             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                 AT NASHVILLE             FILED
                           DECEMBER 1997 SESSION
                                                          February 20, 1998

                                                         Cecil W. Crowson
                                                        Appellate Court Clerk
STATE OF TENNESSEE,                 )
                                    )
                    APPELLEE,       )
                                    )           No. 01-C-01-9702-CC-00062
                                    )
                                    )           Marshall County
v.                                  )
                                    )           Charles Lee, Judge
                                    )
                                    )           (Sentencing)
MATTIE MARCELLA DAVIS,              )
aka MATTIE HILL,                    )
                                    )
                    APPELLANT.      )



FOR THE APPELLANT:                       FOR THE APPELLEE:

Hershell D. Koger                        John Knox Walkup
Attorney at Law                          Attorney General & Reporter
P.O. Box 1148                            425 Fifth Avenue, North
Pulaski, TN 38478                        Nashville, TN 37243-0497

                                         Georgia B. Felner
                                         Counsel for the State
                                         450 James Robertson Parkway
                                         Nashville, TN 37243-0493

                                         W. Michael McCown
                                         District Attorney General
                                         P. O. Box 904
                                         Fayetteville, TN 37334

                                         Weakley E. Barnard
                                         Assistant District Attorney General
                                         Marshall County Courthouse, Fourth Floor
                                         Lewisburg, TN 37091




OPINION FILED:________________________________


AFFIRMED PURSUANT TO RULE 20


Joe B. Jones, Presiding Judge
                                     OPINION


       The appellant, Mattie Marcella Davis, also known as Mattie Hill (defendant), was

convicted of theft over the value of $1,000, a Class D felony, following her plea of guilty to

this offense. The trial court found the defendant was a standard offender and imposed a

Range I sentence consisting of confinement for twenty-five (25) months in the Department

of Correction pursuant to a plea agreement. In this court, the defendant contends the trial

court abused its discretion by refusing to impose an alternative sentence. After a thorough

review of the record, the briefs submitted by the parties, and the law governing the issue

presented for review, it is the opinion of this court that the judgment of the trial court should

be affirmed pursuant to Rule 20, Tennessee Court of Criminal Appeals.

       This court has conducted a de novo review of the record pursuant to Tenn. Code

Ann. § 40-35-401(d). This task is difficult because the submission hearing proceedings

were not memorialized and included in the record. Nevertheless, this court can address

whether the trial court abused its discretion or violated the sentencing laws by refusing to

impose an alternative sentence in this case.

       The defendant was entitled to the presumption she was a favorable candidate for

alternative sentencing.     Tenn. Code Ann. § 40-35-102(6).            However, the State of

Tennessee rebutted this presumption.

       The record reflects the defendant smoked crack cocaine and marijuana for an

extended period of time. Evidence was introduced which established the defendant was

guilty of shoplifting in Bedford County and she had either a shoplifting or theft offense in

Rutherford County. She has been convicted of assault, disorderly conduct, driving without

a license, criminal responsibility, and assaulting a minor. She has been given fines, a short

period of confinement, and probation. She has a prior revocation of probation and an

outstanding capias for her arrest in the Rutherford County case. The trial court found the

defendant was less than candid when she testified at the sentencing hearing and she

committed crimes after she was released on bail for the offense in question.

       Confinement in this case is required for several reasons. First, the trial court found

the defendant would continue to engage in criminal conduct if an alternative sentence was


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imposed and the defendant was released into the community. Tenn. Code Ann. § 40-35-

103(1)(A). Second, confinement is required both to avoid depreciating the seriousness of

the offense and to provide an effective deterrent to the defendant and others likely to

commit similar offenses. Tenn. Code Ann. § 40-35-103(1)(B). Third, measures less

restrictive than confinement have been applied unsuccessfully. Tenn. Code Ann. § 40-35-

103(C). Fourth, the defendant was not truthful when she testified at the sentencing

hearing.




                                        _______________________________________
                                            JOE B. JONES, PRESIDING JUDGE



CONCUR:



______________________________________
      PAUL G. SUMMERS, JUDGE



______________________________________
      WILLIAM M. BARKER, JUDGE




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