State v. Sara Wisdom ( 2010 )

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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