### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON Assigned on

Briefs J uly 9, 2002
STATE OF TENN ESSEE 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 employ ee of the Shelby County

Criminal Court Clerk’s o ffice, pled guilty to two counts of

public servant accepting a bribe, in violation of Tennessee Code Annotated section 39-1 6-102, a Cl ass C felo ny. The tria l court se ntenced her as a Range I , standar

d offend er to concurrent

terms of three y ears on e ach count, but susp ended a ll but ninet

y day s of the se

ntence, to be served on weekends at the county workhouse. The defendant was also placed on

probation for three years, or

dered to perform 300 hours of community service, and assessed a $1000 fine for each count. She argues on a

p peal tha t the tria l court e rred in d eny ing her judicial d

iversion or full probatio n. After

reviewing the r

ecord, w e affir

m the judgment of the

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

A LAN E. G LENN , J., delivered the opinion of the court, in which J OHN E VERE TT W IL LI AM S an d N ORMA M C G EE O GLE , JJ., joined. Lee Wilson, Memphis, Tennessee, for the a ppellant, Donna F. Benson.

Paul G. Summers , Attorney Gene ral and Reporter; Jennifer L. B ledsoe, Assistant Attorney Genera l; William L. Gibbons, District Attorney General; and Camille McMullen, Assistant District Attorney General, for the appellee, State of Te nnessee.
OPINION
FACTS

On May 11, 2001, the

defenda nt, Donna F. Ben son, ente

red plea s of guil

ty to two count s of violatin g Tennessee Code Annot ated section 39-16-102(a), “Briber y of public serva

nt,” for soliciting and/or accepting bribes from two separa te individuals while employed as a c ounselor at the Shelby County Criminal Court Clerk’s Office. However, although the tria l court’s order approving the guilty pleas is included in the record, the transcript of the defendant’s gui lt y ple a he ari ng i s no t. In order for th is court to conduct an effective review of sentencing in a case involving a c onviction1 Although the cover of t he t rans cri pt of

the sentenci ng hearin g ref lect s t hat the heari ng was hel d on Augus t 1, 2001, which was a Wed nesday, the i ntroductory paragraph states that the hearing “came on to be heard and was heard
on the 1st

day of Sept ember, 2001, .

. . .” Sin ce September 1, 2001, was a Saturday and because t he judgment

is dat ed August 1, 2001, we believe the September date is obviously an error.
-2- pursuant to a guil ty plea, a t ranscr ipt of the g

uilty plea hea ring nor mally is neces sary , since it

is the guilty plea hearing that usually provide s t he facts and circumstances surrounding the offense. See St ate v. T hom as Le on Le wis , II , No. W2000-01740-CCA-R3-CD, 2001 Ten n. C rim . Ap p. LE XIS 344, at *3 (Tenn . Cri m. App . May 9, 20 01) (ci ting State v. Keen , 996 S.W.2d 842, 8 44 (Tenn . Crim. App. 1999)). “In the

absence of a transcript of a g uilty plea, this court must gene rally conclude

that the sentenc e imposed

by t he trial c ourt was correct .” Id. (citi ng Keen , 996 S.W.2d at 844). Nonetheless, we have

chosen to

review t he issues in the defen dant’s case, rely ing on evidence present ed at her sentenc ing hea

ring, a s wellas information provided in the presentence report, for the deta ils surrou nding the offense s.
The thirty-seven-y

ear-old defendant testified at her August 1, 2001, 1 sentencing hearing that she had been married for twelve and a half years a nd had a daughter who was nea rly three y ears old. At the time of the offenses, she was employed as a c ounselor at the Shelby County Criminal Court Clerk’s office, where

she had w orked in v arious po sitions for almost ten

ye ars. He

r job dutie s as a counselo r include d intervie

wing defendant s, calculating th eir cour t costs an d fines, and informing them of the amount of their pay ments and the dates they

were due.

The defendant

was working in her position as counselor on Decembe r 19, 2000, when Robert Branch came in to

make a pa

yme nt on the a

pproximate

ly $1200 in court costs and fines he was required to pay before getting his driver’s license reinstated. During he r conversation with him, she told Branch that if he gave he r $800, she wo uld give

him the cer

tificatio n he nee ded to g et his driver’s license back. When Branch returne d later that day, he was wear ing a recording device , altho ugh the defendant

did not know it at the time. Branch gave the defe ndant $800, which she laid
on her desk. The defendant, in turn, gave Branch his r equired 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 every thing 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, w as seeking to have hi s driver’ s license reinstated. With respect to th is incident, which occurred sometime between Dec ember 1 and December

19, 2000, the defendant testified: “Mr. Chambers came in and wanted to get his driver’s license back, a nd I to ld him I

would hel

p him for a portion of what he owed. I don’t remember wha t was his total amou

nt, but I told him tha

t he could pay fifteen hundred (1500), a nd he could get hi s certification.” Chamberstold the de fendant that he wo

uld have t o get the money from some one else and return w ith it later. However, although the defenda nt spoke with Chambers a couple of times after she made her proposal, he neve r gave her any

money.-3-

The defendant explained her behavior by testifying that she ha

d acted withou t think ing,
su c cumbing to the temptation of obtaining some extra money f or Christmas shopping. Since that time, she had thought about what she had done and how it had aff ected he r life. She had be en unable to find another job, and her family , used to two incomes, now had only one

. She had been una ble to sleep , and her doctor had prescribed medica tion for her nerves which she was still taking. The defendant said that she hadnever before been in trouble. She felt that she ha d let down not only her family , friend s, and co worker s, but her self as w ell. Sh e w as “[ v] er y, very” remor seful an d deeply regretted her actions. She had learned from her mistake, would never do anything like it ag ain, and thought that, given a chance, she would be a ble 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 be havior, and that the only other time she c ommitted the offen se was with Mr. Branch. She agreed with the trial court that her actions had undermined our sy stem of justice, a nd ackno wledge d that sh e had vi olated a position of trust. She also agreed with the prosecutor

that her action s had c aused 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 he r to lose her hair. He said that other than caring for their daughter, she was unable to handle her regular tasks and routines. He believedthat she was remorseful, and supported her petition for ju dicial div ersion a nd full probation. Upon exami nation by

the trial court, B enson tes tified tha t he was e

mploy ed as a se

rgean t a t th e She lby Coun ty 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 suppor t for her petition to be granted judicia

l diversio n or full p

robation . Shelby

County Deputy Sheriff B ertia Harris testified that she and the defendant were from the s ame 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 gravit y of her off ense and was re morseful. Retired Shelby County government employee Edward L. Stanton, Jr., testified that he had been acquainted with the defenda nt for a little over ten ye ars throu gh his work in the criminal court clerk’s office. He ha d counseled the d efen dant about the incident in his position as associate minister of his chur ch, and bel ieved tha t she was “ deeply remorseful.” The def

endant’ s pastor, Revere

nd Christ opher Daniels, Sr., testified that he had known of the defendant, through her family and friends, for about ten or twelve y ears, and had known her persona lly for abou t five y ears. He said he had counseled her about the incident, and be lieved her to be sincerely

remorseful. Reverend

Daniels a

dditionall y testified that he was willing to give the defendant a job as his adm

inistrativ e assista

nt, a posit ion in which she woul d be entr usted with

large
su ms of mo ne y. Finding that judicial diversion would not be appropriate under the facts and

circumstances of the defendant’s case, the trial cou rt senten ced her as a Range I, standa

rd offender to concurrent-4-

terms of three y ears for each off ense, wi th nin ety

nonconsecutive da

ys t o be serv ed in the c ounty workhous e on weekends, and the remainder of the sente nce to be served on probation. I n addition, the trial court imposed $1000 fines for each offense, a nd ordered that the defendant perfo rm 30 0 h ours of community service. T hereafter, the defendant filed a timely appeal to this court, cha llenging the trial court’s denial of her request for judicial diver sion or full probation.
ANALYSIS
A. Denial of Judicial Diversion

The defendant first contends that the trial court abused its discretion in deny ing her request for judicial diversion. Tennessee Code Annotated sect ion 40-35-3 13 pro vides that, follo wing a determination of guilt

by p lea or by

trial, a trial court may , in its discretion, defer furth er proc eedin gs 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 qual if ied defendant is one who pleads guilty or is found guilty of a misdeme anor or Class C, D, or E felony; has not been previously c onvicted of a felony
or a Class A misdemeanor; and who is not seeking deferr al for a sexual offense or a Class A or B fe lo ny. Tenn. Code Ann. § 40-35-313(a)(1)(B) (i) (Supp. 2001). If th e defendant succ essfully completes the period of probation, the trial court is required to dismiss the proceedi ng s, and the defendant may have t he reco rds of

the pr oceedi ngs expunged. Tenn. Code Ann. § 40-35-313(a)(2), (b) (Supp. 2001). Having pled guilty

to two counts of a Cla ss C felony, and ha ving no prior criminal record, the defendant was qualified to seek judi cial di ve rs io n. Ho we ve r, th e d ec is io n t o g ra nt or de ny a qualified defenda

nt judicia l diversio n lies with

in the sound discre

tion of the

trial c ourt. St ate v. Elect ropla ting, Inc. , 990 S.W.2d 211, 229 (Ten n. Crim. Ap

p. 1998); State v. Cutshaw , 967 S.W.2d 332, 344 (Tenn. Cr

im. App. 19 97); 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 a t 344; Bonestel , 87 1 S .W.2d at 168. To constitute an abuse of discretion, the record must be devoid of any substantial evi dence i n support of the trial court’s decision. Cutshaw , 967 S.W.2d at 344; Bonestel , 871 S.W.2d a t 168; State v. Anderson , 857 S.W.2d 571, 572 (Tenn. Crim. App. 1992).

In determ inin g wheth er to gr a nt diversion, the trial court considers (a) the accuse d’s amenabi lity

to correction, (b) the circumstances of the offense, (c) the accused’ s criminal record, (d) the accuse d’s socia

l his tory, (e) the accused’s phy sical and mental health, (f) the deterrenc e 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 den

y ju dicial div ersion wi

thout expla

ining the factor s in suppor

t of its den

ial, and how those factors outweigh other fa ctors in favor of diversion. Id.

The defendant argues that the trial cour t abused its discretion by failing to consider

relevant factors in favor

of gra nting he r judicia l diversio n, such a s her ame nability to correctio n, lack o f a-5-

criminal record, phy sical and mental health, t he deterr ence va lue to the defenda nt as well as to others, and whether

a sentence of jud

icial dive rsion would serve

the best in

terests of the defendant
as well as the public. The State concedes that the trial court could have m ade mo re prec ise fi ndin gs on the record regarding

some of the above

factor s, but arg

ues, nonetheless, that substantial evidence exists in the record to support the trial court’s denial of judicial diversion.

In making its sentencing de terminat ions in this c ase, inc luding it s decisio n to deny the defendant judicial diversio n, the tria l court pla ced gr eat emph asis upon the defendant’s violation of her position of public trust in the cr iminal co urt clerk’s office, finding that it moved her into “a higher category” than that of the defendant in the averag e theft case. However , although the trial court noted the defendant’s lack of a crimina l recor d, family circumst ances, a nd mental health, itdid notfully explain on the record its consider ation of a ll relevant Bonestel factors, or how the circumstan ce s of the offense outweighed any factors in favor of diversion. See Bonestel , 871 S.W.2d at 168. In the

absence o f the required findings in the record, this court must conduct a d e novo review “to determine whether the trial court reached the corr ect res ult notwith standing its failur e to explain its reasoning.” Electroplating , 990 S.W.2d at 229.

There are sev eral fa

ctors in th

is case th at w ei gh in fa vo r o f j ud ic ia l d iv er si on . T he th ir tyseven-y ear-ol d defendant has no prior c riminal c onviction s. Prior to the incid ent, she w as stead

ily employed at the criminal court clerk’s office for a pproximately ten y

ears. She is married and the mother of a small chil d. Accor

ding to he r testimon

y, s he feel s extreme r

emorse f or her c rimeand has suffered emotional problems as a result. Her husband, friend, former coworker, and pa stor each testified that they believed the defendant

was sincere

in her expr

essions of remorse , and off

ered the ir support for her petition to be granted diversio n and full

probatio n. Weighing ag ainst thes e facto rs, however, are the circumstance s of the of fense a nd the fa ct that div ersion, i n 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 tru st, and how he

r abuse of that position undermined public confidence in the integrity of the criminal justic e sy stem. The trial cou rt explained:

An d I th ink, as we indicated when y ou were up here, you kind’a [sic] go into a higher category . A ca tegory -- When we

talk about theft cases, y ou go up a

step, because y ou were in a position of trust. The county g overnment placed y ou in a position of trust right here in the criminal court clerk’s offi ce, and people -- If the community

can’t e xpect people working inthe criminal justice system to do wh at’s right, then they can’t expect any

thing from the i r gover nment.
The defe ndant’ s position of public trust was a part of the circumstances of her off ense. A denial of diver sion ma

y b e based solely on the

circumstances of the offense or on the need for deterrence

when th ese factors are “‘of suc h overwhelming significance’ ” as to outweigh all other2 See North Carolina v. Alford , 400 U.S . 25, 3 7, 91 S. Ct. 1 60, 1 67, 2 7 L. E d. 2d 162 (19 70)

. -6- factors in favor of diversion. State v. Washington , 866 S.W.2d 950, 951 (Tenn. 1993) (reviewing de nial of p retri al div ersio n) (qu otin g State v. Markham , 755 S.W.2d 850, 853 (Tenn. Crim. App. 1988)); see also State v. K yte , 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 diver sion).

In State v. Houston , 900 S.W.2d 712, 7 15 (Tenn . Crim. App. 1995), this court concluded that
a defendant’s violation of a posit ion of publ

ic trust justified the district attorney’s denial of pretrial diversion. The defendant in Houston was a Chattanooga police captain who, while assigned to the Chatt anooga City

Court, phy sic a lly assaulted an employ ee of the city

court clerk’s office in the hallway outside the courtrooms. Id. at 713. In determining whe ther to grant pretrial diversion, the districtattorney noted the de fendant’s excellent work and social history and lack of a prior criminal record. Id. at 714. No nethele ss, the district attorney denie d pretrial diversion, based primarily on the fact that the defendant, as a police offic er, had violated a p osition of p

ublic trus t, 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 o f a positio n of public trust “be ars dire ctly

on the pub lic interest,” this court affirmed the denial o f pretrial diversion, concluding that the circumstance s of the offense, the need to serve the ends of justice , and the need to protect the interest s of the pu

blic outweighed the factors in favor of dive rsion. Id. at 715.

Si mi la rl y, in a rec ent unpublished case, State v. Will iam Blai ne Campbe

ll , No. E1999-02208

- CCA-R3-CD, 2000 Tenn. Crim. App. LEXI S 744, at *9 (Tenn. Crim. App. Sept. 29, 2000), perm. to appeal d enied(Tenn. A pr. 23, 20 01), this c ourt conc luded tha t the tria l court did

not abuse

its discretion in emphasizing a defendant’s abuse of a position of trust in deny ing his request for

judicial diversion. The defendant in Campbell , a schoo l t eache r who was indicted on eight counts of especia lly aggravated sexual exploitation of a minor and one count of c ontributing to the delin quency of a minor, entered an Alford 2 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 stron g inter

ests of the public not to tolerate teachers furnishing alcohol to students.” Id. at *6. Thiscourt af firmed th e denial o f diversion, concluding that the trial court appropriately relied upon the defendant’s abuse of trust as “relevant to the circumstances of the offe nse.” 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 off ense and to a dete rmination of whether the e

nds of just

ice will be met by gr

anting her judicial diversion. We agree with the trial court that, because of the defendant’s viol ation of her position of public trust, both these factors weigh heavily against granting her judicial diversion.

The defendant was entrusted with a position o f responsibility in the criminal court cler k’s office, assigned

to meet directly with cr

iminal defendants to counsel them about their court costs and fines and the payment schedule s they were required to meet. In her

role as a representative of the-7-

office, she solicited and accepted bribes from the very cri minal def

endants s he was a ssigned 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 criminalcourt clerk’s office and the criminal justice system itself. Togrant her judicial diversion under the circ umstances 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 deny ing her full probation based on the nature of her offense. She arg ues that the circumstances of her offen se were not such as to outwe igh all other factors favoring a sente nce other than confinement. The Statecontends that the circumstances of the defendant’s offense more than justify the d eni al of full probation. We agree with the State.

When a defendant

challenges the length and manne r of service of a sent ence, it is the duty of this cour t to conduct a de novo review on the record with a presumption that “the determinations made by the court fr

om which the appeal is taken are correct.” Tenn. Code Ann. § 40-35-401(d). This presumption is “conditioned upon the affirmative show ing in the record that the trial court considered

the sentencing principles and all relevant fa cts and circumstances.” State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). In conducting a de novo review of a sentenc e, this court must consider (a) any evidence received at the

trial and/o r sent encin g hearin g, (b) the p resente nce rep ort, (c) the principles of sentencing, (d) the arguments of counsel relative to sentenc ing alternatives, (e) the nature a

nd chara cteristi cs of th e offense, (f) any mitigating or enhancement factors, (g) any statemen ts made b y the accus ed in h is own behal f, and (h) th e accus ed's potential or lack of potential for rehabilitation or

treatme nt. Tenn. Code Ann. §§ 40-35- 103, -210 ; St ate 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 candi date for full probation. State v. Goo de , 956 S.W.2d 521, 527 ( Tenn. Crim. App. 199 7); Stat e v. Boggs , 932 S.W.2d 467, 477 (Tenn. Cr im. App. 19 96); see Tenn. Code Ann. § 40-35-303(b) (1997). I n order to meet this burden, the defendant “must demonstrate that probat ion 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) (quot ing State v. Dykes , 803 S.W.2d 250, 259 (Tenn. Crim. App. 1990)). There is no bright line rule for determining when a defendant shoul d be granted probation. Bingham , 910 S.W.2d a t 4 56. Every

sentenc ing dec ision nec essarily require s a case -by -case analy sis. Id. Factors to be co nsidered i nclude the circumstances surrounding the off ense, the defendant’s criminal

record , the def

endant’ s social h

is tory and pr

esent 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 deprec iate the seriousness of the offense. See State v. D avis , 940 S.W.2d 5 58, 559 (T enn. 1997 ); Bingham , 910 S.W.2d at 456. “D enial of probation may be base d solely upon the circumstanc es of the offense when they are of such a nature as to outweigh all other factors favoring probation.” Id.-8-

A tr ia l c ou rt ma y s en tence a defendant to a period of conf inement upon a finding that confinement

“is nece ssary

to avoid de

precia ting the seriousness of the

offense or confinement is particularly

suited to provide an effective deterrenc e to others likely to co mmit similar

offe nses [.]” Tenn. Code Ann. § 40- 35-103(1 )(B) ( 1997); see Ashby , 823 S.W.2d at 169. Such a finding was implicit in the tria

l court’sruling i n this case . The def endant iscorrect in stating that “[i] n order

to deny an alternative sentence based on the ser iousness of the offense, ‘the circ umstances of the offense as com mitt ed mus t be es pecial ly viole nt, h orrif ying, sho cking, reprehensible, offensive, or otherwis e of an excessive or exaggerated degre e,’ and t

he natur e of the o ffense

must outwe

igh all factors favoring a sentence other tha n confinement.” Bingham , 910 S.W.2d at 454 (quot ing State
v. Hartley , 818 S.W.2d 370, 374-75 (Tenn. Crim. App. 1991)). However, “circumstances that do notrise to the level required to justify a denial of

any alterna

tive sentence may

nevertheless justify
a denial of full probation.” State v. Thomas Wayne Shields , No. W2000-01524-CCA-R3-CD, 2002 Tenn. Crim. App. LEXI S 18, at *29 (Tenn . Cri m. App . Jan . 4, 20 02) (ci ting Bingham , 910 S.W.2d at 454). Weig

hing ag ainst the d

efenda nt’s l a ck of a pr

ior crimi nal rec ord, wor

k history , family situation, expressed remorse, and emotionalstate was the fac t that she v iolated a position of

public trust in the criminal court clerk’s office to solicit and a ccept bribes from individuals who were attempting to pay

their court costs and fines in order to get their driver’s licenses re instated. Under the circumstances present ed by this case, we cannot conclude that the trial cour t erred in deny

ing the defendant full probation.
CONCLUSION

We conclude that the tria l court did not abuse its discretion in determining that judicial diversion would be i napprop riate in t his case . We further conc lude that , in light of the serious nature of her offense, the defendant fa iled to meet her bur den of dem onstrating her su itability for full probation. Accordingly , we affirm the judgment of the trial court.

___________________________________ ALAN E. GL

ENN, JUDGE