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 

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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 fiftyeight 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-ahalf 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