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State v. Terry

Court of Criminal Appeals of Tennessee, Jackson

April 13, 2015

STATE OF TENNESSEE
v.
AMBER RENEE TERRY

Assigned on Briefs March 3, 2015

Appeal from the Circuit Court for Hardin County No. 9813 C. Creed McGinley, Judge

Guy T. Wilkinson, District Public Defender, Camden, Tennessee, for the appellant, Amber Renee Terry.

Herbert H. Slatery III, Attorney General and Reporter; Tracy L. Alcock, Assistant Attorney General; Matthew Stowe, District Attorney General; and Joshua Turnbow, Assistant District Attorney General, for the appellee, State of Tennessee.

Timothy L. Easter, J., delivered the opinion of the Court, in which Robert W. Wedemeyer and Robert H. Montgomery, Jr., JJ., joined.

OPINION

TIMOTHY L. EASTER, JUDGE

Factual Background

On November 18, 2013, the Hardin Country Grand Jury indicted Defendant for one count of theft of property valued at $10, 000 or more and one count of official misconduct. Defendant stole money from the Hardin County Circuit Court Clerk's Office, her then-employer, during a period from March to August 2012.[1] On May 15, 2014, Defendant pled guilty to the charged offenses. A sentencing hearing was held on July 28, 2014, to determine Defendant's eligibility for judicial diversion and the amount of restitution to be paid.

At the hearing, Defendant testified that she had moved to Indiana and was currently employed with a medical supply company. She earned an hourly wage of $9.50 and worked between 48 and 60 hours per week. She had paid the administrative fee and had saved $2, 000 to put toward court costs and restitution. Defendant requested that the trial court take into consideration that this was her only "scrape" with the law, that she had admitted her guilt, and that she had cooperated throughout the investigation. The State asked the court to consider that Defendant had been in a position of trust with taxpayer money and that she had abused that trust multiple times over the course of several months. The presentence report was entered into evidence.

After the hearing, the trial court sentenced Defendant as a Range I, standard offender, to three years for theft of property and one year for official misconduct, to be served concurrently on supervised probation. Defendant was ordered to pay restitution in the amount of $13, 539. The trial court denied judicial diversion. Defendant filed a timely notice of appeal.

Analysis

On appeal, Defendant argues that the trial court erred in denying judicial diversion. The State responds that the trial court properly exercised its discretion and imposed a sentence that was consistent with the purposes and principles of sentencing. We agree with the State.

When a defendant challenges the length, range, or manner of service of a sentence, this Court reviews the trial court's sentencing decision under an abuse of discretion standard with a presumption of reasonableness. State v. Caudle, 388 S.W.3d 273, 278-79 (Tenn. 2012); State v. Bise, 380 S.W.3d 682, 708 (Tenn. 2012). This presumption applies to "within-range sentencing decisions that reflect a proper application of the purposes and principles of the Sentencing Act." Bise, 380 S.W.3d at 707. This same standard of review applies to the trial court's decision to grant or deny judicial diversion. State v. King, 432 S.W.3d 316, 325 (Tenn. 2014).

Judicial diversion is a form of probation that affords certain qualified defendants the opportunity to avoid a permanent criminal record, provided that the defendant meets certain conditions. See T.C.A. § 40-35-313(a)(1)(A). If a defendant qualifies for judicial diversion, a trial court may defer proceedings without entering a judgment of guilty, placing the defendant on probation without categorizing the defendant as a convicted felon. Id. "Judicial diversion is a form of 'legislative largess' available to qualified defendants who have ...


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