        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                         Assigned on Briefs November 1, 2012

          STATE OF TENNESSEE v. APRIL NICOLE CROMWELL

                   Appeal from the Circuit Court for Hardin County
                        No. 9461 C. Creed McGinley, Judge


               No. W2012-00209-CCA-R3-CD - Filed February 4, 2013


The Defendant, April Nicole Cromwell, pleaded guilty to theft of property valued at more
than $10,000, a Class C felony. See T.C.A.§ 39-14-103 (2010). The trial court sentenced
the Defendant as a Range I, standard offender to three years with one year to serve and the
remainder on probation. On appeal, the Defendant contends that the trial court erred by (1)
failing to sentence her to community corrections or probation and (2) denying her request for
judicial diversion. We affirm the judgment of the trial court.

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

J OSEPH M. T IPTON, P.J., delivered the opinion of the court, in which N ORMA M CG EE O GLE
and R OGER A. P AGE, JJ., joined.

Joe Lee Brown, Savannah, Tennessee, for the appellant, April Nicole Cromwell.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney
General; Hansel Jay McCadams, District Attorney General; and Eddie N. McDaniel,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                        OPINION

       At the plea submission hearing on December 1, 2011, the Defendant stipulated to the
facts contained in the indictment, which stated that

       [The Defendant] heretofore, to wit: ON OR ABOUT THE 17 TH OF MARCH,
       2011 . . . did intentionally or knowingly obtain or exercise control over
       property, to-wit: SEVERAL PIECES OF EXPENSIVE FAMILY JEWELRY
       of the value of MORE THAN . . . ($10,000) but less than . . . ($60,000) being
       the property of Riley Gunter without the owner’s effective consent, with the
       intent to deprive the said Riley Gunter thereof, thereby committing the offense
       of THEFT OF PROPERTY, in violation of TCA §39-14-103, against the
       peace and dignity of the State of Tennessee.

The Defendant received a three-year sentence pursuant to the plea agreement and applied for
judicial diversion.

        At the sentencing hearing, the presentence report was received as an exhibit. The
report stated that the Defendant only had a previous conviction for speeding. She admitted
to a seatbelt violation in Alabama three or four years previously. She graduated from Hatley
High School in 2003 and attended some college classes at Jackson State Community College.
The report showed the Defendant had good mental and physical health, although she suffered
from periodic panic/anxiety attacks and diverticulitis. The Defendant was married with two
children at the time of sentencing. The Defendant’s husband received Social Security
disability benefits. The Defendant received an honorable discharge from the Alabama
National Guard.

        The victim testified that his elderly mother and disabled brother lived with him and
that he was responsible for their care. He said that his mother was ninety years old and that
his brother was fifty-seven years old. He said that because his brother was blind and
mentally handicapped, the State paid for the Defendant to care for his brother. He said the
Defendant was employed at Deaconess Home Health. He said that at the time of the theft,
the Defendant had worked in his home for about one year, that he had trusted her, and that
he had treated her like family.

       The victim testified that his mother was hospitalized around the time of the theft, that
the paramedics who took his mother to the hospital removed her jewelry and gave it to him,
and that he placed the jewelry inside his mother’s jewelry box. He said that after his mother
was released from the hospital and returned home, she asked for her jewelry. He said the
jewelry was missing when he went to retrieve it.

        The victim testified that eleven pieces of jewelry were taken and that four were
recovered. He said that two 1.3-carat diamond earrings given to his mother by his deceased
father were still missing and that his great grandmother’s wedding ring, two gold necklaces,
one sapphire pendant surrounded by diamonds, and his grandmother’s broach were still
missing. He said he was told by the sheriff’s department that the Defendant refused to state
where the missing items were. He said the Defendant was a liar. He said that the Defendant
first denied taking the jewelry and that after the police recovered two items, the Defendant
confessed to taking only those two items. He said it was not until the police recovered two



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additional pieces that the Defendant confessed to taking those items, too. He said the
Defendant did not express remorse.

        The victim testified that the Defendant, who lived six houses from his home, took his
mother’s sense of security and that his mother now lived in fear. He wanted the court to
understand the Defendant’s character. He heard the Defendant state that after her father-in-
law died from cancer, she would be rich. He said he provided the Defendant with daily
meals while she cared for his mother and brother and fed her horses when she had no food
to give them. He said his kindness was “rewarded with treachery, deceit, and theft.” He said
the Defendant betrayed his family’s trust and her duty. He asked the court to make an
example of the Defendant and to order her to serve one year in confinement and two years
on probation. He did not want the Defendant to receive leniency “while profiting from
stealing” from his family. He wanted the court to impose a sentence “that would remind
others in a position of trust that they cannot take advantage of the elderly, weak, or infirm
because they are not in a position to defend themselves.”

       On cross-examination, the victim testified that the Defendant lived about one-half
mile from his home. He denied driving by her home yelling, “You’re a b----,” but admitted
yelling, “thief.” He denied yelling in front of the Defendant’s children and said he drove by
her home twice per day.

        The victim testified that he changed the value of the missing jewelry based on the
value of gold and that he did not know how much gold was taken during the theft. He said,
though, that the items were appraised previously. A copy of the appraisal with the modified
values based on the price of gold was received as an exhibit. He agreed he requested
restitution in the amount of $19,525 and said the recovered items were valued at $5950. He
agreed the Defendant did not admit taking the unrecovered items.

       The Defendant testified that she was married and had two young children, that her
husband was disabled, and that she had been a certified nurse’s aide since 2006. She said she
had cared for the victim’s mother for about one year. She denied having any previous arrests
but admitted receiving a speeding ticket. She said that she and her husband began having
financial difficulty and that she took “some of this jewelry” to provide financial relief.

       The Defendant testified that she took and sold the four recovered items but denied that
she took the other items. She agreed she pleaded guilty to taking those items. She said she
attempted to cooperate with the police investigation and the victim. She denied having a
drug problem. She said she had been enrolled in a program with New Creations Outcome
and Ministries. A letter signed by a program counselor was received as an exhibit stating that
the Defendant was present at the Overcomers meeting on December 5, 12, 16, 19, and 27,

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2011. The Overcomers meetings addressed problems with addictions, trials of life, anxiety,
depression, drugs, alcohol, pornography, anger, gambling, and anything else that might
impact one’s life.

       The Defendant testified that she had served in the National Guard and was honorably
discharged. She said she had learned her lesson and expressed remorse for her actions. She
said she lost both of her cars and almost lost her home because of the theft. She admitted
filing for bankruptcy. She addressed the victim and his family and said she was sorry and
wished she “could take it back, but we all make mistakes and we can’t” take them back.

       On cross-examination, the Defendant testified that her home was owned by her father-
in-law and that he threatened to evict her family. She stated that she lied to the police about
taking the jewelry during her first interview but that she admitted the theft when the officer
told her that he would work with her if she worked with him. She agreed she did not admit
the theft until the officer told her that he knew she sold some of jewelry and that the buyer
paid with a check. She agreed her husband washed the check in the laundry and denied
asking the buyer for another check.

       The Defendant testified that the police interviewed her about two additional pieces
of jewelry that were pawned and that she denied pawning those items. She agreed she told
the police that she pawned jewelry at the same store and that the jewelry she pawned did not
belong to the victim. She later admitted taking these two pieces of jewelry. She denied
taking the jewelry the day the victim’s mother was taken to the hospital.

       The trial court stated that the Defendant pleaded guilty to a serious offense but that
based on the principles of sentencing, the Defendant was a favorable candidate for alternative
sentencing. The court found that the Defendant’s honorable service in the National Guard
and her lack of criminal history weighed in her favor. The court found, though, that the facts
of the case were “particularly atrocious” because of the manner in which the Defendant
committed the theft. The court stated that the theft was “perhaps the ultimate breach of trust”
and that the Defendant was there as an “ang[el] of mercy . . . and became a messenger of
destruction.” The court said the Defendant’s actions would only have been worse had she
taken the jewelry from a dead person. The court found that the victim’s mother and brother
were “totally helpless.”

       The trial court found that the Defendant was not “a routine person” because the
Defendant did not steal a loaf of bread because she was hungry. The court said “this defies
description.” The court found that the Defendant was “less than candid” and that she lied to
the court when she said she only took four pieces of jewelry. The court stated that “in the



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strongest circumstantial terms[, the Defendant was] guilty of taking everything she was
accused of taking.” The court ordered the Defendant to pay $13,575 in restitution.

       The trial court denied full probation and judicial diversion based upon the nature of
the offense and the need for deterrence. The court found that confinement was necessary to
avoid depreciating the seriousness of the offense and to provide an effective deterrence to
others who would likely commit “this type of horrible criminal activity.” The court was not
persuaded by the Defendant’s participation in the Overcomers program because she began
attending four days after she entered her guilty plea and knew confinement was a possible
outcome and because the program was generic. The court ordered one years’ confinement
and two years on probation, although it believed total confinement was appropriate. The
court concluded that denying full probation would prevent the Defendant’s paying restitution.
This appeal followed.

                                               I

        The Defendant contends that the trial court erred by not sentencing her pursuant to the
Tennessee Community Corrections Act or placing her on full probation. She argues that the
State did not present any legitimate reason for not sentencing her to community corrections
or full probation. The State responds that the trial court properly sentenced the Defendant.
We agree with the State.

       The Tennessee Supreme Court recently adopted a new standard of review for
sentencing in State v. Susan Renee Bise, 380 S.W.3d 362, 706 (Tenn. Sept. 26, 2012). In
Susan Renee Bise, the court held that length of sentence “within the appropriate statutory
range [is] to be reviewed under an abuse of discretion standard with a ‘presumption of
reasonableness.’” Id. at 708. More recently, our supreme court has applied the abuse of
discretion standard with a presumption of reasonableness to “questions related to probation
or any other alternative sentences.” State v. Christine Caudle, — S.W.3d —, —, No. M2010-
01172-SC-R11-CD, slip op. at 7 (Tenn. Nov. 27, 2012).

       In determining the proper sentence, the trial court must consider: (1) any evidence
received at the trial and 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, (5) any mitigating or statutory enhancement factors, (6) statistical
information provided by the administrative office of the courts as to sentencing practices for
similar offenses in Tennessee, (7) any statement that the defendant made on his own behalf,
and (8) the potential for rehabilitation or treatment. T.C.A. §§ 40-35-102, -103, -210; see
State v. Ashby, 823 S.W.2d 166, 168 (Tenn. 1991); State v. Moss, 727 S.W.2d 229, 236
(Tenn. 1986).

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       The Defendant argues that she was eligible for community corrections under
Tennessee Code Annotated section 40-36-106(a)(1)(A)-(F) (2010) because she had no
previous criminal history and because she received an honorable discharge from the National
Guard. We note that the trial court stated that based on the principles of sentencing, the
Defendant was a favorable candidate for alternative sentencing. The Defendant was eligible
for probation and community corrections sentences. See T.C.A. §§ 40-35-303(a) (2010), 40-
36-106(a)(1) (2010). However, mere eligibility does not automatically entitle a defendant
to probation or a sentence under the Community Corrections Act. See State v.Fletcher, 805
S.W.2d 785, 787 (Tenn. Crim. App. 1991); State v. Beverly Dixon, No. W2004-00194-CCA-
R3-CD, slip op. at 10 (Tenn. Crim. App. June 30, 2005) (citing State v. Ball, 973 S.W.2d
288, 294 (Tenn. Crim. App. 1998)). Furthermore, the statutory provisions regarding
alternative sentences must be read together with the Sentencing Act as a whole. See Fletcher,
805 S.W.2d at 787-88; State v. Wagner, 753 S.W.2d 145, 147 (Tenn. Crim. App. 1988).

       When determining if incarceration is appropriate, a trial court should 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) (2010); see also State v. Hooper, 29 S.W.3d 1, 5 (Tenn. 2000).

        Although the Defendant had no previous criminal history, the record reflects that she
took advantage of an elderly woman and a blind, intellectually disabled man. We agree with
the trial court that the facts underlying the theft were atrocious and that the Defendant
breached the victim’s trust. At the time of the theft, the Defendant was paid to care for the
victim’s disabled brother and elderly mother. Furthermore, the Defendant refused to admit
stealing all the jewelry and only confessed to stealing four items after the police had direct
evidence of her guilt. The court denied alternative sentencing based on the nature of the
offense, to avoid depreciating the seriousness of the offense, and to provide an effective
deterrence to others who would likely commit “this type of horrible criminal activity.” The
Defendant has not established that the trial court abused its discretion by denying community
corrections and full probation. The Defendant is not entitled to relief.



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                                                II

        The Defendant contends that the trial court erred by denying judicial diversion.
Although she does not provide an argument related to why she is entitled to diversion, she
states she was eligible for diversion. The State responds that although the Defendant was
eligible for diversion, the trial court did not abuse its discretion by denying diversion. We
agree with the State.

        A defendant is eligible for judicial diversion if he or she is found guilty of or pleads
guilty or nolo contendere to a Class C, D, or E felony or a lesser crime, has not previously
been convicted of a felony or a Class A misdemeanor, and is not seeking deferral for a sexual
offense. See T.C.A. § 40-35-313(a)(1)(B)(I) (2010). The decision to grant judicial diversion
lies within the sound discretion of the trial court, and this court will not disturb that decision
on appeal absent an abuse of discretion. State v. Electroplating, Inc., 990 S.W.2d 211, 229
(Tenn. Crim. App. 1998). Upon review, we will give the trial court the benefit of its
discretion “‘if any substantial evidence to support the refusal’ exists in the record.” State v.
Anderson, 857 S.W.2d 571, 572 (Tenn. Crim. App. 1992) (quoting State v. Hammersley, 650
S.W.2d 352, 356 (Tenn. 1983)).

        In determining whether to grant judicial diversion, the trial court must consider (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; (6) the deterrence value to the defendant and others; and (7) whether
judicial diversion will serve the ends of justice. Electroplating, 990 S.W.2d at 229; State v.
Parker, 932 S.W.2d 945, 958 (Tenn. Crim. App. 1996). In addition, “the record must reflect
that the court has weighed all of the factors in reaching its determination.” Electroplating,
990 S.W.2d at 229. If the trial court refused to grant judicial diversion, it should state in the
record “the specific reasons for its determinations.” Parker, 932 S.W.2d at 958-59.

        As a preliminary matter, the State argues this issue is waived because the Defendant
failed to make appropriate citations to the record and to the appropriate standard of review
in her brief. See Tenn. R. Crim. App. 10(b) (“Issues which are not supported by argument,
citation to authorities, or appropriate references to the record will be treated as waived in this
court.”). Although the Defendant failed to cite to the record and the appropriate standard of
review, we will consider the issue on the merits. The record reflects that the trial court
weighed all the appropriate factors in denying judicial diversion. Although the Defendant
had no previous criminal history, had good physical and mental health, had family
responsibilities, and received an honorable discharge from the National Guard, the court
denied judicial diversion based upon the nature of the offense and the need for specific and
general deterrence. The court found that the Defendant lied when she testified at the

                                               -7-
sentencing hearing that she only took the four pieces of recovered jewelry. Her lack of
candor weighs against her amenability to correction. With regard to deterrence, the court
found that confinement was necessary to deter the Defendant and others from committing
“this type of horrible criminal activity.”

        The Defendant breached the victims’ trust when she stole from the people for whom
she was paid to provide care. The Defendant preyed on an elderly woman and an
intellectually disabled blind man, who were helpless to defend against the Defendant’s theft.
We conclude that substantial evidence exists for the trial court’s denying judicial diversion.
The Defendant is not entitled to relief.

        In consideration of the foregoing and the record as a whole, we affirm the judgment
of the trial court.




                                              ____________________________________
                                              JOSEPH M. TIPTON, PRESIDING JUDGE




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