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

ugust 7, 2001
STATE OF TENNESSEE v. LAVAR NE MADISON
Direct Appeal from the Criminal Court for Shelby County Nos. 99-13848, 49 Carolyn Wade Blackett, Judge

No. W2000-01539-CCA-R3-CD - Filed August 27, 2001

The defendant was charged in a two-count indictment with one count of the unlawful possession of
more than .5 grams of cocaine with the intentto sell, and one count of the unlawful possession of
more than 26 grams of

cocaine with the

intent to deliver. A

separate indictment return

ed the same day charged one count of the unlawful possession of marijuana. Pursua nt to a negotiated plea agreement,

he subsequently

pled guilty to two misdemeanor drug possession offenses in connection withthe charges,

and was sentenced to concurrent sentences of 11 months, 29 days. The trial court refused his request for judicial diversion, but granted him probation, with the condition that he spend 90 days in a halfway

house. In a tim

ely filed a ppeal to this court

, the defendant ra

ises two issues: (1) whether the tria

l court erred in

denying his request for judicial diversion; and (2) whether the trial court abused its discretion in sentencing him to three months in the halfway house as a condition of probation. Ba sed upon a careful review, we affirm the judgment of the trial court. However, w e remandto the trial court for entry of a cor rected judg ment form to refle ct the disposition of

all charges against the defendant. Tenn. R. App. P. 3 Appe al as of Right; Judgme

nt of the Criminal C

ourt Affirmed and Remanded for Entry

of Corrected Judgm

ent

A LAN E. G LENN , J., delivered the opinion of the court, in which D AVID G. H AYES and J OE G. R ILEY , JJ., joined. Leslie I. Ballin and Gray

W. Bartlett, Memphis, Tennessee, for the appellant, Lavarne Madison.

Paul G. S ummers, Attorney General and Reporter; L aura McMullen Ford, Assistant Attorne y General; William L. Gibbons, District Attorney General; and Janet Shipman, Assistant District Attorney General, for the appellee, State of Tennesse e.
OPINION

As an initial matter, we must address the fact that the transcript of the defendant’s guilty plea hearing was not included in the record befo

re th is court. In ord er for this court to conduct an1 A letter f rom the defendant’ s supervisor, identifi ed by the defendant and accepted as an eviden tiary exhibit by the trial court, described the defendant as a trustwort hy employee who always showed up on time and who di d “an outstanding j ob.”
-2- effectivereview of sentencing in a case involving a conviction pursuant to a guilty plea, a transcript of the guilty plea hearing is necessary. See State v. Thomas L eon Lewis,

II , No. W2000-01740-CCAR3-CD, 2001 WL 490740, at *1 (Tenn. Cri m. App. May 9, 2 001) (citi ng State v. Keen , 996 S.W.2d 842, 844 (Tenn. Crim. App. 1999)). The transcript of the guilty plea hearing al lows this cour t to ascertain the facts and circumstances surrounding the offenses. Id. The only recitation of the facts surrounding the offenses in th is case is contain

ed in the presente

nce report, in

the report of the officer who made the arrest. “In the absence of a transcript of a gui lty pl ea, this court must g enerally conclude that the sentence imposed by the trial court was correct.” Id. (citing Keen , 996 S.W.2d at 844). We will review the defendant’s issues, but in so doing will be limited to the brief recitation of the facts conta ined in the presentenc e report, an d alluded t o in the defe ndant’s sen tencing hear ing.
FACTS

Accord ing to the presentence report, on Febr

uary 11, 199

9, Memphis police of

ficers, responding to a compla int of drugs being sold from the parking lot of a Burger King, discovered the defendant,

Lavarne Madison, sitting with three other men in the defendant’s 199

9 Nissan Maxima parked in the restaurant’s parkinglot. Detective Gardner of the Memphis Police Department walked by the car and saw s

moke coming from

the driver’s wind

ow and the left re

ar window. Shortly thereafter, the defendant pulled out of the parking lot, driving at an excessive speed and in a reckless
manner. The car w

as stoppe d, and the

defenda nt was ask

ed to step o

utside. Wh

en he did so, Detective Gardner smelled marijuana. He found a clear plasti c bag containing 6.3 grams of marijuana and a loaded .38 c alibergun inside the car. Inside a jacket in the trunk of the car, Detective Gardner found a plastic bag containing ten rocks of crack coc aine, for a total weight of 2.5 grams. Another bag containing eight rocks of crack cocaine, weighing 1.6 g rams, was found during
an inventory search of the car. The defendant admitted that the crack cocaine, marijuana, and gun belonged to him.

The defendant was su

bsequently

indicted on one count of possession of more than .5 gra

ms of cocaine with the intent

to sell, one count of possession of more than 26 grams of cocaine with the i nte ntto deliver, and possession of marijuana. On April 13, 2000, pursuant to a negotiated plea agreement,

the defendant pled guilty to two misdemeanor charges of possession of marijuana and possession of cocaine.

The tr ial court he ld a sentencing hearing on June 15, 2000, to consider the defendant’s request for judicial diver

sion, and to set sent encing. The twenty-four-y ear-old defendant testified that he had a part-time job as a cook in a Memphis City School cafet eri a, 1 and lived with his girlfriend and their two small

children. He admitted that he had no job during the summer months when school was out and said that he spent a good deal of the time “babysitting” his two children, becau se his girlfriend worked two jobs. He said that on the day that he was arre sted he had bee n-3-

sitting with three f

ri ends in his car on the Burger King parking lot smoking marijuana. He acknowledged

that the crack cocaine and loaded handgun in the car had been his, explaining that he hadhad the cocaine because he had been “try ing to get some easy money ,” andthat he had carried the loaded handgun for “protection.” He said that this was hi

s first arrest in

four years, and that he believed that he could “go straight.”

The defendant admitted that hehad dropped out of school in the eighth grade, and explained his lengthy

juvenile criminal

record as the re

sult of his desire to

“live a fast life” and the failure of his mother to adequately supervise him. He claimed that he was notblaming his mother

, but merely explaining how he happened to be “loose” on the streets. He acknowledged hi s fathe r’s presence andsupport in the cour

troom, but faulted him for his failure to be in

volved in his life when he was a child.

The defendant’s girlfriend testified that she and the defendant had lived together for about five years, and had two children together. She said that she work ed at Federal Express

and as a housekeeper

at the Memphis City

Schools, and had “no problem” with working two jobs to support her family. She believed

that the defendant would beable to stay out of trouble and t

hought that it would be important for him to be able to earn an eventual dismissal of the charges a

gainst him, so that he would have the possibility of obtaining a better job in the future.

At the conclusion of the he aring, the trial court denied the defendant’s request for judicial diversion, sentencing him to two concurrent sentence s of 11 months, 29 days. The trial court suspendedthe sentences, placingthe defendant on supervised probation, and ordering that he serve ninety days in a

halfway house, Project W.I.T. (“Whatever It Takes”), as a condition of probation. The defendant was also fined $750 for each offense. Thereaft er, he filed a time ly appeal to

this court.
ANALYSIS

I. Denial of Judicial Diversion

The defendant

first contends that the trial court abused its discretion in denying

his request for judicial diversio

n. He asserts

that the court failed to properly consider and weigh all of the appropriate

factors in its denial of his request for diversion, focusing on the nature and circumstances of his crime and his criminal history, to the exclusion of other important factors, such as his social andwork history. As support for being granted diver

sion, the defenda

nt points to evidenc

e that six yea rs had elapsed from the time of his last conviction as a juvenile until his arrest for the instan t offenses,his excellent work history, and his forthrightness in acknowledging ownership of the drugs andthe gun. The State argue s that the trial cou

rt considered an

d weighed the a

ppropriate

factors in denying the defendant’s

request for

judicial diversion, and that there is substantial evidence in the record in support of the trial court’s decision.-4-

When an accused

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 presumpt ion that “the determinations made by th

e co urt from which the appeal is taken are correct.” Tenn. Code Ann. § 40-35-401(d). This presumption is “condi tioned 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) ; State v. Bonestel , 871 S.W.2d 163, 166 (Tenn. Crim. App. 1993). The party challenging

the sentences imposed by the trial court has the burden of establishing that the sentences are erroneous. Tenn. Code Ann. § 40-35-401, Senten cing Commission Cmts. ; Ashby , 823 S.W.2d at 169

. Tennessee Code Annotated Section 40-35-313 provides that, following a determination of guilt by plea or b

y trial, a tr

ial court m

ay, 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. 2000). 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 co nv icted 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) (Supp. 2000). If the defendant successfully complete s the period of probation, the trial court

is required to dismi

ss the proceeding

s against him, and the defendant may have the records of the proceedings expunged. Tenn. Code Ann. § 40-35-313(a)(2) and (b) (Supp. 2000).

The deci sio n to gran t or den y a qualified defendant judicial diversion, however, lies wit hin the sound discretion of the t rial c ourt. State v. Electroplating, Inc. , 990 S.W.2d 211, 229 (Tenn. Cri m. App. 1998); State v. Cutshaw, 967 S.W.2d 332, 344 (T enn. Crim. App. 1997

); State v. Bonestel , 871 S.W.2d 163, 168 (Tenn. Crim. App. 1 993). As such, it will not be disturbed on appeal absent an abuse of discretion. Electroplating , 990 S.W.2d a t 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 trialcourt’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 whe t her 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 phy sical and mental he alth, (f) the deterrence value to the accused as w

ell as others, and

(g) whether ju

dicial diversion w

ill serve the inte

rests o f 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 de

ny judicial d

iversion without expl

aining the fact

ors in support of its d

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

The defendant ar gu es that th e trial court abused its discretion in denying his request for judicial diversi o n by focusing “almost exclusively” on his juvenile criminal record and the nature of his crimes. We disagre e. The transcript of the sentencing hearing reflects that the trial court basedits denial of the de fendant’s reque

st for judicial dive

rsion not only

on his lengthy

juvenile criminal hist ory a nd the nature of the crimes, but also on his social and work history, his lack of-5-

genuiner emorse, his failur e to express a since

re intention to ref

orm his life, and his

tendency to blame others for

his actions. The tr

ial court stated, i

n pertinent part:

Per son all y, base d on th e testimony, this court believes that you are notthe greatest candidate for judicial diversion. And the reasons why are because

here you’ve been before this court as a 23 year old, you have two children, y

ou’re living with

a woman that is

notyour wife. She’s working two jobs. You’ re working a pa rt-time job. It’s not equitable at all. And then that’s the first problem that I have.

The second problem is that here you are 23 ye

ars old andthe only thing that you can

find to do with

your spare time instead of spending that time with your children or going out find ing a part- time job so you can help with the childr en at home, you’re in a parking lot of a Burger King smoking dope.

How you can

afford to have a 1999 Maxima, how you can afford to have all this dope in your car, I don’t understand. There’s a pattern here. This is n ot just a on e-time incident th at you just ha

ppened to get caught. I think this is a practice of yours that you do all the time. I think that parking lot is somew he re that you go, and you f requent quitea bit. I

think that you smoke marijuana quite a bit. I think that you also have roc ks o f crack becau se you’re t

rying to ma

ke some extra money. And I think that the only r eason why you’re in her e today is bec

ause you g

ot caught.

It wasn’t because

you were g

oing to quit

or you had started to try to change your life – and I didn’t hear anything

a bout that up here. About you refo r ming your life, and you’re going to get your GED. You dropped out

of the 8th or

9th grade. Yo u don’t even have a high school education. And I would think that y

ou would not want to spend the rest of your life being a cook.

. . . . And now you have

two kids. And what r

eally disg usts me is that you have two kids; and if they were to go to show and t ell at their pre school next year, they would get to show and tell y ou as a dru g dealer and as a d rug a ddi ct. Basi cal ly, using drugs. That’s all you do.

So it’s not really a problem so much as for the court, is that I don’t think you’re look

ing at what y

ou’re doing to y

ourself. This is the kind of lifestyle

that you’re

setting up. And y

ou can’t blame

your-6- mother. You can’t blame your father. At this point, you need to start blaming yourself. Nobody is putting you out there

on that parking lot but yourself.

Our review reveal

s that the trial court

considered and b

alanced the app

ropriate facto

rs in its consideration of the defendant’s request for judicial diversion, and that substantial evidence existed in the record in support of the trial court’s denial of di version. A lthough this was the defendant’s first offense as an adult, he has a fairly lengthy criminal record as a

juvenile, including t he followi ng: an arrest at the age of fourteen for possession of coc aine with the intent to sell, for which he was placed onsupervised probation; an arrest for violation of probation when

he was fifteen; a

n arrest at sixteen for possession of cocaine; and two arrests at seventeen for possession of cocaine with the intentto sell. Thus, the defendant’s arrest in the case at bar was by n

o means the defen

dant’s first drug-related

offense. The record rev

eals that the tria

l court appropria

tely gave great weight to the defendant’s pri or criminal history and t he nature and ci

rcumstances of h

is offense in deny

ing his request for judic i al diversion, but also appropriately considered other factors. We, therefor e, find no abuse of discretion by the trial court in this matter.

II. Halfway House as Condition of Probation

The defendant next co

ntends that the tria

l c ou rt abused its discretion in requiring that he serve three months in a halfway house as a condition of his pr

obation. Pointing o

ut that he is

a first-time adult offender who pled guilty to two misdemeanor offenses, the def endant argu es that the trial court’s requirement that

he spend ninety

consecutive days in the halfway house is too harsh, and that he should have insteadbeen granted j udicial diversion , or, in the altern

ative, full probation, with no period of confinement in the halfway house. The State points out that the defendant ha

s a lengthy juvenile record involving drug

use and drug sales, that he has been placed on full probation in the past, andthat he has been unsuccessful in complying

with the terms of his

past probation. Th

e State thereforeargues that, ba

sed on the defend

ant’s history

, the trial court di

d not abuse

its discretion in ordering a period in the halfway house as a condition of proba tion. We agree with the State.

The trial court is granted

broad discretion

in its imposition of conditions of probation. See Tenn. Code Ann. § 40-35-303(d) ( 1997); Stiller v. State , 516 S.W.2d 617, 620 (Tenn. 1974). The probation statute

provides:

Whenever

a court sentences an offender

to supervised probation, the court shall specify the terms of the supervi sion and may require the offender to comply with cert ain con ditions which may include, but are not limited to:
(1) Meet the offende

r’s family r

esponsibilities;
(2) Devote

the offender to

a specific employment or occupation;-7- (3) Perform

without co m pensation services in the community fo

r charitable or

governmental a

gencies;
(4) Un dergo available medical or psychiatric treatment, a n d enter and remain in a spe

cified insti

tution whenever required for that purpose

by voluntary self-admission to the institution pursuant to § 33-6-201; (5) Pursue a prescribed secular course of study or vocational training;
(6) Refrain

from possessing a firearm or other d ange rous weapon; (7) Remain

within prescribed geographical

boundaries and notify the court or

the probati on officer o f any change in the offender’s

address or employ

ment; (8) Submit

to supervision by

an appropria

te a gency or person, and repo

rt as directed by

the court;
(9) Satisfy

any other c

onditions reasona

bly relate d to t he purpose of the offe nder’s sentence and not unduly restrictive of the offender ’s liberty , or incompatible w ith t he offender’s fr

eedom of conscie

nce, or otherwis

e prohibited by this chapter; or
(10) Make appropriate and reasonable restitution to the victim or the family of

the victim involved p

ursuant to § 40-35-304.

Tenn. Code Ann. § 40-35-303(d) (1997). In essence, a trial court may “impose any terms and conditions n ot inconsistent with the Tennessee Sentencing Reform Act.” State v. Johnson , 980 S.W.2d 410, 413 (Tenn. Cri m. App. 1998) (citing Statev. Huff , 760 S.W.2d 633, 639 (T

enn. Crim. App. 1988)). However, the conditions of probation imposed by the trial

court “must be re

asonable andrealistic and must not be so stringent as to be harsh, oppressive or palpably unjust.” Stiller , 516 S.W.2d at 620.

Under the circumstanc

es of this case, w

e cannot conclud

e that requiring

the defendant to serve ninety days in a halfwa y house is an

unduly harsh or oppressive condition of probation. The defendant has a lengthy

juvenile criminal

record, which in

cludes numerous arrests for drug possession. He testified at the sen ten cin g hea rin g tha t he had onl y a part-time job during the school year, that he was currently unemployed, a nd that his girlfriend worked two job s to sup por t th e fam ily.-8-

He indicated that he spent his free time hanging out smok

ing marijuana w

ith his friends,

and trying to make “easy money” by

selling crack cocaine. As the trial court observed, the defendant obviously has a pattern of engaging in self-destructive and irresponsible, not to mention criminal, behavior. As the trial court also observed, the defendant, although testifying tha t he bel i eved he coul d “go straight,” failed to offer a

ny plans or g

oals for how he int

ended to chang

e his life or behavior

in the future. Full probation has failed to work with this defendan

t in the past. We, therefore, conclude that the trial court did not abuse its discretion by ordering the de

fendant to spend a ninety-day period in a halfway house as a condition of his probation.

The State has directed our attention to thefact that the record is not clear regarding to which offenses the defendant pled guilty. Although the defendant states in his brief

that he pled guilt

y to all charges, onl y two judgm e nt forms are inclu ded in the record

. Indictment N

o. 99-13848 was a two-count

indictment, charging the

defendant in count

one with unlawful possession of more than .5 grams of

cocaine with the intent to sell, and in count two with the unlawful possession of more than 26 grams

of cocaine with the intent to deliver. The judgment form which references Indictment No. 99-13848 reflects that the defendant was charged with unlawful possession of cocaine with the intentto sell or

deliver and pled guilty to simple possession of cocaine. The form does not ref

lect, however, whether the defendant’s guilty plea was neg otiated with regards to count one or count two of the indictment. The

transcript of the

guilty plea hearing was not included in the record before this court, making it impossible for us to determine

exactly to

which offenses the defe nda nt p led guil ty. Accordingly, we remand this case to the trial court for e ntry of a corrected judgment form. CONCLUSION

After reviewin g the record, we conclude that the trial court did not err in deny ing the defendant’ s request for judicial diversion, or in requiring that he spend ninety day s in a halfway house as a condition of his probation. Accordingly, we affirm the judgment of the trial cou rt. We remand the matter

for entry o

f a corrected j udgment form.

___________________________________ ALAN E. GLENN, JUDGE