### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE Novem ber 19, 200 2 Session

STATE OF TENNESSEE v. RUFUS STEVEN JO HNS

Appeal from the Circuit Court for Rutherford County No. F-49830 J. Steve Daniel, Judge

No. M2002-00599-CCA-R3-CD - F iled December 31, 2002

The Defendant, Rufus Steven Johns, entered a nolo contendere plea to illegally registering to vote,

a class E fel ony. After a

sentencing hearing, the trial c ourt sentenced the Defendant as a Rang e I standardoffender to eighteen months to be served on probation. In this appeal as of rig ht, he raises three issues: (1) whether the district attorney general abused his discretion by deny ing the Defendant pretrial diversion, (2) whether the trial court abused its discre t ion by refusing

to grant judicial diversion, and (3) whether the trial court imposed an excessive sentence. We affirm the judg ment of the tri al court

. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Trial Court Affirmed

D AV ID H. W ELLES , J., delivered the opinion of the court, in which J OE G. R IL EY and A LAN E. G LENN , JJ., joined.

John Mitchell, Murfr

eesboro , Tennes see, for

the appe llant, Ruf us Steven Joh

ns.

Paul G. Summers, Attorney Gene ral and Reporter; Helena Walton Yarbrough, Assistant Attorney Genera l; and Will iam C . Whitesell, Jr., District Attorney General, for the appellee, State of Tennessee.

OPINION

The Defendant, Rufus Steven Johns, was charged by the Rutherford County Gra nd Jury with

one count of illegally

registering to vote, a Class E felony , and three counts of offic ial miscon duct, also Class E felonies. The Defendant filed an application for

pretrial diversion, which was denied by the district attorney g eneral. The Defendant then petitioned the trial

court fo r a writ o f certio

rari, appealing the denial of pr etri al diversion. After a hearing, the tria l court denied the Defendant’s petition. Ultimatel

y the Defe

ndant ent e red a plea

of nolo contendere to the charge of illegal registration, and the three counts of official misconduct were dismissed. After a sent encin g hearin g, the trial court denied the Defendant’s request for judicial diversion and sente nced him to a term of-2-

eighteen months, to be served on probation. In this appeal a s of right, the Defendant arg ues (1) that the State abused its discretion by deny ing his application for pretrial diversion, (2) that the trial court abused its discretion by refus in g to grant judicial diversion, and (3) that the sente nce of eighteen months is excessive.

For ten y ears the

Defend ant serv ed as a Ru therfor d County Commissioner for the Eleventh District. On September 17, 1999, the Defendant moved fr om his resi dence in

the Eleventh District to a new residence in the Tenth Distri ct. However, the Defendant continued to ser ve as Commissioner for the Eleventh District in spite of the fact that he no longe r reside d in that dis trict. The Defend ant faile d to corr ectly list his add

ress in the Tenth D istrict when he registered to vote. Indeed, when he r

egiste red to vot e, he use d his sister ’s addre ss, which wa s in the Eleve nth District. For this reason, he was charged with and entered a nolo contendere plea

to intentionally register

ing to vote where he was not entitled to in violation of Tennessee Code Annotated section 2-19-107.

The Defend ant’s fir st argu ment is that the district attorney general abused his discretion by denying the Defendant’s application for pretrial diver sion. The pretrial diversio n statute a llows a districtattorne

y g eneral to suspend the prosecution of an eligible defenda nt for a period not

to exceed two years. See

Tenn. Code Ann. § 40-15-105(a)(1)(A). I n order to qualify f

or pretrial diversion, the defendant must not have previously be en granted diversion; must not have a prior misdemeanor conviction for which a sentence of confinement was served or a prior felony conviction within a fiveyear period after

completing the sentence or probationary period for such conviction; and must not be charged with a

cl as s A fe lo ny, a c la ss B f el on y, certain class C felonies, a sexual offense, driving under the influence, or vehicular assault. See id. § 40-15-105(a)(1)(B)(i)( a)-(c).

There is no presumption that a person eligible for pretrial diversion is entitled to diversion. See State v. Curry , 988 S.W.2d 153, 157 (Tenn. 1999). The “d efend ant bears the burden of establishing that pretrial diversion is appropriate and i n th e interest of justice”; therefore, it is the responsi bility of the defendant to provide “substantial favorable e vidence for t

he district attorney general’s consideration.” State v. B ell , 69 S.W.3d 171, 179 (Tenn. 2002).

The decision to grant or

deny an applic ation for

pretria l diversio n rests within the discretion of the district

attorney g eneral. See Tenn. Code Ann. § 40-15-105(b)(3). “When deciding whe ther to enter in

to a memor

andum of u

ndersta nding un der the p

retrial diversio n statu te [,] a prosecutor shou ld focus on the def

endant’ s amenab ility

to corre ction. An

y f actors w hich tend to accur ately reflect whether a particular defenda nt will or will not become a repeat offender shoul d be considered.” State v. Hammersley , 650 S.W.2d 352, 355 (Tenn. 1983).
Among the factors to be considered in addition

to the cir cumstanc es of the

offense

are the defendant’s criminalre co rd , s oc ia l h is to ry, the physical and menta l condition of a defendant where appropria te, and the likelihood that pretrial diversion will serve the ends o f justice

and the be st intere st of both th e public a nd the def endant.1 The Defendant pr esente d evidence t hat other commis sioner s had moved outsi de the di stri ct t hey repr esente d with no consequences. Howe ver, there was no evi den ce that a ny of these other co mmissioners e ver prov ided false inf ormation w hen regi ster ing t o vote.

-3- Id. If pr etrial di version i s denied, the denia l must be wr

itten, must

list the ev

idence c onsi de red, discuss which factors were considered, and discuss the weight accorded to ea ch factor. See Statev. Pinkham
, 955 S.W.2d 956, 960 (Tenn. 1997). “This requirement entails more than an abstract statement in the record that the district attorney g eneral has considered these factors.” Curry , 988 S.W.2d at 157 (citations omitted).

If an application for pretrial diversion is denied, the defendant may appeal to the trial court for a wr it of certiorari

. See Tenn. Cod e Ann. § 40 -15-105(

b)(3). O n review , the tria l court is constrained

to consider only the evide nce considered by

the district attorne y genera l and must determine whether the district attorney general has abused his or her discr etion. See Bell , 69 S.W.3d at 177. An abuse of discretion may only be found wher

e the prosecutor fai ls to consider all the relevant factors and their weight

or reaches a decision not supported by substantial evidence. See id. On review, the decision made by the district attorney g ener a l is presumed to be correct. See Curry
, 988 S.W.2d at 158. Therefore, in a close case where the prosecu

tor could have leg itimately granted or denied the application, the trial cou rt must def

er to the judgment of the prosecutor. See Statev. Carr , 861 S.W.2d 850, 856 ( Tenn. Cri m. App. 1993). For purposes of our review, this Court is “bound by

the factual findings made by the trial cou

rt unless t he evide nce pre pondera tes aga inst them.” Bell , 69 S.W. 3d at 177.

“However, if the evidence of record is undisputed and ca lls for no finding of fact to resolve the issue, a trial court’s determinations constitute conclusions of law to which a n appella te court is notbound.” Carr , 861 S.W.2d at 856 (citations omitted). Therefore, when the facts are undisputed, the underlying

issue that this Court must determine on appeal remains whether, as a matter of law, the district attorney g eneral abused his or her discretion in denying pr

etrial diversion. See id. ; State

v. Terry A . Rogier , No. W2001-00551-CCA-R9-CD, 20 01 Tenn. Crim. App. LEXI S 783, at *9 (Jackson, Sept. 19, 2 001); State v. Brooks , 943 S.W.2d 411, 413 (Tenn. Crim. App. 1997).

In the written response deny ing pretrial diversion the district attorney g eneral stated that the Defendant

“has no prior criminal record, a stable wo rk history , no phy sical or m ental impa

irments, and apparently a

stable marriage.” The prosecutor also pointed out that there is no reason to suspect drug usage or any

other criminal conduct

on the Defendant’s part, and “[t]hese factors weig ht [sic] favora bly in Mr. Johns’ favor.” However, the district attorney denie d the Defendant’s request for diversion based upon the Defendant’s status as an elec ted public official, his abuse of his position of public tru st, the fa

ct that hisact of f

alsify ing his voting registration undermined public confidence in gover nment, the

need to de

ter othe r similarl y situated elected officials from enga ging in similar conduct, 1 and the likeli

hood that p

retrial diversio n would not

serve the ends of

justice a nd the bes t interest s of both the public a nd the Defendant

.-4-

The D efenda

nt conten ds that the

district a ttorney should not b e allowe d to deny him d iversio n basedupon his status as an elected official. However, we ha ve held that public officials are called upon to act in accordance with a higher standard than that applied to an aver age citizen. See Woodson v. State
, 608 S.W.2d 59 1, 594 (Te nn. Crim. A

pp. 1980) ; State v. Houston , 900 S.W.2d 712, 715 (Tenn. Crim. App. 1995). Th e prosec utor cite d in his lett

er the po sition of pu

blic trust held by the Defendant as an elected off icial and his abuse of that position, the needfor deterrence, and the public inte

rest in ma

intaining the integ rity of gove rnmenta l proces s as the ma

in reasons for denying diversion.

The Defendant also argues that the prosecutor

did not give due consideration to the diversion application and ther

efore a bused his d

iscretio n by

not c ontac ting the Defe ndant’s r efere nces. However, the distr

ic t a tt or ne y s tated in the hearing on the petition for writ of cer tiorari that he believedthat the references would have supporte d the Defendant’s application for diversion and that he conceded that thereferences weig hed in favor of

diversion. However, rely ing primarily on the circumstances of the offense, he determined that the application for pretrial diversion should be denied. Although the Defendant’s personal history doe s de monstrate

his amena

bility to rehabilitation, the circumstances of the offens e and t he need for det errenc e may outw eigh all other relevant factors and justify a denial of pretrial diversion. See Curry , 988 S.W.2d at 158.

There were no

factua l disputes t

o be reso lved by

the trial court in th

is case. The issue

is thereforewhether, as a matter of law, the prosecutor abused his discretion by denying the Defendant pretrial diversion. See Carr , 861 S.W.2d at 856. We conclude that the circumstances of the offense, the need to serve the ends of justice, and the need to prote ct the interest s of the pub lic outwe igh all factors in favor

of diver sion. We the

refore hold, as di d the tria

l c o urt, that the district attorney general’s denial of pretrial diversion did not constitute an abuse of discretion. This issue is without merit.

The second issue raised by the Defendant is whether the trial court abused its discretion by denyin g him judicial diversion after the sentencing hearing . The sentencing option common l y known as judicial diversion is codified at Tennessee Code Annotated section 40-35-313. A defendant is eligible

for judic ial diver sion if he or she (a ) “is fou nd guilty or plead s to . . . a cla ss C, D or E felony,” (

b) has not previously bee

n convicted of a felony , and (c) consents to the deferment of procee dings and placem

ent on pro bation “f or a per iod of time

. . . not more than the period of the

m aximum sentence of the felony with which the person is charged.” Tenn. Code A nn. § 40-35- 313(a)(1)(A). However,

the fact tha

t an accused mee

ts these p rerequ isit es d oes not en

title the a ccused t o judicial diversion as a matter of right. The statute states that a trial court “may ” grant judicial diversion in ap propriate cases . . . . Thus, whether an ac cused should be granted judicial d iversion is a question which addresses itself to the sound discretion of the tri al court

.-5-

Statev. Bonestel , 871 S.W.2d 163, 168 (Tenn. Crim. App. 1993), overru led on other gr o unds by State v. Hooper , 29 S.W.3d 1, 9 (Tenn. 2000).

Tennessee courts ha

ve reco gnized th

e similar it ies between judicial diversion and pretrial diversion and, thus, have

draw n hea

vily from the c ase l aw g over

ning pret rial dive rsion to an alyze
cases involving judicial diversion. For instance, in determining whether to grant pretrialdiversion,

a district attorney g eneral should consider the defendant’s cr iminal record, social history, me ntal and physical condition, attitude, behavior since arrest, emotional st ability , curre

nt drug u sage, past employ ment, home envi

ronment, marital s tability , fami l y responsibility , general reputation, and amenabi lity

to correction; as well as the circumstances of the of fense, the deterrent effect of punishmentupon other criminal activity, a nd the likelihood that pretrial diversion will serve the ends of justice and best interests of both the public and the defendant. S ee State v. Wa shington , 866 S.W.2d 950, 951 (Tenn. 1993).

A trial court should consider generally the same factors when deciding whe t h er to grant judicial diversion. See Bonestel , 871 S.W.2d a t 168; St ate v. Ha

mm ersley , 650 S.W.2d 352, 355 (T enn. 1983); State v. Anderson , 857 S.W.2d 571, 572-73 (Tenn. Crim. App. 1992). If, af te r assessing all relevant fac tors, the trial cou rt choose s to deny

ju di cial dive

rsion, the court mus t articula te on the record both the specific r easons supporting the denial and why those factors applica ble to th e deni al of d ivers ion o utwei gh the other factors for consideration. See Bonestel , 871 S.W.2d at 168.

In reviewing the

decision of a trial court to grant or deny judicial diversion, this Court applies “the sam e le vel of review as that which is applicable to a review of the district attorney g eneral’s action in denying pr

e-trial diversion.” Stat e v. Geo rge , 830 S.W.2d 79 , 80 (Ten n. Crim. App. 1992);

see also Anderson , 857 S.W.2d at 572. In other words, th is Court reviews the record to determine whether the trial court abused its dis cretion. See Bonestel , 871 S.W.2d a t 168; Anderson , 857 S.W.2d at 572. To find an abuse of discretion, we must determine that no sub stantial e vidence exists to support the ruling of the trial court. See Bonestel , 871 S.W.2d at 16 8; Anderson , 857 S.W.2d at 572.
Concerning the trial co urt’s de nial of judicial diversion as well as its sentencing decision, “the trial court may look behind a plea agreemen

t and cons i der the t

rue natu re of the offense committed.” St at e v . La to ya Anderson , No . 02 C0 1-9 707 -CR -00 251 , 19 98 T enn . C rim . Ap p. LE XIS 950, at *6 (Jackson, Sept . 11, 1998) ; see also Statev. Hollings worth , 647 S.W.2d 937, 939 (Tenn. 1983); Stat e v. Biggs , 769 S.W.2d 506, 507 (Tenn. Crim. App. 1988). In this case, the tria l court considered

that the Defendant had no prior criminal record, that he was amenable to correction, and that his social and family history was commendable. However, the cour t fou nd that the circumstances of the offense, that is, an elected official f alsifying infor

mat ion on his voting registration, the deterrence to other political figure s, and the ends of justice outweighed the positive factors. In its supplemental order , the trial court stated:-6- The facts of thi s caseestablish that Mr. John s moved out of his cou

nty commission district to a new residence. After making this move, the citizens of that districtlost their

legal r eprese ntative’ s lawful v ote in representing their interest in the

co unty commission. Mr. Johns contends that he had no knowledge that movi n g outside of his dist

r ict was ill egal[,] a

nd y et the fa

cts in this c ase esta

blish that with full knowledge that he

lived outs ide the di strict, Mr . Johns[ ] registe red to vot e at his sister’s residence[,] which was located in the center of this particular district in order to perpetuate his ability to be r ecognized as a county

commissioner

and to receive the financ ial benefit s and emol uments of

office associa ted with th at elec ted posit ion

. Faced with the documented facts associated with his actions, . . . Mr. Johns defends himself b y a ssertin g that ot

her comm

issionersat times ha

ve moved o

utside the ir districts temporarily and the reafter moved back into their districts during their ter m
as county commissioner. Commission members who move outside of

their district in [e]ffect forfeit their elected position[,] andthis gives rise to the citizens within the distric t havin g no legal voice in their local g overnment. This type of c onduct undermines the legitimacy of government

action. T

here is a need to de

ter not on ly Mr. Johns[,] but all others who would embark on such actions in participating in such activitie s. Theref

ore, this Court find s that the c ircumsta nces of t his offense , th e [deterrence] associa

ted with th

is convicti on[,] and the

ends of ju stice would not be served by a judicial diversion. For these reasons, the reque st for judicial diversion is denied.

The Defendant complains that the trial court did not sufficiently describe the factors that it considered

in determining whether

to grant diversion or why

those factors weighed ag ainst the grant of diversion. Howeve

r, the re cord cle arly

reflec ts that the

trial cou rt place d grea

t emphasison the fact that the Defend ant was a

n electe d officia

l who abus ed a posit

ion of publ

ic trust. The trial court made it abundantly clear

that the instant offense con stituted mo re than a citizen me

rely illega lly registering to vote: it was a deceitful act by an elected government

official. The trial court

found that the circumstances surrounding the offense ou twe ighed a

ll the posit

ive fac tors. The

trial cou rt did not abuse its discre tion in rea

ching th at concl

usion. Ac cording ly, this issue i s without me rit.

Fi na ll y, the Defe

ndant ar gues tha t his sente

nce of e ighte en months is excessive. When an accused challenges the length, rang e, or manner of service of a sente nce , t his Court ha s a duty to conduct a de novo review of the se ntence with a presumption that the determinations made by the trial court are correct. See Tenn. Code Ann. § 40-35-401(d). This presumption is “conditioned upon the affirmative showing in the record that the trial court

consider ed the se ntencing principle s and all relevant facts and circumstances.” State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991).

When conducting a de novo review of a sentence, this Court must consider: (a) the evide nce, if any, rec eived at the trial and se ntenc ing hea ring; (b) the presentence report; (c) the princ iples of sente ncing and arguments as to sentencing a lternatives; (d) the nature and characteristics of the criminal conduct invo lved; (e) any statutory mitigating or enhancement fac tors; (f) any sta tement made by the defe

ndant regarding sentenc i ng; and ( g) the potential or lack of potential for-7-

rehabilitation or treatment. See Tenn. Code A nn. §§ 4 0-35-102 , -103, -2 10; State v. Brewer , 875 S.W.2d 298, 302 ( Tenn. Cri m. App. 199 3); State v. Thomas , 755 S.W.2d 838 , 844 (Te nn. Crim. App. 1988).

If our review reflects that the trial court followed the statutory sentencing procedure, that the court imposed a

lawful s entence after having given due c onsideration and proper weight to the factors and principles set out under the sentencing law, and tha t the trial court’s findings of fact are adequa tely supported by the record, then we may not modify the sentence

ev en if we would have preferred a different result. See State v. Pike , 978 S.W.2d 904, 926-27 (Tenn. 1998 ); State v. Fletcher , 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).

A criminal

d ef endant challenging a trial cour t’s sentencing decision has the burden of establishing that his or her sentence is improper. See Ten n. Code Ann. § 40-35-401, Sentencing Commission Comments; see also Ashby , 823 S.W.2d at 169. The Defendant has notmet his burden i n t his case. The Defendant, as a Rang e I standard offe nder convicted of a class E felony , was subject to a one to

two year se

ntence. See Tenn. Code Ann. § 40-35-112(a)(5). The pre sumptive sentence was one year. See Tenn. Code Ann. § 40-35-210(c). The Defe ndant maintains that the trial

co u rt erred in its application of enhancing and mitiga ting factors in deciding upon a sentenc e of eighteen months. As an enhancemen t factor, the trial judge cited that “the def endant abused a position of public or private trust . . . .” Tenn. Code Ann. § 40-35-114(16). Howeve r, the court also conside redas a mitigating factor that “the def endant’s criminal conduct neither cau sed nor threatene d serious bodily injury .” Tenn. Code Ann. § 40-35-113(1). Also, the trial court considered that the Defendant

had no prior criminal history a nd had made positive cont ributions t

o his community as relevant mitigating factors. See Tenn. Code Ann. § 40-35-113(13). Obviously , when the trial court set the Defend ant’s se

ntence a t eighte en months, it placed more emphasis on the circumstances of the offense underly

ing the plea agreeme

nt, which it was entitled to do. S ee Hollings worth , 647 S.W.2d at 939. The trial court did not err in making its decision. Accordingly , this issue is without merit.
The judgment of the trial court is affirmed.

___________________________________ DAVID H. WEL

LES, JUDGE