IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs November 1, 2012

STATE OF TENNESSEE v. APRIL NICOLE CROMWELL

Appeal from the Circuit Court for Hardin County

No. 9461 C. Creed McGinley, Judge

No. W2012-00209-CCA-R3-CD - Filed February 4, 2013

The Defendant, April Nicole Cromwell, pleaded guilty to theft of property valued at more

than $10,000, a Class C felony. See T.C.A.§ 39-14-103 (2010). The trial court sentenced

the Defendant as a Range I, standard offender to three years with one year to serve and the

remainder on probation. On appeal, the Defendant contends that the trial court erred by (1)

failing to sentence her to community corrections or probation and (2) denying her request for

judicial diversion. We affirm the judgment of the trial court.

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

JOSEPH M. TIPTON, P.J., delivered the opinion of the court, in which NORMA MCGEE OGLE

and ROGER A. PAGE, JJ., joined.

Joe Lee Brown, Savannah, Tennessee, for the appellant, April Nicole Cromwell.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney

General; Hansel Jay McCadams, District Attorney General; and Eddie N. McDaniel,

Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

At the plea submission hearing on December 1, 2011, the Defendant stipulated to the

facts contained in the indictment, which stated that

[The Defendant] heretofore, to wit: ON OR ABOUT THE 17 OF MARCH,

TH

2011 . . . did intentionally or knowingly obtain or exercise control over

property, to-wit: SEVERAL PIECES OF EXPENSIVE FAMILY JEWELRY

of the value of MORE THAN . . . ($10,000) but less than . . . ($60,000) being

the property of Riley Gunter without the owner’s effective consent, with the
intent to deprive the said Riley Gunter thereof, thereby committing the offense

of THEFT OF PROPERTY, in violation of TCA §39-14-103, against the

peace and dignity of the State of Tennessee.

The Defendant received a three-year sentence pursuant to the plea agreement and applied for

judicial diversion.

At the sentencing hearing, the presentence report was received as an exhibit. The

report stated that the Defendant only had a previous conviction for speeding. She admitted

to a seatbelt violation in Alabama three or four years previously. She graduated from Hatley

High School in 2003 and attended some college classes atJackson State Community College.

The reportshowed the Defendant had good mental and physical health, although she suffered

from periodic panic/anxiety attacks and diverticulitis. The Defendant was married with two

children at the time of sentencing. The Defendant’s husband received Social Security

disability benefits. The Defendant received an honorable discharge from the Alabama

National Guard.

The victim testified that his elderly mother and disabled brother lived with him and

that he was responsible for their care. He said that his mother was ninety years old and that

his brother was fifty-seven years old. He said that because his brother was blind and

mentally handicapped, the State paid for the Defendant to care for his brother. He said the

Defendant was employed at Deaconess Home Health. He said that at the time of the theft,

the Defendant had worked in his home for about one year, that he had trusted her, and that

he had treated her like family.

The victim testified that his mother was hospitalized around the time of the theft, that

the paramedics who took his mother to the hospital removed her jewelry and gave it to him,

and that he placed the jewelry inside his mother’s jewelry box. He said that after his mother

was released from the hospital and returned home, she asked for her jewelry. He said the

jewelry was missing when he went to retrieve it.

The victim testified that eleven pieces of jewelry were taken and that four were

recovered. He said that two 1.3-carat diamond earrings given to his mother by his deceased

father were still missing and that his great grandmother’s wedding ring, two gold necklaces,

one sapphire pendant surrounded by diamonds, and his grandmother’s broach were still

missing. He said he was told by the sheriff’s department that the Defendant refused to state

where the missing items were. He said the Defendant was a liar. He said that the Defendant

first denied taking the jewelry and that after the police recovered two items, the Defendant

confessed to taking only those two items. He said it was not until the police recovered two

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additional pieces that the Defendant confessed to taking those items, too. He said the

Defendant did not express remorse.

The victim testified that the Defendant, who lived six houses from his home, took his

mother’s sense of security and that his mother now lived in fear. He wanted the court to

understand the Defendant’s character. He heard the Defendant state that after her father-inlaw died from cancer, she would be rich. He said he provided the Defendant with daily

meals while she cared for his mother and brother and fed her horses when she had no food

to give them. He said his kindness was “rewarded with treachery, deceit, and theft.” He said

the Defendant betrayed his family’s trust and her duty. He asked the court to make an

example of the Defendant and to order her to serve one year in confinement and two years

on probation. He did not want the Defendant to receive leniency “while profiting from

stealing” from his family. He wanted the court to impose a sentence “that would remind

others in a position of trust that they cannot take advantage of the elderly, weak, or infirm

because they are not in a position to defend themselves.”

On cross-examination, the victim testified that the Defendant lived about one-half

mile from his home. He denied driving by her home yelling, “You’re a b----,” but admitted

yelling, “thief.” He denied yelling in front of the Defendant’s children and said he drove by

her home twice per day.

The victim testified that he changed the value of the missing jewelry based on the

value of gold and that he did not know how much gold was taken during the theft. He said,

though, that the items were appraised previously. A copy of the appraisal with the modified

values based on the price of gold was received as an exhibit. He agreed he requested

restitution in the amount of $19,525 and said the recovered items were valued at $5950. He

agreed the Defendant did not admit taking the unrecovered items.

The Defendant testified that she was married and had two young children, that her

husband was disabled, and that she had been a certified nurse’s aide since 2006. She said she

had cared for the victim’s mother for about one year. She denied having any previous arrests

but admitted receiving a speeding ticket. She said that she and her husband began having

financial difficulty and that she took “some of this jewelry” to provide financial relief.

The Defendant testified thatshe took and sold the four recovered items but denied that

she took the other items. She agreed she pleaded guilty to taking those items. She said she

attempted to cooperate with the police investigation and the victim. She denied having a

drug problem. She said she had been enrolled in a program with New Creations Outcome

and Ministries. A letter signed by a program counselor was received as an exhibit stating that

the Defendant was present at the Overcomers meeting on December 5, 12, 16, 19, and 27,

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2011. The Overcomers meetings addressed problems with addictions, trials of life, anxiety,

depression, drugs, alcohol, pornography, anger, gambling, and anything else that might

impact one’s life.

The Defendant testified that she had served in the National Guard and was honorably

discharged. She said she had learned her lesson and expressed remorse for her actions. She

said she lost both of her cars and almost lost her home because of the theft. She admitted

filing for bankruptcy. She addressed the victim and his family and said she was sorry and

wished she “could take it back, but we all make mistakes and we can’t” take them back.

On cross-examination, the Defendant testified that her home was owned by her fatherin-law and that he threatened to evict her family. She stated that she lied to the police about

taking the jewelry during her first interview but that she admitted the theft when the officer

told her that he would work with her if she worked with him. She agreed she did not admit

the theft until the officer told her that he knew she sold some of jewelry and that the buyer

paid with a check. She agreed her husband washed the check in the laundry and denied

asking the buyer for another check.

The Defendant testified that the police interviewed her about two additional pieces

of jewelry that were pawned and that she denied pawning those items. She agreed she told

the police that she pawned jewelry at the same store and that the jewelry she pawned did not

belong to the victim. She later admitted taking these two pieces of jewelry. She denied

taking the jewelry the day the victim’s mother was taken to the hospital.

The trial court stated that the Defendant pleaded guilty to a serious offense but that

based on the principles of sentencing, the Defendant was a favorable candidate for alternative

sentencing. The court found that the Defendant’s honorable service in the National Guard

and her lack of criminal history weighed in her favor. The court found, though, that the facts

of the case were “particularly atrocious” because of the manner in which the Defendant

committed the theft. The court stated that the theft was “perhaps the ultimate breach of trust”

and that the Defendant was there as an “ang[el] of mercy . . . and became a messenger of

destruction.” The court said the Defendant’s actions would only have been worse had she

taken the jewelry from a dead person. The court found that the victim’s mother and brother

were “totally helpless.”

The trial court found that the Defendant was not “a routine person” because the

Defendant did not steal a loaf of bread because she was hungry. The court said “this defies

description.” The court found that the Defendant was “less than candid” and that she lied to

the court when she said she only took four pieces of jewelry. The court stated that “in the

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strongest circumstantial terms[, the Defendant was] guilty of taking everything she was

accused of taking.” The court ordered the Defendant to pay $13,575 in restitution.

The trial court denied full probation and judicial diversion based upon the nature of

the offense and the need for deterrence. The court found that confinement was necessary to

avoid depreciating the seriousness of the offense and to provide an effective deterrence to

others who would likely commit “this type of horrible criminal activity.” The court was not

persuaded by the Defendant’s participation in the Overcomers program because she began

attending four days after she entered her guilty plea and knew confinement was a possible

outcome and because the program was generic. The court ordered one years’ confinement

and two years on probation, although it believed total confinement was appropriate. The

court concluded that denying full probation would prevent the Defendant’s paying restitution.

This appeal followed.

I

The Defendant contends that the trial court erred by not sentencing her pursuant to the

Tennessee Community Corrections Act or placing her on full probation. She argues that the

State did not present any legitimate reason for not sentencing her to community corrections

or full probation. The State responds that the trial court properly sentenced the Defendant.

We agree with the State.

The Tennessee Supreme Court recently adopted a new standard of review for

sentencing in State v. Susan Renee Bise, 380 S.W.3d 362, 706 (Tenn. Sept. 26, 2012). In

Susan Renee Bise, the court held that length of sentence “within the appropriate statutory

range [is] to be reviewed under an abuse of discretion standard with a ‘presumption of

reasonableness.’” Id. at 708. More recently, our supreme court has applied the abuse of

discretion standard with a presumption of reasonableness to “questions related to probation

or any other alternative sentences.” State v. Christine Caudle, — S.W.3d —, —, No. M2010-

01172-SC-R11-CD, slip op. at 7 (Tenn. Nov. 27, 2012).

In determining the proper sentence, the trial court must consider: (1) any evidence

received at the trial and 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, (5) any mitigating or statutory enhancement factors, (6) statistical

information provided by the administrative office of the courts as to sentencing practices for

similar offenses in Tennessee, (7) any statement that the defendant made on his own behalf,

and (8) the potential for rehabilitation or treatment. T.C.A. §§ 40-35-102, -103, -210; see

State v. Ashby, 823 S.W.2d 166, 168 (Tenn. 1991); State v. Moss, 727 S.W.2d 229, 236

(Tenn. 1986).

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The Defendant argues that she was eligible for community corrections under

Tennessee Code Annotated section 40-36-106(a)(1)(A)-(F) (2010) because she had no

previous criminal history and because she received an honorable discharge from the National

Guard. We note that the trial court stated that based on the principles of sentencing, the

Defendant was a favorable candidate for alternative sentencing. The Defendant was eligible

for probation and community corrections sentences. See T.C.A. §§ 40-35-303(a) (2010), 40-

36-106(a)(1) (2010). However, mere eligibility does not automatically entitle a defendant

to probation or a sentence under the Community Corrections Act. See State v.Fletcher, 805

S.W.2d 785, 787 (Tenn. Crim. App. 1991); State v. Beverly Dixon, No. W2004-00194-CCAR3-CD, slip op. at 10 (Tenn. Crim. App. June 30, 2005) (citing State v. Ball, 973 S.W.2d

288, 294 (Tenn. Crim. App. 1998)). Furthermore, the statutory provisions regarding

alternative sentences must be read together with the Sentencing Act as a whole. See Fletcher,

805 S.W.2d at 787-88; State v. Wagner, 753 S.W.2d 145, 147 (Tenn. Crim. App. 1988).

When determining if incarceration is appropriate, a trial court should consider if:

(A) Confinement is necessary to protectsociety 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) (2010); see also State v. Hooper, 29 S.W.3d 1, 5 (Tenn. 2000).

Although the Defendant had no previous criminal history, the record reflects that she

took advantage of an elderly woman and a blind, intellectually disabled man. We agree with

the trial court that the facts underlying the theft were atrocious and that the Defendant

breached the victim’s trust. At the time of the theft, the Defendant was paid to care for the

victim’s disabled brother and elderly mother. Furthermore, the Defendant refused to admit

stealing all the jewelry and only confessed to stealing four items after the police had direct

evidence of her guilt. The court denied alternative sentencing based on the nature of the

offense, to avoid depreciating the seriousness of the offense, and to provide an effective

deterrence to others who would likely commit “this type of horrible criminal activity.” The

Defendant has not established that the trial court abused its discretion by denying community

corrections and full probation. The Defendant is not entitled to relief.

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II

The Defendant contends that the trial court erred by denying judicial diversion.

Although she does not provide an argument related to why she is entitled to diversion, she

states she was eligible for diversion. The State responds that although the Defendant was

eligible for diversion, the trial court did not abuse its discretion by denying diversion. We

agree with the State.

A defendant is eligible for judicial diversion if he or she is found guilty of or pleads

guilty or nolo contendere to a Class C, D, or E felony or a lesser crime, has not previously

been convicted of a felony or a Class A misdemeanor, and is not seeking deferral for a sexual

offense. See T.C.A. § 40-35-313(a)(1)(B)(I) (2010). The decision to grant judicial diversion

lies within the sound discretion of the trial court, and this court will not disturb that decision

on appeal absent an abuse of discretion. State v. Electroplating, Inc., 990 S.W.2d 211, 229

(Tenn. Crim. App. 1998). Upon review, we will give the trial court the benefit of its

discretion “‘if any substantial evidence to support the refusal’ exists in the record.” State v.

Anderson, 857 S.W.2d 571, 572 (Tenn. Crim. App. 1992) (quoting State v. Hammersley, 650

S.W.2d 352, 356 (Tenn. 1983)).

In determining whether to grant judicial diversion, the trial court must consider (1) the

defendant’s amenability to correction; (2) the circumstances of the offense; (3) the

defendant’s criminal record; (4) the defendant’s social history; (5) the defendant’s physical

and mental health; (6) the deterrence value to the defendant and others; and (7) whether

judicial diversion will serve the ends of justice. Electroplating, 990 S.W.2d at 229; State v.

Parker, 932 S.W.2d 945, 958 (Tenn. Crim. App. 1996). In addition, “the record must reflect

that the court has weighed all of the factors in reaching its determination.” Electroplating,

990 S.W.2d at 229. If the trial court refused to grant judicial diversion, it should state in the

record “the specific reasons for its determinations.” Parker, 932 S.W.2d at 958-59.

As a preliminary matter, the State argues this issue is waived because the Defendant

failed to make appropriate citations to the record and to the appropriate standard of review

in her brief. See Tenn. R. Crim. App. 10(b) (“Issues which are not supported by argument,

citation to authorities, or appropriate references to the record will be treated as waived in this

court.”). Although the Defendant failed to cite to the record and the appropriate standard of

review, we will consider the issue on the merits. The record reflects that the trial court

weighed all the appropriate factors in denying judicial diversion. Although the Defendant

had no previous criminal history, had good physical and mental health, had family

responsibilities, and received an honorable discharge from the National Guard, the court

denied judicial diversion based upon the nature of the offense and the need for specific and

general deterrence. The court found that the Defendant lied when she testified at the

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sentencing hearing that she only took the four pieces of recovered jewelry. Her lack of

candor weighs against her amenability to correction. With regard to deterrence, the court

found that confinement was necessary to deter the Defendant and others from committing

“this type of horrible criminal activity.”

The Defendant breached the victims’ trust when she stole from the people for whom

she was paid to provide care. The Defendant preyed on an elderly woman and an

intellectually disabled blind man, who were helpless to defend against the Defendant’s theft.

We conclude that substantial evidence exists for the trial court’s denying judicial diversion.

The Defendant is not entitled to relief.

In consideration of the foregoing and the record as a whole, we affirm the judgment

of the trial court.

____________________________________

JOSEPH M. TIPTON, PRESIDING JUDGE

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