                                                                                           01/24/2019
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                              November 27, 2018 Session

             STATE OF TENNESSEE v. JAYME LYNN SHAFFER

                  Appeal from the Criminal Court for Knox County
                        No. 110925      Scott Green, Judge
                     ___________________________________

                           No. E2017-02432-CCA-R3-CD
                       ___________________________________

The Defendant, Jayme Lynn Shaffer, pleaded guilty to two counts of theft of property
valued at more than $1,000 with an agreed effective sentence of three years. The parties
agreed to allow the trial court to determine the manner of service of her sentence and
whether she was entitled to judicial diversion. After the hearing, the trial court denied the
Defendant’s request for judicial diversion but granted her request for a probationary
sentence. On appeal, the Defendant contends that the trial court erred when it denied her
request for judicial diversion. After review, we affirm the trial court’s judgments.

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

ROBERT W. WEDEMEYER, J., delivered the opinion of the court, in which THOMAS T.
WOODALL and D. KELLY THOMAS, JR., joined.

Robert W. White, Sr., Maryville, Tennessee, for the appellant, Jayme Lynn Shaffer.

Herbert H. Slatery III, Attorney General and Reporter; Benjamin A. Ball, Senior
Assistant Attorney General; Charme Prater Allen, District Attorney General; and William
Charles Bright, Assistant District Attorney General, for the appellee, State of Tennessee.

                                        OPINION
                                         I. Facts

       The Defendant was indicted by information for two counts of theft of property
valued at more than $1,000. The charges indicate that the Defendant took money from
two businesses, Tactical Advantage Corporation (“TAC”) and SIA, LLC. The Defendant
pleaded guilty to those offenses on July 10, 2017. A copy of the guilty plea hearing is not
included in the record.
       The presentence report, which is included in the record, contains an official
version of the facts and also the Defendant’s version of the facts. They are as follows:

      OFFICIAL VERSION

      ....

      On 08/11/2016 a warrant was issued alleging the Defendant committed the
      offense of theft ($1,000 to $9,999.99). This incident occurred on or about
      Friday, 06/05/2015 and Wednesday, 10/14/2015 at 16:00 . . . in Knoxville,
      Tennessee. On or about 06/05/2015, the Defendant was employed by
      victim business, [TAC], as a book keeper. The Defendant wrote an
      unauthorized check on the victim business Suntrust Bank Account to
      codefendant, Demon Richards, for $1,250. On or about 10/14/2015, the
      Defendant wrote another check to the codefendant for $1,800. The
      Defendant did not have authorization to write checks to the codefendant
      and to deprive the victim business of their money, totaling $3,050. This
      occurred in Knox County, Tennessee.

      On 08/11/2016, a warrant was issued alleging the Defendant committed the
      offense of theft ($1,000 to $9,999.99). This incident occurred on or about
      Monday 11/29/2015 at 8:00 until 11/11/2016 . . . in Knoxville, Tennessee.
      The Defendant was employed as a book keeper for victim business, SIA
      LLC. The Defendant wrote four unauthorized checks on the victim’s
      business bank account to codefendant, Demon Richards. The codefendant
      is not a vendor and did not provide any services or goods to the victim
      business. The Defendant did not have permission from the victim to
      deprive them of $9,805. This occurred in Knox County, Tennessee.

      ....

      DEFENDANT’S VERSION

      “While working at [TAC], I met a guy name[d] Demon Richards. Demon
      and I became friends, and would occasionally meet for dinner and drinks.
      We would talk about o[u]r day, jobs, etc.

      Demon made the suggestion that I write him a check, and he would cash it,
      then give me some money. My first reaction was “no way.” During the
      next several weeks of our friendship, it was mentioned several times, and I

                                         -2-
      told him I would do it. So I wrote a check to him, he cashed the check. We
      split the money.

      It was by far the worst decision and action I ever made and done. I am in
      no way putting blame on him, for I know I am responsible for my choices.

       At the Defendant’s sentencing hearing, the parties presented the following
evidence: Morgan Alexander Schubert, an owner at SIA Firearms testified that his
business was a firearms training facility located in Knoxville, Tennessee, which he and
his partner, Scott Hale, started in November 2015. The Defendant, who was their
bookkeeper, wrote the first unauthorized check within forty-five days of their opening
their new business. Mr. Schubert said that he had run several businesses and used
internal controls to prevent something like this from happening. Their business was so
new, however, that the business was operating using a temporary checkbook, so those
controls were not all in place. The Defendant wrote the unauthorized checks out of the
business’s temporary checkbook. The Defendant removed the check stubs from the
checkbook and then charged customer accounts to compensate for the stolen money.

       Mr. Schubert testified that the Defendant was aware that he had been diagnosed
with cancer. Before his diagnosis, it was his job to ensure the books were accurate. After
his diagnosis, he began chemotherapy and was not able to oversee the bookkeeping as
closely.

       Mr. Schubert said that there were prompts within the software that told the
Defendant that she was not making accurate entries, but she made the entries anyway to
hide her theft. She took money out of the business’s capital account and put the
inventory item into another vendor who had not supplied them anything.

        Mr. Schubert said that, after his third surgery related to his cancer treatment, he
was able to walk again and came back to work. He noticed that the check stubs were
missing from the checkbook, and he questioned the Defendant about it. The Defendant
quit her employment. After she left, Mr. Schubert had to expend $14,000 in an attempt to
repair, and then ultimately replace, the accounting software.

      Mr. Schubert testified that the company had invested $800,000 in inventory and
remodeling and that the business was not profitable at the time that the Defendant took
money from it.

      Nathan Scott Hale, Jr., testified that he was the managing partner at SIA Firearms.
Mr. Hale testified that he worked for another armory, TAC, where he became acquainted
with Mr. Schubert. The two decided to open their own business with Mr. Schubert
                                           -3-
providing the financing and Mr. Hale providing the skill and sales. The Defendant was
the bookkeeper at TAC while he worked there, and she seemed like an intelligent young
lady, so SIA hired her when they opened to be their bookkeeper also.

        Mr. Hale recalled that Mr. Schubert was diagnosed with cancer two days after they
opened the store, so more of the responsibilities fell to Mr. Hale. The theft made him feel
as if he did not live up to those responsibilities, despite his working between seventy and
eighty hours per week. Mr. Hale said that he had trusted the Defendant.

       The State argued that the granting of judicial diversion was inappropriate given the
Defendant’s actions. It asserted that she took advantage of a situation wherein she was
responsible for money and one of the owners got sick and could not oversee the
Defendant’s work. Her actions were based solely on greed. After this offense, the
Defendant had been charged with forging a check in Blount County, which, along with
other factors, showed that her amenability to correction was low.

       The State acknowledged that it had agreed to diversion for the Defendant’s co-
defendant but stated that the co-defendant did not violate a position of trust and was
unaware of Mr. Schubert’s cancer diagnosis and treatment. Further, the State’s position
was that the Defendant had met her co-defendant on a dating app and approached him
with this opportunity.

       Upon questioning by the trial court, the Defendant’s counsel said that the
Defendant’s Blount County charge allegedly occurred when she attempted to negotiate a
check from a business where she worked at the time. Counsel argued that judicial
diversion was still appropriate because these were non-violent offenses committed by a
Defendant with a low risk of recidivism and high amenability to correction. Counsel
asserted that the Defendant had accepted responsibility and expressed remorse.

       The trial court continued the case for thirty days in an attempt to learn the outcome
of the Blount County charges before sentencing the Defendant.

        At the subsequent hearing, Jennifer Henson from Tennessee Truck Driving School
in Blount County testified that the Defendant worked for the school in May 2016. The
school terminated the Defendant’s employment after the Defendant entered an employee
on the payroll that was not an employee. In order to do this, the Defendant had to enter a
false name and address into the databank that was responsible for payroll. The Defendant
entered the information falsely and also reported that this individual was making $52,000
per year, which would have been $2,000 bi-weekly. The Defendant falsely entered all of
the information on the fake employee’s I-9 document. The Defendant further falsely
filled out a W-4 and tax exemption documents.
                                           -4-
       Ms. Henson said that when she discovered the Defendant’s actions, she contacted
the payroll company, who provided the Defendant’s user ID as the one that had been used
to set up the false employee. At this point, the owner of the company terminated the
Defendant’s employment.

       Defendant’s counsel informed the trial court that the Defendant was employed at
the time of the sentencing hearing, that her current employer knew of her history, and that
the employer had written a letter in support of the Defendant being granted judicial
diversion.

       The Defendant offered her statement to the trial court in which she stated that she
could not change the past but would like to make it right. She said that she knew that Mr.
Schubert had a medical issue but that it must have been a brief procedure because he was
back at the business shortly after the procedure. She reminded the trial court that her
only past criminal history was one speeding ticket and a seat belt violation and that those
were ten years ago.

       The trial court denied the Defendant’s request for judicial diversion but granted
her request for full probation, finding:

       [T]here have been multiple occasions where the State of Tennessee has . . .
       objected to placement [of a defendant] on judicial diversion and this Court
       has overruled their objection and placed someone being prosecuted for theft
       of a business on judicial diversion.

              You did a lot of things right, but you did a lot of things wrong. The
       reason I wanted to hear from Ms. Henson, who testified here just a few
       minutes ago, if you had been caught immediately on the theft that occurred
       that led to the convictions in this case and had been convicted and
       sentenced and thereafter did what I believe you did, and I’m not asking you
       to comment because you have a Fifth Amendment privilege not to, but I am
       convinced that you were setting up a scheme at Tennessee Truck Driving
       School to start collecting paychecks for . . . a ghost employee, someone
       who didn’t exist, and you were going to pocket it.

               So had that occurred and you already been on diversion in this
       instance this Court would not have hesitated in revoking your diversion. So
       I can’t see the logic in placing you on diversion at this point in time.



                                           -5-
               I toyed with the idea, I’ve gone back and forth about whether or not
       to give you some jail time, I’m not going to do that, because I want you to
       keep your job so that you’re making the money to pay these men back. But
       if there’s any evidence put before this Court that you’re not paying them
       back as you have been ordered to do, or if there is evidence that you are
       suspected and it’s proven that you are involved in some sort of larcenous
       scheme with an employer that you’re with now, or any other employer,
       within the next three years, you are going to the penitentiary, do you
       understand that?

       For each of the two convictions, the trial court sentenced the Defendant to three
years in the Tennessee Department of Correction, suspended to supervised probation. It
denied her request for judicial diversion.

       It is from these judgments that the Defendant now appeals.

                                        II. Analysis

       The Defendant contends that the trial court did not consider the relevant factors for
determining eligibility for judicial diversion as enumerated in State v. Electroplating, Inc,
990 S.W.2d 211, 229 (Tenn. Crim. App. 1996). She contends that those factors weigh in
favor of her being granted judicial diversion. The State agrees that the trial court did not
consider the relevant factors on the record but contends that the record supports its denial
of judicial diversion. We agree with the State.

       The standard of review for questions related to probation or any other alternative
sentence is “‘an abuse of discretion standard of review, granting a presumption of
reasonableness to within-range sentencing decisions that reflect a proper application of
the purposes and principles of our Sentencing Act.’” State v. Caudle, 388 S.W.3d 273,
278-79 (Tenn. 2012) (citing State v. Bise, 380 S.W.3d 682, 707 (Tenn. 2012)). A trial
court’s decision regarding probation will only be invalidated if the court “wholly
departed from the relevant statutory considerations in reaching its determination.” State
v. Sihapanya, 516 S.W.3d 473, 476 (Tenn. 2014) (order) (per curiam). Under an abuse of
discretion standard, an appellate court may not substitute its judgment for that of the trial
court. Id. at 475. The application of the purposes and principles of sentencing involves a
consideration of “[t]he potential or lack of potential for the 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(5).

       “Judicial diversion” is a reference to the provision in Tennessee Code Annotated
section 40-35-313(a) (2014) for a trial court’s deferring proceedings in a criminal case.
                                            -6-
See T.C.A. § 40-35-313(a)(1)(A). Pursuant to such a deferral, the trial court places the
defendant on probation “without entering a judgment of guilty.” Id. To be eligible or
“qualified” for judicial diversion, the defendant must plead guilty to, or be found guilty
of, an offense that is not “a sexual offense or a Class A or Class B felony,” and the
defendant must not have previously been convicted of a felony or a Class A
misdemeanor. T.C.A. § 40-35-313(a)(1)(B)(i)(b), (c). Diversion requires the consent of
the qualified defendant. T.C.A. § 40-35-313(a)(1)(A). “[A] ‘qualified’ defendant is not
necessarily entitled to diversion. Whether to grant judicial diversion is left to the
discretionary authority of the trial courts.” State v. King, 432 S.W.3d 316, 326 (Tenn.
2014). Following a determination that the defendant is eligible for judicial diversion, the
trial court must consider

       (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. (quoting State v. Parker, 932 S.W.2d 945, 958 (Tenn. Crim. App. 1996)). “Further,
the trial court must weigh the factors against each other and place an explanation of its
ruling on the record.” King, 432 S.W.3d at 326 (citing State v. Electroplating, Inc., 990
S.W.2d 211, 229 (Tenn. Crim. App. 1998) ).

        Although judicial diversion is not a sentence, our supreme court determined that
the standard of review first expressed in State v. Bise, applies to “appellate review for a
trial court’s sentencing decision to either grant or deny judicial diversion.” King, 432
S.W.3d at 325. Importantly, however, the court emphasized that the adoption of the Bise
standard of review “did not abrogate the requirements set forth in Parker and
Electroplating, which are essential considerations for judicial diversion.” King, 432
S.W.3d at 326.

        The trial court need not provide a recitation of all the applicable “factors when
justifying its decision on the record in order to obtain the presumption of
reasonableness,” but “the record should reflect that the trial court considered the Parker
and Electroplating factors in rendering its decision and that it identified the specific
factors applicable to the case before it.” King, 432 S.W.3d at 327. When the trial court
considers each of the factors enumerated in Parker and weighs them against each other,
placing its findings in the record, as required by Electroplating, Inc., we “apply a
presumption of reasonableness,” per Bise, and will “uphold the grant or denial so long as
there is any substantial evidence to support the trial court’s decision.” Id. When “the
                                           -7-
trial court fails to consider and weigh the applicable common law factors, the
presumption of reasonableness does not apply and the abuse of discretion standard . . . is
not appropriate.” Id. Instead, “the appellate courts may either conduct a de novo review
or, if more appropriate under the circumstances, remand the issue for reconsideration.
The determination as to whether the appellate court should conduct a de novo review or
remand for reconsideration is within the discretion of the reviewing court.” Id. at 328.

       Although the trial court did not expressly address all of the relevant factors, the
record in the instant case is sufficient for a de novo review. See King, 432 S.W.3d at 328.
While the record does not include the guilty plea hearing transcript, it does include the
circumstances of the offense in both the presentence report and as testified to by
witnesses in the sentencing hearings.

       We first note that the Defendant is “qualified” for judicial diversion under the
requirements of Tennessee Code Annotated section 40-35-313(a)(1)(B) (2014). We
therefore turn to discuss the factors enumerated in Parker and Electroplating. We
conclude that the first factor, whether the Defendant is amenable to correction, weighs
against granting her judicial diversion. As the trial court found, the Defendant committed
an additional offense after the two offenses in this case. She used her position of trust to
steal money from her employers in this case. Having been caught in this case, she left
her employment and took another position with a driving school. There, she created the
identity of a false employee in a computer system with the intent to pay that employee
money that the Defendant would then benefit from. The theft from this third employer
occurred three months before she was charged in this case. Her repeated pattern of
deceptive acts of theft from her employers weighs heavily against her being granted
judicial diversion.

        The circumstances of her offenses also do not weigh in favor of her being granted
judicial diversion. The Defendant took more than $3,050 from her employer, writing two
checks four months apart to a man, Demon Richards, who then cashed them and gave the
Defendant half of the money. The State’s position was that the Defendant approached
Mr. Richards with this scheme, and the Defendant posited that it was Mr. Richards’s idea.
SIA, a new company, hired the Defendant to be their bookkeeper. Shortly after opening,
the SIA partner in charge of the finances became ill with cancer, a fact which he says the
Defendant knew. Forty-five days after the new business opened, and a month after her
first offenses, the Defendant wrote four checks totaling almost $10,000 to Mr. Richards,
with whom she split the proceeds. She agreed that the unauthorized checks were not
detected earlier in part because of Mr. Schubert’s illness, but she said she did not know
he had cancer or the extent of his illness. We conclude that the Defendant took
advantage of her position of trust as bookkeeper for two separate companies and also
took advantage of the fact that one of the SIA partners was sick and unable to oversee her
                                           -8-
work more closely. These circumstances do not lend themselves to a grant of judicial
diversion.

       The Defendant has no mentionable criminal record, which weighs in favor of
judicial diversion. The Defendant’s social history weighs in favor of diversion to the
extent that she is a single mother who cares for her child and has good social connections.
It weighs against diversion to the extent that she met a man on a dating app and then was
either persuaded herself or she persuaded him to commit repeated crimes against her
employers. The record evinces that the Defendant is in good physical and mental health
and that this offense was committed solely based on her own greed.

        Finally, as to deterrence, we conclude that this factor weighs against granting the
Defendant diversion. The Defendant used her position as a bookkeeper, a position of
trust, to write unauthorized checks from her employer’s business account. The partners
of SIA approached the Defendant and asked her to keep the books for a business that they
were opening. The Defendant took advantage of her employer when the business was
brand new and the owners had just expended a large amount of capital on inventory. As
the bookkeeper, she was aware that the business was not yet profitable at the time that
she stole repeatedly from it. Further, the Defendant committed her offenses shortly after
the business opened, during a time when the owner in charge of supervising the
Defendant was ill.

       Ultimately, the Defendant’s continued criminal behavior also impacts our analysis
of the circumstances of the offenses, as the Defendant’s convictions are more than
isolated instances of criminal behavior. Rather, they constitute a pattern of theft from
two different employers. Therefore, the Defendant’s amenability to correction, the
deterrence value to the Defendant, and the circumstances of the offense weigh heavily
against the grant of judicial diversion. See State v. Parsons, 437 S.W.3d 457, 496 (Tenn.
Crim. App. 2011) (affirming denial of judicial diversion where, even though the
remaining factors were satisfactory or inconclusive, the defendant’s amenability to
correction and the circumstances of the offense “weighed heavily” against judicial
diversion).

       Based on our de novo review of the record, we conclude that the ends of justice
would not be served by granting the Defendant’s request for judicial diversion.
Therefore, even though the trial court did not adequately consider all of the necessary
factors, the record supports the trial court’s denial of judicial diversion.

                                     III. Conclusion



                                           -9-
       After a thorough review of the record and relevant authorities, we affirm the trial
court’s judgments.


                                             ____________________________________
                                                  ROBERT W. WEDEMEYER, JUDGE




                                          - 10 -
