### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT NAS HVILLE Ma rc h 21 , 200 7 S es sio n

STA TE OF TEN NES SEE v. BETT Y R . C HUM BLEY

Appeal f rom the Circ uit Court for Marshall County No. 16852 Robert

Crigler , Judge

No. M2006- 01117-CCA -R3-C D - F iled on Ju ne 20, 2007

The de fenda

nt, Be tty R. Chumbley , pled g uilty to two counts of theft betwee n $10,000 and $60,000, a Class C felony ; three counts of official misconduct, a C lass E felony ; and one count of destruc tion of and tampering with gove rnmental re cords, a Class A misdemeanor. The thef t counts were merg ed and the of

ficial misconduct c ounts were merg ed. She r ece ived an e ffe ctive five -y ear sentenc e on probation. On a

ppeal, the de fenda

nt contends that the trial c ourt err ed in d en y i n g her judicia l diversion. We aff

irm the judg ments of the trial c ourt.
Tenn. R. App . P . 3 Appeal as of Right; Judgme nts of

the Circ uit Court Aff

irm ed

J OS EP H M. T I PTON , P.J ., delivere d the opi nion of t he cour t, in which T H O M A S T. W O O D A LL and J.C. M C L IN , J J ., joined.

R o b e rtL

. M ar l o w , S h e l b yv i l l e , T e n n e s s e e , f o r t h e a p p e l l an t , B e t t y R

. C h u m b l e y.
Robert E. Cooper, Jr., Attorney Gene ral a

nd Reporter ; Eliz abet h B. M arne y , Assistant Attorney Gene ral; Charle s F. Cra

wford, D istrict A ttorney Gene ral; Ann L

. Filer , Assistant District Attorney Gene ral, for

the appe llee, State of Te nnessee

.
OP IN ION

T h e prese ntence repor

t in this case descr ibes the eve nts leading up to the defe ndant’s ind ic tme nts :

Th e defe nd ant, B e tty Chumbl e y , h e ld t

he po sit ion

of Jail Administrator at the Mar shall County Sheriff ’s Department whe n these offen s es occurre d. County auditors from the T ennesse e Comptroller’s Off

ice c onducted a

routine audit at the jail in Ma rch of 2005. Missing funds a

nd/or questionable e x penditures ove r four teen tho us and do ll ars we re dis c ov e re d o n M arc h 1 4, 20 05 . T he Jail Ad min istrator was in c ha

rg e of an a c c ount u se d b y

the Mars ha ll-2- County Jail wh ic h a llo we d inma te s to purc ha se c omm iss ary ite ms. Th e dis c re pa

nc ie s w e re loc a te d in

the c omm iss ary

a c c ount.

Be tty Chumbley

resig ned fr o m the Sheriff ’s Depa rtment on Marc h 15, 2005, afte r working there for twelve y ear s. She noted the

rea son for re signme nt [ sic] being pe rsonal.
The Comptroller’s Of

fice notifi ed the District Attorney Gene ral Mike Mc Cown, who in tur n reque sted the Tenne ssee B urea u of Investig ation’s assistance . Ag ent Gene S teg all handled the investigation. Many

employ ees of

the Sheriff

’s Depar t m en t were questioned, including all who had take n money from inmates a

nd issued rec eipts. On Marc h 16, 2005, the defe ndant was inter viewed and g ave a

verba l statement to Ag ent S teg all. She admitted to taking

mon e y by wi thh old ing or ke e pin g inm a te s’ mon e y and wr iti ngfa lse

c he c ks to i nma

te s. Th e de fe nd ant f

ur the r s ta te d th a t sh e wa s th e on ly

e mpl oy e e inv olv e d an d a lth ou g h s he did n’ t ke e p u p w iththe fi g ur e s, sh e did n’ t th ink sh e too k f

ourt e e n th ou sa

nd do lla rs

.
Be t t y Chumbley ’s co- worke rs did not suspect her of taking

mon ie s f ro m th e c omm iss ary

a c c ou nt

. I n 2001 , a

n a ud it o f t he ja il

reve aled discr epanc ies i n t he commissary acc ount. The def

endant ad v i s ed S h er i ff L es He l t o nt h e d i ff er en ce wa s d

u e t o p o o r a cc o u n t i n g. S h e p er sonally

reimburse d the jail seven hundr ed and thirty -four dollars and wa s allowed to hold the same position with no suspicion of c ri min a l in te nt.

The de fenda

nt was indicted on two c ounts of theft betwe en $10,000 and $60,000, T .C.A. § 39-14-103; thre e counts of of ficial misconduct, T.C.A. § 39-16-402; and one c ount of destruc tion of and tampering with gove rnmental re cords, T.C.A. § 39-16-504. I n her statement included in the prese ntence repor

t, the defe ndant said that on sever al occa sions star ting in 2004, she appropr iated for her p er s o n al u s e money intended to be de posited in prisoners’ a ccounts. She guessed that the amount stol en t o t al ed $ 3 000 or $4000 but admitted that bec ause she “did not keep up w ith the

a mou nt, ” it w a s p os sib le sh e too k $ 14 ,0 00 or mor e . Sh e sa id o f h e r c ri me s:

Ion ly too k th e mon e y

to s up po rt

my sel f & m y

9 y e ar o ld da u g h t e r

. Ia m a

s i n g l e m o t h e r , an d

h a v e h a d

f i n an c i a l p r o b l e ms during the last couple of

y ear s. The money

was mainly

us ed to pay bills and debts. Iam sorry for takingthe m o n ey

. I don’t have a
c he c kin g a c c o u n t , an d

Io n l y h a v e a b o u t$ 2 5 i na

s a v i n g s a c c o un t. Howeve r, I

am willing to p ay back the money . Iknow what I have done is “thef

t”, and I knew that e ventually

Iwould g et ca

ug ht.-3-

At the sentenc ing he aring , the def endant’ s brother -i n-law, Ma rk B lackwood, te stified that his wife was t he defenda

nt’s sister. He said he and his wife pr ovided the bulk of the mone y for the defe ndant to pay

$22,960.88 in restitution before the sentenc ing hear ing. He said that be fore she wa s
c a ug ht ste a lin g mon e y , th e de fe nd ant d id n ot t e ll h im a nd his wi fe of

he r d ir e fi na

nc ia l c on dit ion s. He sa id that if they

had known, they

would have he lped her. He said that f inding out about the defe ndant’s cr imes initi ally cause d strain on their fa

mily but that they

ultimately

beca me closer as
a re sult. He cha

rac teri z ed the defenda

nt’s fee lings since being caug ht as reg retful a nd remorse ful and said that she had become more attentive with her daug hter. He said the def endant ha d been mor e open and h o n est and that the f amily had bee n working toge ther to “g et a ha ndle on her

bills.” He said that he had sever al discussions with the defe ndant about her a ctions and believe d the def endant had “le arne d the lesson, there is not going to be a se cond time.”

Mr . B la c kw oo d, him se lf

a fe de ra l emp loy e e , ag re e d tha t go ve rnme nt em plo y e e s ar e he ld t o high sta n d ards of conduct. He said that he a nd his wife had pr ovided financ ial support to the defe ndant and he r daug hter ove r the y ear s. He said, howeve r, that during the time that the defe ndant was takingmoney

from the inmates, he and his wife he lped with “minor expenses,” mostly related to the defe ndant’s daug hter’s e x tra-c urricula r ac tiviti es. He also said that the def endant ha d not

m ad e a fo rm al arra n gem en t fo r he r da u gh t er ’s cu s t o dy i n t h e ev en t t h at s h e w as i mp ri s o n ed , al t h o u gh he said she ma de ver

bal ar rang ements with him and his wife.

The c ourt hear d arguments from the defe ndant and the state on mitigating a nd enhanc ement fac tors, and the defe ndant asked f or judicial diversion unde r Tenne ssee Code A nnotated sec tion 40- 35-313. The tr ial court senten ce d t h e d efe ndant as a Rang e I , standard of

fende r, to five y ear s for theft, one y ear

and nine months for officia l misconduct, and ele ven months and twenty -nine da y s for de str uc tio n o f a

nd tampe ri ng wi th g ov e rnme nta l re c or ds , to be se rv e d co nc ur re ntl y . T he c ourt

a lso denied judicial diver sion, stating that g ranting it “would depre ciate the seriousness of the offe nse.” The c ourt elabor ated:

Ithink people in g overnme nt service do it for mo re tha n just the money . Ithink we ge t maligne d unfairly to be honest with y ou. Not that we a re pe rfe ct. We are all far from that. W e take our fa ir share of abuse

.
Wh e ns o me b o dy

c o mm it s ano f

f e n s e li k e th is , it

is ju s t like throwing g as on a f

ire. I do consider this extremely serious, but she has no prior r ecor d.

I am not g o in g to g iv e h e r th e b e n e f it o f th e 4 0

- 3 5

- 3 1 3 . I thi nk that w ou ld d e pr e c ia te the se ri ou sn e ss of the of fe ns e , but I

wi ll g ive her alternative sentenc ing.

The defe ndant challeng es the trial court’s denial of judicial diversion. She argues that the trial court ba sed its decision only on one f ac t o r– co n cer

n for de prec iating the seriousness of the-4-

offe nse–and ig nored se vera l fac tors favor able to dive rsion. She argues that no evide nce in the r ecor d shows that the ends of justice or the be st interests of the public a nd the def endant a re se rved by

the denial of dive rsion. The state c ontends that the denia l of judicial diversion was appropr iate and not an abuse of discre tion.

A d e fe nd ant i s e lig ibl e fo r j ud ic ia l di ve rs ion wh e n he or sh e is fo un d guil ty or ple a ds g uil ty to a C la ss C , D , o r E fe lony a nd ha s n ot p re vio us ly

be e n c on vic te d o f a

fe lony or a Cla ss A misdemeanor. See T.C.A. § 40-35-313( a)( 1)(B ). J udicial di version allows the trial cour t to defer further proce eding s without ent er i n g a judg ment of g uilt and to place the de fenda nt on probation under r easona

ble conditions. I d

. W h en the probationary period e x pires, if the de fenda nt has completed pr obation succe ssfully , then the trial c ourt will discharg e the de fenda nt and dismiss t he prosec ution with no adjudication of g uilt. S ee id. at (a)( 2). The de fenda nt may then apply

to have all rec ords of the pr ocee dings e x pung ed fr om the officia l rec ords. S ee id. at (b). A pe rson g rante d judicial diversion is not convicted of a n offe nse beca

use a judg ment of g uilt is never enter ed. See id. at (a) (1)( A).

J udicial diversion is not a sentenc ing alternative for a defe ndant convicte d of an of fense . See T. C.A . § 40 -3 5- 10 4( c ). Th e re fo re , th e re is n o p re su mpt ion that a de fe nd ant i s a

fa vo ra ble c and idate for judicial diver sion. See State v. Bing ham, 910 S

. W

. 2 d 4 4 8 , 4 56 (Tenn. Crim. App. 1995) , overr uled on other g rounds by State v. Hooper , 29 S.W .3d 1, 9 (Tenn. 2000) . Be cause the dec ision to g rant judi cial diversion lies within the s ound discretion of the t rial court, this court will not disturb that decision on appe al absent an abuse of di scre tion. State v. Electroplating, Inc., 990 S.W.2d 211, 229 (Tenn. Crim. App. 1998); S tate v. B onestel, 871 S.W.2d 163, 168 (Tenn. Crim. App. 1993),

overr uled on other g rounds by

State v. Hooper , 29 S.W .3d 1, 9 (Tenn. 2000). An a buse of discr etion exis ts if the rec ord conta ins no substantial evidence to support the denial. State v. Hammer sley , 650 S.W .2d 352, 356 (Tenn. 1983) ; Bone stel, 871 S.W .2d at 167.

I n deter mining whe ther to g rant j u d i ci al diversion, the trial c ourt must consider (1) the defe ndant’s ame nability

to corre ction; (2) the c ircumstance s of the off ense; (3) the def

en dant’s criminal re cord; (4) the def endant’ s social history ; (5) the de fenda nt’s phy sical and me ntal health; (6) the de terre nce value to the defe ndant and others; and ( 7) whe ther judicial diver sion will serve the ends of justice. Ele ctroplating , 990 S.W .2d at 229; Stat e v

. P ar k er, 932 S.W.2d 945, 958 (Tenn. Crim. App. 1996); Bone stel, 871 S.W .2d at 168. I n addition, “the re cord must re flec t that the court h a s w e i g h e d

a l l o f t h e f

a c t o r s i n r e a c h i n g i t s d e t e r m i n a t i o n

. ” E l e c t r o p l a t i n g , 9 9 0 S

. W

. 2 d a t2 2 9

. If the trial cour

t refuse d to gr ant judicial diversion, it should state on the re cord “ the spec ific re asons for its deter

minations.” Parker , 932 S.W .2d at 958-59. I f the trial c ourt “ba sed its determination on only some of the fac tors, it must ex plain why these fa ctors outweig h the others.” Electroplating, 990 S.W .2d at 229.

Whil e takinginto consideration the de fenda nt’s lack of

a prior c riminal rec ord, the trial c ourt deter mined that the nee d not t o d ep reciate the se riousness of the of fense war rante d a denia l of judicial diversion. We note that the re cord doe s not refle ct that the tri al co u rt co n s i dere d all the fac tors rele vant to g ranting or deny ing judicia l diversion and did not adequately explain on the recor d-5-

its denial. There fore , we will c onduct a de novo re view to deter mine “whe ther the tria l court re ache d the cor rec t result notwithstanding its failure to explain its reasoning .” Elec troplating , 990 S.W .2d at 229.

Severa l fac tors weig h in favor of g ranting judicial diversion. As the trial c ourt noted, the defe ndant had no pr ior criminal hi story

. Fur thermore , the defendant’s social history was positive. No evidenc e indicate d that the def endant ha d a history

of drugor alc ohol abuse. She had supportive family members who w ere committed to he lping her w ith her financ ial problems and to ensur ing that sh e did no t r e pe a t he r cr imi na l beh a vio r. We al so take int o c on sid e ra tio n th e fa c t th a t th e de fe nd a nt, with the help of he r family , paid her restitution in full

. Nothing in the r ecor d indicates that the defe ndant would not b e am en able to correc tion. W e note that the r ecor d is silent as to the defe ndant’s mental a

nd phy sical hea lth.
Despite the positive fa ctors, ther e ar e also fa ctors that we igh a g ains t gra n t i n g judicial diversion. The tria l court foc used on t he cir cumstance s of the cr ime and found that they weig hed heavily ag ainst judicial diversion. This case involves a publi c employ ee of the sherif f’s de partment stealing money

from jail inmates. As the tria l co u rt i n dicated, this ty pe of c riminal behavior undermines the public’s confide nce in g overnme nt service , particula rly in the criminal justice sy stem. The cr ime invol v ed a v i o l at i o n of a public trust, a fac tor which the tria l court we ighe d he a vil y wh e n d e te rm ini ngthe le ng th o f t he defend ant’s se nte nc e . T his c ourt ha s h e ld t

hat th e ft s involving a defe ndant’s violation of his e mploy er’ s trust justified the trial cour t’s denial of judicia l div e rs ion . Se e State v. Rob ins on , 1 39 S.W. 3d 66 1, 665 (T e nn . Cr im. Ap p. 20 04 ). We h a ve a lso he ld t hat it is a pp ro pr ia te wh e n d e nyingdiv e rs ion to p la c e g re a t we ig ht on a vio la tio n o f p ub lic tr us t by a public off

icial, par ticularly an off icial i nvolved i n the cr iminal just ice sy stem. State v. Houston, 90 0 S. W.2 d 71 2, 71 5 (T e nn

. Cr im. Ap p. 19 95 ) (i nv olv ingde nia l of pr e tr ia l di ve rs ion ); se e a lso Sta te v. Ander son, 857 S.W .2d 571, 572 (noting that “judicial diversion is similar in pur pose to pretrial div e rs ion and is t o b e imp os e d w ith in t he di scr e tio n o f t

he tr ia l c ourt

su bje c t on ly

to t he same
c on str a int s ap pl icabl e to pro secu to rs i n ap pl y in g pret ri al d iv ers io n u nd er T. C. A. § 40 -15 -10 5"). Al so signific ant is the fac t that the defendant stol e money from inmates a

nd the sherif

f’s de partment on

sever al occ asions o v er t h e course of about a y ear and attempted to c over he r cr imes by writing fr a ud ule nt c he c ks . A lth ou g h th e de fe nd ant a dmi tte d he r g uil t and sh ow e d re mor se , sh e did so on ly afte r an inve stigation beg an and it was clea r that she could no longe r hide he r ac tions. Further more, denying judicia l diversion in this case may have a deter

rent effe ct on other publi c officer s and sends the messag e that such c riminal behavior w ill not be tolerated.

We a lso no te the sim ila

ri tie s be tw e e n the pr e se nt c a se a nd a pr ior c a se de c ide d b y

thi s c ourt , State v. Charles Chestee n, No. E1999-00910- CCA-R3-CD, Cocke County (Tenn. Crim. App. J une 8, 2000). The de fenda

nt in Chesteen pled g uilty to theft over $10,000 and embezz lement by a cle rk and master

in official c apac ity , stemming from his withholding of funds from individuals for w hom he wa s se rv ing a s fi na

nc ia l c on se rv a tor and his mis a pp ro pr ia tio n of lit ig ants ’ f un ds wh ic h w e re in the custody

of the off ice of the clerk and master . I d., slip op. at 1-2. This court re viewed the fac tors rele vant to the g ranting or denia l of j udicial di version, and stated t hat s ever al fa ctors, including the defe ndant’s ame nability

to corre ction, lack of

criminal re cord, and positive social history , weig hed-6-

in favor of

g ranting judicial diversion. I d., slip op. at 1 5

. Ho we v er , in affir ming the tr ial court’s d en i al o f d i v er s i o n , we co n s i d er edt h e f o l l o wi n g:
Weighingneg atively

for diver sion are the circ umstances of the offe nse an d

th e in te r e s ts o f

th e p u b li c an d th e a c c u s e d

. We are particula rly conce rned a

bout the ag g ravated nature of the de fenda nt’s crimes in that they

took place over a course of y ear s, involved fra ud up on the c ourt s, des tr

uc tio n o f r e c or ds , a

nd c ov e rt ba nk a c c ounts

. When the circ umstances of the offe nse ar e conside red in c onnection with the inte re s t s o f the public in see ing me aning ful punishment met ed out for a cr ime involving lar g e sums of money taken in the

manner as wa s done her e, it is clear that the public’s interests are not

serve d by judicial diversion in this case.

I d. L i k ew ise, we c onclude that the inter ests of the public a re not ser ved by a g rant of judicia l diversion in the pre sent ca se and that the record supports the tria l court’s de nial of judicial diversion.

B a se d o n th e fo re g oin g and the re c or d a s a wh ole , w e a ff

ir m th e jud g me nts of

the tr ia l c ourt

.

___________________________________ J OSEPH M. TI PTON, PRES I DI NG JUDGE