# State of Tennessee v. Kimberly J. Hill

> Court of Criminal Appeals of Tennessee · January 29, 2020

URL: https://www.frixlaw.com/law-library/cases/4502707

## Case

- **Court:** Court of Criminal Appeals of Tennessee
- **Decided:** January 29, 2020
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Presiding Judge John Everett Williams
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

01/29/2020
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
August 6, 2019 Session

STATE OF TENNESSEE v. KIMBERLY J. HILL

Appeal from the Circuit Court for Dyer County
No. 17-CR-32 R. Lee Moore, Jr., Judge
___________________________________

No. W2018-01771-CCA-R3-CD
___________________________________

The Defendant, Kimberly J. Hill, entered a best interest plea to theft of property valued at
$10,000 or more with the sentence to be determined by the trial court. Following a
sentencing hearing, the trial court imposed a three-year sentence with six months to be
served in confinement and the remainder on probation. On appeal, the Defendant asserts
that the trial court erred in denying her request for judicial diversion and in imposing a
term of split confinement. Upon reviewing the record and the applicable law, we affirm
the judgment of the trial court.

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

JOHN EVERETT WILLIAMS, P.J., delivered the opinion of the court, in which NORMA
MCGEE OGLE and D. KELLY THOMAS, JR., JJ., joined.

Jason R. Creasy, Dyersburg, Tennessee, for the appellant, Kimberly J. Hill.

Herbert H. Slatery III, Attorney General and Reporter; Robert W. Wilson, Assistant
Attorney General; and Danny H. Goodman, Jr., District Attorney General, for the
appellee, State of Tennessee.

OPINION

FACTUAL AND PROCEDURAL HISTORY

The Defendant was indicted on one count of theft of property valued at $60,000 or
more for diverting approximately $63,534.18 between November 18, 2009, and
September 23, 2016, from Chimes for Charity, a charitable organization with which she
was involved in Dyersburg, Tennessee. The indictment subsequently was amended to a
charge of theft of property valued at $10,000 or more, and the Defendant entered a best
interest plea to the charge. Pursuant to the plea agreement, the parties agreed that the
Defendant was Range I, standard offender and that her sentence was be determined by
the trial court.

During the plea hearing, the prosecutor provided a brief recitation of the facts of
the underlying offense. According to the prosecutor, on October 6, 2016, Ms. Rachel
Craig, a member of the board of directors of Chimes for Charity, contacted law
enforcement and reported that she had reviewed the organization’s bank statements and
that the account’s balance was well below what it should have been. Ms. Craig reported
that although the account generally maintained a balance of between $15,000 and
$40,000, the account reflected a balance of $1,200. Ms. Craig discovered checks written
to the Defendant bearing the signature of Ms. Amy Kaye Clark, another board member.
When Ms. Craig showed the checks to Ms. Clark, Ms. Clark stated that someone had
forged her signature on the checks. Ms. Craig and Ms. Clark confronted the Defendant,
who immediately admitted that she wrote the checks and forged Ms. Clark’s signature.
The prosecutor stated that a total of sixty-seven checks “were received in this matter” and
that the Defendant admitted to forging the signatures on the checks and taking the money.
Defense counsel stated that numerous checks later were determined to be for valid
charitable purposes, and the parties agreed to amend the indictment as a result.

During the sentencing hearing, the prosecutor announced that defense counsel
provided receipts showing that almost $23,000 worth of checks written to the Defendant
were for legitimate purposes. The prosecutor stated that the Defendant had paid almost
$12,000 back to the charity’s account. As a result, the parties agreed that the Defendant
owed an additional $25,000 in restitution. The parties also agreed that the Defendant
would forfeit her $20,000 cash bond and pay an additional $5,000 at the end of the
sentencing hearing to satisfy the restitution.

The parties did not present any witnesses during the sentencing hearing. An
investigation report prepared by the Tennessee Department of Correction, a presentence
report, and copies of documents showing each case in which the trial court granted
judicial diversion over the past year were entered into evidence.

According to the investigation and presentence reports, the fifty-seven-year-old
Defendant had been married to her second husband since 2000 and was a lifelong
resident of Dyer County. She reported her physical and mental health as “excellent” and
reported no history of drug or alcohol abuse. She had no criminal history other than
speeding citations and parking tickets.

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The Defendant graduated from high school in May 1979 and obtained an
associate’s degree from Dyersburg State Community College and a bachelor’s degree in
organization management from Bethel University. She served as the Register of Deeds
for Dyer County from September of 1994 until August of 2002, when she was not
reelected. She had maintained employment for much of her adult life, performing office
and clerical duties for various employers. At the time that she was indicted in February
2017, she was employed as a vice president for Metro Industrial Jobs, making $31.25 per
hour. Her employment ended shortly after she was indicted. At the time that the reports
were prepared, she was employed as an office manager for a car dealership, making
$11.25 per hour. According to the “Strong R Assessment,” the Defendant had a low risk
of reoffending.

According to the investigation report, the Defendant was interviewed by a case
officer two days after the plea hearing and made statements such as, “I wasn’t trying to
defraud anybody”; “I had no intent to take money”; and “I put my own personal money”
into the charity’s bank account. The Defendant stated that she had no reason to take
money from the charity’s bank account for her own personal use because she had earned
a good salary from her employment for many years. According to the presentence report,
the Defendant stated,

I wasn’t trying to defraud anyone. The records may have been sloppy, but I
had no intent to take money or do anything wrong. I loved that
organization. I put my own money in many times when it was short. I
made a good salary, and I had no reason to take their money.

The Defendant also provided a typewritten statement, which was attached to both
reports. She stated that she had been involved in Chimes for Charity for more than
twenty-five years. Each year, the charity auctioned items donated by local businesses
and used the money raised from the auction to throw a party for children in the
community. The Defendant said she was responsible for ensuring that there were a
sufficient number of items for the auction. She also made most of the bank deposits,
wrote all of the checks, and arranged the advertising for the auction. Once the proceeds
from the auction were collected, the Defendant oversaw the purchasing of toys, clothing,
and food for as many as eight hundred children.

The Defendant stated that because fewer businesses donated items over the years,
she and Ms. Clark began purchasing items for the auction. The Defendant said that while
traveling for work, she purchased items using her personal credit card and reimbursed
herself once she received her credit card statement. She said that she did not always
reimburse herself promptly and that, at times, she did not reimburse herself at all.
Because the Defendant did not see other board members on a daily or weekly basis, she
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would write a check to herself and would sign either her own name or Ms. Clark’s name
to the check. The Defendant stated that at times, she did not reimburse herself for the
entire amount of the purchase and considered the difference to be a donation to the
charity. She said that she continued this practice for years without anyone questioning it
and that audits had been conducted during that same time period.

The Defendant stated that other board members often obtained checks from the
charity’s bank account from her or instructed her to give money to people who needed
help with rent, utility bills, or expenses for their children. Many of those who the charity
helped did not have bank accounts and would have been charged by a bank or check
cashing facility to cash a check. The Defendant said that as a result, she would
accompany the person who was to receive the money to the bank where the charity’s
account was held, and she would provide the bank with a check written out to “cash” and
then give the cash to the person once the Defendant received it from the bank.

The Defendant stated that when confronted about writing checks to herself and
signing Ms. Clark’s name, she informed those associated with the charity that she had
receipts to support the payments. The Defendant believed she would be given the
opportunity to meet with the board members and show them the receipts. The board
members requested the charity’s checkbook and documentation dating back three years,
and the Defendant provided the materials to them without keeping copies for herself. A
few weeks later, the board members requested paperwork dating back to 2009, and the
Defendant provided the documentation while keeping copies for her own records. The
Defendant stated that when she met with an investigator and the district attorney general,
she was able to reduce the amount claimed to be owed from $65,000 to $27,000. The
Defendant said that despite multiple requests by her attorney, she was not allowed to
review the more recent documentation that she had provided but had not kept a copy for
herself. She also said, “I honestly believe I could have drastically reduced the amount
they say I owe to well under $10,000.” She maintained that she deposited her own
money into the charity’s account whenever the balance in the account was low. She also
stated, “I never had any children and helping with this was my way of helping children.
All I ever wanted to do was to help other people. I gave away clothes and items we had
in storage to people any time they came in.”

Mr. John Holden, Ms. Carrie Burns, Ms. Clark, and Ms. Craig, all of whom were
associated with Chimes for Charity, submitted victim impact statements in which they
expressed disappointment in the actions of the Defendant, to whom they had entrusted the
business aspects of the charity. They noted that the charity, which had been in existence
for more than twenty-five years, had been dissolved. Ms. Craig expressed
disappointment that the charity ended “in such a shameful and embarrassing way.” Mr.
Holden and Ms. Craig deferred to the trial court’s judgment in determining the
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appropriate sentence for the Defendant, and Ms. Burns and Ms. Clark felt that the
Defendant should receive diversion.

The trial court took the matter under advisement and subsequently entered a
detailed order denying the Defendant’s request for judicial diversion. The trial court
considered the documentation of the cases in which the court granted judicial diversion
during the year prior to the Defendant’s sentencing hearing but noted that, unlike the
Defendant’s case, the court granted judicial diversion in the prior cases because it had
been agreed upon by the parties.

The trial court found that the Defendant’s social history was “good” and that her
physical and mental health appeared to be “good.” The court noted that the Defendant
was married and employed, appeared to be a life-long resident of Dyer County, was a
high school and college graduate, and had no prior criminal history other than traffic
citations.

The trial court stated that according to the presentence report, the Defendant had
been involved in Chimes for Charity for more than twenty-five years. The court noted
that the charity had a large fundraising effort every year between Thanksgiving and
Christmas during which the charity auctioned off items donated by local businesses and
used the proceeds to purchase “Christmas presents and other things for orphans.” The
trial court summarized the Defendant’s written statement attached to her reports, as well
as her statements to those who prepared the reports. The court found that “[i]t is simply
not believable that checks were written by the [D]efendant as ‘cash,’ and also cashed by
the [D]efendant to save a fee to the proper payee.” The court considered the victim
impact statements and noted that the charity “appears to no longer exist.”

The trial court found that the Defendant was qualified for diversion, was
amendable to correction, and “certainly could be rehabilitated.” However, the court
stated that the Defendant’s “refusal to accept responsibility for her actions raises a clear
question of whether she can be rehabilitated.” The court noted that despite entering a
plea to the charge, the Defendant continued to deny taking any money or doing anything
wrong. The court stated that “[t]he fact that she wrote checks to cash and also wrote
checks and signed the name of another worker in the Chimes for Charity Organization
belies her position that she did not do anything wrong.”

The trial court found that the Defendant misappropriated approximately $25,000
collected for the charity and that the parties agreed to restitution in the amount of
$25,000, which had been paid. The court stated that the offense “was not simply a one
time lapse of judgment of committing theft” but was a “systematic misappropriation of
money over an extended period of time.” The court described the circumstances of the
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offense as “a series of offenses where [the Defendant] was misappropriating money
designed to help people in need and to help orphans.” The court found that the
Defendant violated public trust by taking money from the charity. The court considered
the deterrent value to the Defendant and others and whether judicial diversion would
serve the interests of the public and the Defendant. The court found that while judicial
diversion would serve the Defendant’s interest, granting diversion to someone who
committed “a series of thefts while violating the public trust,” did not serve the interest of
the public. The court noted that although the Defendant did not serve in an elected or
appointment position with the government at the time of the theft, she previously served
two terms as the Register of Deeds for Dyer County. Upon considering these factors, the
trial court denied the Defendant’s request for judicial diversion.

The trial court found that the Defendant was a Range I, standard offender and that
the range of punishment for the theft offense was three to six years. The trial court
imposed the minimum three-year sentence and required the Defendant to serve six
months in confinement with the remainder of the sentence to be served on probation. The
court stated that it was requiring a short period of confinement due to the fact that the
offense involved an “ongoing series of thefts” and that the Defendant failed to accept
responsibility for her actions. The court also considered that the Defendant violated
public trust in the commission of the offense and forged another’s name on some of the
checks to conceal her actions. The court stated that “[a]lthough there was no evidence
introduced at the sentencing hearing, this case is a highly publicized case that caused the
termination of Chimes for Charity.” The court found “a deterrent value to the public in
an alternative sentence that requires some period of incarceration.”

ANALYSIS

I. Judicial Diversion

The Defendant challenges the trial court’s denial of her request for judicial
diversion. She specifically contends that the trial court improperly considered
information outside of the record, erred in focusing upon the circumstances of the offense
and the interest of the public, and failed to properly weigh the factors. The State
responds that the trial court did not abuse its discretion in denying the Defendant’s
request for judicial diversion.

Judicial diversion is a “‘legislative largess’” granted to certain qualified
defendants whereby the judgment of guilt is deferred and the defendant is placed on
probation. State v. King, 432 S.W.3d 316, 323 (Tenn. 2014) (quoting State v. Schindler,
986 S.W.2d 209, 211 (Tenn. 1999)); see T.C.A. § 40-35-313(a)(1)(A). If the defendant is
successful in completing the probation assigned as part of judicial diversion, the charges
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will be dismissed and the defendant may seek expungement. T.C.A. § 40-35-313(a)(2),
(b). Upon successful completion, the defendant may be restored “‘to the status the person
occupied before the arrest or indictment or information.’” State v. Dycus, 456 S.W.3d
918, 925 (Tenn. 2015) (quoting T.C.A. § 40-35-313(b)). The statute defines which
defendants are qualified to apply for judicial diversion, and the parties here do not dispute
that the Defendant was qualified to be considered for diversion. See T.C.A. § 40-35-
313(a)(1)(B)(i). However, “[t]here is no presumption that a defendant is a favorable
candidate for judicial diversion.” Dycus, 456 S.W.3d at 929.

Like other sentencing decisions, the decision to grant or deny judicial diversion is
reviewed for an abuse of discretion. King, 432 S.W.3d at 324-25. “Reviewing courts
will find an abuse of discretion only when the trial court applied incorrect legal standards,
reached an illogical conclusion, based its decision on a clearly erroneous assessment of
the evidence, or employed reasoning that causes an injustice to the complaining party.”
State v. Banks, 271 S.W.3d 90, 116 (Tenn. 2008). Although the deferential standard of
review articulated in State v. Bise, 380 S.W.3d 682, 706 (Tenn. 2012), applies to the
decision to grant or deny judicial diversion, the common law factors which the trial court
has long been required to consider in its decision have not been abrogated. King, 432
S.W.3d at 326. Accordingly, in determining whether judicial diversion is appropriate, a
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.

State v. Parker, 932 S.W.2d 945, 958 (Tenn. Crim. App. 1996) (footnote omitted). In
addition to considering these factors, the trial court must weigh them against one another
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)).

“Under the Bise standard of review, when the trial court considers the Parker and
Electroplating factors, specifically identifies the relevant factors, and places on the record
its reasons for granting or denying judicial diversion,” this court must apply a
presumption of reasonableness and uphold the trial court’s decision so long as there is
any substantial evidence to support the decision. Id. at 327. Substantial evidence is
“‘evidence which a reasoning mind would accept as sufficient to support a particular
conclusion. It consists of more than a mere scintilla of evidence but may be somewhat
less than a preponderance.’” State v. James Nathan Wilkerson, No. W1999-00978-CCA-
-7-
R3-CD, 2000 WL 763971, at *2 (Tenn. Crim. App. June 8, 2000) (quoting Laws v.
Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966)); see State v. Clark, 452 S.W.3d 268, 280
(Tenn. 2014). The trial court need not “recite” all of the factors, but the record must
reflect that it considered each factor, identified the specific factors applicable to the case,
and addressed the relevant factors. King, 432 S.W.3d at 327. When the trial court has
neglected to consider and weigh the factors, its decision may either be reviewed de novo
or remanded for reconsideration by the trial court. Id. at 327-28.

The Defendant does not dispute that the trial court meticulously considered all of
the factors listed in Parker and Electroplating but contends that the trial court did not
adequately weigh the required factors. The trial court recognized the factors that
reflected positively on the Defendant, such as her social history, her lack of a criminal
history, and her mental and physical health. The trial court also extensively discussed
those factors that reflected negatively on the Defendant, including the circumstances of
the offense, the Defendant’s failure to accept responsibility, her violation of public trust,
and the interests of the public. While the trial court did not specifically “recite” the
weight that it assigned to each factor, we infer from the denial of diversion and from the
trial court’s extensive discussion of the circumstances of the offense, the Defendant’s
failure to accept responsibility, and the violation of public trust involved in the offense
that these factors were accorded greater weight. The trial court’s heavy focus on these
factors in reaching its decision regarding diversion satisfied the requirement that it
“place[] on the record its reasons for granting or denying judicial diversion.” King, 432
S.W.3d at 327. Accordingly, the presumption of reasonableness applies, and we will
uphold the trial court’s decision so long as there is any substantial evidence to support the
decision. See id.

The trial court relied heavily upon the circumstances of the offense and the
Defendant’s failure to accept responsibility in denying judicial diversion. As the trial
court noted, the conviction did not involve an isolated incident. Rather, the Defendant
took advantage of her trusted position in the charity to take a large amount of money
from the charity for almost seven years. The circumstances of the offense establish that
the Defendant had a long-term, sustained intent to violate the law. This continued
criminal behavior for a long period of time weighs heavily against the potential
deterrence value of judicial diversion on the Defendant. See Dycus, 456 S.W.3d at 932.

Moreover, the money that the Defendant took was raised by the charity to benefit
those in need, particularly children around the holidays. The Defendant contends that the
trial court’s statement in its order that the charity used the money to benefit “orphans”
was not supported by the record. While the record reflects that the money raised by the
charity was to benefit any child in the community who was in need and not just

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“orphans,” the Defendant has failed to demonstrate that the trial court’s misstatement was
material or that the status of the children mitigated the Defendant’s conduct.

The Defendant also argues that the trial court erred in finding that she violated the
public’s trust because the charity was a private, non-profit organization. The Defendant,
however, presented no evidence in the trial court regarding the manner in which the
charity was organized. Rather, the record reflects that the Defendant took an active role
in soliciting donations and otherwise raising money from members of the general public,
representing to the public that the funds would be used to benefit those in need, and then
taking the money for her own personal use. Thus, the record supports the trial court’s
finding that the Defendant violated public trust in committing the offense.

The trial court also heavily relied upon the Defendant’s failure to accept
responsibility for her actions. A defendant’s unwillingness to accept responsibility is a
relevant consideration to the denial of diversion. See Electroplating, Inc., 990 S.W.2d at
230; State v. Joshua Michael Ward, No. E2018-01781-CCA-R3-CD, 2019 WL 3244991,
at *6 (Tenn. Crim. App. July 19, 2019), no perm. app. filed. After entering a best interest
plea, the Defendant provided a detailed typewritten statement in which she continued to
insist that she did not do anything wrong, did not express any remorse for her actions, and
offered various justifications for her actions. The trial court found that these
justifications were not credible. This court has recognized that a defendant’s lack of
candor is a relevant consideration in the diversion context. See State v. Willard Hampton,
No. W2018-00623-CCA-R3-CD, 2019 WL 1167807, at *16 (Tenn. Crim. App. Mar. 12,
2019), no perm. app. filed (citing State v. Nunley, 22 S.W.3d 282, 289 (Tenn. Crim. App.
1999); State v. Dowdy, 994 S.W.2d 301, 306 (Tenn. Crim. App. 1994)).

Finally, the Defendant argues that the trial court improperly considered that “this
case is a highly publicized case” in denying judicial diversion when no evidence
regarding such publicity was presented during the sentencing hearing. A trial court
should not “‘assume facts not in the record, base a sentence on extraneous facts, or take
judicial notice of facts not available to this court nor included in the record transmitted to
this court.’” Nunley, 22 S.W.3d at 287 (quoting State v. Smith, 735 S.W.2d 859, 864
(Tenn. Crim. App. 1987)). In its order, the trial court acknowledged that no evidence
regarding publicity was presented during the sentencing hearing, and we conclude that
the trial court should not have considered such publicity. Nevertheless, in determining
whether this error warrants reversal, we must examine whether “the trial court’s personal
observations played a significant role in the exercise of judicial discretion.” See Vaughn
v. Shelby Williams of Tennessee, Inc., 813 S.W.2d 132, 134 (Tenn. 1991). Reversal is not
warranted when the trial court considers facts in the record and the statutory criteria and
when its decision is “consistent with the purposes and principles of sentencing.” State v.
Sihapanya, 516 S.W.3d 473, 476 (Tenn. 2014) (“Although the trial court erroneously
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relied on a fact not in the record in support of the denial of probation, the court properly
considered the statutory criteria as well as other facts and circumstances supported by the
record.”).

In the present case, although the trial court noted that the case was highly
publicized, the court did not rely upon such publicity in denying the Defendant’s request
for judicial diversion. Rather, the trial court denied judicial diversion based upon the
circumstances of the offense, the Defendant’s failure to accept responsibility, her
violation of public trust, and the interests of the public. Because the trial court based its
decision on the factors set forth in Parker and Electroplating, the proof in the record, and
the purposes and principles of sentencing, the trial court’s error in noting that the case
was highly publicized does not warrant reversal. Furthermore, the record includes
substantial evidence to support the trial court’s decision to deny judicial diversion, and,
thus, we conclude that the trial court did not abuse its discretion.

II. Manner of Service of Sentence

The Defendant challenges the trial court’s order of split confinement. This court
reviews a decision regarding alternative sentencing under an abuse of discretion standard,
accompanied by a presumption of reasonableness when the sentence falls within the
appropriate range and reflects that the decision was based on the purposes and principles
of sentencing. State v. Caudle, 388 S.W.3d 273, 278-79 (Tenn. 2012). “[A] trial court’s
decision to grant or deny probation will not be invalidated unless the trial court wholly
departed from the relevant statutory considerations in reaching its determination.”
Sihapanya, 516 S.W.3d at 476. In reviewing for abuse of discretion, an appellate court
may not substitute its judgment for that of the trial court. Id. at 475.

The party appealing the sentence has the burden of demonstrating its impropriety.
T.C.A. § 40-35-401, Sentencing Comm’n Cmt. Likewise, the Defendant bears the
burden of establishing that he is a suitable candidate for probation. T.C.A. § 40-35-
303(b). “This burden includes demonstrating that probation will ‘subserve the ends of
justice and the best interest of both the public and the defendant.’” State v. Carter, 254
S.W.3d 335, 347 (Tenn. 2008) (quoting State v. Housewright, 982 S.W.2d 354, 357
(Tenn. Crim. App. 1997)).

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
excluded by statute. T.C.A. § 40-35-303(a). Defendants who have committed the most
severe offenses, whose criminal histories evince a clear disregard for the laws and morals
of society, and who evince a failure of past efforts at rehabilitation are to receive priority
for incarceration. T.C.A. § 40-35-102(5). A standard offender convicted of a Class C, D,
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or E felony who does not fall into the categories listed above “should be considered as a
favorable candidate for alternative sentencing options in the absence of evidence to the
contrary.” T.C.A. § 40-35-102(6)(A). The court “shall consider, but is not bound by”
this guideline. T.C.A. § 40-35-102(6)(D).

In determining whether incarceration is an appropriate sentence, the trial court
should consider whether:

(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)(A)-(C). Additionally, “[t]he sentence imposed should be the least
severe measure necessary to achieve the purposes for which the sentence is imposed,”
and “[t]he 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.” T.C.A. § 40-35-103(4), (5).

If a trial court denies probation based solely on a concern regarding the
seriousness of the offense or solely on deterrence, this court must apply a “heightened
standard of review.” Sihapanya, 516 S.W.3d at 476. When probation is denied based
solely on the seriousness of the offense, “‘the circumstances of the offense as committed
must be especially violent, horrifying, shocking, reprehensible, offense or otherwise of an
excessive or exaggerated degree,’ and the nature of the offense must outweigh all factors
favoring a sentence other than confinement.” State v. Trotter, 201 S.W.3d 651, 654
(Tenn. 2006) (quoting State v. Grissom, 956 S.W.2d 514, 520 (Tenn. Crim. App. 1997)).
When the denial of probation is based solely on deterrence, the record must establish that:
“(1) a need to deter similar crimes is present in the particular community, jurisdiction, or
in the state as a whole, and (2) incarceration of the defendant may rationally serve as a
deterrent to others similarly situated and likely to commit similar crimes.” State v.
Hooper, 29 S.W.3d 1, 10 (Tenn. 2000). If however, the trial court’s denial of probation
was based on combining “the need to avoid depreciating the seriousness of the offense
with the need for deterrence and the nature and circumstances of the offense,” the
heightened standards of review articulated in Trotter and Hooper do not apply.
Sihapanya, 516 S.W.3d at 476.
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The Defendant asserts that she qualified as an especially mitigated offender rather
than a standard offender. See T.C.A. § 40-35-109(a)(1), (2). However, according to the
plea form signed by the Defendant, the parties agreed that the Defendant would be
sentenced as a Range I, standard offender. Thus, the trial court properly sentenced the
Defendant as a Range I, standard offender.

The Defendant also asserts that the trial court erred in ordering split confinement
based upon the need for deterrence. The trial court found that a period of incarceration
was warranted based upon the need for deterrence, the circumstances of the offense, and
the Defendant’s failure to accept responsibility. Because the trial court did not base its
decision solely upon the need for deterrence or solely upon the circumstances of the
offense, the heightened standard of review does not apply. See Sihapanya, 516 S.W.3d at
476. The trial court properly considered the statutory criteria and other facts and
circumstances supported by the record. The trial court made extensive findings regarding
the circumstances of the offense, including the sustained criminal intent and the
Defendant’s violation of public trust in committing the offense. The trial court also
found that the Defendant failed to accept responsibility for the offense and that her
explanation for her actions was not credible. This court has recognized that “‘a criminal
defendant’s rehabilitative potential is a factor to be considered in the grant or denial of
probation. Candor is a relevant factor is assessing a defendant’s potential for
rehabilitation, and the lack of candor militates against the grant of probation.’” State v.
John Clayton Fields II, No. M2014-01691-CCA-R3-CD, 2015 WL 4072503, at *6 (Tenn.
Crim. App. July 6, 2015) (quoting State v. Souder, 105 S.W.3d 602, 608 (Tenn. Crim.
App. 2002)). The trial court’s determination is consistent with the purposes and
principles of sentencing. Therefore, we conclude that the trial court did not abuse its
discretion imposing a sentence of split confinement.

CONCLUSION

Based on the foregoing analysis, we affirm the judgment of the trial court.

____________________________________________
JOHN EVERETT WILLIAMS, PRESIDING JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4502707. Public record. Not legal advice.