         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                           Assigned on Briefs February 25, 2009

              STATE OF TENNESSEE v. HAZEL GILLENWATER

                  Direct Appeal from the Criminal Court for Union County
                            No. 3463    E. Shayne Sexton, Judge



                     No. E2008-01701-CCA-R3-CD- Filed August 6, 2009


The appellant pled guilty in the Union County Criminal Court to theft over ten thousand dollars, a
class C felony, and official misconduct, a class E felony. Pursuant to her plea agreement, she
received a total effective sentence of three years to be served on probation. The sole issue on appeal
is the trial court’s denial of her application for judicial diversion. Upon review of the record, we
affirm the trial court’s judgments.

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

NORMA MCGEE OGLE , J., delivered the opinion of the court, in which JOSEPH M. TIPTON , P.J. and
JAMES CURWOOD WITT, JR., J., joined.

Martha Yoakum and Larry Bryant, LaFollette, Tennessee, for the appellant, Hazel Gillenwater.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney General;
William Paul Phillips, District Attorney General, and Tracy Jenkins, Assistant District Attorney
General, for the appellee, State of Tennessee.


                                             OPINION

                                      I. Factual Background

        At the hearing on the appellant’s application for judicial diversion, the parties stipulated
to the following facts supporting the appellant’s convictions:

                      [The appellant] was indicted in November of 2007 for theft of
               property in an amount greater than $10,000.00 . . . from the City of
               Maynardville. An investigative audit performed by the Division of
               Municipal Audit within the Office of the State Comptroller of the
               Treasury revealed that from March 1, 2005 to January 31, 2007, the
               former city recorder, Hazel Gillenwater, took at least $20,361.98 in
               collections without authority. The scheme employed by the
               defendant was sophisticated in many respects, yet simplistic in others.
               From falsifying the City’s computer records to simply discarding
               other records in her own trash, the defendant was able to embezzle a
               significant amount of money from the City of Maynardville virtually
               undetected for a vast period of time.

                       The [appellant] would accept utility payments from the
               citizens of Maynardville, create false payment histories on their
               accounts, and conceal the theft of the collections by creating separate
               “batch” numbers for the receipts which would be virtually
               undetectable by any other clerks working along with the [appellant].
               Also, the [appellant] simply stole police fines and utility fees paid to
               the City of Maynardville by citizens and customers. The city’s
               deposit make-ups and account register reflect that portions of the
               collected and receipted amounts were never deposited and as city
               recorder, the [appellant] was the only person in charge of reconciling
               all collections and depositing them. The City of Maynardville, at
               different times, employed two accountants which revealed the fact
               that not all collections were being deposited. Auditors from the
               Division of Municipal Audit of the Comptroller’s office discovered
               that the [appellant] stole approximately $20,361.98 from the City of
               Maynardville between March of 2005 and January 2007.

        Darrell Edmondson, the city attorney for Maynardville, was the only witness to testify at the
hearing on the appellant’s application for judicial diversion. Before his testimony, he informed the
court that the city had neither discussed nor voted to take any position with respect to the appellant’s
sentence. He testified that the city paid six thousand dollars to the Comptroller of the Treasury for
the investigative audit and that those funds were not included in the appellant’s restitution. He also
said that the city had not voted to take any action to seek reimbursement for the cost of the audit.

        The appellant did not testify and called no witnesses to testify on her behalf. Her version of
the crimes as stated in the presentence report is as follows: “I was city recorder and treasurer. I was
in charge of all the money coming in or going out.” During his argument at the conclusion of the
hearing, the appellant’s counsel emphasized the appellant’s cooperation in making restitution. He
also contended that the appellant should receive diversion because it had been granted to a similarly
situated defendant who had stolen from a union’s pension or trust fund. According to counsel, the
defendant in the other case made a ten-thousand-dollar contribution to the economic crime fund as
part of her plea agreement, and the State recommended diversion. The appellant’s attorney claimed
that the only significant difference between the two cases was the appellant’s indigency.

        In denying the appellant’s request for judicial diversion, the court said that it considered the
statutory factors, the presentence report, and the memorandum in opposition to judicial diversion that
was filed by the State. The court noted that the appellant’s crime was not impulsive but “was a
crafty way to take the money that belonged to the City of Maynardville.” The trial court found that

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the appellant’s crimes were carried out over a period of time with lack of contrition. Although the
court acknowledged the appellant’s restitution and her admission in the presentence report that she
was “in charge of all the money coming in and going out,” it questioned whether the appellant had
accepted full responsibility for her actions. The court concluded that there was “nothing special”
in the record to warrant diversion.

                                             II. Analysis

         The appellant contends that the trial court erroneously denied her request for judicial
diversion. Specifically, the appellant asserts that the trial court “placed great weight on what it
perceived to be the [a]ppellant’s lack of remorse” and that it made no effort “to weigh the positive
nature of the [a]ppellant’s characteristics.” In support of her argument, the appellant cites her
restitution, good family relationships, thirty-one years of employment with the City of Maynardville,
and asserts that she has no history of alcohol or drug use or criminal behavior. The appellant further
argues that the denial of her application for judicial diversion violates equal protection and due
process. She argues that her case is similar to that of the other defendant who paid ten thousand
dollars to the economic crime fund and received diversion and that the trial court’s denial of her
application for diversion shows an “unjustified disparity in sentencing and an inequality of
sentencing based upon wealth.” The State argues that the trial court properly denied the appellant’s
request for diversion based on the circumstances of the offense and the appellant’s failure to present
the court with proof of her amenability to correction. The court noted that the appellant did not
express remorse or accept full responsibility for her actions. The State does not address the
appellant’s disparity in sentencing argument.

        A defendant is eligible for judicial diversion when he or she is found guilty or pleads guilty
to a Class C, D, or E felony and has not previously been convicted of a felony or a Class A
misdemeanor. See Tenn. Code Ann. § 40-35-313(a)(1)(B). It is within the trial court’s discretion
to grant or deny judicial diversion. See State v. Parker, 932 S.W.2d 945, 958 (Tenn. Crim. App.
1996). As such, the trial court’s decision will be overturned only if the court abused its discretion.
Id. In other words, we will not interfere with the denial of judicial diversion if the record contains
any substantial evidence to support the trial court’s refusal to grant diversion. Id. Moreover, we
observe 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 [Tennessee Code Annotated section] 40-15-105.” State v.
Anderson, 857 S.W.2d 571, 572 (Tenn. Crim. App. 1992).

         In determining whether to grant a defendant judicial diversion, the trial court must consider
all of the following factors: (1) the defendant’s amenability to correction, (2) the circumstances of
the offense, (3) the defendant’s criminal record, (4) the defendant’s social history, (5) the status of
the defendant’s physical and mental health, and (6) the deterrence value to the defendant and others.
State v. Lewis, 978 S.W.2d 558, 566 (Tenn. Crim. App. 1997). Additionally, the trial court should
consider whether judicial diversion serves the ends of justice–that is whether it supports the interests
of the public as well as those of the defendant. Id. The record must reflect that the trial court has
taken all of the factors into consideration. State v. Electroplating, Inc., 990 S.W.2d 211, 229 (Tenn.

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Crim. App. 1998). As a consequence, “we may not revisit the issue if the record contains any
substantial evidence supporting the trial court’s decision.” Id. Furthermore, “[t]he court must
explain on the record why the defendant does not qualify under its analysis, and if the court has
based its determination on only some of the factors, it must explain why these factors outweigh the
others.” Id.

        Initially, we note that the appellant has failed to include the guilty plea hearing transcript in
the appellate record. The burden is upon the appellant to ensure that the record before this court
conveys a fair, accurate, and complete account of what transpired in the court below with respect to
those issues that are the bases of appeal. Tenn. R. App. P. 24(b); see also State v. Ballard, 855
S.W.2d 557, 560-61 (Tenn. 1993). In any event, based on the record before us, we conclude that the
trial court properly denied the appellant’s request for judicial diversion.

        In reaching its decision to deny diversion, the trial court emphasized that the appellant’s
crimes were not impulsive or a “one event act” but were carried out over a period of time. The court
acknowledged the appellant’s restitution and her statement in the presentence report admitting that
she was the city recorder and treasurer and that she was “in charge of all the money coming in and
going out.” However, the court was not convinced that the appellant had accepted full responsibility
for her actions. The appellant did not testify and presented no witnesses on her behalf. The court
noted that before it grants diversion, it wants to have “a good, comfortable feeling . . . [that it] will
never have to deal with Ms. Gillenwater or whomever it is that’s applying” again. Based on the
record before it, the trial court concluded that the circumstances of the appellant’s offenses, “long
term artifice with lack of contrition,” did not warrant diversion. We agree with the trial court.
Notably absent from the record is any expression of remorse by the appellant or acceptance of
responsibility for her actions.

        The nature and circumstances of an offense alone may support a denial of judicial diversion.
State v. Kyte, 874 S.W.2d 631, 634 (Tenn. Crim. App. 1993). Indeed, the commission of an offense
in separate actions over a period of time indicates a sustained intent to violate the law on the part of
the appellant. State v. Danielle L. Walker, No. E2000-00578-CCA-R3-CD, 2001 Tenn. Crim. App.
LEXIS 235, at *10-11 (Knoxville, Mar. 29, 2001) (affirming the trial court’s denial of judicial
diversion because the appellant cashier had stolen over $3,000 from employer in twenty-nine
occasions over about three weeks). We agree with the trial court that the repetitious nature of the
present offenses, indicating the appellant’s sustained intent to violate the law, weighs heavily against
the granting of judicial diversion.

        Further, we observe that the appellant abused a position of trust. See State v. Grissom, 956
S.W.2d 514, 518 & n.5 (Tenn. Crim. App. 1997); see also Walker, No. E2000-00578-CCA-R3-CD,
2001 Tenn. Crim. App. LEXIS 235, at *11; State v. Kavious L. Newsom, No.
02C01-9806-CR-00166, 1999 Tenn. Crim. App. LEXIS 798, at *12 (Jackson, Aug. 6, 1999). Her
use of her position as city recorder to steal funds from the City of Maynardville undermines public
confidence in government service and weighs against the granting of diversion. See State v. Betty
R. Chumbley, No. M2006-01117-CCA-R3-CD, 2007 Tenn. Crim. App. LEXIS 478, at *11


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(Nashville, June 20, 2007); State v. Charles Chesteen, No. E1999-00910-CCA-R3-CD, 2000 Tenn.
Crim. App. LEXIS 455, at *45 (Knoxville, June 8, 2000). Additionally, “other potential employers
have a clear interest in knowing” about the appellant’s present convictions. 1 State v. Patricia
Bohnenstiehl, No. 03C01-9801-CC-00035, 1999 Tenn. Crim. App. LEXIS 64, at *5 (Knoxville, Jan.
28, 1999). In sum, the public’s interests are served by the denial of judicial diversion in this case.

        With respect to the appellant’s disparity in sentencing argument, we note that there is no
proof in the record to support her allegation that she was treated differently based upon her
indigency. Aside from the offenses charged and the plea agreement, there is no proof in the record
concerning the circumstances of the other defendant’s offenses or the other defendant’s amenability
to correction. The trial judge said that he had no specific recollection of the facts of the other case
but explained that he has always been very judicious in applying the diversion statute. There is no
evidence that the appellant’s indigency played any role in the trial court’s decision to deny her
request for diversion.

        To the contrary, the record reflects that the trial court’s decision was based upon
circumstances of the appellant’s offenses. The appellant’s use of her position to steal over twenty
thousand dollars from the city of Maynardville in multiple transactions over a period of one year and
eleven months demonstrates a sustained intent to violate the law and reflects her abuse of a position
of trust. The trial court did not abuse its discretion when it denied her request for diversion.


                                                     III. Conclusion

         Accordingly, upon review, we affirm the trial court’s judgment.




                                                               ____________________________________
                                                               NORMA McGEE OGLE, JUDGE




         1
            The appellant asserts in her brief that because she is sixty-five years old she “will obviously never work
outside the home again in her lifetim e” and “will never again even be in a position of having the opportunity or
temptation to commit official misconduct or theft.” Although we acknowledge that the appellant’s age may reduce the
risk that she will be in a position to commit similar crimes in the future, we cannot conclude based solely on her age
that the risk is eliminated.

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