        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                                  April 22, 2014 Session

        STATE OF TENNESSEE v. JACQUELINE NICOLE BOLDEN

                Appeal from the Criminal Court for Claiborne County
                    No. 2013CR1551     E. Shayne Sexton, Judge




                  No. E2013-02324-CCA-R3-CD - Filed July 21, 2014


Defendant, Jacqueline Nicole Bolden, pled guilty to one count of theft of property in an
amount more than $60,000, a Class B felony, with an agreed upon sentence of eight years as
a Range I offender with the trial court to determine manner of service of the sentence. The
trial court ordered Defendant to serve her eight-year sentence on “split confinement” with
fifty days to be served on the weekends. Defendant was also ordered to perform one day of
community service per month for the first three years of her sentence. On appeal, Defendant
contends the trial court erred by denying her request for full probation. We conclude the trial
court did not abuse its discretion in sentencing Defendant. Accordingly, we affirm the
judgment of the trial court.

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

T HOMAS T. W OODALL, J., delivered the opinion of the Court, in which A LAN E. G LENN and
R OGER A. P AGE, JJ., joined.

Robert R. Kurtz, Knoxville, Tennessee, for the appellant, Jacqueline Nicole Bolden.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney
General; Lori Phillips-Jones, District Attorney General; and Jared Effler, Assistant District
Attorney General, for the appellee, the State of Tennessee.

                                         OPINION

I. Background

       The transcript of the guilty plea submission hearing was not included in the record on
appeal. However, from a reading of the record we glean that Defendant was the head teller
at the Home Federal Bank in Claiborne County. She stole approximately $83,376.55 from
the account of two customers over a period of four years. One of the customers was an
elderly widow. According to Defendant’s sentencing memorandum, the bank also incurred
costs of $56,969.68 for conducting an investigation and audit into Defendant’s thefts. At the
time of the filing of the memorandum, Defendant had repaid approximately $90,000.
Defendant has never been charged or convicted of any other criminal offenses.

       Sentencing Hearing

       Alex Cook, President and CEO of Home Federal Bank, testified that Defendant was
employed at the bank for approximately eleven years. He said that Defendant took money
from the accounts of two customers, one of which was an elderly customer. At the
sentencing hearing, Mr. Cook read a victim impact statement concerning Defendant’s
offenses:

       We’re a small community bank with 95 employees. The trust and confidence
       that people have in our banking system is the very basis of the system. Our
       customers as well as customers of other banks have the right to expect banks
       and all bank employees to be completely honest, forthright and trustworthy in
       their dealings. Bank employees are held at a higher standard for that reason.

       [Defendant’s] embezzlement was very expensive in money and time for our
       employees but also costly to our reputation. Bank thefts cause individuals in
       the community as a whole to look at the relationships that they have with their
       financial institutions. Home Federal Bank has been in business since 1920,
       and our community reputation and core values have been questioned due to
       [Defendant’s] theft.

       We believed [Defendant] was a good employee. She appeared to handle
       transactions efficiently, she balanced well and knew the system, as what a bank
       needs in a head teller. However, [Defendant] took wrongful advantage of that
       knowledge and violated a position of trust. [Defendant] preyed on an elderly
       widow because she assumed due to her age and health conditions the widow
       would not come in the bank and might not monitor her accounts closely.

       [Defendant] earned approximately twenty-five thousand dollars ($25,000.00)
       per year, and she stole approximately eighty-three thousand dollars
       ($83,000.00). [Defendant] now says she stole this money to buy food and pay
       bills. That is completely different from what she told the three bank officers
       during her confession.

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       Home Federal Bank now feels that an appropriate period of incarceration
       followed by a lengthy period of strict probation and community service is
       needed to both punish [Defendant] for her theft and send a message to others
       that bank theft is a serious criminal offense [ ].

Mr. Cook estimated that Defendant performed at least twenty to twenty-two fraudulent
transactions on the elderly widow’s bank account.

       During her allocution, Defendant told the trial court:

       Your Honor, I would have never thought that I would ever have found myself
       where I am today. I worked for a wonderful corporation. They were like my
       second family, and I did take full advantage of that. When it [began], I did
       need to pay bills because my husband had trouble sometimes with alcohol and
       paying bills, and the money would be gone.

       My son is a type one diabetic whose medical things are very costly each
       month, and I would give anything to go back and ask for help instead of trying
       to make a right with a horrible wrong.

       My son is seven, and the only other person I had to count on to help with him
       was my mother-in-law and she passed away in March. And at this time, I have
       not taken a job because I don’t have anyone at night to help with him because
       my husband took another job where he works third shift to try to make more
       money to help get the rest of this paid back.

       We do help in the community, we volunteer with our little league football
       leagues, our basketball leagues, and we have for years. And anyone that
       knows me would know that this is something so out of character of myself.

       I just ask for mercy from the Court in the sentencing today. And I want Alex
       to know that I am so sorry for taking advantage of my position at that bank and
       doing what I did.

II.    Analysis

        On appeal, Defendant contends the trial court erred by denying her full probation and
by sentencing her to serve fifty days of confinement on the weekends. Defendant asserts that
the trial court failed to apply the purposes and principles of sentencing and that the court
misapplied the enhancement and mitigating factors. Therefore, Defendant contends that this

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Court should conduct a de novo review of her sentence and “remand” the case to the trial
court. We disagree.

       Initially, we note that although the transcript of the guilty plea hearing was not
included in the record on appeal, the record is adequate for this court to conduct a meaningful
appellate review. See State v. Caudle, 388 S.W.3d 273, 279 (Tenn. 2012)(This court should
determine on a case-by-case basis whether the record is sufficient for a meaningful review
under the standard adopted in Bise.); see also Tenn. R. App. P. 24 (b)(providing that the
appellant has the duty to provide a fair, accurate, and complete record). As interpreted by
the Tennessee Supreme Court, sentences imposed by a trial court within the appropriate
statutory range are to be reviewed under an abuse of discretion standard with a “presumption
of reasonableness.” State v. Bise, 380 S.W.3d 682, 708 (Tenn. 2012). This standard of
review extends to alternative sentences as well. State v. Caudle, 388 S.W.3d 273, 278-79
(Tenn. 2012)(“[T]he 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.”). When the trial court follows the statutory sentencing procedure
and gives due consideration to the factors and principles relevant to sentencing, this court
may not disturb the sentence even if we had preferred a different result. See State v. Carter,
254 S.W.3d 335, 344-46 (Tenn. 2008).

       In determining “the specific sentence and the appropriate combination of sentencing
alternatives,” the trial court must consider: (1) the evidence 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 applicable mitigating and
enhancement factors; (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 wishes to make in the defendant’s own behalf about sentencing. Tenn. Code.
Ann. § 40-35-210(b).

        Our sentencing law provides that a defendant who does not possess a criminal history
showing a clear disregard for society’s laws and morals, who has not failed past rehabilitation
efforts, 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. T.C.A. § 40-35-102(5), (6). Additionally, a trial
court is “not bound” by the advisory sentencing guidelines; rather, it “shall consider” them.
Id. § 40-35-102(6)(D). We note that “the determination of whether the [defendant] is entitled
to an alternative sentence and whether the [defendant] is entitled to full probation are
different inquiries.” State v. Boggs, 932 S.W.2d 467, 477 (Tenn. Crim. App. 1996). The

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defendant has the burden of establishing his or her suitability for full probation, even if the
defendant should be considered a favorable candidate for alternative sentencing. T.C.A. §
40-35-303(b); Boggs, 932 S.W.2d at 477. In determining whether to grant probation, the
court must consider the nature and circumstances of the offense; the defendant’s criminal
record; his or her background and social history; his or her present condition, both physical
and mental; the deterrent effect on the defendant; and the defendant’s potential for
rehabilitation or treatment. State v. Souder, 105 S.W.3d 602, 607 (Tenn. Crim. App. 2002).

       In determining whether incarceration is appropriate, the trial court must consider if:

       (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(1); see also Carter, 254 S.W.3d at 347.

      Defendant was an eligible candidate for probation. See T.C.A. § 40-35-102(6)(A).
However, because she was convicted of a Class B felony, Defendant was not considered a
favorable candidate for full probation. Tenn. Code Ann. §§ 39-14-105(5); 40-35-102(6)(A).

       In considering Defendant’s sentence in this case, the trial court made the following
findings:

       Yes, this is a thought provoking case. The question about, you know,
       appropriateness of a split confinement is one thing, but the - - what are the
       ends of justice and incarceration.

       [Defendant] has set out her reasons for doing what she has done. However
       admirable they may be for her family, it still directs itself toward a victim, that
       we have someone - - someone here who was unable to defend herself from that
       type of financial marauding for lack of a better word. It’s clear [Defendant]
       abused a position of trust within her - - within the bank and to the depositors
       of the bank, so that - - that is something that the Court - - it’s not lost on the
       Court.

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       [Defendant’s] allocution today is very telling. I think that she understands the
       wrongfulness of her conduct. I’m not - - I’m not sure based on a reading of the
       presentence investigation that she - - I guess the most maybe not troubling but
       concerning part of her statement in the PSI is basically defending the husband
       and the family, I understand that, but it’s hard to say I did it because he was
       doing wrong, but I dearly love my husband, and it’s troubling what might
       happen again.

       What I’m going to do is this. I understand the health needs of the child. I’m
       not exactly sure how we get around all of those. But I think it is appropriate
       that there is some incarceration - that is appropriate. However, I do think that
       weekends is the more workable solution. What I’m going to do is this. I’m
       gonna order that she serve 50 days on weekends.

        Even under a de novo review without a presumption of reasonableness, we cannot say
that the trial court erred by ordering Defendant to serve fifty days of her eight-year sentence
in confinement on the weekends. The trial court followed statutory sentencing procedures
and gave due consideration to the factors and principles relevant to sentencing Defendant.
The trial court properly considered the purposes and principles of the Sentencing Act. The
manner in which the trial court ordered Defendant serve her sentence was not arbitrary or
capricious and fully accords with statutory law. Accordingly, Defendant is not entitled to
relief.

        Based on our review of the record and applicable case law, we affirm the judgment
of the trial court.

                                                    ___________________________________
                                                    THOMAS T. WOODALL, JUDGE




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