The opinion
12/26/2018
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
September 25, 2018 Session
STATE OF TENNESSEE v. TERESA DIANA POSTON
Appeal from the Circuit Court for Claiborne County
No. 2017-CR-2553 E. Shayne Sexton, Judge
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No. E2018-00385-CCA-R3-CD
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The Defendant, Teresa Diana Poston, pleaded guilty to theft of property valued over
$2,500 with an agreed sentence of two years of probation. The parties agreed to a
separate hearing to determine whether the trial court would grant the Defendant judicial
diversion. After the hearing, the trial court denied the Defendant’s request for judicial
diversion and imposed the agreed upon sentence. On appeal, the Defendant contends that
the trial court erred when it denied her request for judicial diversion. After review, we
vacate the judgment of the circuit court and remand for a new hearing.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Vacated and
Remanded
ROBERT W. WEDEMEYER, J., delivered the opinion of the court, in which JAMES
CURWOOD WITT, JR., and ROBERT L. HOLLOWAY, JR., joined.
Robert R. Asbury, Jacksboro, Tennessee, for the appellant, Teresa Diana Poston.
Herbert H. Slatery III, Attorney General and Reporter; Katherine Casseley Redding,
Assistant Attorney General; Jared Ralph Effler, District Attorney General; and Graham
Edward Wilson, Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
I. Facts
The Defendant was indicted by information on one count of theft of property
valued over $2,500. The Defendant entered her guilty plea to that offense on November
6, 2017. At the guilty plea hearing, the Defendant waived her right to be indicted by a
grand jury, and she said she understood that she was pleading guilty to a class D felony,
with a sentencing range of two to twelve years. Upon questioning by the trial court, the
Defendant expressed her understanding of her rights and the rights she was waiving by
pleading guilty. The parties then stipulated that on or about July 1, 2015, the Defendant
did “unlawfully, feloniously, knowingly and without the effective consent of the owner,
obtain or exercise control over the property of Powell Valley School with intent to
deprive said owner of the property, valued at more than 25 hundred dollars.” The trial
court accepted the guilty plea and set a date for a hearing on the issue of judicial
diversion.
The parties reconvened at the sentencing hearing, and the State presented the
presentence report. The parties reminded the trial court that the parties had agreed to a
two-year probationary sentence. The parties agreed that the Defendant had no prior
criminal history and was statutorily eligible for judicial diversion.
The presentence report, admitted into evidence, showed that the victim was fifty-
eight years old, a widow, and had no prior criminal history. The Defendant told the
officer creating the report that she had been accused of taking money from Powell Valley
Elementary School. She said that state auditors came into the school in November 2016
and January 2017 and said that “by all the evidence [the Defendant] had t[aken] money
from the cheerleaders fund.” The report also indicated that the Defendant had paid the
restitution balance in full of $6,650.86. The Defendant described herself as in good
physical and mental health with good family relationships.
The Defendant filed, and the trial court reviewed, a memorandum in support of her
request for judicial diversion. The Defendant stated that she had been a bookkeeper at
the Powell Valley Elementary School for more than thirty-eight years. In November
2016, the school board conducted an audit, and the auditors met with the Defendant to
address irregularities with the school funds. The memorandum stated that,
“Notwithstanding that all funds were held in accounts with multiple authorized
signatories, the Defendant took the position that as the book keeper [sic] she was
responsible for any missing funds.” In January 2017, the Defendant was allowed to retire
from her position and began receiving her retirement benefits, which is the sole source of
her income. Because of the charges, her retirement benefits had been withheld since July
7, 2017.
The Defendant’s memorandum cited the factors a judge should consider when
determining eligibility for judicial diversion as enumerated in State v. Electroplating,
Inc., 990 S.W.2d 211, 229 (Tenn. Crim. App. 1996), and asserted that the factors
weighed in favor of granting her diversion. She noted that, if she were granted judicial
diversion, she would be entitled to her retirement benefit.
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At the hearing, the Defendant testified and said that she had an associate degree in
accounting. She had worked for Powell Valley Elementary School for thirty-eight-and-a-
half years and had never had another job. The Defendant said that she accepted
responsibilities for the discrepancies in the bookkeeping because she “was the
bookkeeper” so “it made it look like [she] was the guilty party.” The Defendant said that
she was allowed to retire only to learn that her retirement benefit was being withheld
until the charges against her were resolved. She said that she had paid full restitution and
had been compliant with her probation.
During cross-examination, the Defendant said that she “accepted responsibility for
what the auditors found.” When pressed by the State about whether she actually took the
money, the Defendant said, “No.” She denied taking the money and said she had no idea
who took it. She then said that she “admitted to [taking] a certain amount” of money to
the comptroller but that she had paid back more than they asked her about. The
Defendant then said that she did not take any of the money but that some money was
missing from fund raising money, so there was a discrepancy.
During redirect examination, the Defendant said that Claiborne County School
System required two signatories on accounts.
The trial court expressed concern that the Defendant’s testimony was that she did
not take any money or commit theft. He stated that, despite this, she had said she was
guilty at the guilty plea hearing and also had paid back $6,000 in restitution. The court
said, however, that her testimony at the diversion hearing indicated that the Defendant
did not believe that her actions constituted theft.
Defense counsel informed the trial court that, after being given her Miranda
warnings, the Defendant made statements to the State auditor that they “felt were very
damaging to her position.” He said that while those statements were not “wholly
inconsistent” with the Defendant’s testimony at the sentencing hearing, it was a “parsing
of the words.” The statements were included in the comptroller’s report. The trial court
said it would look at the comptroller’s report and take the matter under advisement.
After a brief adjournment, the trial court entered oral findings as follows:
I’m familiar with the electroplating analysis that’s required in the . . .
analysis for determining suitability for diversion.
I think I tried to adequately express how troubled I am with the
[D]efendant’s statement that no monies were taken by her or she did not
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benefit from the crime that she has pled guilty on. And that troubled – that
concern stays – it remains in effect. Based on that, without any further
acknowledgement or understanding of – at least acknowledgment of a
guilty act, just simply walking in and pleading guilty for something that –
where no monies were taken, I – this Court cannot in good conscious grant
diversion. Whatever reasons are not apparent to this Court, nor are they on
the record. I’m not going to assume that – why things happened or why
things did not happen. That is not before this Court. It is – and I don’t –
the prospect of Ms. Poston not drawing the retirement that in my mind she
earned over the years, that is – that is a bad consequence, however that’s
not – that’s not a call that I’m to make. I’ve been called upon to decide
whether or not she is a good candidate for diversion. And otherwise she
would be, however, on the stand, she has failed to acknowledge gaining any
benefit from the crime that she pled guilty on and for that very reason, I
cannot in good conscious grant diversion. The Court will deny that request.
It is from that judgment that the Defendant now appeals.
II. Analysis
On appeal, the Defendant contends the trial court erred when it denied her judicial
diversion. She contends that the trial court abused its discretion when it: failed to
consider all of the factors relevant to a determination of diversion eligibility; denied her
diversion because the factors weigh in favor of granting it; failed to find that diversion
would serve the Defendant’s best interests; and based its decision solely on the
Defendant’s statement that she did not benefit from the offense. She further contends
that the trial court’s statements concerning why the Defendant pleaded guilty constituted
a violation of the Defendant’s due process rights. The State counters that the Defendant
is not entitled to relief because the trial court considered the relevant factors and its denial
of judicial diversion was reasonable and supported by the record.
The standard of review for questions related to probation or any other alternative
sentence is “‘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.’” State v. Caudle, 388 S.W.3d 273,
278-79 (Tenn. 2012) (citing State v. Bise, 380 S.W.3d 682, 707 (Tenn. 2012). A trial
court’s decision regarding probation will only be invalidated if the court “wholly
departed from the relevant statutory considerations in reaching its determination.” State
v. Sihapanya, 516 S.W.3d 473, 476 (Tenn. 2014) (order) (per curiam). Under an abuse of
discretion standard, an appellate court may not substitute its judgment for that of the trial
court. Id. at 475. The application of the purposes and principles of sentencing involves a
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consideration of “[t]he potential or lack of potential for the rehabilitation or treatment of
the defendant . . . in determining the sentence alternative or length of a term to be
imposed.” T.C.A. § 40-35-103(5).
“Judicial diversion” is a reference to the provision in Tennessee Code Annotated
section 40-35-313(a) (2014) for a trial court’s deferring proceedings in a criminal case.
See T.C.A. § 40-35-313(a)(1)(A). Although judicial diversion is not a sentence, pursuant
to such diversion, the trial court places the defendant on probation “without entering a
judgment of guilty.” Id. To be eligible or “qualified” for judicial diversion, the
defendant must plead guilty to, or be found guilty of, an offense that is not “a sexual
offense or a Class A or Class B felony,” and the defendant must not have previously been
convicted of a felony or a Class A misdemeanor. T.C.A. § 40-35-313(a)(1)(B)(i)(b), (c).
Diversion requires the consent of the qualified defendant. T.C.A. § 40-35-313(a)(1)(A).
“[A] ‘qualified’ defendant is not necessarily entitled to diversion. Whether to grant
judicial diversion is left to the discretionary authority of the trial courts.” State v. King,
432 S.W.3d 316, 326 (Tenn. 2014). Following a determination that the defendant is
eligible for judicial diversion, the trial court must consider
(a) the accused’s amenability to correction, (b) the circumstances of the
offense, (c) the accused’s criminal record, (d) the accused’s social history,
(e) the accused’s physical and mental health, and (f) the deterrence value to
the accused as well as others. The trial court should also consider whether
judicial diversion will serve the ends of justice—the interests of the public
as well as the accused.
Id. (quoting State v. Parker, 932 S.W.2d 945, 958 (Tenn. Crim. App. 1996)). “Further,
the trial court must weigh the factors against each other and place an explanation of its
ruling on the record.” King, 432 S.W.3d at 326 (citing State v. Electroplating, Inc., 990
S.W.2d 211, 229 (Tenn. Crim. App. 1998) ).
Although judicial diversion is not a sentence, our supreme court determined that
the standard of review first expressed in State v. Bise, applies to “appellate review for a
trial court’s sentencing decision to either grant or deny judicial diversion.” King, 432
S.W.3d at 325. Importantly, however, the court emphasized that the adoption of the Bise
standard of review “did not abrogate the requirements set forth in Parker and
Electroplating, which are essential considerations for judicial diversion.” King, 432
S.W.3d at 326.
The trial court need not provide a recitation of all the applicable “factors when
justifying its decision on the record in order to obtain the presumption of
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reasonableness,” but “the record should reflect that the trial court considered the Parker
and Electroplating factors in rendering its decision and that it identified the specific
factors applicable to the case before it.” King, 432 S.W.3d at 327. When the trial court
considers each of the factors enumerated in Parker and weighs them against each other,
placing its findings in the record, as required by Electroplating, Inc., we “apply a
presumption of reasonableness,” per Bise, and will “uphold the grant or denial so long as
there is any substantial evidence to support the trial court’s decision.” Id. When “the
trial court fails to consider and weigh the applicable common law factors, the
presumption of reasonableness does not apply and the abuse of discretion standard . . . is
not appropriate.” Id. Instead, “the appellate courts may either conduct a de novo review
or, if more appropriate under the circumstances, remand the issue for reconsideration.
The determination as to whether the appellate court should conduct a de novo review or
remand for reconsideration is within the discretion of the reviewing court.” Id. at 328.
We conclude that the trial court did not make the necessary findings on the record.
While it perfunctorily stated that it was aware of the Electroplating, Inc., factors, it did
not discuss on the record or in a written order how those factors weighed in favor or
against the Defendant being granted judicial diversion. Further, we cannot conduct a de
novo review because the “damning” statements that the Defendant made to the State
auditor that were in the comptroller’s report, and that the trial court reviewed, are not
contained in the record. Accordingly, we remand the case for a new hearing to determine
whether the Defendant is entitled to judicial diversion at which the parties shall offer as
an exhibit the comptroller’s report and after which the trial court shall make the
appropriate considerations on the record in its judicial diversion determination.
III. Conclusion
After a thorough review of the record and relevant authorities, we conclude the
trial court did not make the necessary findings regarding judicial diversion on the record.
Accordingly, we vacate the judgment of the trial court and remand the case for a new
sentencing determination regarding whether the Defendant shall be granted judicial
diversion.
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ROBERT W. WEDEMEYER, JUDGE
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