gasaway-2629.pdf (2022)

Original PDF Document

---

Download Official Record (gasaway-2629.pdf)

Go to Top

Alternative Accessible HTML

IN THE SUPREME COURT OF TENNESSEE
AT NASHVILLE

IN RE: CARRIE LEIGH GASAWAY,BPR #18746
An Attorney Licensed to Practice Law in Tennessee
(Montgomery County)
FILED
No. M2016-01884-SC-BAR-BP SEP 16 2016
BOPR No. 2016-2629-6-AW(22.3)
Clerk of the Courts

ORDER OF ENFORCEMENT

This matter is before the Court pursuant to Tenn. Sup. Ct. R. 9, § 22.3, upon a
Notice of Submission filed by Disciplinary Counsel for the Board of Professional
Responsibility ("Board") consisting of a certified copy of the Plea Agreement entered
July 27, 2016, in the Circuit Court for the 19th Judicial District of Tennessee, in the
matter of State of Tennessee vs. Carrie Leigh Gasaway (attached as Exhibit A.)
demonstrating Carrie Leigh Gasaway, a Tennessee attorney, pled guilty to a serious
crime, Tenn. Code Ann. §39-14-103, Theft over $10,000.

IT IS THEREFORE, CONSIDERED, ORDERED, ADJUDGED AND
DECREED BY THE COURT THAT:

1. Carrie Leigh Gasaway is suspended from the practice of law on this date
pending further orders of this Court, pursuant to Tenn. Sup. Ct. R. 9, § 22.3;

2. This matter is referred to the Board of Professional Responsibility for the
institution of a formal proceeding in which the sole issue to be determined shall be the
extent of the final discipline;

3. Carrie Leigh Gasaway shall fully comply with the provisions of Tenn. Sup.
Ct. R. 9, § 28, concerning disbarred or suspended attorneys; and

4. The Board of Professional Responsibility shall cause notice of this
suspension to be published as required by Term. Sup. Ct. R. 9, § 28.11.

PER CURIAM
IN THE CIRCUIT COURT
FOR THE 19TH JUDICIAL DISTRICT
MONTGOMERY COUNTY,TENNESSEE
AT CLARKSVILLE FILED
7/ ,2 Ni
gYi A. a/1)..
CHERYL ERK
CIRCU 4 LERK
STATE OF TENNESSEE } BY• Al,dr • a
41:$1 DC

vs. } Docket No. CC15-CR-1152
} Senior Judge Paul G. Summers
CARRIE LEIGH GASAWAY }

PLEA AGREEMENT

PERSONAL INFORMATION

My name is Carrie Leigh Gasaway. I make the following statements understanding
that I will be placed under oath and will be questioned by the Court to ensure I fully
understand the meaning and effect,of this document and the matters contained herein
and to determine whether I am, in fact, guilty of the offense to which I am pleading
guilty. I understand that ifI say anything that is untrue, my statements may be used
against me later for charges of perjury. I further understand that anything I say may
be used by the Court to determine whether to accept my plea and whether to accept the
plea agreement.

I am 44 years old. I have graduated from high school, from college, and from law
school. I am in fair physical and mental health. There are no physical or mental
conditions that affect my ability to understand this document or the meaning and effect
of any of its terms. I am not under the influence of alcohol, medication, or drugs at the
time I read and signed this document. I am a natural born citizen ofthe United States.

On my plea alone, and without receiving any evidence, this court can find me guilty
of the offense to which I am pleading guilty. My plea will not be accepted unless
realize that by my plea I admit every act or omission, and element of the offense to
which I am pleading guilty, and that I am pleading guilty because I actually am, in
fact, guilty. IfI do not believe that I am guilty, then I should not for any reason plead
guilty.

Exhibit A
CHARGED OFFENSE and PLEA

The Count: Theft over $10,000, Tenn. Code Ann. § 39.14-103, class C felony.

Ms. Gasaway offers to plead GUILTY to the charged offense ofTheft over $10,000,
Tenn. Code Ann.§ 39.14-103, a class C felony, as a range I standard offender.

Statute and Statutory Definitions

"A person commits theft ofproperty if, with intent to deprive the owner ofproperty,
the person knowingly obtains or exercises control over the property withoutthe owner's
effective consent." Tenn. Code Ann. § 39.14-103(West)(defined terms underlined).

"Property' means anything of value, including, but not limited to, money ... ."
Tenn. Code Ann.§ 39-11-106(28)(West).

"'Intentional' means that a person acts intentionally with respect to the nature of
the conduct or to a result ofthe conduct when it is the person's conscious objective or
desire to engage in the conduct or cause the result." Tenn. Code Ann.§ 39-11.106(18)
(West).

"'Deprive' means to: Withhold property from the owner permanently or for such a
period of time as to substantially diminish the value or enjoyment ofthe property to
the owner ... or Dispose of property or use it or transfer any interest in it under
circumstances that make its restoration unlikely." Tenn. Code Ann. § 39-11-106(8)
(West).

"'Owner' means a person, other than the defendant, who has... any interest .in
property... without whose consent the defendant has no authority to exert control
over the property." Tenn. Code Ann.§ 39-11.106(26)(West).

`"Know.ing' means that a person acts knowingly with respect to the conduct or to
circumstances surrounding the conduct when the person is aware ofthe nature ofthe
conduct or that the circumstances exist. A person acts knowingly with respect to a
result ofthe person's conduct when the person is aware that the conduct is reasonably
certain to cause the result." Tenn. Code Ann.§ 39-11-106(20)(West).

"'Obtain' means to: Bring about a transfer or purported transfer of property or ofa
legally recognized interest in the property, whether to the defendant or another;....
"Obtain" includes, but is not limited to, the taking, carrying away or the sale,
conveyance or transfer oftitle to or interest in or possession of property, and includes,
but is not limited to, conduct known as larceny,larceny by trick,larceny by conversion,
embezzlement,extortion or obtaining property by false pretenses." Tenn.Code Ann.§
39-11-106(24)(West).
"'Effective consent' means assent in fact, whether express or apparent... ." Tenn.
Code Ann. § 39-11-106(9)(West).

Jury Instruction Elements and Definitions

(1)Thatthe defendant knowingly obtained or exercised control over property owned
by another; AND

(2) That the defendant did not have the owner's effective consent; AND

(3)That the defendant intended to deprive the owner of the property.

"Knowingly" means that the defendant acted knowingly with respect to the conduct
or to circumstances surrounding the conduct when she was aware ofthe nature ofthe
conduct or that the circumstances exist. She acted knowingly with respect to a result
of her conduct when she was aware that the conduct was reasonably certain to cause
the result.2 The requirement of"knowingly" is also established ifit is shown that she
acted intentionally.

"Intentionally" means that the defendant acted intentionally with respect to the
nature ofthe conduct or to a result of the conduct when it was her conscious objective
or desire to engage in the conduct or cause the result.

"Obtain" means to bring about a transfer or purported transfer of property or of a
legally recognized interest therein, whether to the defendant or another. "Obtain"
includes, but is not limited to, the taking, carrying away or the sale, conveyance or
transfer of title to or interest in. or possession of property.

"Exercise control over property" is defined as the right to direct how property, real
or personal, shall be used. or disposed. Generally, one must possess the right of
possession in property in order to exercise control over it. Such possession may be
actual or constructive, sole or joint. Also, one may have the right to control property
without having a possessory interest. In such instances, if the defendant took some
action with the intent to deprive the owner ofthe property, and she did so knowingly
and without his effective consent, the,jury would be justified in returning a verdict of
guilty. Anyone who is in a position to take some action that deprives the owner of
property is in a position to exercise control.

"Property" means anything of value, including but not limited to money.

"Owner" means a person, other than the defendant, who has possession of or any
interest...in property... and without whose consent the defendant had no authority
to exert control over the property.
3
"Effective consent" means assent in fact, whether express or apparent....

"Deprive" means: to withhold property from the owner permanently or for such a
period of time as to substantially diminish the value or enjoyment of the property to
the owner or ... to dispose of property or use or transfer any interest in it under
circumstances that make its restoration unlikely.

7 Tenn. Prac. Pattern Jury Instr. T.P.I.-Crim. 11.01

Lesser Included Offenses

The State and the defense concur that no lesser included offenses would be raised
by the evidence under the facts of this case.

Acknowledgment

I understand the elements of the offense and the definitions that apply to the
offense. I do not have any questions about any ofthem. I understand that my plea of
guilty admits that these elements accurately describe whatI did. I believe and admit
that the elements and definitions taken together correctly describe what I did.

AUTHORIZED SENTENCE

I understand that the possible sentence for the charged offense, a class C felony, to
which I am pleading guilty as a range I standard offender,is three (3)to six (6)years
confinement in the Department of Correction and a fine of up to $10,000.

I understand that because this is a felony and because I have a prior felony
conviction, I am not eligible for pretrial or judicial diversion.

I understand that because this is a charge of theft of property $1,000 or more, the
provisions of Tenn. Code Ann. § 40-35-122 relative to sentencing alternatives for
defendants who commit non-violent property offenses does not apply in this case.

I understand thatI am.eligible for all other sentencing alternatives stated in Tenn.
Code Ann. § 40-35-104.

I understand that restitution may be a part of the sentence imposed pursuant to
Tenn. Code Ann.§ 39-11-118.

4
PROPOSED SENTENCE

The State agrees to a sentence of three (8) years in length to be served by split
confinement. Ms. Gasaway is to serve forty(40)days'in the Henry County, Alabama2
jail commencing on August 10, 2016. Upon release from confinement and expiring
ninety(90)days thereafter, Ms. Gasaway is to remain at her household except that she
may attend to family needs(medtcal apPointments, school transportation), work, and
church. The balance of the sentence is suspended for a period of three (3) years on
probation consecutive2 to the unexpired sentence in 41400267. Assuming continued
success, that sentence will be satisfied on June 23, 2019. The three-year probation in
this case would then commence on June 24, 2019 and expire on June 23, 2022
assuming successful completion. The standard terms of probation apply. 7 , 515013 -hf-
.3 : '"4 Probation is to be unsupervised.6

There are no pretrial confinement credits to be applied to this sentence.

Ms. Gasaway is to make restitution to Mr. Brendan McGettigan (or to the
Tennessee Lawyers' Fund for Client Protection if it has paid Mr. McGettigan's claim
prior to announcement of this settlement)in the amount of $46,283.45. Ms. Gasaway
is to make restitution to Mary Cruickshank in the amount of $2,616.10. Ms. Gasaway
is also to make restitution to Michael White in the amount of$1,305.00. Ms.Gasaway
ought to receive releases from each individual for said amounts as evidence of payment
and satisfaction of said debts. Restitution is to be made directly to the individual and
is not to be part of court costs.

No fine is to be assessed.

t The intent of the State and Ms. Gasaway is to accomplish a 30-day period of confinement. Given
that "day-for-day" sentences, except for those statutorily mandated, have been deemed illegal as they
attempt to defeat statutorily granted credits, a sentence of 40 days is announced. See, Mer.riweather v.
State, 2010 WL 27947, *2 (Town. Crim, App. No. M2008-02329-CCA-R3-PC, Jan. 7, 2010). With the
applicable credits, the actual effective sentence will be 30 clays.

2 This is by agreement. of the State and the authorities in Henry County, Alabama.

Consecutive structure is mandated by Tenn. R. Crim. P. 32(c)(3)(c).

The intent of this provision is so that the authorities in Alabama are aware of Ms. Gasaway's
presence in their jurisdiction and that she is under terms of probation, albeit unsupervised. The State
and Ma. Gasaway acknowledge that Alabama may not accept transfer under the Interstate Compact.
Given that such event is beyond the control of the parties, Alabama's acceptance of transfer is not a
condition precedent to this agreement or any of its terms.

6 in essence, unsupervised means that Ms, Gasaway is not obligated to report routinely to a probation
officer nor is a probation officer obligated to conduct home visits. Ms. Gasaway otherwise remains
subject to all conditions of probation, any violation of which would subject her to revocation proceedings.
6
Ms. Gasaway is to pay court costs in this matter, except that jail feese are to be
waived.

As further consideration of this agreement, the State is to enter nolle prosequiin
cases MI5-CR-1153 and CCM-CR-1154. Court costs are not to be assessed to Ms.
Gasaway in those cases.

ADVICE and WAIVER OF RIGHTS

My attorney has explained and I understand that I have the following rights:

I have the right to have a lawyer represent and assist me throughout the
proceedings. I have the right to hire a lawyer ofmy own choosing,but ifI cannot afford
to hire an attorney, one will be appointed to me as has been done.

I have the right to plead not guilty to the charge and to make the State carry its
burden of proving that I committed the offense beyond reasonable doubt.

I have the right to remain silent and to not be forced to testify at trial. I also have
the right, however, to testify at trial if I desire. Whether I testify or not is solely my
decision. I will discuss this decision with my lawyer,but only I can decide whether or
not to testify.

I have the right to a trial by jury. My lawyer will have the opportunity to question
the potentialjurors to ensure that they are impartial and otherwise suitable for service
in my case. I may wish to have a trial by the judge alone without a jury. I should
discuss this option with my attorney. I understand,however,that the State has a right
to trial by jury, too, so that even ifI want a bench trial, the State could request a jury
trial.

At trial,I have the right to confront and cross-examine the State's witnesses. That
is, my lawyer will have the opportunity to question the State's.witnesses to point out
favorable information to the jury or to discredit their testimony.

I also have the right to appeal any conviction and the sentence imposed after a trial
and sentencing hearing.

I have the right to plead guilty.

8 Montgomery County imposes a per day charge as a jail fee in the bill of costs. The State agrees to
waive that particular fee.
6
If I enter a plea of guilty, I waive the rights, except the right to have an attorney,
stated above, In such event, there would be no trial, there would be no witnesses, and
the State would not have to prove thatI am guilty beyond reasonable doubt. The Court
will find me guilty on my plea alone.

Because I enter a plea of guilty, I waive my right.against self-incrimination, I will
be placed under oath, and I will be asked about the offense to which I so plead.

Evidence of any prior.convictions I may have may be considered by the judge in
determining whether to accept this plea agreement.

Also, the conviction based on this plea may be used in the future to enhance the
punishment for any offense I am convicted ofin the future.

I can enter a plea of guilty only ifI want to. No one can force me to, threaten me,or
make me any promise other than what is in this written plea agreement with the State
to make me enter such a plea.

By entering a plea of guilty,I also give up the right to appeal the conviction. I also
give up the right to appeal the sentence because my plea is based on a specific
sentencing agreement.

I understand that the Court may accept or reject this plea agreement or may defer
its decision until it has had an opportunity to consider a presentence report.

I understand that if the Court accepts this plea agreement,the Court will embody
in the judgment and sentence the disposition provided for in this plea agreement.

I understand that the Court is not bound by this plea agreement. If the Court
rejects this plea agreement,I understand that the Court will so inform the parties and
I will be permitted to withdraw this plea and that the plea, plea discussion, and any
related statement will be governed by Tenn. R. Evid. 410. I understand that I may
persist in my guilty plea, however, and that Court may dispose of the case loss
favorably than provided in this agreement.

STIPULATED FACTUAL BASIS

The State and I agree that the following facts would be sufficient for.a jury to find
me guilty of the offense to which I am pleading guilty. I understand that this
stipulation of fact is an agreement among the district attorney, my counsel, and me
that the contents of this stipulation are true and are the uncontradicted facts in this
case. I cannot be forced to enter into a stipulation. I enter into it voluntarily because it
is in my best interest and because I truly want to do so.

7
I understand that this stipulation will be used in two ways. First, the Court will
use it to determine if I am,in fact, guilty of the offense to which I am pleading guilty.
Second, the Court will use it to determine whether to accept this plea agreement.

I understand that a stipulation of fact ordinarily cannot be contradicted. If it
should be contradicted. after the Court has accepted my guilty plea, the Court will
reopen this inquiry.

Everything in this stipulation is true. There is nothing in the stipulation that I do
not wish to admit is true. I agree under oath that the matters contained in the
stipulation are true and correct to the best of my knowledge and belief.

On or about August 8, 2014, Mr. McGettigan retained Ms. Gasaway to represent
him in a personal injury matter arising from a motor vehicle accident in which he and
his family were injured. Mr. McGettigan agreed to a standard contingency fee of33%
of settlement. The children were represented separately, but by Ms. Gasaway's firm.
Nothing related to the children's representation, settlement, or proceeds is a part of
this case. The proceeds from that settlement are not in issue.

On or about December 9, 2014, Ms. Gasaway successfully settled Mr. McGettigan's
civil suit for $100,000.00. The insurance company issued one check in the amount of
$20,835.00 directly to the healthcare provider for medical expenses. The proceeds from
that check are not in issue. The insurance company issued a second check for the
balance of the settlement in the amount of $79,165.00 to the Gasaway Law Firm.

The firm received that check on or about January 28, 2015. Ms.Gasaway deposited
that check on or about February 2, 2015 into the firm's trust account.

In accordance with Mr. McGettigan's retainer agreement, the firm was entitled to
33% of the settlement as its fee for representing him. The firm's fee, then, was
$33,333.33. That amount of the proceeds is not in issue. The balance of the
settlement, $45,283.45, was Mr. McGettigan's share of the settlement proceeds. This is
the amount of the settlement that is in issue.

Trust account bank documents demonstrate that the $79,166.00 settlement check
was deposited on February 2, 2015. Trust account bank documents demonstrate that
$548.21 was disbursed to cover additional medical bills on Mr. McGettigan's behalf.?
Trust account bank documents demonstrate that no disbursements were made to Mr.
McGettigan, despite Mr. McGettigan repeatedly pleading through telephone and
electronic mail communication with Ms. Gasaway and her office stafffor disbursement
of funds. Instead, between February 2, 205 and the closure of the trust account in

7 Check 3249 payable to Nashville Adjustment Bureau for $441.21; Check 3260 payable to Vanderbilt
Medical Group for $107.00.
8
August of 2016, over $60,000.00 was transferred from the law firm's trust account to
the law firm's operating accounts.8 The remainder ofthe funds appear to have been
spent from the law firm's trust account to satisfy obligations to other clients.In that
same time frame,Ms. Gasaway received draws from the law firm's operating account
in excess of $35,000.00,9 despite this account often having a negative balance.18 The
payments to Ms. Gasaway were deposited into a personal account in the name of Ms.
Gasaway's husband along with income from other sources. This money was then spent
on personal expenditures such as utilities, monthly bills, shopping trips,travel, meals,
and household expenses.

While Ms.Gasaway initially obtained Mr.McGettigan'sfunds in the normal course
of business and with his effective consent, at some point she exercised control over
those funds outside ofthe normal course ofbusiness and without his effective consent.
Mr.McGettigan was and is the owner of$46,283.46 ofthe $100,000.00 settlement. Ms.
Gasaway obtained and thereafter exercised control over Mr. McGettigan's portion of
the settlement. Mr. McGettigan did not consent to Ms. Gasaway using his funds,
Nonetheless, Ms.Gasaway intentionally used Mr.McGettigan's funds. In so doing, Ms.
Gasaway withheld the funds from Mr. McGettigan for such a period of time as to
substantially diminish the value or enjoyment of the property. Also, given that Ms.
Gasaway was in bankruptcy, her use of the funds was a circumstance that made the
funds' restoration to Mr. McGettigan unlikely.

CONCLUSION

I have read this document thoroughly before signing it. I understand the contents
of this plea agreement, I fully understand all the terms of this plea agreement and
how they affect my case. I fully understand the meaning and effect of my plea of
guilty. This plea agreement contains all the understandings or agreements thatI have
in this case. I am pleading guilty not only because I hope to receive a lighter sentence,

8 Irk addition to the $79,165.00 McGettigan settlement, about $52,667.74 related to other cases was
also deposited into the firm's trust account during the relevant period. However,each and every month
during the relevant time period the expenses for each particular month exceedd the deposits made into
the account for that month. As a result, it is clear from the records that a portion of the McGottigan
money was spent every month until then McGettigan money was completely consumed as to both Ms.
Gasaway's earned fee of$33,333.33 and to the $45,283.46 owed to Mr.McGettigan. Whatis certain and
of relevance to this case and charge, irrespective of the disposition of any other funds, is that Mr.
McGettigan received no disbursement of any portion ofthe $45,283.45 to which he was entitled.

9 These draws occurred February through May,2016, a four month period, a monthly net income of
$8760.
io It should be noted, however, that the firm's operating account was covered by overdraft protection
to ensure that overdraft items would be paid. With the exception of two items in May 2016 that were
returned to the presenter, all drafts written on the account wore honored by the bank when presented.

9
but also because I am convinced that I am, in fact, guilty. I understand that even
though I believe I am guilty, I have the legal right to plead not guilty and to place upon
the government the burden of proving my guilt beyond a reasonable doubt.

I am pleading guilty and entering into this plea agreement voluntarily and of my
own free will. No one has made any threat or tried in any way to force me to plead
guilty or to enter into this agreement. No ono has made any promises to me that is not
written into this agreement in an attempt to get me to plead guilty.

I have had enough time to discuss this case and. this plea agreement with my
lawyer. I have, in fact, consulted fully with my lawyer and have received the full
benefit of his advice. I am satisfied with his advice concerning this case and this plea
agreement and am satisfied that his advice is in my best interest. I am generally
satisfied with my lawyer.

I, therefore, voluntarily and of my own free will and choice and without any threats
made upon me and without any promises being made to me other than what is stated
above, and being fully aware ofthe action I am taking,I do hereby request the Court to
accept my plea of guilty to the charges setforth above. Furthermore,I waive my right
to a trial by jury and submit my case to the Trial Judge for full and final
determination. These actions are concurred in by the District Attorney General.

CARRIE LEIGH GASAWAY
Defendant

ROGER E. NELL
Attorney for Ms. Gasaway

10
STATE'S CONCURRENCE

The State of Tennessee concurs in this plea agreement. The State concurs in and
agrees to the stipulation offact. The State has fully consulted with and informed the
victims. They are aware of the terms of this plea agreement, are aware of the date,
time, and location of court proceedings. They have been afforded the opportunity to
attend, to submit an impact statement, and to testify if they so desire.

/4W/ THOMPSl--046Pa
eg FILED
TOM P. 20,Y32 A. /P.M.
Attorney for the State C RYL J. Aer...S RK
CIRCUrldi Cit CLERK
BY. DC

SON L, WSON
ttorney for the State

COURT'S ACCEPTANCE

The Court finds that the defendant's plea of guilty is made voluntarily and with full
knowledge of its meaning and effect. The Court further finds that the defendant has
knowingly, intelligently, and consciously waived her rights against self-incrimination,
to a trial of the facts by a jury, and to be confronted by the witnesses against her.
Accordingly, the defendant's plea of guilty is accepted.

Further, the Court finds that the plea agreement serves the interests ofjustice and
is, therefore, accepted.

The terms of this plea agreement shall be incorporated in the judgment of the
Court.

ENTERED this the 27th day of July, 2016.
OTATE OF TENNESSEE, MONTGOMERY COUNTY
I, CHERYL J, CASTLE, CLERK!
THE FOREGOING IS A TRUE AND DO HEREBY CERTIFY THAT
PAUL G. SUMMERS ORIGINAL iNSTRUMENel% FIL CORRECT COPY OF THE
Senior Judge THIS THE I DAY OF UR IN THIS CASE,
Sitting by designation CHERY .1> A T, . - U Ce'17
BY: LA(. "I_
11

Go to Top

Assistance Request

Request Accessibility Assistance

Name

Email

Phone

What do you need help with?

The HTML version is missing content

The HTML version contains errors

The reading order is incorrect or confusing

I need help understanding the content

I need a different alternative format

Other

Preferred format

Additional details

Urgency Urgent Soon Not urgent

Go to Top