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

Briefs D ecem

ber 2, 2003
STATE OF TENN ESSEE v. TRA VIS ANDERSON
Direct Appeal from the Criminal Court for Shelby County Nos. W03-00001, W03-00004 Bernie Weinman, Judge

No. W2003-00674-CCA-R3-CD - Filed December 30, 2003

The Defendant, Travis Anderson, pled guilty to two counts of a ggravated burglary, with an ag reed sentence of three

ye ars on ea

ch count t o be serve d concur

rently . Pursuan

t to the plea agreement, the trial court was to determine whether the Defe n dan t merited for alternative sentencing. F ollowing a sent encin g hearing, the trial court denied the Def endant’s application for judicial diversion, suspended his sentence for three y ears, and placed the Defenda nt on probation for three y ears. On appeal, the Defe

ndant con tends tha t the tria l court e rred in r efusing to grant h

is application for judicial d iversion . Finding

no error , we aff

irm the tr ial cour t’s judg ments. Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed
R OBERT W. W EDEMEYER , J., delivered the opinion of the court, in which J AMES C URWOOD W ITT , J R ., and A LAN E. G LENN , JJ., joined. W. Mark Ward, Assistant Shelby County Public Defender, for the appellant, Travis Ander son. Paul G. Summers, Attorney Gene ral and Repo rter; Mich ael Moo re, So li cit or G ene ral ; J enn ife r L. Bledsoe, As si st an t A tt or ne y Gener al; William L. Gibbons, District Attorney General, and Mike Davis, Assistant District Attorney Gene ral, for the appellee, State of Tennessee

. Opinion I. Facts
The Defend ant, Travis Anderson, pled guilty to two counts of aggravated burgla ry , a Class C felony, with an ag

reed sentence of

three ye ars on each count to be served concurre ntly. Pursuant to the plea agreem

ent, the Shel by County

Criminal Court held a sentencing hearing to deter mine whether the Defendant qualified for either proba tion or judicial diversion. Following the sentencing hearin g, the trial court denied the Defendant’s application for judicia l diversion, but found that the Defendant

q ualified fo r probation. Accordingly , the trial court suspended his sentence for three y ears and plac ed the De

fendant on proba tion for th ree y ears. Th e Defe ndant now

appeals

.-2-

At the guilty plea

proceeding held on January 23 , 20 03, the State presented the following facts regarding the

Defendant’s involvement in two burglaries that occurred in November of 2002, and the Defend ant stipula ted to the se fact s. On Nove mber 12, 2 002, the h ome of Phillip St egall , locatedin Memphis, was burglariz ed, and the intruders stole ten firearms, including five highpowered rifles. Detectives with the Memphis Police Department discovered fing erpri nts at the crime scene that matche d the Defendant’s fingerprints. On Nove mber 14, 2002, the home of Wayne Newsom, also located in Memphis, was burglarized by i n truders who kicked in the rear door and stolea small safe. A witness observed the incident and called the police . Police initially arrested four su sp ec ts , a nd th e i nv es ti ga ti on re ve al ed th at th e D ef en da nt wa s a ls o i nv ol ve d i n t hi s b ur gl ar y. Police officers arrested the Defendant on November 15, 2002, and brought him to the police station, where he gav e a writt

en state ment admit

ting to hi s involvem

ent in the burglary

of Stegall’s house. About a week

after th is confe ssion, the

Defend ant, while

still in cus tody , admitted to participating in the burglary

of Newsom’s house.
The following evidence was presented a t the sentencing hearing

held on February

14, 2003. The Defendant testified that he was eig hteen y ears old and lived withhis mother in Memphis. He stated that he attended Julia B. Hooks High School until he was arrested for burglary in November of 2002. The Defendant

reported that, before he quit school, he was in the ele venth grade and participated

in wrestling. He explained that he participa ted in th e burglaries because he “hung around” the wrong people on those day s. The Defendant stated that he burglar ized those home s “just to do something, have fun.” He reported tha t he burglarized the homes with four of his classmates at school and that he was not thinking when he participated in the cr imes. He e

xplained th at, while he did not steal anything f rom the h ouses, his acc omplices s tole some i tems and h

e expecte d to receive some money

from the pawned items. The Defendant testified that he a nd his accomplices were arrested before

they could sell the items. He stated that if he received probation he would not associa te with those former cl a ssmates anymore because “I know the y [are] the wrong

people to hang aroundwith.” The Defendant explained that he spent three months in jailbecause his mother refused to make bond. He testified that, if the court placed him on probation, “I plan to go to college. I

got scholarships to go to college. I f I finish–I

still got a chanceto graduate. I f I go bac k to high school and graduate, I

still got scholarships [for] wrestling.” Hestate d that he could comply with the requirements of probation.
On cross-examination, the Defendant stated that he did not know either Stega ll or Newsom when he burglarized their hous es. He explained that Stegall and Newsom were proba bly mad because he “broke into” their homes and stated, “I don’t want [any]body

to break into my house.” The Defendant stated that he should not b e sent to

jail because “[i]f I got another chance, I c an make it

. . . right. ” He expla

ined that he would “[w] ork an d pay them what t hey stil l say they’re m issi ng. . . .”
The trial judge th

en asked the Defe ndant toexplain why he burg larized the two houses, and the Defendant stated, “We were just sitting down at my house, and they we

re saying like I know this dude that’s got this . . . got this . . . so let’s go over there. So we just went over there.” He explained that he and his accomplices took a “little white safe” from Stegall’s house and “one little gun” from-3-

Newsom’s house. Th

e Defe ndant sta ted that o ne of his a

ccomplic es kept th

e gun a t his house because the Defe ndant cou ld not brin g any

guns into his home. When asked

how he wa s “going

to make it right” with Stegall and Newso m, th e Defen dant r eplie d, “J ust p ay them ba ck for t he dam age that’s been done.” The Defendant explained that he burglarized the homes because he thought that he was going to get something f or nothing. He stated that he want ed to sell the “little gun” for at lea st $45.00, bu t the polic e arre sted him be fore he could sell it. The De

fendant admitted t

hat, if someone bought the gun, that person might shoot someone else with the gun.
Luve nia Anderson Willard, the Defendant’s mother, testified that the D efenda nt lived with her an d was attending Julia B. Hooks High School when he was arr ested. She stated that, since being in ja il, the Defendant was remo

rseful f or burg larizing

the homes . Willard te stified th at sh e believedthat the Defendant co ul d o be y t he law. Sh

e explaine d, “I

asked him

why he could b e so stupid an d ha ngaround pe opl e t

ha t do thi ng s li ke tha t? Why he was so stupid to do the same thing they [we re ] do ing ?” She stated that the Defendant’s accomplices in the burglaries were teenage rs from her neig hborhood . The tria

l judge th en asked Willard what changes she had seen in the Defendan t, and she replied, “He told me that he wanted a job, and w ould I get him a job . . . if h e g[ot] out? And I told him I would get him a job where I work. . . .”
Follo wing t his p roof, the tr ial co urt ma de the follo wing ru ling: [Def enda nt], it is a horrib le, horr

ible crim e to break into somebody’s house , invade their castle, i nvade the ir place to live–And what wa s your reas on? Well I wantedto have fun, I think, is the first time. And, then, as we g ot arou nd to ta lk about it , w el l I w an te d t o g et so me mo ne y for nothing. T here is no way to make these people whole again. You can pay for the

door, you can pa

y for the property

that was taken, but you can’t make them–psychologic ally, y

ou can’t straighten them out ever. And you didn’t do it just once. From what we know, we know that you did it at least twice. . . . Spread ing thes e guns out on the st reets, tr yin g to sell

them to criminal s. Honest people are not going to buy the m. And how frightening all that is. Absolut

ely fright ening th at is. [I]f you messed up

your ability to get that wre stling scholarship, you messe d it up. You kn ow, it’s ju st not a minor little thing that you got involved in, these two burglaries into somebody ’s house.
The trial court then denied the Defendant’s application for judicial diversion, suspended his sentence for three ye ars, placed him on probation for three y ears, and fined him $500.00. The trial court gave the following req

uiremen ts for pro bation: “ You must finishschool; you must be employ ed; 10:00 p.m. curfew; . . . random drug scree ns; and moral recognition therapy .” II. Analysis-4-

The Defend ant arg

ues that th

e trial c ourt abus ed its disc retio n i n declining to impose a sentence pursuant

to Tennes see Code

Annotate d § 40-35- 313 (1997 & Supp. 20 02), comm only referred to as “judicial diversion.” According to this statute, the trial co ur t m ay, at its discretion, following a dete

rmin ation of guilt, defer further proceedings and place a qualified defe ndant on probation without entering a judgment of guilt. Tenn. Code Ann. § 40-35-313(a)(1)(A). A qualified defendant is one who:
(a) Is found guilty

of or pleads guilty

or no lo co ntendere to the offense for which deferr al of fur ther pro ceeding s is sough t; (b) Is not seeking def

erral of further

proceedings for a sexual offense or a Class A or Class B felony; and (c) Has not previously

been convicted of a felony or a Class A misdemeanor.
Tenn. Code Ann. § 40-35-313(a)(1)(B) (i)(a), (b), (c)

.
When a defendant contends that the trial court committed error in refusing to gra nt judicial diversion, we must determine whether the trial court abused its discretion by deny

ing the defendant’s request for judicial diversion. 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). Ju dicial div ersion is similarto pretri al diver sion; howe ver, judi cial dive

rsion foll ows a

determin ation of guilt, and the decision to grant judicial diversio n is initiated by the trial court, not the prose cutor. State v. Anderson , 857 S.W.2d 571, 572 (Tenn. Crim. App. 1992). When a defendant challenges the trial court’s denial of

judicial d iversion , we may

not revis it the issue

if the record contains any substantial evidence supporting the trial court’s decision. Cutshaw , 967 S.W.2d a t 344; State v. Parker

, 932 S.W.2d 945, 958 (Tenn. Crim. App. 1996). As this Court stated in Anderson :

We conclude that judicial diversion is similarin purpose to pretri al diver sion and is to be impose d within the discreti on of the t

rial cou rt subje ct on ly t o the same constra ints applicable to prosecutors in applying pre trial diversion under

Tennessee Code Annotate d § 40-15- 105. Ther efore, upon review, if

“any substantial evidence to support the refusal” exists in the record, we will give the trial cour tthe benefit of its discretion. Only an a buse of that discretion will al low us to overturn the trial court.

Anderson , 857 S.W.2d at 572 (citation omitted).

The criteri a that the

trial cou rt must consider in determining whether a qualified de fendant should be granted judicial diversion include the following: (1) the defe ndant’s a menabilit y to-5-

correction; (2) the circumstances of the offense; ( 3) the defendant’s cr iminal reco rd; (4) the defendant’s social history; (5) the def e ndant ’s physical and menta l health; and (6) the deterrence value to the defendant and others. Cutshaw , 967 S.W.2d a t 343-44; Parker

, 932 S.W.2d at 958. An additional consider

ation is whether judicial diversion will serve the ends of justice, i .e., the interests of the public as well as the defendant. Cutshaw , 967 S. W .2d at 344 ; Parker , 932 S.W.2d at 958; Statev. Bonestel, 871 S.W.2d 163, 168 (Tenn. Crim. App. 1993), overruled on other grounds by Statev. Hooper , 29 S.W.3d 1, 9 (Tenn. 2000). Moreover, the record must re flect that the court

has weighed all of the factor s in reac

hing its determination. Bonestel , 871 S .W.2 d at 16 8 (cit ing State v. Herron , 767 S.W.2d 151, 156 (Tenn. 1989)). The cou rt must ex plain on the record why the defendant does not qu alify

under its analy sis, and if the cour t has base d its d e terminat ion on only some of the factors, it must explain why these f actors outweigh the others. Id.

In th e case

under submission, there is no dispute that the Defendant qualifies for consideration for judicial diversion under Tennessee Code Annotated section 40-35-313 because he pled guilty to two counts of ag gravated burglary , a Class C felony, and had not been previou sly convictedof a felony

or a Class A misdemeanor. The Defendant complains that trial court abused its discretion by

denying the Defendant’s application for judicial diversion becaus e the “t rial j udge didnot indicate that he considered all the appropr iate factors or why

the factors he did consider outweighed all others.”

In determin

ing whe ther it sho

uld gra nt the D efendant’s application for judicial diversion, the trial court

did not explicitly articulate its consideration of the factors set forth in Cutshaw , 967 S.W.2d at 343-44. However, the record re flects that the trial court placed gre at emp hasis on the serious nature of the offenses and the circumstanc es surrounding the offenses. The trial cour t stated that the Defe ndant’s a cts of bur

glarizin g two hou ses and st e aling item s from the houses were “horrible” crimes. I

t further stated that the fact that the Defend ant and hi s accomplices stole guns during one of the bur

glarie s was “[a]b solutely

frightening” because

they had planne d “to sell them to criminals.” The trial court also noted that the Defendant’s motivation in participating in the two burglaries was to “ha ve f

un” and “ge t s om e mo ney for n ot hi ng. ” It stated that “[t]here i s no way

to make these [vic tims] whole again . . . . psy chologically , you can’t stra ighten them out ever.” These comments indicate that the trial court denied judicial diversionbecause of the troublesome nature of the burglaries in t

hi s case and a pattern of criminal behavior by the Defendant. The Defendant illegally e nteredthe victims’ houses along with his accomplices and stole firear ms that he a

nd his accomplices planned to sell on th e stree t. Also, the Defendant committed aggra vated burglary

two times, which shows a disturbing pattern of criminal behavior. Moreover, the trial court ’s fin dings indicate that it believed that the denial of judicial diversion would serve the ends of justice, i.e., the interest s of the pub lic as we ll as the De fendant. After thoroughly reviewing the guilty

plea proceeding and th e sent encin g h earin g, we conclude that substantial evidence supports the tria l court’s decision. Accordingly , we hold that the trial co urt did not abuse its discretion in denying judicial diversion.-6- III. Conclusion

In accordance with the foreg oing authorities and reasoning, we conclude that the trial court didnot abuse

its discreti on indenying

the Defendant’s application for judicial diversion. There fore, we AFF IRM the trial c ourt’s jud

gments.

___________________________________

ROBERT W. WEDEMEYER, JUDGE