        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                           Assigned on Briefs March 3, 2015

             STATE OF TENNESSEE v. AMBER RENEE TERRY

                  Appeal from the Circuit Court for Hardin County
                      No. 9813     C. Creed McGinley, Judge




                No. W2014-01628-CCA-R3-CD - Filed April 13, 2015



Defendant, Amber Renee Terry, pled guilty to theft of property valued at $10,000 or
more and official misconduct and was sentenced to a total effective sentence of three
years, suspended to supervised probation. After a hearing, the trial court denied judicial
diversion. Upon our review of the record, we determine that the trial court did not abuse
its discretion in denying judicial diversion. Therefore, the judgments of the trial court are
affirmed.

  Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed

TIMOTHY L. EASTER, J., delivered the opinion of the Court, in which ROBERT W.
WEDEMEYER and ROBERT H. MONTGOMERY, JR., JJ., joined.

Guy T. Wilkinson, District Public Defender, Camden, Tennessee, for the appellant,
Amber Renee Terry.

Herbert H. Slatery III, Attorney General and Reporter; Tracy L. Alcock, Assistant
Attorney General; Matthew Stowe, District Attorney General; and Joshua Turnbow,
Assistant District Attorney General, for the appellee, State of Tennessee.


                                        OPINION

                                   Factual Background

      On November 18, 2013, the Hardin Country Grand Jury indicted Defendant for
one count of theft of property valued at $10,000 or more and one count of official
misconduct. Defendant stole money from the Hardin County Circuit Court Clerk‟s
Office, her then-employer, during a period from March to August 2012.1 On May 15,
2014, Defendant pled guilty to the charged offenses. A sentencing hearing was held on
July 28, 2014, to determine Defendant‟s eligibility for judicial diversion and the amount
of restitution to be paid.

        At the hearing, Defendant testified that she had moved to Indiana and was
currently employed with a medical supply company. She earned an hourly wage of $9.50
and worked between 48 and 60 hours per week. She had paid the administrative fee and
had saved $2,000 to put toward court costs and restitution. Defendant requested that the
trial court take into consideration that this was her only “scrape” with the law, that she
had admitted her guilt, and that she had cooperated throughout the investigation. The
State asked the court to consider that Defendant had been in a position of trust with
taxpayer money and that she had abused that trust multiple times over the course of
several months. The presentence report was entered into evidence.

       After the hearing, the trial court sentenced Defendant as a Range I, standard
offender, to three years for theft of property and one year for official misconduct, to be
served concurrently on supervised probation. Defendant was ordered to pay restitution in
the amount of $13,539. The trial court denied judicial diversion. Defendant filed a
timely notice of appeal.

                                                Analysis

       On appeal, Defendant argues that the trial court erred in denying judicial
diversion. The State responds that the trial court properly exercised its discretion and
imposed a sentence that was consistent with the purposes and principles of sentencing.
We agree with the State.

       When a defendant challenges the length, range, or manner of service of a sentence,
this Court reviews the trial court‟s sentencing decision under an abuse of discretion
standard with a presumption of reasonableness. State v. Caudle, 388 S.W.3d 273, 278-79
(Tenn. 2012); State v. Bise, 380 S.W.3d 682, 708 (Tenn. 2012). This presumption applies
to “within-range sentencing decisions that reflect a proper application of the purposes and
principles of the Sentencing Act.” Bise, 380 S.W.3d at 707. This same standard of
review applies to the trial court‟s decision to grant or deny judicial diversion. State v.
King, 432 S.W.3d 316, 325 (Tenn. 2014).

        1
          The summary of the facts read into the record during the plea hearing were referenced during
the sentencing hearing, but the transcript of the plea hearing is not included in the record on appeal. The
record is, however, sufficient for a meaningful and appropriate review under an abuse of discretion
standard, granting a presumption of reasonableness. See State v. Caudle, 388 S.W.3d 273, 279 (Tenn.
2012).
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       Judicial diversion is a form of probation that affords certain qualified defendants
the opportunity to avoid a permanent criminal record, provided that the defendant meets
certain conditions. See T.C.A. § 40-35-313(a)(1)(A). If a defendant qualifies for judicial
diversion, a trial court may defer proceedings without entering a judgment of guilty,
placing the defendant on probation without categorizing the defendant as a convicted
felon. Id. “Judicial diversion is a form of „legislative largess‟ available to qualified
defendants who have entered a guilty or nolo contendere plea or have been found guilty
of an offense without the entry of a judgment of guilt.” King, 432 S.W.3d at 323.

        To be qualified for judicial diversion, a defendant must meet certain statutory
criteria at the time the defendant committed the offense, including having never been
previously convicted of a felony or Class A misdemeanor for which a sentence of
confinement is served and having never been previously granted judicial or pretrial
diversion. See T.C.A. § 40-35-313(a)(1)(B)(i). “Eligibility under the statute does not,
however, constitute entitlement to judicial diversion; instead, the decision of whether to
grant or deny judicial diversion is entrusted to the discretion of the trial court.” King, 432
S.W.3d at 323. The trial court must consider several common law factors:

       “(a) The accused‟s amenability to correction, (b) the circumstances of the
       offense, (c) the accused‟s criminal record, (d) the accused‟s social history,
       (e) the accused‟s physical and mental health, and (f) the deterrence value to
       the accused as well as others. The trial court should also consider whether
       judicial diversion will serve the ends of justice—the interests of the public
       as well as the accused.”

Id. at 326 (quoting State v. Parker, 932 S.W.2d 945, 958 (Tenn. 1996)). “[T]he trial
court must weigh the factors against each other and place an explanation of its ruling on
the record.” Id. (citing State v. Electroplating, Inc., 990 S.W.2d 211, 229 (Tenn. Crim.
App. 1999)).

       When the trial court considers the common law factors, “specifically identifies the
relevant factors, and places on the record its reasons for granting or denying judicial
diversion,” then this Court will “apply a presumption of reasonableness and uphold the
grant or denial so long as there is any substantial evidence to support the trial court‟s
decision.” Id. at 327. Our supreme court has explained:

       Although the trial court is not required to recite all of the Parker and
       Electroplating factors when justifying its decision on the record in order to
       obtain the presumption of reasonableness, the record should reflect that the
       trial court considered the Parker and Electroplating factors in rendering its
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       decision and that it identified the specific factors applicable to the case
       before it. Thereafter, the trial court may proceed to solely address the
       relevant factors.

Id. Failure to consider the common law factors results in a loss of the presumption of
reasonableness, and this Court will either conduct a de novo review or remand the case to
the trial court for reconsideration. Id.

        In this case, the trial court properly considered all of the common law factors in
determining whether to grant or deny judicial diversion. The trial court found that
Defendant was presumptively eligible, having pled guilty to a Class C felony. The court
found that there were no “flaws” in Defendant‟s prior record, consisting of only one prior
speeding ticket. The court found that Defendant was amenable to correction in that she
was already saving money toward restitution. The court found Defendant‟s social history
as well as her physical and mental health to be “excellent.” However, the court found
that the circumstances of the crime were not favorable in that it “was a continuing course
of criminal conduct over a period of time with expressed steps being taken to cover up
that criminal conduct.” Additionally, the court considered the deterrence value to the
Defendant and others, finding that it weighed against judicial diversion because
Defendant not only breached the private trust of her employer, but also the public trust of
the taxpayers. Because of that breach of public trust, the trial court found that judicial
diversion would not serve the ends of justice. The trial court stated, “[a]s a result of this
record as a whole[,] the [c]ourt finds [Defendant] is not an appropriate candidate for
judicial [d]iversion.” The evidence in the record fully supports the trial court‟s
determination. Therefore, Defendant is not entitled to relief on this issue.

                                        Conclusion

       For the foregoing reasons, the judgments of the trial court are affirmed.



                                                  ___________________________
                                                  TIMOTHY L. EASTER, JUDGE




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