IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

January 28, 2014 Session

STATE OF TENNESSEE v. SARAH REBEKAH HODGES

Appeal from the Criminal Court for Washington County

Nos. 38023, 37513, 37511 Robert E. Cupp, Judge

No. E2013-00553-CCA-R3-CD - Filed March 12, 2014

The defendant, Sarah Rebekah Hodges, appealsfrom her Washington County Criminal Court

guilty-pleaded convictions of eight counts of forgery, one count of theft of property valued

at more than $10,000 but less than $60,000, and one count of theft of property valued at more

than $1,000 but less than $10,000, claiming that the trial court erred by denying her bid for

judicial diversion and by denying full probation. We discern no error in the trial court’s

denial of judicial diversion and full probation, but we observe plain error in seven of the

defendant’s judgments for forgery. In case number 37513, the trial court attempted to

memorialize the defendant’s guilty pleas and the accompanying sentences for all seven

counts of forgery contained in the indictment within a single judgment form. Because a

separate judgment form is required for each conviction, case number 37513 is remanded to

the trial court for entry of a separate judgment form for each conviction of forgery.

Tenn. R. App. P. 3; Judgments of the Criminal Court Affirmed; Remanded

JAMES CURWOOD WITT,JR.,J., delivered the opinion of the Court, in which NORMA MCGEE

OGLE and JEFFREY S. BIVINS, JJ., joined.

Steven R. Finney (on appeal); and Donna Bolton (at trial), Johnson City, Tennessee, for the

appellant, Sarah Rebekah Hodges.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney

General; Janet Hardin, District Attorney General pro tem; and Erin McArdle, Assistant

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

OPINION

Charged in case number 37511 with one count of forgery; in case number
37513 with one count of theft of property valued at $10,000 or more but less than $60,000

and seven counts of forgery; and in case number 38023 with one count of theft of property

valued at $1,000 or more but less than $10,000, the defendant pleaded guilty to all the

charges on June 18, 2012, in exchange for a five-year effective sentence with the manner of

service to be determined by the trial court. At the plea submission hearing, the defendant

indicated an intent to seek judicial diversion. Upon questioning by the trial court, the

defendant acknowledged that she had taken checks and jewelry from the home of her best

friend, Emmalea Johnston, over the course of several months. She then sold the jewelry and

forged the checks to obtain money with which to buy Oxycontin.

At the sentencing hearing, the trial court noted that it would be considering

both the “issue of alternative sentencing and possibly diversion which is not an alternative

sentence.” The court noted that a number of letters had been submitted on the defendant’s

behalf and that court records indicated that the defendant’s court costs, which totaled

$7,266.00, had been paid in full. The defendant had also paid $1,105.00 in restitution. The

trial court complemented the defendant for paying the costs before the hearing.

The defendant testified that she became pregnant and married while a young

woman. The relationship, she said, was “physically and verbally abusive.” She said that as

a result of that relationship and the stress of “everyday life,” she turned to prescription pain

killers as a “coping mechanism.” The defendant said that she had known the victim “for a

very long time,” that the two had gone to school together, that she was the maid of honor at

the victim’s wedding, and that the two “were very, very close.” The victim had no idea of

the defendant’s drug problem and, as a result, trusted the defendant to watch her dogs and

to babysit her stepdaughter. The defendant said that she violated the victim’s trust by

stealing jewelry and checks from the victim’s home. She then used the money to purchase

pain killers.

The defendant testified that when the thefts were discovered, she and her

grandmother “went to every single place” where the defendant had sold the victim’s jewelry

in an attempt to recover it, but they were not able to recover any of the jewelry. She said that

she and her grandmother went to the victim’s house “trying to give them money . . . to help

or make the situation better.” The defendant said that the situation had “been a completely

humbling experience” that led her to be “more comfortable in [her] true self.” The defendant

testified that she had assisted investigators to the best of her ability and that she had entered

an intensive, outpatient drug treatment program. She said that she had been drug-free for 15

months.

The defendant testified that as a result of the offenses, her ex-husband, who had

only sporadic contact with her daughter, had sought full custody of the little girl. The

-2-
defendant said that her family had been very supportive. She apologized to the victim and

thanked those who had supported her.

During cross-examination, the defendant acknowledged that following her

arrest she had spent less than two hours in jail before her grandparents posted her bond. The

defendant admitted that the victim had been her best friend since the age of five and that she

was aware that the victim’s mother died when the victim was six years old. She said that she

knew that some of the jewelry she stole from the victim’s home had belonged to the victim’s

mother. The defendant admitted that she stole 25 checks from the victim and the victim’s

husband and that she made notations at the bottom of each check. She said that those

notations were “a big, like cry for help because [she] knew that it was going to be caught.”

Despite these notations, she made each of the checks payable to herself. She said that writing

the notations “made [her] feel a whole lot easier knowing that [she] was taking money from

[her] best friend and [her] husband.” She explained, “I wrote that for my own self to not feel

as bad, that way if when they did find out, that I would just say that I needed money for

school so I could still continue.” The defendant acknowledged that she stole some of the

victim’s jewelry on the victim’s wedding day when the victim asked her to retrieve the

victim’s make-up bag from the house. She said that on each occasion that she stole jewelry,

neither the victim nor her husband was home. She admitted that she stole checks and jewelry

over the course of at least a month.

The defendant testified that no one confronted her until the victim telephoned

the defendant’s new husband to let him know that the defendant had written checks on their

accounts. She said, “Then that’s when they realized, I guess, the jewelry as well.”

During redirect examination, the defendant asked the court for judicial

diversion because she did not want her “life to be completely ruined.” She explained, “I have

goals, I have dreams, I have a child who I want to look up to me and to not just see me as a

convicted felon and someone who will never be able to do anything.”

Upon questioning by the court, the defendant acknowledged thatshe had never

asked for or stolen money from her grandparents, who had posted her bond following her

arrest. She said that taking things from the victim “was just easy, it was fast.” The defendant

said that she had not told her daughter about the offenses because “she’s right now a little too

young,” but she said that she had “told her that mommy has made many decisions, some good

ones and some bad ones.” She said that she had not been in drug treatment for nearly a year.

She said that she only “occasionally” attended addiction-related meetings. The court

expressed concern that the defendant believed she was “home-free.”

David Lay, the defendant’s father, testified that he was proud of the defendant

-3-
for being honest and overcoming her addiction. He apologized to the victim and said that

he “hope[d] at some point in time all this stuff will be a bad memory and it will go away.”

The victim, Emmalea Johnston, testified that she became a friend of the

defendant when the two were young. Her mother died when she was five, and her father

gave her pieces of her mother’s jewelry at various points in her life. She said that he told her

to “cherish it and keep it forever and hand it down to” her own children. The victim said that

during the defendant’s “stealing extravaganza,” “there was more jewelry available than there

usually was” because she had taken some items out of a safe deposit box to wear and use at

her wedding. The victim said that because she was busy planning her wedding and starting

a new job, she gave the defendant access to her home to help out.

The victim testified that on October 6, 2011, she checked the bank statement

for her husband’s corporation and discovered several checks made out to the defendant. She

said that she was initially angry with her husband because she believed that he had written

checks to the defendant to help her out. She said that she telephoned her husband at work,

and the two realized that the defendant had taken the checks. She said that they decided to

“confront the situation and maybe just see like what’s going on” and to see whether the

defendant needed help. The victim said thatshe telephoned the defendant’s current husband,

who told her about the defendant’s drug problem. The defendant’s husband said, “‘You

better check your jewelry box because I bet it’s cleaned out.’” She said that she immediately

checked her jewelry box and discovered that the jewelry was missing.

The victim testified that a total of 25 checks were drawn on accounts belonging

to the victim and her husband. She recalled that, in addition to the checks and the jewelry,

some expensive clothing belonging to her six-year-old step-daughter was missing. The

victim said that she and her husband would have done “anything [they] could have” to help

the defendant. She said that she believed the defendant preyed on them because she believed

that her crimes “would have just been excused or overlooked” because of their friendship.

The victim testified that her husband was a doctor and that she was a nurse practitioner, and

they had “any and all capabilities to do whatever [the defendant] needed” them to do for her.

She said, “[W]e could have gotten her in anywhere or done anything.”

At the conclusion of the hearing, the court observed that the defendant’s taking

25 checks and several items of jewelry over the course of some months indicated “a sustained

intent to violate the law over a period of time.” The court also noted, however, that it was

troubled by the defendant’s exploitation of her friendship with the victim. Regarding

whether the grant of judicial diversion would “serve the interest of the public as well as the

accused,” the court found “it a stretch when the [c]ourt would try to grant diversion to

someone who committed not one time but thirty (30) violations of that trust.” The court

-4-
found that the defendant’s sustained intent to violate the law and her abuse of a position of

trust weighed “heavily against granting diversion to her.” The trial court concluded that the

defendant was amenable to correction and that her physical and mental health and social

history weighed in her favor. Balancing these factors, the trial court denied the defendant’s

request for diversion.

The trial court concluded, however, that a sentence of total confinement was

not appropriate. Accordingly, the trial court placed the defendant on probation and ordered

her to attend “treatment sessions” as a condition of her probation. The trial court also

ordered the defendant to serve 30 days in confinement “to reinforce the fact that you never

want to do this again in your life.” The court stated that the defendant would be permitted

to serve the 30 days’ confinement “around work release” and that she could even serve her

time on the weekends. The court made it clear, however, that the confinement was necessary

to reinforce to the defendant the magnitude of her crime.

In this appeal, the defendant challenges the trial court’s denial of judicial

diversion and full probation. We consider each claim in turn.

I. Judicial Diversion

“Judicial diversion” is a reference to the provision in Tennessee Code

Annotated section 40-35-313(a) for a trial court’s deferring proceedings in a criminal case.

See T.C.A. § 40-35-313(a)(1)(A). Pursuant to such a deferral, 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. Id. § 40-35-

313(a)(1)(B)(i)(b), (c). Diversion requires the consent of the qualified defendant. Id. § 40-

35-313(a)(1)(A).

Eligibility, however, does not automatically translate into entitlement to judicial

diversion. See State v. Bonestel, 871 S.W.2d 163, 168 (Tenn. Crim. App. 1993), overruled

on other grounds by State v. Hooper, 29 S.W.3d 1, 9 (Tenn. 2000). The statute states that

a trial court may grant judicial diversion in appropriate cases. See T.C.A. § 40-35-

313(a)(1)(A) (citing that court “may defer further proceedings”). Thus, whether an accused

should be granted judicial diversion is a question entrusted to the sound discretion of the trial

court. Bonestel, 871 S.W.2d at 168.

“Tennessee courts have recognized the similarities between judicial diversion

and pretrial diversion and, thus, have drawn heavily from the case law governing pretrial

-5-
diversion to analyze cases involving judicial diversion.” State v. Cutshaw, 967 S.W.2d 332,

343 (Tenn. Crim. App. 1997). Accordingly, the relevant factors related to pretrial diversion

also apply in the judicial diversion context. They are:

[T]he defendant’s criminal record, social history, mental and

physical condition, attitude, behavior since arrest, emotional

stability, current drug usage, past employment, home

environment, marital stability, family responsibility, general

reputation and amenability to correction, as well as the

circumstances of the offense, the deterrent effect of punishment

upon other criminal activity, and the likelihood that [judicial]

diversion will serve the ends of justice and best interests of both

the public and the defendant.

Id. at 343-44; see also State v. Washington, 866 S.W.2d 950, 951 (Tenn. 1993). Moreover,

the record must reflect that the trial court has weighed all of the factors in reaching its

determination. Bonestel, 871 S.W.2d at 168. The trial court must explain on the record why

the defendant does not qualify under its analysis, and if the court has based its determination

on only some of the factors, it must explain why these factors outweigh the others. Id.

On appeal, this court must determine whether the trial court abused its

discretion by failing to grant judicial diversion. Cutshaw, 967 S.W.2d at 344; Bonestel, 871

S.W.2d at 168. Accordingly, when a defendant challenges the denial of judicial diversion,

we may not revisit the issue if the record contains any substantial evidence supporting the

trial court’s decision. Cutshaw, 967 S.W.2d at 344; Bonestel, 871 S.W.2d at 168.

Turning to the denial of diversion in this case, the record establishes that the

trial court considered all the appropriate factors in making its ruling. The court concluded

that although the defendant’s amenability to correction, her physical and mental health, her

lack of a criminal record, and her social history weighed in favor of a grant of judicial

diversion, her sustained intent to violate the law and her abuse of a position of trust weighed

“heavily against her.” Balancing these considerations, the trial court concluded that judicial

diversion would not serve the interests of the defendant or the public. In our view, the record

supports the findings of the trial court. The defendant stole 25 checks and several items of

jewelry from her life-long best friend over the course of at least a couple of months. She

exploited the victim’s trust to gain access to the victim’s home and property, and she took

many of the items of jewelry without regard for the fact that they belonged to the victim’s

deceased mother and could not be replaced. The defendant even went so far as to steal from

her best friend while performing her duties as maid of honor in the victim’s wedding. Under

these circumstances, the trial court did not abuse its discretion by denying judicial diversion

-6-
in this case.

II. Full Probation

The defendant also contends that the trial court erred by ordering that she serve

30 days of her five-year sentence in confinement rather than granting her full probation. The

State contends that the trial court did not err by imposing the short period of incarceration.

“[A]lthough the statutory language continues to describe appellate review as

de novo with a presumption of correctness,” the 2005 revisions to the Sentencing Act

“effectively abrogated the de novo standard of appellate review.” State v. Bise, 380 S.W.3d

682, 707 (Tenn. 2012). Observing that a change in our standard of review was necessary to

comport with the holdings of the United States Supreme Court, oursupreme court “adopt[ed]

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.” Id.

Despite the new standard of review, trial courts must still consider the

principles of sentencing enumerated in Code section 40-35-210(b), see Bise, 380 S.W.3d at

698 n.33 (citing T.C.A. § 40-35-210(b)), 706 n.41, and must, as required by statute, consider

“[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.” Id. § 40-35-103(5).

The court cautioned that, despite the wide discretion afforded the trial court under the revised

Sentencing Act, trial courts are “still required under the 2005 amendments to ‘place on the

record, either orally or in writing, what enhancement or mitigating factors were considered,

if any, as well as the reasons for the sentence, in order to ensure fair and consistent

sentencing.’” Bise at 706 n.41 (citing T.C.A. § 40-35-210(e)).

The imposition of a five-year sentence in this case mandated the trial court’s

considering probation as a sentencing option. See T.C.A. § 40-35-303(a), (b). Traditionally,

however, the defendant has born the burden of establishing his “suitability for full

probation.” State v. Mounger, 7 S.W.3d 70, 78 (Tenn. Crim. App. 1999); see T.C.A. §

40-35-303(b). Such a showing required the defendant to demonstrate that full probation

would “‘subserve the ends of justice and the best interest[s] of both the public and the

defendant.’” State v. Dykes, 803 S.W.2d 250, 259 (Tenn. Crim. App. 1990) (quoting Hooper

v. State, 297 S.W.2d 78, 81 (1956)), overruled on other grounds by Hooper, 29 S.W.3d at

9-10. Recently, however, the supreme court expanded the holding in Bise to the trial court’s

decision regarding probation eligibility, ruling “that the abuse of discretion standard,

accompanied by a presumption of reasonableness, applies to within-range sentences that

reflect a decision based upon the purposes and principles of sentencing, including the

-7-
questions related to probation or any other alternative sentence.” State v. Caudle, 388

S.W.3d at 278-79.

Here, the record establishes that the trial court considered the purposes and

principles of the sentencing act when ordering the defendant to serve 30 days’ incarceration.

The trial court placed particular emphasis on the circumstances of the offense and the need

to impress upon the defendant the seriousness of the offenses in this case. Importantly, the

defendant had spent less than two hours in jail in connection with the offenses in this case.

The trial court noted its particular concern that the defendant had stopped attending any drug

treatment at all, cautioning the defendant, “You’re not home free, young lady, if you think

that you’ve overcome the addiction.” In our view, the trial court did not err by denying a

sentence of full probation in this case.

III. Judgment Errors

Although we find no error in the sentencing decision of the trial court, we find

plain error in the judgment forms for the defendant’s convictions of forgery in case number

37513. The defendant pleaded guilty to, and was convicted of, seven counts of forgery. The

trial court, however, entered only a single judgment of conviction and noted in the “special

conditions” portion of the uniform judgment form the separate conviction counts. Supreme

Court Rule 17, which promulgates and requires the use of the uniform judgment document,

provides, “The judgment should be prepared for each conviction; if there are multiple

convictions in the same indictment, separate judgments should be filled out with appropriate

notations stating whether the sentences will run consecutively or concurrently.” Tenn. R.

Sup. Ct. R. 17 (emphasis added). Consequently, the case must be remanded for the trial court

to prepare a separate judgment form for each of the defendant’s convictions of forgery in

case number 37513.

Conclusion

The record in this case supports the denial of judicial diversion and full

probation, but the record shows plain error with regard to the judgment forms in case number

37513. Accordingly, the judgments of the trial court are affirmed, but case number 37513

is remanded for the entry of separate judgment forms for each conviction of forgery in that

case.

_________________________________

JAMES CURWOOD WITT, JR., JUDGE

-8-