State v. Downey

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

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 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).

downeyk.opn 3
 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.

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 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.

downeyk.opn 9
 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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