State v. Cynthia Starks ( 1998 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
FILED
MARCH 1998 SESSION
June 11, 1998
Cecil Crowson, Jr.
STATE OF TENNESSEE, ) Appellate C ourt Clerk
) NO. 02C01-9704-CR-00133
Appellee, )
) SHELBY COUNTY
VS. )
) HON. CAROLYN WADE
CYNTHIA G. STARKS, ) BLACKETT, JUDGE
)
Appellant. ) (Theft over $10,000)
FOR THE APPELLANT: FOR THE APPELLEE:
BILL ANDERSON, JR. JOHN KNOX WALKUP
138 North Third Street Attorney General and Reporter
Memphis, TN 38103-2007
JANIS L. TURNER
Assistant Attorney General
Cordell Hull Building, 2nd Floor
425 Fifth Avenue North
Nashville, TN 37243-0493
JOHN W. PIEROTTI
District Attorney General
JAMES J. CHALLEN, III
Assistant District Attorney General
201 Poplar Avenue, Suite 301
Memphis, TN 38103-1947
OPINION FILED:
AFFIRMED
JOE G. RILEY,
JUDGE
OPINION
The defendant, Cynthia G. Starks, pled guilty to the offense of theft over
$10,000, a Class C felony. The defendant agreed to a sentence of three (3) years
as a Range I offender and a fine of $500. The trial court denied the defendant’s
petition for total probation and refused to grant her judicial diversion. The trial court
ordered an alternative sentence of split confinement requiring the defendant to
serve weekends at the Shelby County Correctional Center for six (6) months
followed by three (3) years probation. In this Court, the defendant presents the
following issue for our review: “[w]hether the trial Court erred in ordering a split
confinement type of sentence in this matter, and, in light of the Court’s
determination, whether the type sentence imposed on the Defendant was too
severe as a matter of law.” After a thorough review of the record, the briefs
submitted by the parties, and the law governing the issues presented for review, it
is the opinion of this Court that the judgment of the trial court should be affirmed.
I
In 1989, the defendant began working as the administrative assistant to the
vice-chairman of the National Bank of Commerce (NBC). In this position she was
responsible for making payments on the vice-chairman’s expense accounts.
Beginning in 1992, the defendant placed phone orders for large quantities of
cosmetics using her employer’s Gold MasterCard. In 1992, defendant charged
$566 to the account. In 1993, she charged $9,754 on the card. In 1994, the
unauthorized charges totaled $44,811. In January and February of 1995, she
charged an additional $3,711 to the account. Taking into account an additional
$617 cash from general ledger expense tickets, the defendant admitted to stealing
a total of $59,514 from NBC.
Defendant paid on the expense account as the charges accumulated by
submitting general ledger expense tickets to the vice-chairman for approval. She
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also prepared expense tickets with fictitious descriptions and forged the vice-
chairman’s signature. The defendant submitted the tickets to the bank’s teller, who
applied them as payment on the account. The vice-chairman was assigned a new
administrative assistant in 1995 who noticed the discrepancies in the bank records.
The defendant’s thefts were then discovered.
The defendant testified that she used the account to purchase cosmetics
because she suffered from depression stemming from her marital difficulties. The
defendant also claimed she was under the influence of several prescription
medications for depression and anxiety during this period of time. She stated she
did not have a clear recollection of using the charge account and that the
medications made her feel “like [she] was floating through life.” Defendant also
testified that she no longer possessed any of the $59,000 worth of cosmetics she
purchased. She claimed that she did not sell or store the products, but gave them
away to friends and relatives.
Defendant was examined by a psychiatrist, Dr. Thomas Bannister, who
submitted a letter to the trial court stating that defendant had developed the
symptoms of major depression in 1992. He concluded that the combination of
major depression, psychotropic medications and the regular use of alcohol may
have “diminished [her] ability to control [her] . . . impulses” and contributed to her
behavior. A vice-president from NBC also testified that the bank was not opposed
to a sentence of full probation for the defendant as long as she met her obligation
to pay $100 per month in restitution to the bank in accordance with a civil judgment.
In sentencing the defendant to split confinement, the trial court stated:
I still think she needs to do some time. That was a very large
amount of money. Even though there’s -- by that letter there’s
evidence of some type of mental problem with her. She still did what
she did, and she continued to do what she did. You know, if there
was -- if she was completely incapacitated that would be a completely
different situation, but being depressed -- a lot of people get
depressed . . . but they don’t go out and steal that kind of money.
. . . [I]f she had done it one time just as a last resort, gave up on life
or something I could understand it. But she did it over a period of
time, so she had the intent to do that and not only do it but just
continue to do it. The only reason why she quit was she got caught.
And if they hadn’t caught her, she’d still be doing it now.
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The trial court also noted that the defendant did not appear to show remorse for her
actions.
II
The defendant contends the trial court erred by ordering a sentence of split
confinement rather than judicial diversion or full probation. The defendant argues
the sentence imposed by the trial court, requiring her to serve a one hundred eighty
(180) day sentence on weekends, was too severe based upon the evidence and
was, therefore, erroneous as a matter of law.
A.
When an accused challenges the length and manner of service of a
sentence, it is the duty of this Court to conduct a de novo review on the record with
a presumption that “the determinations made by the court from which the appeal is
taken are correct.” Tenn. Code Ann. § 40-35-401(d). This presumption 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). The presumption does not
apply to the legal conclusions reached by the trial court in sentencing the accused
or to the determinations made by the trial court which are predicated upon
uncontroverted facts. State v. Butler, 900 S.W.2d 305, 311 (Tenn. Crim. App.
1994); State v. Smith, 891 S.W.2d 922, 929 (Tenn. Crim. App. 1994). However, this
Court is required to give great weight to the trial court’s determination of
controverted facts as the trial court’s determination of these facts is predicated upon
the witnesses’ demeanor and appearance when testifying.
When a defendant contends that the trial court committed error in refusing
to impose a sentence pursuant to Tenn. Code Ann. § 40-35-313, commonly referred
to as “judicial diversion,” a different standard of appellate review applies. In
reviewing these issues this Court must determine whether the trial court abused its
discretion in failing to sentence pursuant to the statute. State v. Bonestel, 871
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S.W.2d 163, 167 (Tenn. Crim. App. 1993); State v. Anderson, 857 S.W.2d 571, 572
(Tenn. Crim. App. 1992); State v. George, 830 S.W.2d 79, 80 (Tenn. Crim. App.
1992). As this Court said in State v. Anderson:
The standard by which we must review a judicial diversion
decision is not specifically provided in the 1989 Act. In T.C.A. §§
40-35-401 and -402, appellate review of the range, length or manner
of service of a sentence is de novo upon the record with the trial
court's determinations being presumed correct. However, judicial
diversion entails more than these sentencing characteristics--it affects
the underlying conviction as well. Also, the sentencing alternatives
provided by the legislature in T.C.A. § 40-35-104 do not include
judicial diversion.
We 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.
State v. Hammersley, 650 S.W.2d 352, 356 (Tenn. 1983). Only an
abuse of that discretion will allow us to overturn the trial court.
857 S.W.2d at 572.
When the accused raises sentencing issues in this Court, the accused has
the burden of establishing that the sentence imposed by the trial court was
erroneous. Tenn. Code Ann. § 40-35-401(d), Sentencing Commission Comments;
State v. Ashby, 823 S.W.2d at 169; State v. Fletcher, 805 S.W.2d 785, 786 (Tenn.
Crim. App. 1991).
B.
Defendant contends the trial court abused its discretion in refusing to grant
her judicial diversion. However, defendant never formally requested that the trial
court grant judicial diversion. Although defense counsel briefly mentioned judicial
diversion in his closing statement during the sentencing hearing, we do not find this
to be sufficient to properly bring the issue of judicial diversion before the trial court.
Nevertheless, we will address the issue on its merits.
The criteria that must be considered in determining whether an eligible
accused should be granted judicial diversion include: (a) the defendant’s
amenability to correction; (b) the circumstances of the offense; (c) the defendant’s
criminal record; (d) the defendant’s social history; (e) the defendant’s physical and
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mental health; and (f) the deterrence value to the defendant as well as to others.
State v. Parker, 932 S.W.2d 945, 958 (Tenn. Crim. App. 1996). 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. Id.In this case, although the trial court did not address the propriety of judicial
diversion, by ordering a period of confinement the court implicitly denied judicial
diversion. We find that there is sufficient evidence to support a denial of judicial
diversion. While the defendant had no prior criminal record and there was evidence
she suffered from mental health problems, the trial court noted that a period of
incarceration was necessary to avoid depreciating the seriousness of the offense
as it involved the theft of over $59,000 over a period of years. Furthermore,
defendant’s actions exhibited a violation of private trust and a sustained intent to
violate the law. Moreover, our review of defendant’s testimony indicates that she
was not completely candid with the trial court. Therefore, we conclude that the trial
court did not abuse its discretion in refusing to grant the defendant judicial diversion.
This issue is without merit.
C.
The defendant further contends the trial court erred in failing to grant total
probation. An especially mitigated or standard offender convicted of a Class C, D
or E felony is presumed to be a favorable candidate for alternative sentencing in the
absence of evidence to the contrary. Tenn. Code Ann. § 40-35-102(6). However,
although a defendant may be presumed to be a favorable candidate for alternative
sentencing, the defendant has the burden of establishing suitability for total
probation. State v. Boggs, 932 S.W.2d 467, 477 (Tenn. Crim. App. 1996); see
Tenn. Code Ann. § 40-35-303(b). Even though probation must be automatically
considered, “the defendant is not automatically entitled to probation as a matter of
law.” Tenn. Code Ann. § 40-35-303(b) Sentencing Commission Comments; State
v. Hartley, 818 S.W.2d 370, 373 (Tenn. Crim. App. 1991).
In determining whether to grant or deny probation, a trial court should
consider the circumstances of the offense, the defendant's criminal record, the
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defendant’s social history and present condition, the need for deterrence, and the
best interest of the defendant and the public. State v. Grear, 568 S.W.2d 285, 286
(Tenn. 1978); State v. Boyd, 925 S.W.2d 237, 244 (Tenn. Crim. App. 1995); State
v. Black, 924 S.W.2d 912, 917 (Tenn. Crim. App. 1995). The defendant's lack of
credibility is also an appropriate consideration and reflects on a defendant's
potential for rehabilitation. State v. Dowdy, 894 S.W.2d 301, 306 (Tenn. Crim. App.
1994).
In determining if incarceration is appropriate, a trial court may consider the
need to protect society by restraining a defendant having a long history of criminal
conduct, the need to avoid depreciating the seriousness of the offense, whether
confinement is particularly appropriate to effectively deter others likely to commit
similar offenses, and whether less restrictive measures have often or recently been
unsuccessfully applied to the defendant. Tenn. Code Ann. § 40-35-103(1); see also
State v. Ashby, 823 S.W.2d at 169; State v. Grigsby, 957 S.W.2d 541, 545 (Tenn.
Crim. App. 1997).
Although the trial court granted the defendant an alternative sentence of split
confinement, the court refused to suspend her entire sentence. The trial court
stated some confinement was necessary to avoid depreciating the seriousness of
the offense. Tenn. Code Ann. § 40-35-103(1)(B). Based upon the need to avoid
depreciating the seriousness of the offense and the long period of time over which
the crimes occurred, the defendant was not entitled to total probation. However,
based upon the fact that she had no prior record and had mental health problems,
some form of alternative sentencing was appropriate. The trial court reached an
appropriate compromise in sentencing the defendant.
For the foregoing reasons, the judgment of the trial court is affirmed.
JOE G. RILEY, JUDGE
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CONCUR:
GARY R. WADE, PRESIDING JUDGE
JERRY L. SMITH, JUDGE
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