IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs July 9, 2002

STATE OF TENNESSEE v. DONNA F. BENSON

Direct Appeal from the Criminal Court for Shelby County

Nos. 01-01216, 17 Bernie Weinman, Judge

No. W2001-01926-CCA-R3-CD - Filed October 8, 2002

The defendant, a former employee of the Shelby County Criminal Court Clerk’s office, pled guilty

to two counts of public servant accepting a bribe, in violation of Tennessee Code Annotated section

39-16-102, a Class C felony. The trial court sentenced her as a Range I, standard offender to

concurrent terms of three years on each count, but suspended all but ninety days of the sentence, to

be served on weekends at the county workhouse. The defendant was also placed on probation for

three years, ordered to perform 300 hours of community service, and assessed a $1000 fine for each

count. She argues on appeal that the trial court erred in denying her judicial diversion or full

probation. After reviewing the record, we affirm the judgment of the trial court.

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

ALAN E. GLENN, J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS and

NORMA MCGEE OGLE, JJ., joined.

Lee Wilson, Memphis, Tennessee, for the appellant, Donna F. Benson.

Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General;

William L. Gibbons, District Attorney General; and Camille McMullen, Assistant District Attorney

General, for the appellee, State of Tennessee.

OPINION

FACTS

On May 11, 2001, the defendant, Donna F. Benson, entered pleas of guilty to two counts of

violatingTennesseeCodeAnnotated section 39-16-102(a), “Bribery of public servant,” for soliciting

and/or accepting bribes from two separate individuals while employed as a counselor at the Shelby

County Criminal Court Clerk’s Office. However, although the trial court’s order approving the

guilty pleas is included in the record, the transcript of the defendant’s guilty plea hearing is not. In

order for this court to conduct an effective review of sentencing in a case involving a conviction
1

Although the cover of the transcript of the sentencing hearing reflects that the hearing was held on August 1,

2001, which was a Wednesday, the introductory paragraph states that the hearing “came on to be heard and was heard

on the 1st day of September, 2001, . . . .” Since September 1, 2001, was a Saturday and because the judgment is dated

August 1, 2001, we believe the September date is obviously an error.

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pursuant to a guilty plea, a transcript of the guilty plea hearing normally is necessary, since it is the

guilty plea hearing that usually provides the facts and circumstances surrounding the offense. See

State v. Thomas Leon Lewis, II, No. W2000-01740-CCA-R3-CD, 2001 Tenn. Crim. App. LEXIS

344, at *3 (Tenn. Crim. App. May 9, 2001) (citing State v. Keen, 996 S.W.2d 842, 844 (Tenn. Crim.

App. 1999)). “In the absence of a transcript of a guilty plea, this court must generally conclude that

the sentence imposed by the trial court was correct.” Id. (citing Keen, 996 S.W.2d at 844).

Nonetheless, we have chosen to review the issues in the defendant’s case, relying on evidence

presented at her sentencing hearing, as well as information provided in the presentence report, for

the details surrounding the offenses.

The thirty-seven-year-old defendant testified at her August 1, 2001,1

 sentencing hearing that

she had been married for twelve and a half years and had a daughter who was nearly three years old.

At the time of the offenses, she was employed as a counselor at the Shelby County Criminal Court

Clerk’s office, where she had worked in various positions for almost ten years. Her job duties as a

counselor included interviewing defendants, calculating their court costs and fines, and informing

them of the amount of their payments and the dates they were due. 

The defendant was working in her position as counselor on December 19, 2000, when Robert

Branch came in to make a payment on the approximately $1200 in court costs and fines he was

required to pay before getting his driver’s license reinstated. During her conversation with him, she

told Branch that if he gave her $800, she would give him the certification he needed to get his

driver’s license back. When Branch returned later that day, he was wearing a recording device,

although the defendant did not know it at the time. Branch gave the defendant $800, which she laid

on her desk. The defendant, in turn, gave Branch his required certification, indicating that he had

paid his court costs and fines in full. Thereafter, the defendant was approached by another employee

of the criminal court clerk’s office, Warren Young, who took the money, told the defendant that they

had everything on tape, and instructed her to gather her belongings and leave the office. 

The second incident to which the defendant pled guilty involved her solicitation of a bribe

from another individual, Ben Chambers, who, like Branch, was seeking to have his driver’s license

reinstated. With respect to this incident, which occurred sometime between December 1 and

December 19, 2000, the defendant testified: “Mr. Chambers came in and wanted to get his driver’s

license back, and I told him I would help him for a portion of what he owed. I don’t remember what

was his total amount, but I told him that he could pay fifteen hundred (1500), and he could get his

certification.” Chambers told the defendant that he would have to get the money from someone else

and return with it later. However, although the defendant spoke with Chambers a couple of times

after she made her proposal, he never gave her any money. 
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The defendant explained her behavior by testifying that she had acted without thinking,

succumbing to the temptation of obtaining some extra money for Christmas shopping. Since that

time, she had thought about what she had done and how it had affected her life. She had been unable

to find another job, and her family, used to two incomes, now had only one. She had been unable

to sleep, and her doctor had prescribed medication for her nerves which she was still taking. The

defendant said that she had never before been in trouble. She felt that she had let down not only her

family, friends, and coworkers, but herself as well. She was “[v]ery, very” remorseful and deeply

regretted her actions. She had learned from her mistake, would never do anything like it again, and

thought that, given a chance, she would be able to “get a job and get [her] life back together and get

back on track.”

On cross-examination, the defendant insisted that the incident with Mr. Chambers was the

first time she had engaged in such behavior, and that the only other time she committed the offense

was with Mr. Branch. She agreed with the trial court that her actions had undermined our system

of justice, and acknowledged that she had violated a position of trust. She also agreed with the

prosecutor that her actions had caused the “eye of suspicion” to be upon the entire criminal court

clerk’s office.

 The defendant’s husband, Charles C. Benson, testified that the incident had devastated his

wife emotionally, placing her under tremendous strain and causing her to lose her hair. He said that

other than caring for their daughter, she was unable to handle her regular tasks and routines. He

believed that she was remorseful, and supported her petition for judicial diversion and full probation.

Upon examination by the trial court, Benson testified that he was employed as a sergeant at the

Shelby County Correctional Center. He acknowledged that he and his wife had had a decent

combined income, and that they could have afforded to buy Christmas presents. 

Three other witnesses testified on the defendant’s behalf, offering support for her petition to

be granted judicial diversion or full probation. Shelby County Deputy Sheriff Bertia Harris testified

that she and the defendant were from the same town and had attended school together. She said that

the defendant had talked with her about the incident, and that she believed the defendant understood

the gravity of her offense and was remorseful. Retired Shelby County government employee Edward

L. Stanton, Jr., testified that he had been acquainted with the defendant for a little over ten years

through his work in the criminal court clerk’s office. He had counseled the defendant about the

incident in his position as associate minister of his church, and believed that she was “deeply

remorseful.” The defendant’s pastor, Reverend Christopher Daniels, Sr., testified that he had known

of the defendant, through her family and friends, for about ten or twelve years, and had known her

personally for about five years. He said he had counseled her about the incident, and believed her

to be sincerely remorseful. Reverend Daniels additionally testified that he was willing to give the

defendant a job as his administrative assistant, a position in which she would be entrusted with large

sums of money.

 Finding that judicial diversion would not be appropriate under the facts and circumstances

of the defendant’s case, the trial court sentenced her as a Range I, standard offender to concurrent
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terms of three years for each offense, with ninety nonconsecutive days to be served in the county

workhouse on weekends, and the remainder of the sentence to be served on probation. In addition,

the trial court imposed $1000 fines for each offense, and ordered that the defendant perform 300

hours of community service. Thereafter, the defendant filed a timely appeal to this court, challenging

the trial court’s denial of her request for judicial diversion or full probation.

ANALYSIS

A. Denial of Judicial Diversion

The defendant first contends that the trial court abused its discretion in denying her request

for judicial diversion. Tennessee Code Annotated section 40-35-313 provides that, following a

determination of guilt by plea or by trial, a trial court may, in its discretion, defer further proceedings

and place a qualified defendant on probation without entering a judgment of guilt. Tenn. Code Ann.

§ 40-35-313(a)(1)(A) (Supp. 2001). A qualified defendant is one who pleads guilty or is found

guilty of a misdemeanor or Class C, D, or E felony; has not been previously convicted of a felony

or a Class A misdemeanor; and who is not seeking deferral for a sexual offense or a Class A or B

felony. Tenn. Code Ann. § 40-35-313(a)(1)(B)(i) (Supp. 2001). If the defendant successfully

completes the period of probation, the trial court is required to dismiss the proceedings, and the

defendant may have the records of the proceedings expunged. Tenn. Code Ann. § 40-35-313(a)(2),

(b) (Supp. 2001). 

Having pled guilty to two counts of a Class C felony, and having no prior criminal record,

the defendant was qualified to seek judicial diversion. However, the decision to grant or deny a

qualified defendant judicial diversion lies within the sound discretion of the trial court. State v.

Electroplating, Inc., 990 S.W.2d 211, 229 (Tenn. Crim. App. 1998); State v. Cutshaw, 967 S.W.2d

332, 344 (Tenn. Crim. App. 1997); State v. Bonestel, 871 S.W.2d 163, 168 (Tenn. Crim. App. 1993).

As such, it will not be disturbed on appeal absent an abuse of discretion. Electroplating, 990 S.W.2d

at 229; Cutshaw, 967 S.W.2d at 344; Bonestel, 871 S.W.2d at 168. To constitute an abuse of

discretion, the record must be devoid of any substantial evidence in support of the trial court’s

decision. Cutshaw, 967 S.W.2d at 344; Bonestel, 871 S.W.2d at 168; State v. Anderson, 857 S.W.2d

571, 572 (Tenn. Crim. App. 1992). 

In determining whether to grant diversion, the trial court considers (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, (f) the deterrence value

to the accused as well as others, and (g) whether judicial diversion will serve the interests of the

public as well as the accused. Electroplating, 990 S.W.2d at 229; Bonestel, 871 S.W.2d at 168. A

trial court should not deny judicial diversion without explaining the factors in support of its denial,

and how those factors outweigh other factors in favor of diversion. Id.

The defendant argues that the trial court abused its discretion by failing to consider relevant

factors in favor of granting her judicial diversion, such as her amenability to correction, lack of a
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criminal record, physical and mental health, the deterrence value to the defendant as well as to

others, and whether a sentence of judicial diversion would serve the best interests of the defendant

as well as the public. The State concedes that the trial court could have made more precise findings

on the record regarding some of the above factors, but argues, nonetheless, that substantial evidence

exists in the record to support the trial court’s denial of judicial diversion. 

In making its sentencing determinations in this case, including its decision to deny the

defendant judicial diversion, the trial court placed great emphasis upon the defendant’s violation of

her position of public trust in the criminal court clerk’s office, finding that it moved her into “a

higher category” than that of the defendant in the average theft case. However, although the trial

court noted the defendant’s lack of a criminal record, family circumstances, and mental health, it did

not fully explain on the record its consideration of all relevant Bonestel factors, or how the

circumstances of the offense outweighed any factors in favor of diversion. SeeBonestel, 871 S.W.2d

at 168. In the absence of the required findings in the record, this court must conduct a de novo

review “to determine whether the trial court reached the correct result notwithstanding its failure to

explain its reasoning.” Electroplating, 990 S.W.2d at 229. 

There are several factors in this case that weigh in favor of judicial diversion. The thirtyseven-year-old defendant has no prior criminal convictions. Prior to the incident, she was steadily

employed at the criminal court clerk’s office for approximately ten years. She is married and the

mother of a small child. According to her testimony, she feels extreme remorse for her crime and

has suffered emotional problems as a result. Her husband, friend, former coworker, and pastor each

testified that they believed the defendant was sincere in her expressions of remorse, and offered their

support for her petition to be granted diversion and full probation. Weighing against these factors,

however, are the circumstances of the offense and the fact that diversion, in this case, will not serve

the best interests of the public. 

In denying judicial diversion, the trial court emphasized the defendant’s abuse of her position

of public trust, and how her abuse of that position undermined public confidence in the integrity of

the criminal justice system. The trial court explained: 

And I think, as we indicated when you were up here, you

kind’a [sic] go into a higher category. A category -- When we talk

about theft cases, you go up a step, because you were in a position of

trust. The county government placed you in a position of trust right

here in the criminal court clerk’s office, and people -- If the

community can’t expect peopleworking in the criminal justice system

to do what’s right, then they can’t expect anything from their

government.

The defendant’s position of public trust was a part of the circumstances of her offense. A

denial of diversion may be based solely on the circumstances of the offense or on the need for

deterrence when these factors are “‘of such overwhelming significance’” as to outweigh all other
2

See North Carolina v. Alford, 400 U.S. 25, 37, 91 S. Ct. 160, 167, 27 L. Ed. 2d 162 (1970). 

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factors in favor of diversion. State v. Washington, 866 S.W.2d 950, 951 (Tenn. 1993) (reviewing

denial of pretrial diversion) (quoting State v. Markham, 755 S.W.2d 850, 853 (Tenn. Crim. App.

1988)); see also State v. Kyte, 874 S.W.2d 631, 634 (Tenn. Crim. App. 1993) (stating that “the

circumstances of the offense may alone serve as the basis for denial” of judicial diversion).

In State v. Houston, 900 S.W.2d 712, 715 (Tenn. Crim. App. 1995), this court concluded that

a defendant’s violation of a position of public trust justified the district attorney’s denial of pretrial

diversion. The defendant in Houston was a Chattanooga police captain who, while assigned to the

Chattanooga City Court, physically assaulted an employee of the city court clerk’s office in the

hallway outside the courtrooms. Id. at 713. In determining whether to grant pretrial diversion, the

district attorney noted the defendant’s excellent work and social history and lack of a prior criminal

record. Id. at 714. Nonetheless, the district attorney denied pretrial diversion, based primarily on

the fact that the defendant, as a police officer, had violated a position of public trust, and his

determination that the best interests of the public would not be met by allowing the defendant pretrial

diversion. Id. Observing that a violation of a position of public trust “bears directly on the public

interest,” this court affirmed the denial of pretrial diversion, concluding that the circumstances of

the offense, the need to serve the ends of justice, and the need to protect the interests of the public

outweighed the factors in favor of diversion. Id. at 715. 

Similarly, in a recent unpublished case, State v. William Blaine Campbell, No. E1999-02208-

CCA-R3-CD, 2000 Tenn. Crim. App. LEXIS 744, at *9 (Tenn. Crim. App. Sept. 29, 2000), perm.

to appeal denied (Tenn. Apr. 23, 2001), this court concluded that the trial court did not abuse its

discretion in emphasizing a defendant’s abuse of a position of trust in denying his request for judicial

diversion. The defendant in Campbell, a school teacher who was indicted on eight counts of

especially aggravated sexual exploitation of a minor and one count of contributing to the delinquency

of a minor, entered an Alford2 guilty plea to one count of furnishing alcohol to a minor. Id. at **2-3.

In denying his request for judicial diversion, the trial court focused upon “the abuse of a position of

trust that was involved” in the crime, and found that it was “in the strong interests of the public not

to tolerate teachers furnishing alcohol to students.” Id. at *6. This court affirmed the denial of

diversion, concluding that the trial court appropriately relied upon the defendant’s abuse of trust as

“relevant to the circumstances of the offense.” Id. at *8. 

In the instant case, the defendant’s abuse of her position of public trust is, likewise, relevant

both to the circumstances of her offense and to a determination of whether the ends of justice will

be met by granting her judicial diversion. We agree with the trial court that, because of the

defendant’s violation of her position of public trust, both these factors weigh heavily against granting

her judicial diversion. 

The defendant was entrusted with a position of responsibility in the criminal court clerk’s

office, assigned to meet directly with criminal defendants to counsel them about their court costs and

fines and the payment schedules they were required to meet. In her role as a representative of the
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office, she solicited and accepted bribes from the very criminal defendants she was assigned to

counsel. This was an egregious violation of a position of public trust, which, as she acknowledged,

caused the “eye of suspicion” to be upon the entire criminal court clerk’s office and the criminal

justice system itself. To grant her judicial diversion under the circumstances of this case would serve

neither the ends of justice nor the best interests of the public. We, therefore, conclude that the trial

court did not abuse its discretion in denying the defendant’s request for judicial diversion.

B. Denial of Full Probation

The defendant next contends that the trial court erred in denying her full probation based on

the nature of her offense. She argues that the circumstances of her offense were not such as to

outweigh all other factors favoring a sentence other than confinement. The State contends that the

circumstances of the defendant’s offense more than justify the denial of full probation. We agree

with the State. 

When a defendant challenges the length and manner of service of a sentence, it is the duty

of this court to conduct a de novo review on the record with a presumption that “the determinations

made by the court from which the appeal is taken are correct.” Tenn. Code Ann. § 40-35-401(d).

This presumption is “conditioned upon the affirmative showing in the record that the trial court

considered the sentencing principles and all relevant facts and circumstances.” State v. Ashby, 823

S.W.2d 166, 169 (Tenn. 1991). In conducting a de novo review of a sentence, this court must

consider (a) any evidence received at the trial and/or sentencing hearing, (b) the presentence report,

(c) the principles of sentencing, (d) the arguments of counsel relative to sentencing alternatives, (e)

the nature and characteristics of the offense, (f) any mitigating or enhancement factors, (g) any

statements made by the accused in his own behalf, and (h) the accused's potential or lack of potential

for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-103, -210; State v. Scott, 735 S.W.2d

825, 829 (Tenn. Crim. App. 1987).

The burden is on the defendant to demonstrate that she is a suitable candidate for full

probation. State v. Goode, 956 S.W.2d 521, 527 (Tenn. Crim. App. 1997); State v. Boggs, 932

S.W.2d 467, 477 (Tenn. Crim. App. 1996); see Tenn. Code Ann. § 40-35-303(b) (1997). In order

to meet this burden, the defendant “must demonstrate that probation will ‘subserve the ends of

justice and the best interest of both the public and the defendant.’” State v. Bingham, 910 S.W.2d

448, 456 (Tenn. Crim. App. 1995) (quoting State v. Dykes, 803 S.W.2d 250, 259 (Tenn. Crim. App.

1990)). There is no bright line rule for determining when a defendant should be granted probation.

Bingham, 910 S.W.2d at 456. Every sentencing decision necessarily requires a case-by-case

analysis. Id. Factors to be considered include the circumstances surrounding the offense, the

defendant’s criminal record, the defendant’s social history and present condition, the need for

deterrence, and the best interest of the defendant and the public. Goode, 956 S.W.2d at 527. Also

relevant is whether a sentence of probation would unduly depreciate the seriousness of the offense.

See State v. Davis, 940 S.W.2d 558, 559 (Tenn. 1997); Bingham, 910 S.W.2d at 456. “Denial of

probation may be based solely upon the circumstances of the offense when they are of such a nature

as to outweigh all other factors favoring probation.” Id.
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A trial court may sentence a defendant to a period of confinement upon a finding that

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[.]”

Tenn. Code Ann. § 40-35-103(1)(B) (1997); see Ashby, 823 S.W.2d at 169. Such a finding was

implicit in the trial court’s ruling in this case. The defendant is correct in stating that “[i]n order to

deny an alternative sentence based on the seriousness of the offense, ‘the circumstances of the

offense as committed must be especially violent, horrifying, shocking, reprehensible, offensive, or

otherwise of an excessive or exaggerated degree,’ and the nature of the offense must outweigh all

factors favoring a sentence other than confinement.” Bingham, 910 S.W.2d at 454 (quoting State

v. Hartley, 818 S.W.2d 370, 374-75 (Tenn. Crim. App. 1991)). However, “circumstances that do

not rise to the level required to justify a denial of any alternative sentence may nevertheless justify

a denial of full probation.” State v. Thomas Wayne Shields, No. W2000-01524-CCA-R3-CD, 2002

Tenn. Crim. App. LEXIS 18, at *29 (Tenn. Crim. App. Jan. 4, 2002) (citing Bingham, 910 S.W.2d

at 454). Weighing against the defendant’s lack of a prior criminal record, work history, family

situation, expressed remorse, and emotional state was the fact that she violated a position of public

trust in the criminal court clerk’s office to solicit and accept bribes from individuals who were

attempting to pay their court costs and fines in order to get their driver’s licenses reinstated. Under

the circumstances presented by this case, we cannot conclude that the trial court erred in denying the

defendant full probation. 

CONCLUSION

We conclude that the trial court did not abuse its discretion in determining that judicial

diversion would be inappropriate in this case. We further conclude that, in light of the serious nature

of her offense, the defendant failed to meet her burden of demonstrating her suitability for full

probation. Accordingly, we affirm the judgment of the trial court. 

___________________________________ 

ALAN E. GLENN, JUDGE