         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                              Assigned on Briefs May 8, 2001

                STATE OF TENNESSEE v. KATHLEEN MALLEY

                      Appeal from the Criminal Court for Shelby County
                        No. 98-11653    Joseph B. Brown, Jr., Judge



                     No. W2000-01064-CCA-R3-CD - Filed July 16, 2001


The Defendant, Kathleen Malley, entered a guilty plea to theft of over $60,000, a Class B felony, in
exchange for an agreed sentence of eight years incarceration. Following a sentencing hearing to
determine the manner of service of that sentence, the Defendant was ordered to serve six months in
jail followed by twelve years of probation. She was also ordered to pay $100,000 in restitution. In
this appeal as of right, the Defendant argues that the trial court erred by refusing to grant her full
probation. We find no error. Thus, we affirm the judgment of the trial court.

     Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

DAVID H. WELLES, J., delivered the opinion of the court, in which ALAN E. GLENN, J. and L.T.
LAFFERTY, SR.J., joined.

Leslie I. Ballin, Memphis, Tennessee, for the appellant, Kathleen Malley.

Paul G. Summers, Attorney General and Reporter; Kim R. Helper, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Patience Branham, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                             OPINION

       The facts presented at the Defendant’s guilty plea and sentencing hearings establish that the
Defendant was employed as a bookkeeper for John R. Thompson, who owned a real estate business.
She was hired in 1984 by Greta Thompson, John Thompson’s wife. In 1997, the Thompsons began
noticing irregularities in their books. Following an investigation into the irregularities, the
Thompsons discovered that the Defendant had been stealing money from the company. According
to Ms. Thompson, the irregularities dated back to sometime in 1992. During this time, the
Defendant had been taking payroll checks and making them payable to herself. She had also taken
money from the escrow account. Although the Thompsons presented only about $60,000 in forged
checks, Ms. Thompson believed that the actual loss was more than $200,000. The Thompsons
asserted that they had to refinance their office building in order to stay in business, and that if they
had not had good credit, they would have been driven completely out of business.

        Mr. Thompson testified that he was particularly troubled by the Defendant’s violation of his
thirteen-year trust. Because of the stress of the situation, Mr. Thompson has been taking medication
for depression. He testified that the Defendant never even apologized for her actions. According
to Ms. Thompson, all of the people working for the business felt sorry for the Defendant and tried
to help her through difficult times. Ms. Thompson testified that the Defendant moved into a new
house with a $1,400 per month house payment, that she sent her children to private school, and that
she bragged at work about her “wonderful” husband. However, two years before they discovered
that she was stealing money, the Defendant filed for bankruptcy. Ms. Thompson said that the
Defendant made no effort to move into a smaller house or otherwise reduce her bills. On one
occasion the office took up a collection for the Defendant because the Defendant reported that her
purse had been stolen and that it contained $1,400 in cash. On another occasion Mr. Thompson
loaned the Defendant money for two house payments, which she never repaid.

         The Defendant admitted stealing money from her employer, John F. Thompson, but she could
not remember when she started taking money or how much she took. She testified that she took the
money to try to maintain a normal life for her children. She explained that she made only about
$20,000 per year. Her husband owned a business which failed, and he quit helping her pay the bills.
She eventually filed for bankruptcy in an effort to keep their new home. The Defendant testified that
she thought she would be able to pay the money back after she and her husband received a settlement
from a court case involving her husband’s business, but the lawsuit was unsuccessful. The
Defendant testified that she had a nervous breakdown as a result of her personal problems, and her
two teenage daughters have developed emotional problems as well. The Defendant could not
explain to the court why filing for bankruptcy did not end her financial difficulties. She testified that
she still needed money to take care of her children and her mother.

        At the time of sentencing the Defendant was fifty-two years old. She is a high school
graduate with some college studies. She reported a history of steady employment. The Defendant
underwent a psychological evaluation as part of her pre-sentence evaluation. The psychologist found
that the Defendant “may have slightly overstated the extent of her difficulties, possibly for the
purpose of gaining assistance,” however the psychologist also found that “[i]ncarceration may be
detrimental for [the Defendant] in light of her current age and psychiatric symptomatology.”

        Following the sentencing hearing, the trial court sentenced the Defendant to serve her eight-
year sentence in split confinement. At the time of sentencing, the Defendant had served forty-two
days in jail. The trial court ordered her to spend an additional six months in jail, followed by twelve
years probation. In so doing, the trial court stated,
        Now, The Court feels . . . considering violation of trust and that the defendant is
        responsible for this - - this is just egregious, she’s gutted this business, ruined it and
        caused some people who loved her and came to trust her, rely upon her and
        befriended her to be grievously harmed.


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               I have read the Psychological Report, all that’s well and good. She has
        mental health issues which are severe, however, it’s a matter of character. She seeks
        to acquire attention and such like for her problems, but there are ways that are
        acceptable and ways that are not acceptable.


        The Defendant asserts on appeal that she should have been granted full probation instead of
split confinement. When an accused challenges the length, range, or manner of service of a sentence,
this Court has a duty to conduct a de novo review of the sentence with a presumption that the
determinations made by the trial court are correct. Tenn. Code Ann. § 40-35-401(d). 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).

         When conducting a de novo review of a sentence, this Court must consider: (a) the evidence,
if any, received at the trial and sentencing hearing; (b) the presentence report; (c) the principles of
sentencing and arguments as to sentencing alternatives; (d) the nature and characteristics of the
criminal conduct involved; (e) any statutory mitigating or enhancement factors; (f) any statement
made by the defendant regarding sentencing; and (g) the potential or lack of potential for
rehabilitation or treatment. See Tenn. Code Ann. §§ 40-35-102, -103, -210; State v. Brewer, 875
S.W.2d 298, 302 (Tenn. Crim. App. 1993); State v. Thomas, 755 S.W.2d 838, 844 (Tenn. Crim.
App. 1988).

        If our review reflects that the trial court followed the statutory sentencing procedure, that the
court imposed a lawful sentence after having given due consideration and proper weight to the
factors and principles set out under the sentencing law, and that the trial court’s findings of fact are
adequately supported by the record, then we may not modify the sentence even if we would have
preferred a different result. State v. Pike, 978 S.W.2d 904, 926-27 (Tenn. 1998); State v. Fletcher,
805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).

        A defendant is eligible for probation if the actual sentence imposed upon the defendant is
eight years or less and the offense for which the defendant is sentenced is not specifically excluded
by statute. Tenn. Code Ann. § 40-35-303(a). Probation is to be automatically considered as a
sentence alternative for eligible defendants; however, the burden of proving suitability for probation
rests with the defendant. Id. § 40-35-303(b).

         In determining whether to grant probation, the court must consider the nature and
circumstances of the offense; the defendant’s criminal record; his or her background and social
history; his or her present condition, including physical and mental condition; the deterrent effect
on the defendant; and the likelihood that probation is in the best interests of both the public and the
defendant. See Stiller v. State, 516 S.W.2d 617, 620 (Tenn. 1974); State v. Kendrick, 10 S.W.3d
650, 656 (Tenn. Crim. App. 1999). If the court determines that a period of probation is appropriate,
it shall sentence the defendant to a specific sentence but then suspend that sentence and place the


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defendant on supervised or unsupervised probation either immediately or after the service of a period
of confinement. See Tenn. Code Ann. §§ 40-35-303(c), -306(a).

         We first note that because the Defendant was convicted of a Class B felony, she is not
entitled to a presumption that she is a favorable candidate for alternative sentencing. See id. § 40-35-
102(6). Nevertheless, because the actual sentence imposed upon the Defendant is eight years, she
is eligible for probation. See id. § 40-35-303(a). The Defendant asserts that she should have been
granted full probation because she has no prior criminal history and she has a good potential for
rehabilitation. She asserts that she is a college-educated fifty-two-year-old woman with two children
to support; that she is willing and able to make restitution payments; and that she has mental health
issues which would be aggravated by further incarceration. While we agree with the Defendant that
these characteristics support a period of probation, we believe that the trial court considered these
factors in its sentencing decision. In spite of these factors favoring probation, the trial court was
clearly troubled by the nature of the offense and the Defendant’s attitude concerning her actions. The
Defendant occupied a position of trust as a bookkeeper for a real estate agency, and she
systematically abused that position of trust during a period of several years by stealing money from
the company. She was convicted of a Class B felony, which has a sentence range of eight to twelve
years for a Range I, standard offender. See id. § 40-35-112(a)(2). Had the Defendant not received
the minimum sentence in the range, she would not have even been eligible for probation. See id. §
40-35-303(a). Although the facts and circumstances of the offense in this case are not so egregious
as to outweigh all the other factors favoring partial probation, we conclude that they are “sufficiently
reprehensible to deny full probation.” State v. Bingham, 910 S.W.2d 448, 456 (Tenn. Crim. App.
1995), overruled on other grounds by State v. Hooper, 29 S.W.3d 1, 9-10 (Tenn. 2000).

       Accordingly, we conclude that the trial court did not err or abuse its discretion by denying
the Defendant full probation. The judgment of the trial court is affirmed.


                                                        ___________________________________
                                                        DAVID H. WELLES, JUDGE




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