        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                         Assigned on Briefs December 4, 2012

                   STATE OF TENNESSEE v. TINA DEHART

              Direct Appeal from the Circuit Court for Madison County
                     No. 11-622, 09-335  Donald H. Allen Judge




              No. W2012-00519-CCA-R3-CD - Filed December 14, 2012


In case 09-335, the Defendant, Tina Dehart, pled guilty to theft of property valued over
$1,000, and the trial court sentenced her to three years to be served on community
corrections, but it later granted her judicial diversion. In case 11-622, the Defendant pled
guilty to theft of property valued over $500. After her plea, the trial court determined that
her new conviction violated the terms of her probationary sentence in case number 09-335.
The trial court sentenced the Defendant to three years in case number 09-335 and to two
years in case number 11-622. The trial court ordered that the sentences be served
consecutively and in confinement. On appeal, the Defendant contends that the trial court
erred when it denied her request for alternative sentencing. After a thorough review of the
record and applicable case law, we conclude that there exists no error in the judgments of the
trial court. We, therefore, affirm the trial court’s judgments.

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

R OBERT W. W EDEMEYER, J., delivered the opinion of the court, in which A LAN E. G LENN and
J EFFREY S. B IVINS, JJ., joined.

Gregory D. Gookin, Jackson, Tennessee, for the appellant, Tina Dehart.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney
General; James G. Woodall, District Attorney General; and Shaun A. Brown, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                         OPINION
                                 I. Facts and Background
       This case arises from the Defendant’s acts of theft on multiple occasions. In case
number 09-335, the Madison County grand jury indicted the Defendant for theft of property
valued over $1,000. A transcript of the guilty plea hearing is not included in the record. The
indictment alleged:

       [O]n 3-19-09 Officer received a call to Lowe’s on S. Highland regarding an
       internal investigation. Lowe’s Officials reported that they had conducted an
       internal investigation into thefts at the store and had identified a suspect who
       had been taking money after creating fraudulent refunds. They identified the
       suspect as [the Defendant]. [The Defendant] had been interviewed by Lowe’s
       Officials and admitted to taking money. Lowe’s estimates the loss at
       $2,229.86.

         In the presentence report, the Defendant offered a handwritten version of the theft.
In it, she stated:

       I made the worst mistake of my life. I took money from my work place
       (Lowe’s). I know it was wrong. I am very sorry. I just want to make it right
       and pay the money back. I done [sic] it to pay my bills. I was losing my place
       to live and all my bill[s] were behind and I didn’t know what to do and made
       a very bad choice.

        On August 18, 2009, the trial court accepted the Defendant’s guilty plea and sentenced
the Defendant to three years, as a Range I offender. On August 20, 2009, the trial court
issued an order in which it placed the Defendant on deferred probation, pursuant to the
judicial diversion statute, for a period of three years, as long as the Defendant did not receive
any felony or Class A misdemeanor convictions. The trial court ordered that the Defendant’s
probation be supervised by community corrections and that, while on deferred probation, the
Defendant perform 100 hours of community service work at the rate of 8 hours per month.
The trial court also ordered the Defendant to pay court costs and restitution, submit to
random drug screens, maintain full-time employment, stay away from Lowe’s, and obey all
the laws of this state and the community in which she resided. In the order, the trial court
stated:

             Upon any violation of the conditions of deferred probation and/or
       Community Corrections, the Court shall enter an adjudication of guilt and
       impose [a] sentence. If no violations of deferred probation and/or Community
       Corrections occur and upon the [D]efendant’s submission of an Order of
       Dismissal, the Court will enter an Order of Dismissal at the end of the 3-year



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       period and further order that the official public records be expunged at that
       time with the costs of expungement taxed to the [D]efendant.

       On May 27, 2011, the Defendant’s community corrections officer filed an affidavit
alleging that the Defendant had violated the conditions of her community corrections
sentence by failing to obey the laws of the United States. The affidavit alleged that the
Defendant had been arrested by the Jackson Police on May 23, 2011, and charged with
embezzlement and theft. Based upon this affidavit, the trial court issued a warrant for the
Defendant’s arrest.

        On January 3, 2012, in case number 11-622, the Defendant pled guilty to theft of
property valued over $500. During the guilty plea hearing, the Defendant’s attorney noted
that the Defendant was still reporting to community corrections as part of her deferred
probation/judicial diversion sentence. The trial court ensured that the Defendant understood
that, by pleading guilty, the Defendant was going to have a conviction on her record that
would obviously affect her placement on judicial diversion. The trial court told her that it
was going to set a hearing to sentence her on both of her cases. The Defendant
acknowledged that she understood.

      The State informed the trial court that, had the case gone to trial, the evidence would
show that:

       [The Defendant] was an employee at Southside Liquor and Wine here in
       Jackson, Madison County, located in south Jackson here. Between March 11
       of 2011 and May 21st of 2011, there was some money that was missing or a
       theft that was occurring at the store. On May 24th of 2011, it was discovered
       and reported that [the Defendant] was voiding sales and charging customers
       for merchandise that wasn’t entered in the cash register and thus keeping the
       money. They observed this on video and were able to capture that and
       observed [the Defendant] doing these things between those dates in March and
       May of last year. The total amount of the business loss was $786, so it is over
       $500. Thus the State would show at trial that [the Defendant] between March
       11th of 2011 and May 21st of 2011 did knowingly obtain or exercise control
       over property being cash over the value of $500 without the effective consent
       of the owner being Mr. Lindsey who is the owner of that store, Bob Lindsey,
       with intent to deprive the owner of that property.

      On February 13, 2012, the trial court held a sentencing hearing to determine the
Defendant’s sentence on both cases 09-335 and 11-622. At the sentencing hearing, the State



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offered the presentence report. In the report, the Defendant offered this handwritten
statement about this theft:

       First of all I want to say to Mr. Lindsey that I am truly sorry for what
       happen[ed]. The reason that this happen[ed] was my husband has a drug
       problem and he took everything worth anything that I had and always took all
       the money for his addiction. And my daughter was getting ready to graduate
       high school. I didn’t have any money to get what she needed. I couldn’t tell
       her she couldn’t have a dress for her senior prom or a cap & gown for her
       graduation so I done [sic] something very dumb [and] made a wrong decision.

        Brandon Lindsey testified at the hearing that his family owned Southside Liquors,
where the Defendant had been employed. He said the Defendant worked at the business for
approximately 18 months. He described the events leading to the Defendant’s theft
convictions, stating that he started to look at some transactions occurring at the liquor store
and realized that there was merchandise for which he was not being paid. He said that the
merchandise was being rung up on the register and then, before the cashier hit the “tend”
button, the transaction was being voided and the money kept by the cashier. Lindsey testified
that the Defendant was the cashier working at the time of these transactions.

        Lindsey testified that he contacted police and informed them of his suspicions. He
gave officers a surveillance video of these transactions, which showed that $662.93 had been
taken. He said he suspected more money had been taken, but he only had video proof of
those transactions. Lindsey said that, as a result of the theft, his business incurred additional
debt of $800, which was paid to a company to go through all the video files and compile
those showing the theft.

       During cross-examination, Lindsey testified that the Defendant was fired after he
discovered the theft. He said his grandfather, Bobby Lindsey Sr., was the owner of the liquor
store.

       Elisa Reyes, the Defendant’s probation officer, testified that she supervised the
Defendant beginning in 2009. She said that she filed the affidavit alleging the Defendant
violated her probation based upon the Defendant’s arrest. Reyes testified that the Defendant
had paid $500 of the $2229.86 that she owed to Lowe’s in restitution. Reyes said that, other
than her new arrest, the Defendant had not violated her probation in any other way. During
cross-examination, Reyes confirmed that the Defendant had maintained employment
throughout the duration of her probation and that her arrest was her only violation.




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       Upon questioning from the trial court, Reyes testified that the Defendant had
completed over half of her court-ordered community service hours. Reyes said the
Defendant had also completed her drug and alcohol assessment. The Defendant’s first and
only drug test came back negative.

        The Defendant testified that she worked for approximately two years at Southside
Liquors. She said that she began taking money from the store in March 2011 after her
husband, who was a drug addict, “took every penny that [she] had.” She explained that, at
the time, her daughter was graduating high school. This was a great accomplishment because
her daughter had been shot, which resulted in her having five different brain surgeries.
Despite this, her daughter was scheduled to graduate with a normal diploma. The Defendant
said that she had saved money for her daughter’s graduation cap and gown and for her prom
dress, but her husband took the money. The Defendant, fearing that she would be unable to
buy those items for her daughter, took money from the store.

        The Defendant agreed that she took around $600, and she apologized for her actions,
saying she “made a bad decision.” The Defendant agreed that her previous conviction
involved her stealing money from her employer, and she said she did not learn her lesson the
first time. The Defendant said she was, at the time of the hearing, employed at a BP gas
station. The Defendant testified that she was prepared to pay the $600 she owed to Southside
Liquors. The Defendant expressed her desire to have this case resolved and to move to
Arizona.

        Upon questioning by the trial court, the Defendant agreed that she had only paid about
half of what she owed in restitution to Lowe’s. She explained that she had undergone several
surgeries and was unable to work for some period of time. The trial court asked the
Defendant why she had not yet completed her community service hours, and the Defendant
said that she thought she only had twenty hours left and that she had not yet completed those
twenty hours because of her work schedule.

        Based upon this evidence and the arguments of counsel, the trial court revoked the
Defendant’s judicial diversion, and entered the judgment. The trial court noted that the
Defendant had, in that case, pled guilty and agreed to accept a three-year sentence, which the
trial court imposed. In its oral findings, the trial court noted that the Defendant had failed
to pay the monthly $100 payment she owed in restitution to Lowe’s and court costs. The trial
court further noted that the Defendant had not completed the required eight hours per month
of community service. The trial court confirmed that it was imposing the Defendant’s
original sentence in that case.




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        The trial court then discussed the facts of the theft from Southside Liquors. It noted
that this was not a “one time” theft but that it was a series of thefts that occurred over a
period of more than two months. The trial court considered the Defendant’s history,
mitigating and enhancement factors, and the Defendant’s potential for rehabilitation.

       The trial court sentenced the Defendant to two years. The trial court ordered that the
sentences be served consecutively and in confinement, for an effective sentence of five years
in confinement.

                                        II. Analysis

        On appeal, the Defendant contends that the trial court erred when it denied her request
for alternative sentencing. She asserts that, while she committed her second theft while on
judicial diversion for her first theft conviction, she has demonstrated a willingness to work.
Further, she had paid over half her court costs and restitution, completed over half of her
community service, and expressed her willingness to pay back her second victim. For these
reasons, she asserts the trial court should have sentenced her to an alternative sentence. The
State counters that the trial court correctly denied the Defendant an alternative sentence.

        The Tennessee Criminal Sentencing Reform Act of 1989 and its amendments describe
the process for determining the appropriate length of a defendant’s sentence. Under the Act,
a trial court may impose a sentence within the applicable range as long as the imposed
sentence is consistent with the Act’s purposes and principles. T.C.A. § 40-35-210(c)(2), (d)
(2010); see State v. Carter, 254 S.W.3d 335, 343 (Tenn. 2008). In 2005, the Tennessee
General Assembly amended the sentencing law in order to bring Tennessee’s sentencing
scheme into compliance with United States Supreme Court rulings on the subject. See
United States v. Booker, 543 U.S. 220 (2005); Blakely v. Washington, 542 U.S. 296 (2004).

       Before the 2005 amendments to the Sentencing Act, both the State and a defendant
could appeal the manner in which a trial court weighed enhancement and mitigating factors
applied to the defendant’s sentence. T.C.A. § 40-35-401(b)(2) (2004). The 2005
amendments, however, deleted, as grounds for appeal, a claim that the trial court did not
properly weigh the enhancement and mitigating factors. See 2005 Tenn. Pub. Acts ch. 353,
§§ 8, 9. As a result, the appellate courts were “left with a narrower set of circumstances in
which they might find that a trial court has abused its discretion in setting the length of a
defendant’s sentence.” Carter, 254 S.W.3d at 345-46.

        Appellate review of sentences has been de novo with a presumption of correctness.
In a recent decision, the Tennessee Supreme Court reviewed changes in sentencing law and
the impact on appellate review of sentencing decisions. The Tennessee Supreme Court

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announced that “sentences imposed by the trial court within the appropriate statutory range
are to be reviewed under an abuse of discretion standard with a ‘presumption of
reasonableness.’” State v. Susan Renee Bise, __ S.W.3d __, No. E2011-00005-SC-R11-CD,
2012 WL 4380564, at *19 (Tenn. Sept. 26, 2012).

        A finding of abuse of discretion “‘reflects that the trial court’s logic and reasoning
was improper when viewed in light of the factual circumstances and relevant legal principles
involved in a particular case.’” State v. Shaffer, 45 S.W.3d 553, 555 (Tenn. 2001) (quoting
State v. Moore, 6 S.W.3d 235, 242 (Tenn. 1999)). To find an abuse of discretion, the record
must be void of any substantial evidence that would support the trial court’s decision. Id.;
State v. Grear, 568 S.W.2d 285, 286 (Tenn. 1978); State v. Delp, 614 S.W.2d 395, 398
(Tenn. Crim. App. 1980).

       The “presumption of reasonableness” applied to sentences imposed by trial courts
“‘reflects the fact that, by the time an appeals court is considering a within-Guidelines
sentence on review, both the sentencing judge and the Sentencing Commission will have
reached the same conclusion as to the proper sentence in the particular case .’” Susan Renee
Bise, 2012 WL 4380564, at *15 (quoting Rita v. United States, 551 U.S. 338, 341 (2007)).
A presumption of reasonableness “simply recognizes the real-world circumstance that when
the judge’s discretionary decision accords with the [Sentencing] Commission’s view of the
appropriate application of [sentencing purposes] in the mine run of cases, it is probable that
the sentence is reasonable.” Rita, 551 U.S. at 350-51.

        Regarding alternative sentencing, the Tennessee Supreme Court noted that, due to the
2005 sentencing amendments, a defendant is no longer presumed to be a favorable candidate
for alternative sentencing. State v. Carter, 254 S.W.3d 335, 347, (Tenn. 2008) (citing
T.C.A.§ 40-35-102(6) (2006)). Instead, a defendant not within “the parameters of
subdivision (5) [of T.C.A. § 40-35-102], and who is an especially mitigated or standard
offender convicted of a Class C, D or E felony, should be considered as a favorable candidate
for alternative sentencing options in the absence of evidence to the contrary.” Id. (footnote
omitted). Generally, defendants classified as Range II or Range III offenders are not to be
considered as favorable candidates for alternative sentencing. T.C.A. § 40-35-102(6) (2010).
Additionally, we note that a trial court is “not bound” by the advisory sentencing guidelines;
rather, it “shall consider” them. T.C.A.§ 40-35-102(6) (2010) (emphasis added). Recently,
our Supreme Court has explicitly held that “the abuse of discretion standard, accompanied
by a presumption of reasonableness, applies to within-range sentences that reflect a decision
based upon the purposes and principles of sentencing, including the questions related to
probation or any other alternative sentence.” State v. Christine Caudle, __ S.W.3d __, No.
M2012-01172-SC-R11-CD, 2012 WL 5907374, at *7 (Tenn. Nov. 27, 2012).



                                             -7-
        If a defendant seeks probation, then that defendant bears the burden of “establishing
[his] suitability.” T.C.A. § 40-35-303(b) (2010). As the Sentencing Commission points out,
“even though probation must be automatically considered as a sentencing option for eligible
defendants, the defendant is not automatically entitled to probation as a matter of law.”
T.C.A. § 40-35-303 (2010), Sentencing Comm’n Cmts.

        In determining the proper sentence, the trial court must consider: (1) the evidence,
if any, received at the trial and the sentencing hearing; (2) the presentence report; (3) the
principles of sentencing and arguments as to sentencing alternatives; (4) the nature and
characteristics of the criminal conduct involved; (5) evidence and information offered by the
parties on the mitigating and enhancement factors set out in Tennessee Code Annotated
sections 40-35-113 and -114; (6) any statistical information provided by the administrative
office of the courts as to sentencing practices for similar offenses in Tennessee; and (7) any
statement the defendant made in the defendant’s own behalf about sentencing. See T.C.A.
§ 40-35-210 (2010); State v. Taylor, 63 S.W.3d 400, 411 (Tenn. Crim. App. 2001). The trial
court must also consider the potential or lack of potential for rehabilitation or treatment of
the defendant in determining the sentence alternative or length of a term to be imposed.
T.C.A. § 40-35-103 (2010).

       When sentencing the defendant to confinement, a trial court should consider whether:

       (A) Confinement is necessary to protect society by restraining a defendant
       who has a long history of criminal conduct;
       (B) Confinement is necessary to avoid depreciating the seriousness of the
       offense or confinement is particularly suited to provide an effective deterrence
       to others likely to commit similar offenses; or
       (C) Measures less restrictive than confinement have frequently or recently
       been applied unsuccessfully to the defendant.

T.C.A. § 40-35-103 (2010).

       When denying the Defendant an alternative sentence, the trial court found that the
measures less restrictive than confinement had recently been applied unsuccessfully to the
Defendant. The trial court noted that, for the Defendant’s first theft conviction, the trial court
had diverted her conviction and sentence, after the completion of three years of probation.
While on probation, the Defendant committed a second theft, this time from a different
employer. The trial court considered the Defendant’s second theft conviction while on
probation as indicative of her lack of potential for rehabilitation. The trial court noted that
several enhancement factors applied, that the Defendant had a history of criminal convictions
or behavior, noting her several misdemeanor convictions, that she failed to comply with the

                                               -8-
conditions of a sentence involving release into the community, that she committed the second
theft while on probation for theft, and that she abused a position of trust in committing the
theft. See T.C.A. § 40-35-114 (1), (8), (13), and (16) (2010). After reviewing the record, we
conclude that it supports the trial court’s findings and that there is ample evidence upon
which the trial court could base its denial of an alternative sentence. The Defendant is not
entitled to relief on this issue.

                                     III. Conclusion

      Based on the above mentioned reasoning and authorities, we affirm the trial court’s
judgments.


                                                   ___________________________________
                                                   ROBERT W. WEDEMEYER, JUDGE




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