          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT JACKSON         FILED
                        DECEMBER 1999 SESSION
                                                  March 14, 2000

                                               Cecil Crowson, Jr.
                                             Appellate Court Clerk
STATE OF TENNESSEE,               *    No. W1999-01067-CCA-R3-CD

      Appellee                    *    SHELBY COUNTY

VS.                               *    Hon. John P. Colton, Jr., Judge

PAMELA HOPPER,                    *    (Denial of Probation)

      Appellant.                  *



For Appellant                          For Appellee

A. C. Wharton, Jr.                     Paul G. Summers
Public Defender                        Attorney General and Reporter

Latonya Burrow                         Clinton J. Morgan
(At Hearing)                           Assistant Attorney General
Walker Gwinn                           Cordell Hull Building, 2nd Floor
(On Appeal)                            425 Fifth Avenue North
Assistant Public Defenders             Nashville, TN 37243-0493
201 Poplar Avenue, Ste. 201
Memphis, TN 38103-1947                 William L. Gibbons
                                       District Attorney General

                                       Daniel R. Woody
                                       Assistant District Attorney General
                                       201 Poplar Avenue, Ste. 301
                                       Memphis, TN 38103-1947




OPINION FILED:



AFFIRMED



NORMA MCGEE OGLE, JUDGE
                                      OPINION


       Defendant, Pamela Hopper, appeals the Shelby County Criminal Court’s

order denying her probation following her guilty plea to theft over $10,000. After our

review of the record, we conclude the trial court did not err in denying probation.

We affirm the judgment of the trial court.



                               I. Procedural Issues



       Preliminarily, the state raises three procedural issues seeking a dismissal of

the appeal. The state contends (1) defendant did not timely file her notice of

appeal; (2) the trial court was not authorized to entertain a petition for probation

after the judgment became final; and (3) defendant waived her right to appeal upon

entry of her guilty plea. We reject the state’s contentions.



       The record reflects that the defendant pled guilty to theft over $10,000 on

November 5, 1998. Although the petition for entry of the guilty plea does not reflect

an agreed sentence of six years, the transcript of the guilty plea reveals that the

parties agreed to a six-year sentence with the trial court to determine at a later date

whether the defendant should be granted a suspended sentence. The petition for

entry of the guilty plea reflects the standard form language for plea agreements in

which the defendant waives her right to appeal.



       The suspended sentence hearing was held on January 4, 1999. At the

conclusion of the hearing, the trial court orally denied probation. The judgment is

indeed confusing since there is no stamped filed date by the clerk’s office. At one

place on the judgment a hand-written date of entry is shown to be November 5,

1998, whereas in two other locations on the judgment the hand-written dates of

entry are shown to be January 4, 1999. A separate “Sentence Order” was also

entered on January 4, 1999, reflecting a sentence of six years with a jail report date

of February 15, 1999.

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       Firstly, we conclude the date of entry of the judgment was indeed January

4, 1999, which was clearly the intent of the trial court. The notice of appeal filed

January 27, 1999, was timely.



       Secondly, since we have concluded that the entry of final judgment was

January 4, 1999, we also reject the state’s contention that judgment had become

final for more than thirty days prior to the probation hearing. We also note that even

if the judgment had become final on November 5, 1998, the trial court still had

jurisdiction and authority to entertain a request for a suspended sentence. The trial

court may entertain such a petition at any time prior to the defendant being

transferred to the physical custody of the Department of Correction. See Tenn.

Code Ann. §§ 40-35-212; 40-35-314(c).



       Finally, we reject the state’s argument that defendant waived her right to

appeal upon entry of her guilty plea. The state does correctly note that the petition

to enter the guilty plea contains the standard waiver of appeal language utilized with

plea agreements. This Court has previously noted that the use of this form

language in cases in which there is not a total plea agreement is a recurring

problem. See State v. Carter, 986 S.W.2d 596, 597 (Tenn. Crim. App. 1998).

However, just as in Carter, the transcript of the guilty plea hearing clearly reveals

that the defendant intended to seek probation at the subsequent hearing. There is

no indication that she waived her right to appeal the trial court’s ruling at that future

hearing. Accordingly, we reject the state’s contention.



                                       II. Facts



       Defendant was employed by the victim, Iskiwitz Metal Company, Inc., as its

cashier/office manager in January 1997. One of her first responsibilities was to

investigate thefts allegedly committed by her predecessor. Within a month of her

employment, defendant began systematically stealing from the victim in substantial



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amounts. Based upon her computer skills, she created dummy documents and

false transactions in order to allow her to take cash from the cash register. Over the

course of 4½ months before her detection, she created some 140 false transactions

and stole approximately $156,000.



       Defendant testified that she purchased an automobile for $18,000 and gave

approximately $80,000 to her boyfriend’s aunt. Shortly prior to arrest, the defendant

purchased a computer. At no time did she offer the computer to the victim after her

arrest. The record is silent as to what happened to the balance of the $156,000.

Of the $156,000, the defendant made no money available to the victim after her

arrest. She did agree to convey title to the vehicle to the victim. Although she later

considered transferring title to her boyfriend, she finally conveyed title to the victim

approximately six months after her arrest. The victim sold the vehicle for $17,000.1

After her arrest, appellant unabashedly wrote the victim asking for four day’s wages

for which she had not been paid. At no time did the defendant exhibit any efforts

to apologize to the victim or otherwise show remorse.



       At the time of sentencing, the defendant had no prior criminal record. The

defendant stated at the time of her stealing she was aware of the seriousness of her

actions; understood she could go to jail if detected; had no particular reason to

embezzle such large sums; and conceded her criminal actions were based upon

“greed.” At the time of sentencing, she had no funds and offered to pay $100 per

month toward restitution.



       At the sentencing hearing the trial court noted its astonishment at the

magnitude of the thefts committed for no apparent reason other than greed. The

trial court noted the seriousness of the offense which involved approximately 140

separate fraudulent transactions amounting to over $150,000. He further noted the




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           The victim also received $50,000 from its theft insurance carrier.

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defendant had shown no remorse and concluded that probation would be

inappropriate.



                                   III. Analysis



       Defendant contends the trial court erred in denying her probation. This

Court’s review of the sentence imposed by the trial court is de novo with a

presumption of correctness. Tenn. Code Ann. § 40-35-401(d). This presumption

is conditioned upon an affirmative showing in the record that the trial judge

considered the sentencing principles and all relevant facts and circumstances.

State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).


      Under the Criminal Sentencing Reform Act of 1989, trial judges are

encouraged to use alternatives to incarceration. An especially mitigated or standard

offender convicted of a Class C, D or E felony is presumed to be a favorable

candidate for alternative sentencing options in the absence of evidence to the

contrary. Tenn. Code Ann. § 40-35-102(6). We note that although the defendant

was allowed to plead guilty to the Class C felony of theft over $10,000, the

undisputed proof reflects that the amount of the theft was over $150,000. Theft

over $60,000 is a Class B felony. Nevertheless, defendant is presumed to be a

favorable candidate for alternative sentencing since the state allowed her to plead

to the Class C felony.



       In determining if incarceration is appropriate, a trial court may consider the

need to protect society by restraining a defendant having a long history of criminal

conduct, the need to avoid depreciating the seriousness of the offense, whether

confinement is particularly appropriate to effectively deter others likely to commit

similar offenses, and whether less restrictive measures have often or recently been

unsuccessfully applied to the defendant. Tenn. Code Ann. § 40-35-103(1); see also

State v. Ashby, 823 S.W.2d at 169.




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       Although a defendant may be presumed to be a favorable candidate for

alternative sentencing, the defendant has the burden of establishing suitability for

total probation. State v. Boggs, 932 S.W.2d 467, 477 (Tenn. Crim. App. 1996); see

Tenn. Code Ann. § 40-35-303(b). Even though probation must be automatically

considered, “the defendant is not automatically entitled to probation as a matter of

law.” Tenn. Code Ann. § 40-35-303(b) Sentencing Commission Comments; State

v. Hartley, 818 S.W.2d 370, 373 (Tenn. Crim. App. 1991). A defendant seeking full

probation bears the burden on appeal of showing 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).



       In determining a defendant’s suitability for total probation, the trial court may

properly consider credibility, remorse, and candor as they reflect upon potential for

rehabilitation. See Tenn. Code Ann. § 40-35-103(5); State v. Bunch, 646 S.W.2d

158, 160 (Tenn. 1983); State v. Dowdy, 894 S.W.2d 301, 306 (Tenn. Crim. App.

1994). It is apparent that the trial judge, who was in a much better position than this

Court to judge the defendant’s overall demeanor, was unimpressed by the

defendant’s post-arrest conduct and lack of remorse.



       Given the presumption of correctness that we attach to the trial court’s

findings, we are unable to conclude the trial court erred in denying probation. The

circumstances of the offense, lack of remorse by the defendant and the entire

record convinces us that the defendant has failed to establish that her sentence was

improper. Accordingly, we find no merit to the issue.



                                     Conclusion



       We, therefore, affirm the judgment of the trial court.




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                                  ____________________________
                                  Norma McGee Ogle, Judge



CONCUR:


_______________________________
Gary R. Wade, Presiding Judge



_______________________________
John Everett W illiams, Judge




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