State v. Cheryl Sudduth

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
JANUARY 1998 SESSION
FILED
March 13, 1998
STATE OF TENNESSEE, )
) Cecil Crowson, Jr.
Appellate C ourt Clerk
APPELLEE, )
) No. 02-C-01-9703-CR-00094
)
) Shelby County
v. )
) Arthur T. Bennett, Judge
)
) (Sentencing)
CHERYL D. SUDDUTH, )
)
APPELLANT. )
FOR THE APPELLANT: FOR THE APPELLEE:
Coleman W. Garrett John Knox Walkup
Attorney at Law Attorney General & Reporter
200 Jefferson Avenue, Suite 850 425 Fifth Avenue, North
Memphis, TN 38103 Nashville, TN 37243-0493
(Appeal Only)
Clinton J. Morgan
Gerald S. Green Counsel for the State
Attorney at Law 425 Fifth Avenue, North
147 Jefferson Avenue, Suite 714 Nashville, TN 37243-0493
Memphis, TN 38103
(Trial Only) William L. Gibbons
District Attorney General
201 Poplar Avenue, Suite 3-01
Memphis, TN 38103
Jamey S. Kaplan
Assistant District Attorney General
201 Poplar Avenue, Suite 3-01
Memphis, TN 38103
Charles W. Bell
Assistant District Attorney General
201 Poplar Avenue, Suite 3-01
Memphis, TN 38103
OPINION FILED:____________________________
AFFIRMED
Joe B. Jones, Presiding Judge
OPINION
The appellant, Cheryl D. Sudduth (defendant), was convicted of forgery in excess
of $10,000, a Class C felony, following her plea of guilty to the offense. The trial court,
finding the defendant to be a standard offender, imposed a Range I sentence consisting
of a $1,000 fine and confinement for four (4) years in the Shelby County Correctional
Center. The trial court suspended the defendant’s sentence and placed her on probation
for a period of five (5) years. In this court, the defendant contends the trial court abused
its discretion by refusing to grant her judicial diversion. After a thorough review of the
record, the briefs submitted by the parties, and the law governing the issue presented for
review, it is the opinion of this court that the judgment of the trial court should be affirmed.
The facts in this case were stipulated to at the submission hearing. The STM
Mortgage Company of Dallas, Texas, issued a check in the amount of $17,704.24. The
check was made payable to Ronald Sudduth and Cheryl Sudduth and Cummins
Construction Company (correctly spelled “Cummings”). The defendant forged the name
of Cummings Construction Company on the back of the check by using a company stamp
without permission between September 20, 1991, and October 15, 1991.
The defendant was indicted on April 16, 1992, by the Shelby County Grand Jury.
It appears the defendant was not in custody when she was indicted. A capias was issued
for her arrest on April 16, 1992. She was arrested and placed in the Shelby County Jail on
April 22, 1992.
The defendant was thirty-one years of age when she was sentenced. She was
single. She has one daughter who was thirteen years of age at sentencing. The
defendant is a graduate of State Technical Institute in Memphis. She graduated in 1979.
According to the presentence report, the defendant was employed by the Shelby
County Government from 1985 until 1990. She was fired, but the reason she was fired is
not provided. She worked for Federal Express from May of 1992 until October of 1992.
She resigned from this position. Her last place of employment was Spiffy Cleaners. It
appears she was released because the business closed.
When a defendant contends the trial court committed error in refusing to impose a
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sentence pursuant to Tenn. Code Ann. § 40-35-313, commonly referred to as “judicial
diversion,” the standard of review is an abuse of discretion. State v. Bonestel, 871 S.W.2d
163, 167 (Tenn. Crim. App. 1993); State v. Anderson, 857 S.W.2d 571, 572 (Tenn. Crim.
App. 1992); State v. George, 830 S.W.2d 79, 80 (Tenn. Crim. App. 1992). Thus, this court
must determine whether the trial court abused its discretion in refusing to grant the
defendant judicial diversion.
In this case, the trial court considered the defendant’s acquisition of a stamp for
endorsing the check from the victim’s business. She had a prior conviction for driving
without a license. The court also took into consideration the defendant’s apparent lack of
candor. The trial court stated: “What you want to do is tell the truth. And see, you were
kind of shading it about a couple of things. . . .” The trial court also considered the
circumstances of the offense and the amount in controversy.
The trial court did not abuse its discretion in refusing to grant judicial diversion. The
factors considered by the trial court support its decision in this regard.
_______________________________________
JOE B. JONES, PRESIDING JUDGE
CONCUR:
______________________________________
PAUL G. SUMMERS, JUDGE
______________________________________
DAVID G. HAYES, JUDGE
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