State of Tennessee v. Rhonda Brown-Montague aka Rhonda Brown

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs May 1, 2012

STATE OF TENNESSEE v. RHONDA BROWN-MONTAGUE aka

RHONDA BROWN

Appeal from the Criminal Court for Shelby County

No. 0903289 James M. Lammey, Jr., Judge

No. W2011-01433-CCA-R3-CD - Filed December 5, 2012

The Defendant-Appellant, Rhonda Brown-Montague aka Rhonda Brown, pleaded guilty to

theft of property over $60,000.00, a Class B felony, and was sentenced to ten years in the

Tennessee Department of Correction. In this appeal, the Appellant challenges her sentence

as excessive and argues that the trial court erred in denying alternative sentencing. Upon

review, we affirm the judgment of the trial court.

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

C AMILLE R. M CM ULLEN, J., delivered the opinion of the court, in which R OBERT W.

W EDEMEYER and D. K ELLY T HOMAS, J R., JJ., joined.

William L. Johnson (on appeal) and Arthur Horne, III (at trial), Memphis, Tennessee, for the

Defendant-Appellant, Rhonda Brown-Montague aka Rhonda Brown.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Senior Counsel; Amy

P. Weirich, District Attorney General; and William Bright, Assistant District Attorney

General, for the Appellee, State of Tennessee.

OPINION

In 2009, the Appellant was indicted, along with her husband and her mother, for

stealing over $100,000 from her employer, Shelby Residential and Vocational Services

(SRVS), a non-profit agency of United Way that provided financial assistance to people with

slight to severe disabilities.1 On February 7, 2011, the Appellant entered a guilty plea to theft

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Throughout the sentencing hearing, the trial court and defense counsel refer to a case immediately

(continued...)

of property over $60,000.00, a Class B felony. The terms and conditions of the guilty plea

are unclear because we do not have the transcript of the guilty plea proceedings in this

appeal. However, the judgment reflects that the Appellant was sentenced, as a Range I,

standard offender, to a ten-year term of imprisonment with restitution set at $21,000.00. The

following proof was adduced at the June 1, 2011 sentencing hearing.

Ms. Jeffrie Brutton, the Executive Director of SRVS, testified that her organization

received its funding primarily from the State of Tennessee and private donors. Ms. Brutton

testified that the Appellant was employed as the family support program coordinator from

November 2005 to January 2008. In this role, the Appellant was responsible for “filling out”

and “overseeing” all applications for financial support and submitting them to the local

council for approval. The Appellant also had the authority to approve funds without the

approval of the council, and she determined who became eligible for family support program

services and the amount of funding they would receive. SRVS provided services to persons

in the order in which they applied and maintained a “waiting list” for persons they were

unable to immediately assist. The Appellant controlled the waiting list. Ms. Brutton

explained that the waiting list was essential because SRVS had limited resources to

distribute. SRVS reduced the maximum amount of $4,000.00, which was normally allocated

to an applicant, to $2,500.00 in order to service more families. Ms. Brutton testified that,

during the Appellant’s employment, there were between 1000 to 1500 persons on the waiting

list, and the typical wait for services was four or five years.

At some point, the Appellant’s supervisor discovered that the Appellant’s daughter

“was on the program under a fake name,” and SRVS conducted an investigation which

reported a total loss to the organization of $154,000.00. Although insurance paid

$118,000.00, SRVS had to “make up the difference” and pay the State of Tennessee

$154,000.00. Ms. Brutton said that the Appellant’s actions ruined SRVS’ reputation. Ms.

Brutton estimated forty families did not receive services from the family support program

because of the Appellant’s actions. She acknowledged that she received a letter of apology

from the Appellant prior to the sentencing hearing.

The Appellant testified and acknowledged that in January 2006, she created an

application for her daughter under a fictitious name and provided the maximum funding of

$4,000.00. Later that year, the Appellant also completed an application for her son, falsely

claiming he was paraplegic. The Appellant provided her son with an additional $4,000.00

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(...continued)

preceding the Appellant’s sentencing hearing. We presume, from the indictment and the context of the

hearing, that the parties are referring to the co-defendants, Arnett Montague and Mary Brown, who are

charged in the indictment.

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for “[h]ome modification, specialized equipment, and respite care.” The Appellant conceded

that she created fictitious people for whom she completed applications and provided funding.

She also provided, through the program, an exercise bike and a stair lift for family members.

The Appellant acknowledged that she falsely enrolled fifteen to twenty family members and

friends who were not entitled to the services of the family support program. Specifically, the

Appellant enrolled co-defendant, Mary Brown, her mother, and Corey Hubbard, of no

relation, into the program. The State advised the trial court that they had entered a nolle

prosequi as to Mary Brown’s case and that Corey Hubbard had been placed on Pretrial

Diversion.

In response to applicants’ inquiries regarding the status of their applications, the

Appellant told them they were on the waiting list. The Appellant agreed that she denied

families that had been on the waiting list for at least five years the services that they needed.

She acknowledged that some of the applicants were quadriplegic and blind. The Appellant

conceded that she enrolled fictitious or false applicants into the SRVS program for over a

year.

The Appellant explained that she stole the money because she and her husband were

“having a lot of financial problems.” She conceded “it wasn’t a great decision that I made,

but we saw an opportunity to try to get ahead, and we took that, and it was not the right

decision to make; but at the time, we did it.” The Appellant testified:

This has been a very humbling experience for myself and my family.

I’m extremely sorry for the families that I’ve hurt for the funds that I’ve taken

away from the families. I would like to be given a chance to pay that money

back and to be allowed to stay at home with my children so that I can be there

for them in their growth. And I would just like to have another chance to

prove myself.

The Appellant had intended to “get up a lump sum of money to start paying this

money back.” However, she had not done so because she apparently intended to use student

loan money which had been delayed. The Appellant testified that since her termination at

SRVS, she had been working at a salon as a licensed hair stylist and netted “about twenty-

five hundred dollars a month.” She acknowledged that she could pay $200.00 per month

towards restitution, as noted in the presentence report.

Ms. Sandy Williams, a fellow church member of the Appellant, testified that the

Appellant was active in the lives of her children, church, and school. Five letters of

recommendation were also offered into evidence. The letters noted the Appellant’s

leadership roles in her church and children’s school, and that the Appellant was a good

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mother, worker, and friend. The Appellant also wrote a letter to the trial court in support of

an alternative sentence. The letter stressed the Appellant’s desire to be with her children,

then ages six and eleven.

Kara Hayden of the Tennessee Bureau of Investigation testified regarding her

investigation of the Appellant’s actions at SRVS. Agent Hayden reviewed documents

submitted by SRVS and compiled a report that was admitted into evidence at the sentencing

hearing. The report showed that the Appellant funded $11,900.00 to her daughter with a

fictitious name and $12,000.00 to her son whom she falsely named and characterized as

“paraplegic.” The Appellant also created two fictitious people for whom she received a total

of $15,651.00. She funded $8,000.00 to her mother, $8,000.00 to a co-worker, and $490.00

to an unknown individual with no proof of disability. She also provided funding for the

following relatives whom Agent Hayden testified were non-qualifying: $5,835.98 for her

stepmother; $2,000.00 for the mother of her stepmother; $7,305.00 for her grandmother;

$6,525.00 for an aunt; and $5,078.00 for the aunt of her husband. The Appellant issued the

first check to her daughter approximately two months after being hired as coordinator for the

program and issued the final check to her son a month prior to her termination. The report

showed that the Appellant stole $82,784.98 from SRVS.

The trial court sentenced the Appellant to ten years in the Department of Correction.

The Appellant then filed this timely appeal.

ANALYSIS

As an initial matter, the State argues that this Court should presume that the sentence

imposed by the trial court is proper because the Appellant failed to provide an adequate

record on appeal. To date, the Appellant has not filed a reply brief or moved to supplement

the record.

As noted above, the record does not contain a transcript of the plea hearing or a

transcript of the sentencing hearing of the Appellant’s husband, which was repeatedly

referred to by the trial court. We are therefore unable to see the stipulated facts referred to

by the State during the sentencing hearing. It is the Appellant’s burden to include all

transcripts “necessary to convey a fair, accurate and complete account of what transpired

with respect to those issues that are the bases of appeal.” Tenn. R. App. P. 24(b); see State

v. Ballard, 855 S.W.2d 557, 561 (Tenn. 1993) (holding failure to include transcript precludes

appellate review); State v. Keen, 996 S.W.2d 842, 844 (Tenn. Crim. App. 1999) (holding

trial court’s ruling presumed correct in the absence of an adequate record on appeal) (citation

omitted). The trial court’s ruling can be presumed correct on this ground alone. Keen, 996

S.W.2d at 844 (Tenn. Crim. App. 1999). Nevertheless, we conclude that the record is

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sufficient for our review, and we will address the issues presented on appeal. See State v.

Angela Colley, E2011-00250-CCA-R3-CD, 2011 WL 6016885 (Tenn. Crim. App. Dec. 5,

2011); State v. Anna M. Steward, No. E2010-01918-CCA-R3-CD, 2011 WL 4346659, at *2

(Tenn. Crim. App. Sept. 19, 2011).

The Appellant contends that the trial court imposed an excessive sentence. She argues

that the record does not support the enhancement factors relied upon by the trial court. The

State responds that “defendant’s complaint fails to acknowledge the impact of changes in

Tennessee’s sentencing procedure that occurred in 2005,” and that the court properly applied

three enhancement factors and no mitigating factors. We agree with the State.

Pursuant to the 2005 amendments to the sentencing act, a trial court must consider the

following when determining a defendant’s specific sentence and the appropriate combination

of sentencing alternatives:

(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 mitigating and

enhancement factors set out in §§ 40-35-113 and 40-35-114;

(6) Any statistical information provided by the administrative office of the

courts as to sentencing practices for similar offenses in Tennessee; and

(7) Any statement the defendant wishes to make in the defendant’s own behalf

about sentencing.

Id. § 40-35-210(b) (2006). The defendant has the burden of showing the impropriety of the

sentence on appeal. Id. § 40-35-401(d) (2006), Sentencing Comm’n Comments.

Because the 2005 amendments to the sentencing act gave trial courts broad discretion

in sentencing, “sentences should be upheld so long as the statutory purposes and principles,

along with any applicable enhancement and mitigating factors, have been properly

addressed.” State v. Bise, — S.W.3d — , 2012 WL 4380564, at *16 (Tenn. Sept. 26, 2012).

Moreover, “a trial court’s misapplication of an enhancement or mitigating factor does not

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invalidate the sentence imposed unless the trial court wholly departed from the 1989 Act, as

amended in 2005.” Id. at *17. “So long as there are other reasons consistent with the

purposes and principles of sentencing, as provided by statute, a sentence imposed by the trial

court within the appropriate range should be upheld.” Id. Therefore, this court reviews a

trial court’s sentencing determinations under “an abuse of discretion standard of review,

granting a presumption of reasonableness to within-range sentencing decisions that reflect

a proper application of the purposes and principles of our Sentencing Act.” Id.

There was no dispute that the Appellant qualified as a Range I, standard offender. She

was convicted of theft of property over $60,000.00, a Class B felony, T.C.A. § 39-14-105(5)

(2006), and subject to a sentence of “not less than eight (8) nor more than twelve (12) years.”

T.C.A. § 40-35-112(a)(2)(2006). The trial court imposed a sentence of ten years.

The Appellant contends that her ten-year sentence is excessive because the trial court

erred in applying two of the three enhancement factors and erred in failing to apply any

mitigating factors. The record shows that the trial court fully considered the purposes and

principles of the Sentencing Act. Accordingly, the trial court did not abuse its discretion in

imposing a ten-year sentence in this case. The Appellant is not entitled to relief.

The Appellant further challenges the trial court’s denial of probation, which she

asserts was inconsistent with the purposes of the Sentencing Act of 1989. The State responds

that the record supports the trial court’s decision. We agree with the State.

The Tennessee Supreme Court recently held that “the abuse of discretion standard,

accompanied by a presumption of reasonableness, applies to within-range sentences that

reflect a decision based upon the purposes and principles of sentencing, including questions

related to probation or any other alternative sentence.” State v. Caudle, — S.W.3d — , 2012

WL ------- , at *--- (Tenn. Nov. 27, 2012). A defendant is eligible for probation if the actual

sentence imposed upon the defendant is ten years or less and the offense for which the

defendant is sentenced is not specifically excluded by statute. See T.C.A. § 40-35-303(a)

(2006). The trial court shall automatically consider probation as a sentencing alternative for

eligible defendants; however, the defendant bears the burden of proving his or her suitability

for probation. T.C.A. § 40-35-303(b) (2006). No criminal defendant is automatically

entitled to probation as a matter of law. Id., Sentencing Commission Comments; see State

v. Davis, 940 S.W.2d 558, 559 (Tenn. 1997). Rather, the defendant must demonstrate that

probation would serve the ends of justice and the best interests of both the public and the

defendant. See State v. Souder, 105 S.W.3d 602, 607 (Tenn. Crim. App. 2002) (citations

omitted).

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When considering probation, the trial court should consider the nature and

circumstances of the offense, the defendant’s criminal record, the defendant’s background

and social history, his present condition, including physical and mental condition, the

deterrent effect on the defendant, and the best interests of the defendant and the public. See

State v. Kendrick, 10 S.W.3d 650, 656 (Tenn. Crim. App. 1999) (citing State v. Grear, 568

S.W.2d 285, 286 (Tenn. 1978)). In addition, the principles of sentencing require the sentence

to be “no greater than that deserved for the offense committed” and “the least severe measure

necessary to achieve the purposes for which the sentence is imposed.” Id. § 40-35-103(2),

(4) (2006). “The potential or lack of potential for the rehabilitation or treatment of the

defendant should be considered in determining the sentence alternative or length of a term

to be imposed[,]” and “[t]he length of a term of probation may reflect the length of a

treatment or rehabilitation program in which participation is a condition of the sentence[.]”

Id. § 40-35-103(5). Moreover, our supreme court has held that truthfulness is a factor which

the court may consider in deciding whether to grant or deny probation. State v. Bunch, 646

S.W.2d 158, 160 (Tenn. 1983) (citing State v. Poe, 614 S.W.2d 403, 404 (Tenn. Crim. App.

1981)).

In deciding whether to order confinement, the trial court should consider whether (1)

confinement is necessary to protect society by restraining a defendant who has a long history

of criminal conduct; (2) confinement is necessary to avoid depreciating the seriousness of

the offense, or confinement is particularly suited to provide an effective deterrence to people

likely to commit similar offenses; or (3) measures less restrictive than confinement have

frequently or recently been applied unsuccessfully to the defendant. T.C.A. § 40-35-

103(1)(A)-(C) (2006). The trial court should also consider the mitigating and enhancement

factors set forth in Tennessee Code Annotated sections 40-35-113 and -114 (2006). T.C.A.

§ 40-35-210(b)(5) (2006); State v. Boston, 938 S.W.2d 435, 438 (Tenn. Crim. App. 1996).

Finally, the sentence imposed should be the least severe measure necessary to achieve its

purpose. T.C.A. § 40-35-103(4) (2006).

Because the Appellant’s conviction is a Class B felony, she is not a “favorable

candidate for alternative sentencing options.” T. C. A. § 40-35-102(6)(2006). However, her

sentence of ten years makes her eligible for probation. Id. § 40-35-303(a).

The trial court considered all relevant factors and concluded that the Appellant

presented no potential for rehabilitation and would not make restitution if given probation.

The court also determined that full or part probation would depreciate the seriousness of the

offense and would not serve the ends of justice or benefit either the public or the Appellant:

The probation factors - the nature and circumstances of the criminal

conduct involved. Now, this is even worse than her husband - her husband

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was led into this by her. He willingly went along with this, but it was she who

caused all of this to happen, and it started happening almost as soon as she

went to work for these people. . . . [T]his is absolutely atrocious. I can’t think

of any circumstances that are any worse than this. The circumstances of this

criminal conduct is such that, you know, she completely ruined her family -

she ruined her reputation - she ruined her husband - she ruined her friends - her

mother–she got them all involved in this - money for everybody - people with

fictitious names - forged documents. Everything that she did was a fraud here.

So, to say that she has a potential for rehabilitation, in my opinion, is a joke.

I think full or part probation would unduly depreciate the seriousness

of this offense. . . . I think this organization will never see any of this money

if she were ordered to pay it back.

Here, the trial court determined that confinement was necessary based exclusively

upon the need to avoid depreciating the seriousness of the offense. The Appellant

acknowledges that probation may be denied based solely upon the circumstances surrounding

the offense. State v. Hartley, 818 S.W.2d 370, 374 (Tenn. Crim. App.1991). However, she

contends that this offense is not “especially violent, horrifying, shocking, reprehensible,

offensive or otherwise of an excessive or an exaggerated degree” and that “the nature of the

offense does not outweigh the factors favoring probation.” Id. We disagree.

First, the record shows that the trial court properly considered the sentencing

principles in Tennessee Code Annotated section 40-35-103 before denying alternative

sentencing in this case. The trial court considered the Appellant’s presentence report, her

lack of criminal history, proof of her good character as a mother, friend, and church member,

and her expression of remorse. However, the record also showed that the Appellant stole at

least $80,000 dollars from a non-profit organization whose sole purpose was to provide

financial assistance to severely disabled individuals. In her role as the coordinator of family

support services, she was charged with overseeing the distribution of funds to applicants to

the program. Consequently, as a result of the Appellant’s actions, at least forty qualified

applicant families were denied services during the Appellant’s tenure with the organization.

Additionally, the record shows the Appellant’s theft was systematic and complex. Over a

period of three years, the Appellant forged various documents, created fictitious individuals,

and involved numerous other individuals in the offense, including the Appellant’s mother

and husband. Finally, the only motive the Appellant provided to the trial court for the

enormity of her theft was that she was experiencing some “financial problems” given her

$60,000 combined annual income. Based on this record, we are unable to conclude that the

trial court erred in determining that these factors outweighed the mitigating factors offered

by the Appellant. The trial court clearly believed, and we agree, that the Appellant’s theft

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was reprehensible, offensive, or otherwise of an excessive or exaggerated degree. See State

v. Trotter, 201 S.W.3d 651, 655 (Tenn. 2006) (upholding sentence of confinement based on

the circumstances surrounding the theft of nearly $500,000 by the defendants from one of the

defendant’s employers as so “reprehensible, offensive or otherwise of an excessive or

exaggerated degree” that it outweighed the mitigating evidence of the defendants’ good

character and remorse)). Accordingly, we conclude that the trial court properly determined

that confinement was necessary to avoid depreciating the seriousness of this offense, and the

sentence is therefore affirmed.

CONCLUSION

Based on the foregoing authorities and reasoning, we affirm the judgment of the trial

court.

______________________________

CAMILLE R. McMULLEN, JUDGE

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