         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                           Assigned on Briefs September 11, 2001

                     STATE OF TENNESSEE v. ARHONDA RICE

                   Direct Appeal from the Criminal Court for Shelby County
                          No. 00-05935   James C. Beasley, Jr., Judge



                    No. W2000-03004-CCA-R3-CD - Filed October 16, 2001


The Defendant pled guilty to theft over $1,000.00, a Class D felony, and the trial court sentenced her
to two years incarceration as a Range I standard offender. The trial court suspended the Defendant’s
sentence and placed her on seven years probation. The trial court also ordered the Defendant to serve
one hundred weekends at the Shelby County Correctional Center, perform five hundred hours of
community service, and pay $8,400.00 in restitution. The Defendant now appeals, arguing (1) the
trial court erred in denying her judicial diversion, and (2) that the trial court erred in denying her full
probation. Finding no error, we affirm the judgment of the trial court.

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

ROBERT W. WEDEMEYER , J., delivered the opinion of the court, in which THOMAS T. WOODALL and
NORMA MCGEE OGLE , JJ., joined.

Tony N. Brayton, Assistant Public Defender (on appeal), Memphis, Tennessee; and Phyllis Aluko,
Assistant Public Defender (at trial), Memphis, Tennessee, for the Appellant, Arhonda Rice.

Paul G. Summers, Attorney General and Reporter; Laura McMullen Ford, Assistant Attorney
General; William L. Gibbons, District Attorney General; and Kevin Rardin, Assistant District
Attorney General, for the Appellee, State of Tennessee.

                                               OPINION

                                                I. Facts

        The Defendant, Arhonda Rice, worked as a certified nursing assistant for Trained Medical
Staffing, a temporary medical personnel agency. According to William Brewer, an employee of
Trained Medical Staffing, between May 18, 1998 and August 28, 1998, the Defendant turned in over
one hundred fraudulent time sheets for hours she had allegedly worked at Highpoint Rehab in Shelby
County, Tennessee. Each of these time sheets was supposedly signed by either Sandra Ayres or
Gertrude Fry, registered nurses at Highpoint Rehab; however, both signed affidavits stating that the
signatures on those forms were not theirs. When confronted by her employer, the Defendant
admitted to the theft. According to the State, Trained Medical Staffing suffered a loss of $10,086.50.

        In a hearing on a motion to suspend her sentence, the Defendant testified that she padded her
hours because she needed extra money to “pay a few bills off.” According to the Defendant, at least
one other girl with whom she worked was doing the same thing, and that is how she got the idea to
falsify her time sheets. The Defendant testified that she felt guilty about what she had done.
However, the Defendant went to work soon thereafter for Critical Care Nursing, where she “did the
same thing.” At the time of her plea, the Defendant was also charged with forgery and theft of
property over $500.00 for defrauding Critical Care Nursing of $816.70 by submitting falsified time
sheets. As part of the plea agreement, the State did not submit that case to the Grand Jury.

                                            II. Analysis

                                           A. Probation

       The Defendant argues that the trial court erred in denying her full probation. When a
criminal defendant challenges the length, range, or manner of service of a sentence, the reviewing
court must conduct a de novo review of the sentence with a presumption that the determinations
made by the trial court are correct. Tenn. Code Ann. § 40-35-401(d). This presumption, however,
“is conditioned upon the affirmative showing in the record that the trial court considered the
sentencing principles and all relevant facts and circumstances.” State v. Ashby, 823 S.W.2d 166,
169 (Tenn. 1991). In the event that the record fails to show such consideration, the review of the
sentence is purely de novo. State v. Shelton, 854 S.W.2d 116, 123 (Tenn. Crim. App. 1992).

       In making its sentencing determination, the trial court, at the conclusion of the sentencing
hearing, determines the range of sentence and then determines the specific sentence and the propriety
of sentencing alternatives by considering (1) the evidence, if any, received 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 enhancement and mitigating factors, (6) any
statements the defendant wishes to make in the defendant's behalf about sentencing, and (7) the
potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-210(a), (b), -103(5); State v.
Williams, 920 S.W.2d 247, 258 (Tenn. Crim. App. 1995).

        The presumptive sentence to be imposed by the trial court for a Class B, C, D or E felony is
the minimum within the applicable range unless there are enhancement or mitigating factors present.
Tenn. Code Ann. § 40-35-210(c). If there are enhancement or mitigating factors, the court must start
at the presumptive sentence, enhance the sentence as appropriate for the enhancement factors, and
then reduce the sentence in the range as appropriate for the mitigating factors. Id. § 40-35-210(e).
The weight to be given each factor is left to the discretion of the trial judge. State v. Shelton, 854
S.W.2d 116, 123 (Tenn. Crim. App. 1992). However, the sentence must be adequately supported



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by the record and comply with the purposes and principles of the 1989 Sentencing Reform Act.
State v. Moss, 727 S.W.2d 229, 237 (Tenn. 1986).

        When imposing a sentence, the trial court must make specific findings of fact on the record
supporting the sentence. Tenn. Code Ann. § 40-35-209(c). The record should also include any
enhancement or mitigating factors applied by the trial court. Id. § 40-35-210(f). Thus, if the trial
court wishes to enhance a sentence, the court must state its reasons on the record. The purpose of
recording the court’s reasoning is to guarantee the preparation of a proper record for appellate
review. State v. Ervin, 939 S.W.2d 581, 584 (Tenn. Crim. App. 1996). Because the record in this
case indicates that the trial court adequately considered the enhancement and mitigating factors as
well as the underlying facts, our review is de novo with a presumption of correctness.

        If our review reflects that the trial court followed the statutory sentencing procedure, that the
court imposed a lawful sentence after having given due consideration and proper weight to the
factors and principles set out under the sentencing law, and that the trial court’s findings of fact are
adequately supported by the record, then we may not modify the sentence "even if we would have
preferred a different result." State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991). The
defendant bears the burden of showing the impropriety of the sentence imposed. Ashby, 823 S.W.2d
at 169.

         With certain exceptions, a defendant is eligible for probation if the sentence actually imposed
is eight years or less. Tenn. Code Ann. § 40-35-303(a). “Although probation ‘must be automatically
considered as a sentencing option for eligible defendants, the defendant is not automatically entitled
to probation as a matter of law.’” State v. Davis, 940 S.W.2d 558, 559 (Tenn. 1997) (citing Tenn.
Code Ann. § 40-35-303(b) sentencing comm’n cmts). In determining whether to grant or deny
probation, the trial court may consider the circumstances of the offense; the defendant’s criminal
record, background and social history; the defendant’s physical and mental health; the deterrent
effect on other criminal activity; and the likelihood that probation is in the best interests of both the
public and the defendant. State v. Parker, 932 S.W.2d 945, 958 (Tenn. Crim. App. 1996). The
Defendant has the burden of establishing suitability for probation. Tenn. Code Ann. § 40-35-303(b);
Ashby, 823 S.W.2d at 169. An especially mitigated or standard offender convicted of a Class C,
D or E felony who does not fit within certain parameters1 is presumed to be a favorable candidate
for alternative sentencing options in the absence of evidence to the contrary. Tenn. Code Ann. § 40-
35-102(6).

        However, we further note that even if a defendant is presumed to be a favorable candidate
for alternative sentencing under Tennessee Code Annotated § 40-35-102(6), the statutory
presumption of an alternative sentence may be overcome if



         1
            Tennessee Code Annotated § 40-35-102(5) states that “[c]onvicted felons committing the most severe offenses,
possessing criminal histories evincing a clear disregard for the laws and m orals of society, and evincing failure of past
efforts at rehab ilitation shall be give n first priority regar ding sentenc ing involving inc arceration . . . .”

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                (A) [c]onfinement is necessary to protect society by restraining a defendant
        who has a long history of criminal conduct;
                (B) [c]onfinement is necessary to avoid depreciating the seriousness of the
        offense or confinement is particularly suited to provide an effective deterrent to
        others likely to commit similar offenses; or
                (C) [m]easures less restrictive than confinement have frequently or recently
        been applied unsuccessfully to the defendant . . . .
Id. § 40-35-103(1)(A)-(C).

        The Defendant argues that she should have received full probation. The trial court found that
the nature of the offense warranted some incarceration and sentenced her to two years incarceration
as a Range I standard offender, the minimum sentence for a Class D felony. The trial court
suspended the Defendant’s sentence, and placed her on seven years probation. The trial court also
ordered the Defendant to serve one hundred weekends at the Shelby County Correctional Center,
perform five hundred hours of community service, and pay $8,400.00 in restitution. The Defendant
argues that the trial court denied her probation based solely on the nature of the offense. However,
this Court has held that probation may be denied based solely on the circumstances of the offense
when they outweigh all other factors favoring probation. State v. Fletcher, 805 S.W.2d 785, 788-89
(Tenn. Crim. App. 1991).

        The evidence presented at the sentencing hearing showed that the Defendant repeatedly
forged documents and stole from her employer. She claimed that she needed money to pay her bills,
but when asked if she tried to find a second job, she replied that she “didn’t make an effort, at all.”
When the Defendant was approached about the thefts by her employer, she left Trained Medical
Staffing, and eventually began working for another company where she also forged time sheets. The
trial court noted the “systematic nature of the thefts” and the “well thought out and planned nature
of the crime.” The court also noted that “[w]hen caught and confronted with it, [the Defendant]
move on to another location and did it again.”

        The Defendant testified that she plans to pay restitution, and she testified that in order to do
so, she plans on working for Circle-K and getting help from her parents. The Defendant had a
consistent work history since December 1996; however, she was unemployed at the time of the
sentencing hearing. The Defendant has no prior criminal convictions. No enhancement or
mitigating factors were filed.

        After a thorough review of the record, including transcripts of the plea agreement hearing and
the sentencing hearing, the presentence report, as well as the principles of sentencing, we conclude
that the trial court properly denied the Defendant full probation.

                                       B. Judicial Diversion

       The Defendant also argues that the trial court erred in declining to impose a sentence
pursuant to Tennessee Code Annotated § 40-35-313, commonly referred to as judicial diversion.


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Specifically, the Defendant argues that the trial court failed to properly articulate how it weighed the
factors in deciding to deny judicial diversion. According to this statute, the trial court may in its
discretion, following a determination of guilt, defer further proceedings and place a qualified
defendant on probation without entering a judgment of guilt. Tenn. Code Ann. § 40-35-
313(a)(1)(A). A qualified defendant is one who pleads guilty or is found guilty of a misdemeanor
or a Class C, D or E felony; who has not previously been convicted of felony or a Class A
misdemeanor; and who is not seeking deferral for a sexual offense or a Class A or Class B felony.
Id. § 40-35-313(a)(1)(B)(I)(a)-(c); State v. Parker, 932 S.W.2d at 958.

        When a defendant contends that the trial court committed error in refusing to grant judicial
diversion, this Court must determine whether the trial court abused its discretion in failing to
sentence pursuant to the statute. State v. Electroplating, Inc., 990 S.W.2d 211, 229 (Tenn. Crim.
App. 1998); 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 is initiated by 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 revisit the issue if the record contains any substantial
evidence supporting the trial court’s decision. Cutshaw, 967 S.W.2d at 344; Parker, 932 S.W.2d at
958. As this Court said in Anderson,
                 [w]e 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 the trial court must consider in determining whether a qualified defendant
should be granted judicial diversion include the following: (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 defendant’s physical and mental health; and (6) the deterrence
value to the defendant and others. Cutshaw, 967 S.W.2d at 343-344; 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.

         We conclude that the trial court properly denied judicial diversion in this case. It is well
settled that “[t]he same guidelines are applicable in diversion cases as are applicable in probation
cases, but they are more stringently applied to diversion applicants.” State v. Holland, 661 S.W.2d
91, 93 (Tenn. Crim. App. 1983). There is substantial evidence to support the trial court’s decision
to deny judicial diversion, and thus we find no abuse of discretion by the trial court in doing so.




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Accordingly, the judgment of the trial court is AFFIRMED.




                                            ___________________________________
                                            ROBERT W. WEDEMEYER, JUDGE




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