two weeks later. We find that, although

     the enhancement factor is entitled to great weight, the mitigating factors found by

     the court in this case are also of great significance.



                   Next we must assess the nature and character of the offense. Karen

     Downey stole a watch, an ankle bracelet, and a few other pieces of jewelry. The

     total value of these items was considerably less than five hundred dollars, and the

     goods were returned to Hill’s Department Store. Although this incident does not

     involve a significant loss, the trial court was properly concerned about the

     defendant’s lengthy history of shoplifting that is clearly much more extensive than

     her two previous convictions would indicate. The trial court was rightly aware of the

     need to protect the public from such criminal acts. Tenn. Code Ann. § 40-35-

     103)(1)(A) (1990).



                   Finally, we must consider the defendant’s potential for rehabilitation.

     We find that, although she has missed appointments for therapy and has

     sometimes resisted or denied the need to change, she has persisted in her


downeyk.opn                                    8
     treatment program for several years. This persistence indicates that she has the

     desire to make positive changes and is willing to work to achieve them. Her efforts,

     unfortunately, have not always been successful. The record indicates that she is

     in need of consistent structure and intensive counseling as well as close monitoring

     for her medication. Moreover, the evidence reflects that at the time of sentencing,

     management of her impulsive behavior was improving because of her therapy and

     medication regimen.



                   We conclude that, on the rather unusual facts of this case, a period

     of incarceration would not serve the purposes of the 1989 Sentencing Act.

     However, we do not believe that it would be in the best interests of either the public

     or the defendant to leave the defendant without adequate supervision. Therefore,

     we affirm the defendant’s sentence of eleven months and twenty-nine days but

     modify the service of that sentence to require that she serve the entire period on

     intensive probation.6   Upon remand the trial judge shall impose appropriate

     conditions of probation, including, but not limited to, continued and consistent

     participation in individual and group counseling as recommended by her psychiatrist

     and therapist, strict compliance with the medication ordered by her doctors, and

     some form of community service that is compatible with her physical disabilities.




              6
                    The trial court’s expressed aversion to probation notwithstanding,
     the court’s judgment reflects that no percentage of service of the sentence was
     indicated. Where no percentage is indicated, the “percentage shall be
     considered zero percent (0%).” Tenn. Code Ann. § 40-35-302(d) (Supp. 1996).
     Therefore, according to the terms of the judgment, the “administrative authority”
     was authorized to place the defendant in an appropriate “rehabilitative program”
     without the service of any time in jail. Id.


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                  The judgment of the trial court is hereby affirmed in part and modified

     in part. The case is remanded for the entry of a modified judgment form consistent

     with this opinion and to allow the court to impose conditions of probation.



                                                     __________________________
                                                     CURWOOD W ITT, Judge



     ______________________________
     JOHN H. PEAY, Judge



     ______________________________
     JOSEPH M. TIPTON, Judge




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