            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT NASHVILLE
                           Assigned on Briefs November 12, 2015

             STATE OF TENNESSEE v. TAMMY MARIE HARBISON

                   Appeal from the Circuit Court for Lawrence County
                         No. 32633    Stella L. Hargrove, Judge


                No. M2015-01059-CCA-R3-CD – Filed February 12, 2016


The Defendant-Appellant, Tammy Marie Harbison, entered an open guilty plea to one
count of theft of property valued at more than $1,000 but less than $10,000 in the
Lawrence County Circuit Court. As a Range I, standard offender, she received a three-
year sentence, which was suspended following service of six months in incarceration. On
appeal, the Defendant-Appellant contends that the trial court abused its discretion in
denying her request for full probation. Upon review, we reverse the judgment of the trial
court and remand for entry of a judgment sentencing the Defendant-Appellant to serve
her three-year sentence on supervised probation.

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

CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which NORMA MCGEE
OGLE and ROBERT L. HOLLOWAY, JR., JJ., joined.

William Joshua Morrow, Lawrenceburg, Tennessee, for the Defendant-Appellant,
Tammy Marie Harbison.

Herbert H. Slatery III, Attorney General and Reporter; M. Todd Ridley, Assistant
Attorney General; Brent A. Cooper, District Attorney General; and Christi Leigh
Thompson, Assistant District Attorney General, for the Appellee, State of Tennessee.

                                              OPINION

       At the May 11, 2015 sentencing hearing, the State introduced a copy of the
presentence report, which showed that the Defendant-Appellant had been previously
charged with passing worthless checks.1 The charge was dismissed upon payment of
        1
          Although the transcript from the Defendant-Appellant‟s guilty plea hearing was not included in
the appellate record, the record is adequate for our review. See State v. Caudle, 388 S.W.3d 273, 279
(Tenn. 2012) (“[W]hen a record does not include a transcript of the hearing on a guilty plea, the Court of
costs and restitution and the Defendant-Appellant had no other criminal history.

        Ruth Keener, the eighty-two-year-old victim in this case, testified that she hired
the Defendant-Appellant to help with housework in the fall of 2013. The Defendant-
Appellant had been working for Keener for approximately ten months when Keener
noticed that one of her rings was missing and reported it to the police. Keener had
purchased the ring in 2007 for $1,300. A few weeks later, Keener saw a Facebook post
listing the ring for sale in a neighboring county and called her son, who notified the
police. When asked if she trusted the Defendant-Appellant while she employed her,
Keener stated, “[y]es, I did. She was very friendly, and it was really a shock to me when
this happened.” Keener testified that although the ring was returned to her . . . she
“[doesn‟t] trust anybody anymore[.]” On cross-examination, Keener acknowledged that
the Defendant-Appellant had sent her an email after the incident requesting forgiveness
for stealing the ring.

       The Defendant-Appellant admitted to taking the ring from Ms. Keener and posting
a Facebook ad in an attempt to sell it. She confirmed that she had been working for the
victim for approximately ten months at the time she took the ring. She further testified
that she had no prior convictions and had never been on probation. She recalled that she
was contacted by an undercover officer the day after posting the ad and agreed to sell the
ring to him for $200. When she met the undercover officer, she confirmed that she had
the ring and was placed under arrest. She told the officer that she had taken the ring
approximately three weeks before she posted it for sale. At the hearing, the Defendant-
Appellant claimed that she “love[d the victim] to death,” and when asked what prompted
her to steal the ring, she stated, “I have no idea, it was stupid. It‟s just something I
shouldn‟t have done.”

       Carmen Brooks testified that she had been friends with the Defendant-Appellant
for twenty years. In that time, Brooks had undergone four back surgeries and relied
heavily on the Defendant-Appellant to assist with cooking, cleaning, and transporting her
children to and from school. Brooks testified that she had never noticed anything missing
in her home after the Defendant-Appellant had been there and volunteered to help
transport the Defendant-Appellant to meet her probation officer.

      Larry Chapman, the Defendant-Appellant‟s nephew, testified that the Defendant-
Appellant was responsible for caring for her father, who was being treated for cancer.
Chapman, who had also previously been treated for cancer, further testified that the
Defendant-Appellant had frequently accompanied him to treatment as well. He stated


Criminal Appeals should determine on a case-by-case basis whether the record is sufficient for a
meaningful review[.]”).
                                              -2-
that many members of his family relied on the Defendant-Appellant similarly when they
were in poor health. Chapman also volunteered to help transport the Defendant-
Appellant to probation appointments if necessary. At the conclusion of the hearing,
defense counsel asked the court to allow the Defendant-Appellant to serve her sentence
on probation. In support, defense counsel noted that this offense was a one-time
occurrence on an otherwise unblemished record.

       This isn‟t something like the embezzlement cases we have where it‟s $5
       one day, and $10 the next day, and $15 the next day. This is one lady who
       on one day did something that she has regretted from that moment forward.
       And she‟s never been on probation . . . [s]he‟s an excellent candidate for
       probation.

       The trial court denied the Defendant-Appellant‟s request for probation and
sentenced her to three years in the Tennessee Department of Correction, with six months
to be served in the county jail and the remainder on supervised probation. The trial court
found that a sentence of incarceration was necessary to avoid unduly depreciating the
seriousness of the offense and to provide an effective deterrent to those likely to commit
similar offenses. Although the Defendant-Appellant consistently expressed remorse for
her actions throughout the hearing, the trial court discredited those claims, stating “[i]f
there‟s any remorse, it‟s because she got caught. She thought [the sale of the ring] was a
done deal.” The trial court also took issue with the Defendant-Appellant‟s demeanor
during the sentencing proceeding:

       And [Defense Counsel], th[e]se are my words – “no harm no foul,” because
       that‟s how [the Defendant-Appellant] walked in here to get probation[.]
       “It‟s no big deal. I stole it. She got it back. It‟s no big deal.” That was
       what the court gleaned from her demeanor. I still feel that way [about the
       Defendant-Appellant‟s demeanor] at the end of this hearing – “no harm and
       no foul. I‟m going to get probation.”

       This timely appeal followed.

                                       ANALYSIS

       On appeal, the sole issue presented for our review is whether the trial court abused
its discretion in denying the Defendant-Appellant‟s request for full probation and
imposing a sentence of split-confinement. The Defendant-Appellant contends that (1)
“there is absolutely no proof in the record that confinement would have a deterring effect
on similar crimes in the community,” and (2) that “there is no basis in the record to
support the trial court‟s refusal to order full probation on the grounds that to do so would
                                            -3-
depreciate the seriousness of the offense.” The State responds that the trial court made
adequate findings to support its ruling, and that even if the trial court‟s articulation of
those findings was inadequate, the record as a whole supports the split-confinement
sentence. Upon our review, we agree with the Defendant-Appellant that there is no
substantial evidence in the record that would justify the denial of probation in this case.

        “[T]he abuse of discretion standard, accompanied by a presumption of
reasonableness, applies to within-range sentences that reflect a decision based upon the
purposes and principles of sentencing, including questions related to probation or any
other alternative sentence.” Caudle, 388 S.W.3d at 278-79. Any sentence that does not
involve complete confinement is an alternative sentence. See generally State v. Fields, 40
S.W.3d 435 (Tenn. 2001). Tennessee Code Annotated section 40-35-102(6)(A) states that
a defendant who does not require confinement under subsection (5) 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 in the absence of
evidence to the contrary[.]” Here, the Defendant-Appellant pleaded guilty to a Class D
felony as a standard offender. Accordingly, she was considered a favorable candidate for
alternative sentencing. However, a trial court “shall consider, but is not bound by, the
advisory sentencing guideline” in section 40-35-102(6)(A). T.C.A. § 40-35-102(6)(D). A
trial court should consider the following when determining whether there is “evidence to
the contrary” indicating that an individual should not receive alternative sentencing:

       (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[.]

Id. § 40-35-103(1)(A)-(C); see State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).

       We note that the trial court‟s determination of whether the defendant is entitled to
an alternative sentence and whether the defendant is a suitable candidate for full
probation are different inquiries with different burdens of proof. State v. Boggs, 932
S.W.2d 467, 477 (Tenn. Crim. App. 1996). The defendant has the burden of establishing
suitability for full probation, even if the defendant is considered a favorable candidate for
alternative sentencing. See id. (citing T.C.A. § 40-35-303(b)).

                                             -4-
        A defendant is eligible for probation if the actual sentence imposed is ten years or
less and the offense for which the defendant is sentenced is not specifically excluded by
statute. T.C.A. § 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. Id. § 40-35-303(b). In addition, “the
defendant is not automatically entitled to probation as a matter of law.” Id. § 40-35-
303(b), Sentencing Comm‟n Cmts. Rather, the defendant must demonstrate that
probation would “„serve the ends of justice and the best interest of both the public and the
defendant.‟” State v. Carter, 254 S.W.3d 335, 347 (Tenn. 2008) (quoting State v.
Housewright, 982 S.W.2d 354, 357 (Tenn. Crim. App. 1997)).

        When considering probation, the trial court should consider the nature and
circumstances of the offense, the defendant‟s criminal record, the defendant‟s background
and social history, the defendant‟s present condition, including physical and mental
condition, the deterrent effect on the defendant, and the best interests of the defendant
and the public. See State v. Kendrick, 10 S.W.3d 650, 656 (Tenn. Crim. App. 1999)
(citing State v. Grear, 568 S.W.2d 285, 286 (Tenn. 1978)). The principles of sentencing
also require the sentence to be “no greater than that deserved for the offense committed”
and “the least severe measure necessary to achieve the purposes for which the sentence is
imposed.” Id. § 40-35-103(2), (4). In addition, “[t]he potential or lack of potential for
the rehabilitation or treatment of the defendant should be considered in determining the
sentence alternative or length of a term to be imposed[,]” and “[t]he length of a term of
probation may reflect the length of a treatment or rehabilitation program in which
participation is a condition of the sentence[.]” Id. § 40-35-103(5). Moreover, our
supreme court has held that truthfulness is a factor which the court may consider in
deciding whether to grant or deny probation. State v. Bunch, 646 S.W.2d 158, 160 (Tenn.
1983) (citing State v. Poe, 614 S.W.2d 403, 404 (Tenn. Crim. App. 1981)).

       Here, the Defendant-Appellant entered an open guilty plea to one count of theft of
property valued at more than $1,000 but less than $10,000, a Class D felony. See T.C.A.
§§ 39-14-103, -105(a)(3). Therefore, she was subject to a sentencing range of two to four
years. Id. § 40-35-112(a)(4). The Defendant-Appellant received a mid-range sentence of
three years, split-confinement, with the first six months to be served in incarceration and
the balance on supervised probation. The trial court rejected the Defendant-Appellant‟s
request for full probation after determining that full probation would unduly depreciate
the seriousness of the offense and that incarceration was particularly well suited to serve
as an effective deterrent. See T.C.A. § 40-35-103(1)(B).

        In this case, the trial court failed to articulate the specific facts upon which it
determined that incarceration was necessary to provide an effective deterrent. Instead the
trial court stated simply, “I think [confinement] would [provide an effective deterrent]. I
                                            -5-
think confinement is particularly suited to keep people from stealing from others in the
privacy of their own home [II: 61].” Despite the wide discretion afforded to trial courts
in sentencing decisions, the trial court has an affirmative duty to state on the record,
either orally or in writing, its findings of fact and reasons for imposing a specific sentence
on the record to facilitate appellate review. See T.C.A. §§ 40-35-209(c), -210(e); see also
State v. Robert Joseph Harr, No. W2011-02735-CCA-R3-CD, 2013 WL 5422801, at *10
(Tenn. Crim. App. Sept. 27, 2013), perm. app. denied (Tenn. Feb. 12, 2014) (Tipton, P.J.,
concurring and dissenting) (“I do not believe that our supreme court intended Bise and
Caudle to do away, in wholesale fashion, with Tennessee jurisprudence developed over
the last thirty years upon which the Sentencing Act is based and in which the Act‟s
provisions are interpreted.”). The statements of the trial court espousing her personal
belief about the need for deterrence are not evidence, and no proof was introduced at the
sentencing hearing related to deterrence. See State v. Dowdy, 894 S.W.2d 301, 305
(Tenn. Crim. App. 1994); see also State v. Davis, 940 S.W.2d 558, 560 (Tenn. 1997)
(“[A] finding of deterrence cannot be conclusory only but must be supported by proof.”)
(citing and quoting Ashby, 823 S.W.2d at 170); State v. Nunley, 22 S.W.3d 282, 286
(Tenn. Crim. App. 1999) (holding that in order to use deterrence as a justification for
confinement, evidence must be presented indicating some special need for deterrence.);
State v. Cheryl Bass, No. M2006-02563-CCA-R3-CD, 2008 WL 544586, at *22 (Tenn.
Crim. App. Feb. 28, 2008), perm. app. denied (Tenn. Oct. 6, 2008) (holding that it was
error for the trial court to deny alternative sentencing based on the need for deterrence
where the trial court‟s statements on the need for deterrence were merely conclusory);
State v. Shannon Ann Maness and Daryl Wayne Maness, No. W2012-02655-CCA-R3-
CD, 2014 WL 350429, at *6 (Tenn. Crim. App. 2014), perm. app. denied (Tenn. July 15,
2014) (reversing the trial court‟s denial of alternative sentencing based on deterrence
because a need for deterrence was not supported by the record).

       Furthermore, the trial court failed to articulate the specific facts upon which she
based her determination that incarceration was necessary to avoid depreciating the
severity of the offense. Instead, when discussing this factor, the court stated simply, “the
court finds that [a probationary sentence] would [depreciate the severity of the offense].”
Accordingly, we must examine the record to determine if there is any substantial
evidence in the record supporting the trial court‟s determination. State v. King, 432
S.W.3d 316, 327 (Tenn. 2014) (citing State v. Curry, 988 S.W.2d 153, 158 (Tenn. 1999)).
Based on the following authority and analysis, we do not.

        The Tennessee Supreme Court held in State v. Travis that if the seriousness of the
offense forms the basis for the denial of probation it must be clear that “the criminal act,
as committed, would be described as especially violent, horrifying, shocking,
reprehensible, offensive or otherwise of an excessive or exaggerated degree; and it would
have to be clear that, therefore, the nature of the offense, as committed, outweighed all
                                             -6-
other factors [favoring] a grant of probation.”2 622 S.W.2d 529, 534 (Tenn. 1981).
Importantly, Travis was also decided under an abuse of discretion standard, which we
now apply to all trial court decisions regarding manner of service. Robert Joseph Harr,
2013 WL 5422801 at *10 (Tipton, P.J., concurring and dissenting).

       In State v. Trotter, a theft case, the Tennessee Supreme applied this heightened
standard and determined that the circumstances of the offense alone were sufficiently
egregious to justify the denial of probation because the defendants stole “nearly half a
million dollars,” in a scheme which persisted over the course of two years, from one of
the defendants‟ employers. 201 S.W.3d 651, 654 (Tenn. 2006). Other theft cases in
Tennessee that have met this standard involved similarly large amounts of money, and
usually occurred over a protracted period of time. See, e.g., State v. Chestnut, 643
S.W.2d 343 (Tenn. Crim. App. 1982) (circumstances of the offense met heightened
standard where the defendant embezzled approximately $39,000 from her employer over
the course of ten months and 157 separate transactions); State v. Purkey, 689 S.W.2d 196,
201 (Tenn. Crim. App. 1984) (circumstances of the offense met heightened standard
where the defendant, a county official, embezzled $50,818.48 in a “continuing scheme
executed over the course of an extended period of time.”); State v. Cary M. Dotson, No.
E2008-02516-CCA-R3-CD, 2009 WL 3191705 (Tenn. Crim. App. Oct. 6, 2009) perm.
app. denied (Tenn. April 14, 2010) (circumstances of the offense met heightened standard
where the evidence showed that the defendant stole at least $227,610 from his employer
over the course of three and a half years); State v. Chanda Dawn Langston, No. M2009-
02247-CCA-R3-CD, 2010 WL 3822829 (Tenn. Crim. App. Sept. 30, 2010)
(circumstances of the offense met heightened standard where evidence showed that the
Defendant forged 149 company checks over the course of four years causing a total loss
of $233,285.79 to her employer.); State v. Rhonda Brown-Montague aka Rhonda Brown,
No. W2011-01433-CCA-R3-CD, 2012 WL 6030512 (Tenn. Crim. App. Dec. 5, 2012)
perm. app. denied (Tenn. April 10, 2013) (circumstances of the offense met heightened
standard where evidence showed that the defendant stole at least $80,000 from her

        2
           This court has questioned the continued viability of the heightened standard of review where the
trial court denies probation based solely on the need to avoid depreciating the seriousness of the offense
in light of Bise and Caudle. See State v. Micah Alexander Cates, No. E2014-01322-CCA-R3-CD, 2015
WL 5679825, at *12 (Tenn. Crim. App. Sept. 28, 2015); State v. Tan Vo, No. W2013-02118-CCA-R3-
CD, 2014 WL 4415296, at *7 (Tenn. Crim. App. Sept. 9, 2014); State v. Edward Shannon Polen, No.
M2012-01811-CCA-R3-CD, 2014 WL 1354943, at *6 (Tenn. Crim. App. May 3, 2013) perm. app.
denied (Tenn. Aug. 29, 2014); State v. William Roger Henderson, III, No. M2013-00603-CCA-R3-CD,
2013 WL 6706200, at *3 (Tenn. Crim. App. Dec. 18, 2013); State v. Delavin Benjamin Mohammed, No.
M2011-02552-CCA-R3-CD, 2013 WL 1874789, at *6 (Tenn. Crim. App. May 3, 2013) perm. app.
denied (Tenn. Oct. 16, 2013). However, in State v. Kyto Sihapanya, the Tennessee Supreme Court
seemingly indicated that the heightened standard of review is still available “in cases where the trial court
denies probation on only” the seriousness of the offense. No. W2012-00716-SC-R11-CD, 2014 WL
2466054, at *3 (Tenn. Apr. 30, 2014).
                                                    -7-
employer, a non-profit organization dedicated to providing financial assistance to
disabled individuals, over the course of three years through a “systematic and complex”
scheme involving the creation of fictitious individuals and forging of documents.).

       We can only conclude that the circumstances of this case simply do not rise to the
level of violent, horrifying, shocking, reprehensible, offensive, or otherwise of an
excessive or exaggerated degree sufficient to support a denial of probation on that basis
alone. While significant, the value of the ring in this case, $1,300, was substantially
lower than the amounts involved in the previously cited cases. Additionally, all evidence
indicates that this theft was a one-time occurrence, and not the result of months or years
of embezzling or stealing. Finally, because the ring was recovered and returned to the
victim, there was no actual financial loss in this case. All of these factors readily
distinguish the case at bar from the theft cases previously cited, where the denial of
probation was justified based on the circumstances of the offense alone.

       Finally, the other considerations weigh strongly in favor of a grant of probation.
The Defendant-Appellant‟s criminal history consists only of one charge of passing a
worthless check, which was dismissed upon payment of costs. There is no evidence that
measures less restrictive than confinement have been unsuccessfully applied to her, and
there is no evidence of a history drug or alcohol abuse or a need for treatment. Under
these circumstances, the nature of the offense does not outweigh the multitude of factors
favoring a probationary sentence. See Travis, 622 S.W.2d at 534. Based on our review,
there is no substantial evidence in the record which would support the denial of
probation.

                                       CONCLUSION

       Based on the foregoing authority and analysis, we reverse the judgment of the trial
court and remand for entry of a judgment ordering the Defendant-Appellant to serve her
three-year sentence on supervised probation.



                                                 _________________________________
                                                 CAMILLE R. McMULLEN, JUDGE




                                           -8-
