      IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                 AT JACKSON                FILED
                              MAY 1998 SESSION              October 2, 1998

                                                         Cecil Crowson, Jr.
                                   )                      Appellate C ourt Clerk
STATE OF TENNESSEE,                )
                                   ) C.C.A. No. 02C01-9708-CC-00296
      Appellee,                    )
                                   ) Henry County
V.                                 )
                                   ) Honorable Julian P. Guinn, Judge
                                   )
SARA LEIGHANE WISDOM,              ) (Aggravated Burglary; Theft over
                                   ) $1,000)
       Appellant.                  )



                    CONCURRING AND DISSENTING OPINION


          I both concur and dissent from my learned colleagues’ opinion. I

would affirm the convictions but modify the appellant’s sentence.



          The trial judge partially based his decision to deny probation on the

ground that the appellant exhibited an arrogant attitude and would “tell anything

any way which seem[ed] to best benefit her at the moment.” The court is

referring to the confusion regarding the appellant’s theft conviction in Benton

County, which she contends had been expunged. While on the witness stand,

she denied having a criminal record when the prosecutor questioned her about

that conviction. The trial judge became irritated when the appellant denied

having the conviction. The appellant and her attorney argued that the conviction

had been expunged, but the district attorney and the trial court noted that nothing

in the record indicated that the conviction had actually been expunged.



      From my review of the record, I can understand the appellant’s obvious

confusion, considering that even the attorneys and the court were apparently

confused as well. In her testimony before the court, the appellant does not

appear to be intentionally lying to the court. The record indicates that she was
confused, as were those around her, as to whether or not she was required to

acknowledge the charge if it had been expunged.



       The court also based its decision to deny full probation on the deterrent

effect, as well as the need to avoid depreciating the seriousness of the crimes.

The record must contain some evidence that the sentence imposed will have a

deterrent effect within the jurisdiction before a trial court can deny alternative

sentencing based on this ground. State v. Bonestel, 871 S.W.2d 163, 169

(Tenn. Crim. App. 1993). Furthermore, conclusory statements are insufficient,

and only when there is proof of the deterrent effect within the jurisdiction will

denial be upheld. State v. Ashby, 823 S.W.2d 166, 170 (Tenn. 1991).



       I agree with the trial court that the theft of guns is a serious offense and

that confinement would provide some deterrent effect. Also, I agree that some

period of confinement is necessary to avoid depreciating the seriousness of the

offense. What the appellant and her codefendants did was clearly wrong.

However, according to the presentence report, the appellant’s codefendants,

Steven Wisdom, and his friend, Glenn Axley, received 250 days of continuous

confinement with the balance of their sentences to be served on Community

Corrections. I cannot reconcile how the appellant should receive the fines

imposed by the jury, the restitution imposed by the court, and greater time in jail

than her codefendants who were the principals in the crimes, who admitted that

they planned the crime, and who benefitted from the crimes as much or more so

than she did. She was the one who voluntarily went to the authorities in Benton

County, confessed to her involvement, implicated her codefendants, and worked

with law enforcement authorities to recover as many of Mr. Futrell’s guns as

possible. One of the witnesses testified that the appellant was very helpful in

getting Mr. Futrell’s guns returned. To punish more severely someone who

confessed and who tried to correct her wrongs by helping the police would likely




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deter others in our society from coming forward, admitting their wrongs, and

working with authorities to correct their misdeeds.



       Accordingly, I conclude that in the best interest of the public and the

appellant, the appellant’s sentence should be modified. I would order that she

serve 180 days in the county jail for her aggravated burglary conviction and 180

days in the county jail for her theft conviction, with the balances of her original

sentences of three years and two years, respectively, to be served on

Community Corrections. I would order these sentences to run concurrently with

each other for a total effective sentence of 180 days in the local jail, with the

balance of her sentences to be served on Community Corrections.



       In all other respects, I would affirm her convictions and concur with the

results of my colleagues.




                                        ______________________________
                                        PAUL G. SUMMERS, Judge




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