        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                           Assigned on Brief January 5, 2010

                   STATE OF TENNESSEE v. AREALIE BOYD

              Direct Appeal from the Criminal Court for Shelby County
                  No. W09-00097      James M. Lammey, Jr., Judge




                No. W2009-00762-CCA-R3-CD - Filed March 30, 2010


The defendant, Arealie Boyd, pled guilty to forgery over $1,000, a Class D felony, on March
30, 2009. After a hearing, the trial court sentenced her to a two-year sentence in the Shelby
County Correctional Center, suspended all but thirty days of the sentence, and placed her on
probation for six years. On appeal, the defendant challenges the length and manner of her
sentence. Specifically, she contends that the trial court should have sentenced her as an
especially mitigated offender to either full probation or judicial diversion. Additionally, the
defendant contends that the trial court erred in allowing hearsay testimony at the sentencing
hearing. Following our review, we affirm the judgment of the trial court.

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

J.C. M CL IN, J., delivered the opinion of the court, in which A LAN E. G LENN and C AMILLE
R. M CM ULLEN, JJ., joined.

Robert Wilson Jones, District Public Defender; and Phyllis Aluko (on appeal) and J. Mark
Alston (at trial), Assistant Public Defenders, for the appellant, Arealie Boyd.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Assistant Attorney
General; William L. Gibbons, District Attorney General; and Stacey McEndree, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                         OPINION

                                         Background
       The defendant pled guilty to a criminal information charging forgery over $1,000 and
stipulated to the following facts at her guilty plea hearing.
              [The] facts of the case had the matter gone to trial would have shown
       that on December 16th of 2008, [the defendant] was working at the Mapco on
       Shelby Drive. She used the computer system to generate twenty separate
       money orders of $500 each[,] totaling about $10,000. She took nineteen of
       those. The twentieth one got jammed in the machine, which is the only reason
       the store knows . . . that there were only nineteen done before the one got
       jammed.

             She also took cash from the business. . . . [T]he money orders were
       stopped, although, she got the cash in the amount of $2,181.39. Everything
       was caught on the surveillance tape. She did admit to doing this and this did
       happen in Shelby County.

        In the sentencing portion of the hearing, the defendant testified that she was nineteen
years old and had completed high school. She planned to continue her education at
Southwest Community College. She was unemployed but had worked steadily since she was
sixteen, first at Sonic Drive-In and then at Mapco. She was adopted at thirteen years old.
Although she knew her biological family, she did not associate with them. She had her own
apartment and did not have any dependents. Her “step-mom” helped her pay her bills, and
she thought it was likely that she could move in with her “step-mom” if necessary. She
testified that she took the cash and the money orders because she was under pressure and also
because she wanted to help her “guy-friend,” who was incarcerated. She apologized to
Mapco and stated that she should receive judicial diversion because she is a “good citizen.”
She said she could pay Mapco back.

       On cross-examination, the defendant said that she worked at Mapco for six months.
The defendant testified that her “step-mom” was Ora Mabry, her “friend-guy’s” mother. She
said that she had been in a romantic relationship with her “guy-friend” 1 for two years. Her
boyfriend was incarcerated on an attempted second-degree murder charge. She denied that
she needed $30,000 for his bail. The defendant testified that she did not plan to bond her
boyfriend out of jail but instead planned to put money on his books at the jail and start over
by leaving Memphis. She agreed that she did not leave Memphis but used the money taken
from Mapco to pay her bills and help her biological mother. The defendant said that she
could stay with her adopted mother instead of Ms. Mabry. She agreed that she had not made
any restitution to Mapco yet.

       On re-direct examination, the defendant said that once she got a job, then she could
begin paying Mapco. She said that she took $1,860 in cash from Mapco.


       1
           The defendant referred to her boyfriend as both “friend-guy” and “guy-friend.”

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        The state called Thomas Leroy Murray, who was the district manager for Mapco at
the time of the incident. Mr. Murray confirmed that the defendant worked at Mapco for six
months and had access to both cash and money orders. He testified that, a week after the
incident, other Mapco employees said that the defendant needed $30,000 to get her boyfriend
out of jail. He said that $500 was the maximum amount for which a money order could be
generated and that $500 was the amount of each money order that the defendant generated.
Mr. Murray said that once the printer is jammed, only a manager can access the machine.
Once he and the store manager learned of the theft, they called Western Union to put a hold
on the money orders. Western Union notified them mid-February that they were able to stop
payment on all of the money orders. Mr. Murray could not count the exact amount of cash
that the defendant took but instead calculated how much cash should have been in the
register drawer by adding together the sales during the defendant’s shift.

        Mr. Murray testified that Mapco was opposed to judicial diversion for the defendant
because, when hiring employees, “[he] would like to know that ahead of time if [he is] hiring
an employee of this nature again . . . .” He further stated that he was against the court
suspending the defendant’s sentence because he would “like people to know that there is a
consequence for their actions and . . . having it out there that other employers can know about
it, may prevent this from happening again for half a dozen people or more over time who
work for us now.” Mr. Murray said that ninety-one people work in twelve Mapco stores in
his district and that the theft was a “hot topic” amongst the employees because of the large
amount of money taken.

        In discussing the defendant’s sentence, the trial court stated that the defendant stole
the money to post bond for her boyfriend, which reflected negatively on her social history.
The court further stated that Mr. Murray testified as to the deterrent value of the defendant’s
sentence, specifically that Mapco employees were “all waiting to find out what happens to
[the defendant].” The court determined that judicial diversion would not be in the best
interest of the public. The court stated that the defendant’s mental and physical health were
not questionable, and she has no criminal record, which is the only fact that points to her
amenability to correction. The court ruled that under the circumstances, the defendant was
not a good candidate for judicial diversion and found that no enhancement factors applied.
The court sentenced the defendant to two years, the minimum for a Class D felony, in the
Shelby County Correctional Center and placed her on six years of probation to begin after
thirty days of incarceration.

                                          Analysis

       On appeal, the defendant challenges both the length and manner of her sentence and
contends that the trial court improperly considered hearsay testimony during the sentencing
hearing. Specifically, the defendant contends that the trial court should have sentenced her

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as an especially mitigated offender to either judicial diversion or full probation. The
defendant also argues that Mr. Murray’s statements regarding the conversations among
Mapco employees were inadmissible hearsay, and the trial court’s allowance of the testimony
violated the defendant’s right to confrontation. The state responds that the trial court was
within its discretion in sentencing the defendant as a standard offender and in denying
judicial diversion and full probation. The state further responds that Mr. Murray’s testimony
was not hearsay.

                                        I. Sentencing

                                      A. Standard of Review
        A defendant’s sentence is reviewed by the appellate courts de novo with a
presumption that the determinations made by the trial court are correct. Tenn. Code Ann. §
40-35-401(d); State v. Imfeld, 70 S.W.3d 698, 704 (Tenn. 2002). For this presumption to
apply to the trial court’s actions, there must be an affirmative showing in the record that the
trial court considered sentencing principles and all relevant facts and circumstances. State
v. Pettus, 986 S.W.2d 540, 543-44 (Tenn. 1999). While determining or reviewing a sentence,
the courts must consider: (1) the evidence received at 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
offered by the parties on the enhancement and mitigating factors; (6) any statement the
defendant wishes to make in the defendant’s behalf about sentencing; and (7) the potential
for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-103(5), -210(b); State v. Ashby,
823 S.W.2d 166, 168; State v. Holland, 860 S.W.2d 53, 60 (Tenn. Crim. App. 1993).

       If the trial court has imposed a lawful sentence by following the statutory sentencing
procedure, has given due consideration and proper weight to the factors and sentencing
principles, and has made findings of fact adequately supported by the record, this court may
not modify the sentence even if it would have preferred a different result. State v. Fletcher,
805 S.W.2d 785, 789 (Tenn. Crim. App. 1991). However, if the trial court does not comply
with statutory sentencing provisions, our review of the sentence is de novo with no
presumption the trial court’s determinations were correct. State v. Winfield, 23 S.W.3d 279,
283 (Tenn. 2000).

                                    B. Length of Sentence
       The defendant contends that the trial court erred by sentencing her as a Range I
standard offender rather than as an especially mitigated offender. The defendant further
argues that the trial court should have considered whether the defendant was an especially
mitigated offender because the defendant waived indictment in return for a negotiated
sentence of 1.8 years.


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        Tennessee Code Annotated section 40-35-109(a) states that “[t]he court may find the
defendant is an especially mitigated offender, if: (1) the defendant has no prior felony
convictions; and (3) the court finds mitigating, but no enhancement factors.” The Sentencing
Commission comments to this section state that “a finding of an especially mitigated offender
is discretionary with the trial court.” Tenn. Code Ann. § 40-35-109, Sentencing Comm’n
Comments.

        As an initial matter, the record reflects that the defendant entered a plea open to the
court; therefore, the defendant’s contention that the trial court should have considered the
negotiated sentence of 1.8 years is without merit. In sentencing the defendant, the trial court
did not explicitly find that no mitigating factors applied, but the court did consider the
defendant’s age and the circumstances surrounding the offense. As for her age, the court
said, “She’s nineteen. She’s an adult. She did this to herself.” (II, 42) In discussing the
circumstances of the offense, the court mentioned the defendant’s desire to help her
incarcerated boyfriend and the deterrent value that her punishment would have. We conclude
that the trial court implicitly considered mitigating factors and found none. Without
applicable mitigating factors, the defendant was not eligible for especially mitigated status;
thus, the trial court did not abuse its discretion by sentencing the defendant as a Range I
standard offender rather than an especially mitigated offender. Additionally, the court found
that no enhancement factors applied to the defendant and sentenced her to two years, the
minimum for a Class D felony. The record reflects that the trial court gave due consideration
to the sentencing principles and factors; therefore, we must uphold the court’s sentence.
Fletcher, 805 S.W.2d at 789.

                                    C. Judicial Diversion
       The defendant petitioned the trial court for judicial diversion, which the trial court
denied. On appeal, the defendant argues that the trial court did not consider all of the factors
in favor of granting judicial diversion.

        Judicial diversion is a “legislative largess” where a defendant, upon being found guilty
or pleading guilty, may complete a diversion program and receive expungement of records
and dismissal of the charges. State v. Schindler, 986 S.W.2d 209, 211 (Tenn. 1999). When
a defendant contends that the trial court committed error in refusing to impose a sentence
pursuant to Tennessee Code Annotated section 40-35-313, commonly referred to as “judicial
diversion,” this court must determine whether the trial court abused its discretion in failing
to sentence pursuant to the statute. State v. Cutshaw, 967 S.W.2d 332, 344 (Tenn. Crim.
App. 1997). Judicial diversion is similar to pretrial diversion; however, judicial diversion
follows a determination of guilt, and the decision to grant judicial diversion rests with the
trial court, not the prosecutor. State v. Anderson, 857 S.W.2d 571, 572 (Tenn. Crim. App.
1992). When a defendant challenges the trial court’s denial of judicial diversion, we may not

                                              -5-
revisit the issue if the record contains any substantial evidence supporting the trial court’s
decision. Cutshaw, 967 S.W.2d at 344; State v. Parker, 932 S.W.2d 945, 958 (Tenn. Crim.
App. 1996). As this court said in Anderson:

               We conclude that judicial diversion is similar in purpose to pretrial
       diversion and is to be imposed within the discretion of the trial court subject
       only to the same constraints applicable to prosecutors in applying pretrial
       diversion under T.C.A. § 40-15-105. Therefore, upon review, if “any
       substantial evidence to support the refusal” exists in the record, we will give
       the trial court the benefit of its discretion. Only an abuse of that discretion will
       allow us to overturn the trial court.

857 S.W.2d at 572 (citation omitted).

       The criteria that must be considered in determining whether an eligible accused should
be granted judicial diversion include: (a) the defendant’s amenability to correction; (b) the
circumstances of the offense; (c) the defendant’s criminal record; (d) the defendant’s social
history; (e) the defendant’s physical and mental health; and (f) the deterrence value to the
defendant and others. Cutshaw, 967 S.W.2d at 343-44; Parker, 932 S.W.2d at 958. An
additional consideration is whether judicial diversion will serve the ends of justice, i.e., the
interests of the public as well as the defendant. Cutshaw, 967 S.W.2d at 344; Parker, 932
S.W.2d at 958.

       In denying judicial diversion, the trial court said that the defendant’s lack of criminal
record was the only fact in favor of her amenability to correction. The court noted that the
defendant’s physical and mental health were good, but it determined that her social history,
namely being romantically involved with a man incarcerated on a charge of attempted
murder, weighed against her. The court further determined that judicial diversion would not
serve as a deterrent to other Mapco employees. The court concluded that, all circumstances
taken together, the defendant was not a good candidate for judicial diversion. The record
supports the court’s determination. The defendant admitted to her relationship with her
boyfriend, and she intended to use the money taken from Mapco to help him, regardless of
whether she intended to post his bond. Mr. Murray testified that Mapco was opposed to
judicial diversion for the defendant because the company believed that her punishment would
be a deterrent against other employees stealing from the stores. We conclude that substantial
evidence exists to support the trial court’s decision and uphold the court’s denial of judicial
diversion. The defendant is without relief on this issue.


                                         D. Probation

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       The defendant contends that the trial court erred by ordering her to serve thirty days
incarcerated rather than granting full probation.

       A defendant is eligible for probation if the sentence received by the defendant is ten
years or less, subject to some statutory exclusions. Tenn. Code Ann. § 40-35-303(a). A
defendant with a total effective sentence in excess of ten years is eligible for probation if the
individual sentences imposed for the convictions fall within the probation eligibility
requirements. See State v. Langston, 708 S.W.2d 830, 832-33 (Tenn. 1986).

        An especially mitigated or standard offender convicted of a Class C, D, or E felony
is presumed to be a favorable candidate for alternative sentencing in the absence of evidence
to the contrary. Tenn. Code Ann. § 40-35-102(6). A trial court must presume that a
defendant sentenced to ten years or less and for whom incarceration is not a priority is subject
to alternative sentencing. See State v. Byrd, 861 S.W.2d 377, 379-80 (Tenn. Crim. App.
1993). It is further presumed that a sentence other than incarceration would result in
successful rehabilitation unless rebutted by sufficient evidence in the record. Id. at 380.
However, although a defendant may be presumed to be a favorable candidate for alternative
sentencing, the defendant has the burden of establishing suitability for total probation. Tenn.
Code Ann. § 40-35-303(b); State v. Boggs, 932 S.W.2d 467, 477 (Tenn. Crim. App. 1996).
Even though probation must be automatically considered, “the defendant is not automatically
entitled to probation as a matter of law.” Tenn. Code Ann. § 40-35-303(b), Sentencing
Comm’n Comments; State v. Hartley, 818 S.W.2d 370, 373 (Tenn. Crim. App. 1991). A
defendant seeking full probation bears the burden on appeal of showing the sentence imposed
is improper, and that full probation will be in the best interest of the defendant and the public.
State v. Baker, 966 S.W.2d 429, 434 (Tenn. Crim. App. 1997).

       Guidance as to whether the trial court should grant alternative sentencing or
incarcerate is found in Tennessee Code Annotated section 40-35-103. Sentences involving
confinement should be based upon the following considerations:

       (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 . . . .



                                               -7-
Tenn. Code Ann. § 40-35-103.

        As a standard offender convicted of a Class D felony, the defendant was presumed to
be a favorable candidate for alternative sentencing in the absence of evidence to the contrary.
In this case, the trial court placed great emphasis on providing an effective deterrence, thus
supporting the court’s imposition of a nominal period of confinement. Because the defendant
in this case is seeking full probation, she bears the burden of showing that the sentence
imposed was improper. In our view, the defendant has not shown that thirty-days of
incarceration was an improper sentence nor has she shown that full probation is in her best
interest or the best interest of the public. The trial court determined that split confinement
was appropriate, and this court is without reason to disturb that decision.

                                         II. Hearsay

        The defendant argues that the trial court considered improper hearsay testimony when
determining her sentence. Specifically, she contends that Mr. Murray’s statements regarding
what Mapco employees were saying about the theft were unreliable hearsay, were not subject
to rebuttal, and were a violation of the defendant’s right to confrontation. The state responds
that the statements were non-hearsay because they were not offered to prove the truth of the
matter asserted.

       At the sentencing hearing, the following exchange took place:

       STATE: Tell the Court what if anything you had heard or found out from other
       employees about what was going on at the time she did this?

       MR. MURRAY: About one week after the incident I was in the store and a
       couple of the employees mentioned to me that - -

       DEFENSE COUNSEL: I’m going to object, Your Honor, if those other
       employees aren’t here to say this themselves.

       THE COURT: Well, obviously, he learned of a theft. I think it’s been testified
       to that there was a theft so I - - go ahead.

       MR. MURRAY: That the - - they were saying the reason that she needed the
       money was that her boyfriend had been put in jail on an attempted murder
       charge and had a $300,000 . . . bail, and needed $30,000, ten percent, to get
       him out, and I knew nothing of this . . . outside incident until they mentioned
       it to me . . . and they already knew how much was taken . . . because it’s inside

                                              -8-
       the store, and one of them made the comment it’s a good thing for Mapco that
       the machine jammed so that it stopped where it did.

It is well-settled in Tennessee that a trial court has statutory authority to admit trustworthy
and probative evidence, including hearsay, for sentencing purposes. State v. Flynn, 675
S.W.2d 494, 498 (Tenn. Crim. App.1984); see also Tenn. Code Ann. § 40-35-209(b).
Reliable hearsay is admissible in a sentencing hearing so long as the opposing party has a fair
opportunity to rebut the evidence. See Tenn. Code Ann. § 40-35-209(b).

        In this matter, we are not persuaded that the employees’ statements were unreliable
because the defendant previously testified to her boyfriend’s incarceration and the amount
of his bail. Additionally, the defendant was given an opportunity to rebut the statements both
in her own testimony and through the cross-examination of Mr. Murray. The defendant
directly rebutted the statements in her testimony by saying that she did not intend to use the
money to post her boyfriend’s bond, and her counsel did not cross-examine Mr. Murray. We
conclude, therefore, that the trial court did not err in allowing reliable hearsay testimony at
the sentencing hearing.

       Furthermore, the defendant’s argument that the admission of the testimony violated
her federal and state constitutional right of confrontation fails. Relying on Crawford v.
Washington, 541 U.S. 46 (2004), the defendant contends that her co-workers’ comments
were testimonial in nature, and she had the right to cross-examine the witnesses unless they
were proven to be unavailable. However, this court has previously held that neither the
federal nor state constitutional right of confrontation applies to sentencing hearings:

               The Sixth Amendment to the United States Constitution provides
       criminal defendants the right to confront adverse witnesses. The admission of
       testimonial hearsay at trial, without a showing of unavailability and an
       opportunity to cross-examine, generally violates a defendant’s right to confront
       adverse witnesses. Crawford v. Washington, 541 U.S. 36, 50, 124 S.Ct. 1354,
       158 L.Ed.2d 177 (2004). A broad consensus exists that the confrontation
       clause of the U.S. Constitution does not apply, however, to the evidence
       adduced during sentencing. See, e.g., U.S. v. Fields, 483 F.3d 313, 326 (5th
       Cir. 2007); also see State v. Stephenson, 195 S.W.3d 574, 590 (Tenn. 2006)
       (citing Williams v. New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337
       (1949)). In fact, the Sixth Circuit Court of Appeals held that Crawford did not
       alter the previous rule that the confrontation clause does not apply to
       sentencing. United States v. Stone, 432 F.3d 651, 654 (6th Cir. 2005). Thus,
       the U.S. Constitution is no barrier to the admission of hearsay during the



                                              -9-
      penalty phase of a state criminal trial. As such, if any protection from hearsay
      during sentencing exists, it must derive from Tennessee state law.

      [T]he Tennessee Constitutional right to confront adverse witnesses is, in some
      aspects, broader than its federal counterpart. Tenn. Const. art. I, § 9; See State
      v. Deuter, 839 S.W.2d 391, 395 (Tenn. 1992) (holding that the Tennessee
      Constitution requires actual “face to face” confrontation). Even Tennessee’s
      comparably broad confrontation right, however, does not apply to a sentencing
      hearing. Stephenson, 195 S.W.3d at 590 (citing State v. Smith, 857 S.W.2d 1,
      23 (Tenn. 1993)). Because the Tennessee Constitutional confrontation right
      applies only to the guilt phase of a trial, the only protection in Tennessee
      against the introduction of testimonial hearsay during sentencing derives from
      the Tennessee Code. Id.; see State v. Moss, 13 S.W.3d 374, 385 (Tenn. Crim.
      App. 1999).

State v. William Edwin Harris, No. M2008-01685-CCA-R3-CD, 2009 WL 1871919, at *6
(Tenn. Crim. App., at Nashville, June 30, 2009), perm. app. denied (Tenn. Nov. 30, 2009).
Thus, because the constitutional right of confrontation does not apply in sentencing, the
defendant is without relief on this issue.

                                        Conclusion

      Based on the foregoing reasons, we affirm the judgment of the trial court.




                                                   ___________________________________
                                                   J.C. McLIN, JUDGE




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