           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                            AT NASHVILLE
                                       April 20, 2010 Session

                   STATE OF TENNESSEE v. JOCELYN D. MIMS

                     Appeal from the Criminal Court for Sumner County
                         No. 288-2008     David Patterson, Judge




                     No. M2009-00512-CCA-R3-CD - Filed July 27, 2010


The Defendant, Jocelyn D. Mims, pleaded guilty to one count of conspiracy to introduce
contraband into a penal institution and one count of attempted introduction of contraband
into a penal institution, Class D felonies. She received concurrent terms of two years as a
Range I, standard offender for these convictions. After a sentencing hearing, the trial court
denied the Defendant’s request for judicial diversion. She challenges that ruling on appeal.
After a review of the record, we affirm the judgments of the Sumner County Criminal Court.

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

D AVID H. W ELLES, J., delivered the opinion of the Court, in which T HOMAS T. W OODALL and
J OHN E VERETT W ILLIAMS, JJ., joined.

David L. Raybin, Nashville, Tennessee, for the appellant, Jocelyn D. Mims.

Robert E. Cooper, Jr., Attorney General and Reporter; Brent C. Cherry, Senior Counsel; and
Lawrence Ray Whitley, District Attorney General, for the appellee, State of Tennessee.

                                               OPINION

                                        Factual Background

       A Sumner County grand jury returned a five-count1 indictment against the Defendant,
charging her with one count of conspiracy to introduce contraband into a penal institution,
one count of possession of a Schedule IV controlled substance with intent to deliver, one
count of simple possession of marijuana, and two counts of attempted introduction of


       1
           The counts in the indictment appear to be incorrectly numbered, failing to include a count two.
contraband into a penal institution. On November 21, 2008, the Defendant entered a guilty
plea to one count of conspiracy to introduce contraband into a penal institution and one count
of attempted introduction of contraband into a penal institution. See Tenn. Code Ann. § 39-
16-201.

      At the guilty plea hearing, the State provided a factual basis for the plea. The
prosecutor recited the events as follows:

       In the previous case for which Mr. Porter is now serving time in the
       Department of Correction, his attorney was [the Defendant]. And he pleaded
       guilty on the charge and is serving time on January the 10th of 2008. He went
       into custody in the Sumner County Jail on January the 11th of 2008.

              After that time, [the Defendant] and Mr. Porter continued to have
       conversations, some on the telephone, some on contact visits, some on
       visits—at the attorney visiting area.

               Things were going along smoothly until about the 13th day of February
       wherein there was mounting suspicion as to the activities of [the Defendant]
       by jail personnel, one of which was that [the Defendant] had brought during
       an attorney—supposed attorney/client visit, she had brought Mr. Porter’s
       eight-year-old daughter to the visit or to the conversation, and she was present
       in the jail outside of visiting hours.

              Shortly after that, Mr. Porter was found with tobacco in his shoe. He
       had been accepted into the Homeward Bound Program, which is a very good
       program which Sumner County has here in the jail, and he was dismissed from
       that program because it was a violation to have the tobacco.

              At about that same time, [the Defendant] called Tim S[i]rcy, who is not
       a county employee, but is a liaison between the jail and jail inmates and
       Cumberland Mental Health, and she had told Mr. S[i]rcy that she was
       concerned about Mr. Porter’s mental health and that he needed some
       medication and that he was banging his head against the wall and things of this
       nature. And she also disclosed that she was madly in love with Mr. Porter.
       That caused some concern.

              Mr. S[i]rcy told jail personnel, Sonya Troutt, who is the jail
       administrator. Sonya Troutt came to Major Don Linzy, who is the chief of
       detectives of Sumner County. And Major Linzy launched an investigation at

                                             -2-
that point because of these matters and other matters that had cast some
suspicion on the relationship between the two defendants . . . .

       So Major Linzy assigned Detective Tim Bailey, who is in the courtroom
here today, to the case. And Detective Bailey pulled the jail conversations
relating—he got all the conversations wherein Mr. Porter had called [the
Defendant’s] cell phone and her home phone, and those were very revealing
conversations.

       Each one of those conversations, which are administered by Global
Tel*Link, had the admonition at the very beginning of each conversation that
these conversations were being taped and were subject to being listened to,
but, nevertheless, the two parties continued talking.

        And it was apparent from the get-go that this was something more than
an attorney/client relationship, that there was a romantic relationship there, and
it was clear that they were discussing getting drugs in to Mr. Porter.

        These conversations continued to develop to the point where it was
clear that [the Defendant] had given Mr. Porter some Xanax. As a matter of
fact, she had told Mr. S[i]rcy, Tim S[i]rcy, that she had given him Xanax from
her own prescription before he went into the jail. But then it became apparent
that she had given him Xanax while he was in jail, too. She had smuggled
those Xanax in to him.

       The conversations continued to the point where Mr. Porter had arranged
with [the Defendant] for [the Defendant] to have a drop-off point for some
marijuana and for Xanax and perhaps other drugs over in the LaGuardo
Community, which is right across the bridge at 109. . . .

        And [the Defendant] did in fact drop off—I believe it was a Wendy’s
cup that had marijuana in it, had tobacco in it, which is contraband in the jail,
it’s not allowed in the jail, and had fifty-eight Xanax. I think there were eight
Xanax bars, and then the rest were Xanax tablets, which is Alprozolam, a
schedule IV controlled substance. That cup was confiscated by Detective
Bailey.

      Detective Bailey took the marijuana out and took the drugs out, left the
tobacco in, and put it in another cup. And then by other taped conversations,
we knew that Jeff Satterfield, which is another inmate here in the Sumner

                                       -3-
       County Jail, working in concert with Mr. Porter and [the Defendant], came by
       on his way on a furlough to Wilson County to pick up the cup. And so his
       father-in-law picked up the cup. Mr. Satterfield was arrested or stopped there
       with the cup that had the tobacco in it because Detective Bailey did not want
       to risk anybody getting their hands on the marijuana and the Xanax.

              The cup was treated for fingerprints. Prints were lifted by Officer Don
       Badacour, and sent down to the lab, and the thumb print on this Wendy’s cup
       wherein the Xanax, the marijuana, and the tobacco were concealed—the
       thumb print came back to the [D]efendant . . . . So at that point [the
       Defendant] was arrested. There was a controlled conversation between Jeff
       Satterfield, the inmate, and [the Defendant] where there was incriminating
       information imparted there.

             The whole thing is, there was—the attorney/client relationship had
       developed into a romantic relationship, which developed into [the Defendant]
       smuggling drugs into the jail to Mr. Porter.

       Pursuant to the terms of the plea agreement, the Defendant, a Range I, standard
offender, received a sentence of two years at 30% for each offense, which sentences were to
be served concurrently with one another. The manner of service of the sentence, including
the availability of judicial diversion, was submitted to the trial court for determination.

       A hearing was held on January 29, 2009. The State offered the presentence report into
evidence. The report shows that the fifty-year-old Defendant did not have a prior criminal
record other than three speeding tickets. She was married but separated from her husband.
In 2004, she graduated with a juris doctorate degree from Vanderbilt University Law School.
She reported employment with the Legal Aid Society of Middle Tennessee in 2003 and with
a law firm, Byrd & Associates, PLC from August 2004 to February 2006. After February
of 2006, she was self-employed. The Defendant surrendered her law license at the guilty
plea hearing.

       In the report, the Defendant described her drug usage. She admitted to using non-
prescribed and illegal drugs: marijuana usage from the age of sixteen until she was forty-
nine; cocaine usage from the age of twenty-four until she was thirty-six; LSD usage from the
age of seventeen until she was nineteen; and mushroom usage while she was eighteen.
According to the Defendant, she was not using illegal drugs at the time of the sentencing
hearing. The Defendant also reported that her mental health was fair, stating that she
suffered from depression, anxiety, ADD, bipolar disorder, and personality disorder. She was
undergoing psychiatric treatment and took several medications to treat her conditions. The

                                            -4-
Defendant also provided an eighteen-page personal statement detailing her involvement in
the drug smuggling.

       Following the introduction of the presentence report, the State called Detective Tim
Bailey to testify about his investigation of the case. Detective Bailey also testified that the
smuggling of drugs into the Sumner County jail was an “ongoing problem.” In her defense,
the Defendant called her personal physician, Dr. Lori Ray, and her psychologist, Dr. Robert
Jacobs, who detailed the Defendant’s mental health history. Then, the Defendant’s father
and the Defendant testified.

       At the conclusion of the hearing, the trial court denied the Defendant’s request for
judicial diversion and alternative sentencing. The Defendant now appeals from this
judgment contending as error the denial of judicial diversion.2

                                              Analysis

       The Defendant argues that the trial court erred by denying judicial diversion.
Specifically, she argues that the trial court did not “properly weigh the relevant factors,
improperly assign[ed] controlling weight to the circumstances of the offense, and fail[ed] to
consider the interest to the public and the ends of justice when all other criteria supported
diversion.”

        “Judicial diversion is a legislative largess whereby a defendant adjudicated guilty may,
upon successful completion of a diversion program, receive an expungement from all
‘official records’ any recordation relating to ‘arrest, indictment or information, trial, finding
of guilty, and dismissal and discharge’ pursuant to the diversion statute.” State v. Schindler,
986 S.W.2d 209, 211 (Tenn. 1999). The effect of discharge and dismissal under the
diversion statute “is to restore the person . . . to the status the person occupied before such
arrest or indictment or information.” Id. (citing Tenn. Code Ann. § 40-35-313(b) (1997)).

        A criminal defendant is eligible for judicial diversion only if she has been convicted
of a misdemeanor or a class C, D, or E felony and has not been previously convicted of a
felony or a Class A misdemeanor. Tenn. Code Ann. § 40-35-313(a)(1)(A). However,
eligibility under the diversion statute does not ensure the grant of diversion. Indeed, the
decision of whether to place a defendant on judicial diversion is within the sound discretion
of the trial court. State v. Harris, 953 S.W.2d 701, 705 (Tenn. Crim. App. 1996). Thus, upon
review by an appellate court, if “any substantial evidence [exists in the record] to support the



       2
           The Defendant has completed serving her sentence.

                                                  -5-
refusal,” the decision of the trial court will be upheld and this court will not revisit the issue.
State v. Hammersley, 650 S.W.2d 352, 356 (Tenn. 1983).3

        In making the determination of whether to grant judicial diversion, the trial court must
consider the following 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 status of the accused’s physical and mental health; and (f) the deterrence
value to the accused as well as others. State v. Lewis, 978 S.W.2d 558, 566 (Tenn. Crim.
App. 1997) (citing State v. Bonestel, 871 S.W.2d 163, 168 (Tenn. Crim. App. 1993)). 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. Additional factors which may be
considered include a defendant’s attitude, behavior since arrest, home environment, current
drug usage, emotional stability, past employment, general reputation, family responsibilities,
and the attitude of law enforcement. Id. (citing State v. Washington, 866 S.W.2d 950, 951
(Tenn. 1993)).

       At the outset of its sentencing ruling, the trial court stated that it would look to the
following factors in making its determination as to whether to grant judicial diversion or
probation:

        The [D]efendant’s amenability to correction, No. 1; the circumstances of the
        offense, No. 2; the [D]efendant’s record or lack thereof, No. 3; the
        [D]efendant’s social history, No. 4; No. 5 the [D]efendant’s physical and
        mental health, and, No. 6 the deterrent value as to the [D]efendant as well to
        other, the public at large.

The trial court then made extensive findings and conclusions regarding these factors:

        1. Amenability to correction

               And the [c]ourt considers the [D]efendant’s amenability to correction.
        As I review this 18-page attachment written by the [D]efendant, I don’t find
        any statement in this that indicates that the [D]efendant believes she’s
        responsible for her crimes. She wrote 18 pages. This [c]ourt is well aware of
        other very short statements made by defendants in presentence reports. They
        may be three sentences long. “I am so sorry. I will pay everyone back. This


       3
          The Defendant argues that we should apply a de novo standard of review rather than an abuse of
discretion standard. However, the jurisprudence in this State on the appropriate standard of review is
unequivocal, and we decline to delineate from the case law.

                                                  -6-
will never happen again.” The [c]ourt has heard the testimony today, and the
[c]ourt has head the [D]efendant say those very things.

       But throughout the detailing in this 18-page document, the events of her
life and the incidents charged leading up to these charges, she continually
minimizes her accountability. And even today she doesn’t remember the
sexual encounters, although she’s able to remember that she bumped her head
and that [Porter] said something about her being beautiful and that she woke
up naked.

       I have heard a detailed account detailing not only the answers to the
questions asked but every other detail of her life from the time that she began
school at 16 in college, but I haven’t heard a thing about the sexual encounter,
though the [c]ourt is not all that interested in hearing of the sexual encounter.

       I also heard today for the first time, contrary to this report, that the
Xanax wasn’t given to [Porter], but it was taken from the glove box. We can
begin with page 14 of the attachment, and the State has presented some cross-
examination. “This case and this man tugged at my heart more than I should
have allowed. It was so unfair the way he was being treated. I was asked to
supply tobacco, but primarily what I wanted to get Richard was the Xanax to
help him stay clam and get some sleep.” She minimizes her own
accountability in the next paragraph by saying, “I was given instructions
designed by Mr. Satterfield.” This is a Vanderbilt graduate who has gained
several legal certificates and other things along the way.

        Page 15, “Now, as to how I feel about all this I have described, at the
time I felt very uncomfortable. I also felt very desperate to help a man about
whom I cared deeply for who nothing was being done to give him mental
health treatment and medication he needs. I admit that my personal feelings
got in the way of my professional responsibility. My whole life was in crisis,”
it says later, “my personal life, my professional life, everything. I was
overwhelmed at home. I was overwhelmed at work. I was in a lot of physical
and emotional pain. I still am.”

      The [c]ourt made some notations as testimony came today from the
[D]efendant, and one of the notations that the court made, I wrote these words,
“me, me, me.” And a lot of the testimony today from the [D]efendant was
what people have done or not done for me; a husband, professor, grades that
were given or not given. I was successful. There was a lot of stress. My

                                       -7-
husband was my problem. And at this time, this [c]ourt believes that the
[D]efendant has not really taken accountability or is not responsible yet for the
activity that she has precipitated, that has fallen upon her, and that are the
crimes for which this [c]ourt is sentencing her.

        Mr. Porter, the testimony today was when he pled, it was to get mental
health treatment. “My other client said he was ill and going to hurt himself.
The jail refused to medicate him. I was desperate. Tim Sircy was one of the
problems. I don’t subscribe to situational ethics,” was the testimony of the
[D]efendant today, “but what I tried to do that was right did not work,”
justifying her activity today for what she did that was wrong.

        The [D]efendant’s attorney asked how was the mother involved, what
did the mother ask you to do. The State said that that was irrelevant. But to
this [c]ourt it’s very relevant, because what the [D]efendant answered was,
“The mother asked me to help him get sleeping pills. She begged me to bring
pills to her son.” It’s the mother’s fault. “I have waited to talk 11 months, but
I could only talk with the doctors. I don’t know where to start.” She goes on
to say, “I’m sorry I did it.”

       We heard that today, that she’s sorry she did it, but there’s an 18-page
attachment here, and there is every indication to this [c]ourt that this person
has not yet taken accountability, has not yet taken responsibility for the actions
that not only involved her but involved several other people and put an entire
judicial system here, this criminal justice facility at risk.

2. The circumstances of the offense

       The court looks and weighs the circumstances of this offense, and of
significance to the [c]ourt when it considers alternative sentencing, it
considers, first of all, that there’s more than one way to commit the offense of
introducing contraband into a penal institution. Many times law enforcement
officers are faced with a situation where they will arrest a person who’s
intoxicated or in some way has been arrested off the street, and that person
may not even know that he possesses what it is that is found within his
pockets. There are other times when a person will go on furlough or know that
he has a report date and will secret within his undergarments or somewhere
within his body something, a controlled substance, a small amount of
controlled substance for his own use, a person who maybe be himself addicted



                                       -8-
       to some substance that he can’t do without. That’s very different than what we
       compare today in this situation.

              ....

              . . . [T]his is a planned undermining of the integrity and the security of
       the penal institution by one who holds a special understanding of the purposes
       and the procedures of that penal institution.

                [Defense counsel], I’m not going to—for this record I want to say, and
       I’m not going to make a ruling based upon the fact that your client is an
       attorney. I’m telling you about a special place of trust that she has gained, and
       it just so happens she’s an attorney. And this is a commission of an offense by
       one who is granted a high level of trust by the jail administration. That is
       important to this [c]ourt.

              It would be important if she were a drug and alcohol program provider
       for someone in the court, the same type of thing. I’m not so concerned about
       the fact that she is an attorney as I am of this position of trust and the
       understanding she has about the window, the room, where it is, times, how to
       do this thing, special.

        The trial court also enumerated several other factors it was relying on in considering
the circumstances of the offense: (1) the involvement of others in the case, and the
Defendant’s leadership role in the commission of the offense; (2) the “significant” number
of pills that were transported into the jail, and the Defendant’s procurement of marijuana
prior to the smuggling attempt; and (3) the fact that the Defendant’s actions led to her client
being sentenced to more time in jail, when she was “professionally bound to help Mr. Porter
. . . minimize the amount of time” he spent in prison.

       3. The Defendant’s criminal record and social history

               Moving on then, the [D]efendant’s criminal record or lack thereof and
       her social history—we’ll put those two together—there is no indication of
       prior offenses that are of consequence to this [c]ourt in its determination, and
       it’s noted by the [c]ourt that she is before the [c]riminal [c]ourt as a defendant
       for her first time. The [c]ourt knows the [D]efendant is a well-educated
       professional. She’s held a doctorate. At the time of these offenses she was
       married and gainfully employed.



                                              -9-
       The [c]ourt also considers that the [D]efendant reports to the
presentence officer that she’s used marijuana from the time she was 16 until
49. The [c]ourt notes that the [D]efendant is presently 50 years old and
indicates a 33-year illegal drug usage, which is important for the [c]ourt to
note. There’s a use of cocaine that amounts to a varied usage over a 12-year
period, from age 24 to 36.

        These things are important to this [c]ourt in terms of criminal behavior,
because it is criminal to use these items, and it’s criminal to use them if you’re
15 or if you’re 49, and the [c]ourt takes that as part of its consideration in this
case.

4. The Defendant’s physical and mental health

There’s an attachment to the presentence report. She’s under the care of Dr.
Jacobs. He has testified today she’s seeing him weekly for her situation. He
is a clinical psychologist. She has a history of mental health treatment and
diagnosis, including depression, anxiety, ADD, bipolar, borderline personality
disorder, acute agitation due to extreme stress. She has taken many
medications. Many have been prescribed for her, including Wellbutrin, Zoloft,
Paxil, Lamectil—I don’t think I’m saying that correctly—Cymbalta, Xanax,
and we just learned of a new one, Darvocet.

       The [D]efendant reports to the presentence officer that her physical
health is good, although she has a mild physical disability, and her mental
health is fair, according to the [D]efendant. She reports that she is not, quote,
mentally disturbed, unquote. She’s presently being treated for major
depression, anxiety, bipolar, personality disorder, borderline personality
disorder, and the [c]ourt considers that as a factor, such as a factor which is
considered by the [c]ourt in determining a range of punishment within a
particular felony offense.

       Subsection 8 of 40-35-113 says, “The defendant was suffering from a
mental or physical condition that significantly reduced the defendant’s
culpability for the offense. However, the voluntary use of intoxicants does not
fall within the purview of this factor.” And the [c]ourt does consider that
factor in making its ruling today, along with those factors which are very
heavily weighed other than this particular factor.




                                       -10-
That concluded the trial court’s ruling. The trial court did not further elaborate about the
deterrence value or the likelihood that diversion would serve the ends of justice and best
interests of the both the public and the accused.

        The Defendant complains that the trial court did not properly weigh relevant factors,
improperly gave controlling weight to the circumstances of the offense, and failed to consider
the interests of the public and the accused and the ends of justice. Here, the trial court
determined to deny diversion on the bases of the circumstances of the offense and the
Defendant’s amenableness to correction, including her “lack of candor.” In our view, the
trial court did not abuse its discretion in reaching that conclusion. Although the trial court
did not elaborate extensively on all of the relevant diversion factors or explicitly state the
weight it was applying to each factor, its findings implicitly show the weight it applied and
evince a knowledge of the factors it was to consider. Substantial evidence exists to support
the refusal.

        The trial court discussed the factors it was applying to the Defendant at length. The
trial court reviewed the Defendant’s testimony and her written statement, concluding that the
Defendant made many excuses for her behavior and attempted to minimize her role in the
conspiracy. The trial judge stated that the Defendant’s lack of candor reflected poorly upon
her potential for rehabilitation. “Lack of candor and credibility are indications of a
defendant’s potential for rehabilitation.” State v. Nunley, 22 S.W.3d 282, 289 (Tenn. Crim.
App. 1999). The trial court did not find the Defendant credible, and we will not second-
guess the trial court in this regard. As for the circumstances of the offense, the trial court
found several factors to be relevant: the method and planning used to commit the drug
smuggling; the involvement of others persons; the Defendant’s leadership role in the
conspiracy; the quantity of drugs she attempted to introduce into the facility; and that her
actions resulted in more jail time for her client. The trial judge specifically stated that he was
not basing his ruling on the fact that the Defendant was an attorney, simply upon her “special
place of trust” with the “jail administration.” The record established that the Defendant
abused her position of trust. See, eg., State v. William Blaine Campbell, No.
E1999-02208-CCA-R3-CD, 2000 WL 1449875, at *3 (Tenn. Crim. App., Knoxville, Sept.
29, 2000) (this Court concluded that the trial court did not abuse its discretion in emphasizing
a defendant’s abuse of a position of trust in denying his request for judicial diversion). We
note that the Defendant’s abuse of her position of public trust is relevant both to the
circumstances of her offense and to a determination of whether the ends of justice would be
met by granting her judicial diversion.             See State v. Donna F. Benson, No.
W2001-01926-CCA-R3-CD, 2002 WL 31296110, at *6 (Tenn. Crim. App., Jackson, Oct.
8, 2002). We conclude that these factors are sufficient to support the trial court’s denial of
judicial diversion.



                                              -11-
                                       Conclusion

       We conclude that the trial court did not err or abuse its discretion in denying the
Defendant’s request for judicial diversion. The judgment of the Sumner County Criminal
Court is affirmed.




                                                  _________________________________
                                                  DAVID H. WELLES, JUDGE




                                           -12-
