IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

November 19, 2002 Session

STATE OF TENNESSEE v. RUFUS STEVEN JOHNS

 Appeal from the Circuit Court for Rutherford County

No. F-49830 J. Steve Daniel, Judge

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

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

a class E felony. After a sentencing hearing, the trial court sentenced the Defendant as a Range I

standard offender to eighteen months to be served on probation. In this appeal as of right, he raises

three issues: (1) whether the district attorney general abused his discretion by denying the Defendant

pretrial diversion, (2) whether the trial court abused its discretion by refusing to grant judicial

diversion, and (3) whether the trial court imposed an excessive sentence. We affirm the judgment

of the trial court.

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

DAVID H.WELLES,J., delivered the opinion of the court, in which JOE G.RILEY and ALAN E.GLENN,

JJ., joined.

John Mitchell, Murfreesboro, Tennessee, for the appellant, Rufus Steven Johns.

Paul G. Summers, Attorney General and Reporter; Helena Walton Yarbrough, Assistant Attorney

General; and William C. Whitesell, Jr., District Attorney General, for the appellee, State of

Tennessee.

OPINION

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

one count of illegally registering to vote, a Class E felony, and three counts of official misconduct,

also Class E felonies. The Defendant filed an application for pretrial diversion, which was denied

by the district attorney general. The Defendant then petitioned the trial court for a writ of certiorari,

appealing the denial of pretrial diversion. After a hearing, the trial court denied the Defendant’s

petition. Ultimately the Defendant entered a plea of nolo contendere to the charge of illegal

registration, and the three counts of official misconduct were dismissed. After a sentencing hearing,

the trial court denied the Defendant’s request for judicial diversion and sentenced him to a term of
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eighteen months, to be served on probation. In this appeal as of right, the Defendant argues (1) that

the State abused its discretion by denying his application for pretrial diversion, (2) that the trial court

abused its discretion by refusing to grant judicial diversion, and (3) that the sentence of eighteen

months is excessive.

For ten years the Defendant served as a Rutherford County Commissioner for the Eleventh

District. On September 17, 1999, the Defendant moved from his residence in the Eleventh District

to a new residence in the Tenth District. However, the Defendant continued to serve as

Commissioner for the Eleventh District in spite of the fact that he no longer resided in that district.

The Defendant failed to correctly list his address in the Tenth District when he registered to vote.

Indeed, when he registered to vote, he used his sister’s address, which was in the Eleventh District.

For this reason, he was charged with and entered a nolo contendere plea to intentionally registering

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

The Defendant’s first argument is that the district attorney general abused his discretion by

denying the Defendant’s application for pretrial diversion. The pretrial diversion statute allows a

district attorney general to suspend the prosecution of an eligible defendant for a period not to exceed

two years. See Tenn. Code Ann. § 40-15-105(a)(1)(A). In order to qualify for pretrial diversion, the

defendant must not have previously been 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 class A felony, a class B felony, 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 “defendant bears the burden of

establishing that pretrial diversion is appropriate and in the interest of justice”; therefore, it is the

responsibility of the defendant to provide “substantial favorable evidence for the district attorney

general’s consideration.” State v. Bell, 69 S.W.3d 171, 179 (Tenn. 2002).

The decision to grant or deny an application for pretrial diversion rests within the discretion

of the district attorney general. See Tenn. Code Ann. § 40-15-105(b)(3). “When deciding whether

to enter into a memorandum of understanding under the pretrial diversion statute[,] a prosecutor

should focus on the defendant’s amenability to correction. Any factors which tend to accurately

reflect whether a particular defendant will or will not become a repeat offender should be

considered.” State v. Hammersley, 650 S.W.2d 352, 355 (Tenn. 1983).

Among the factors to be considered in addition to the circumstances of the offense

are the defendant’s criminal record, social history, the physical and mental condition

of a defendant where appropriate, and the likelihood that pretrial diversion will serve

the ends of justice and the best interest of both the public and the defendant.
1

The Defendant presented evidence that other commissioners had moved outside the district they represented

with no consequences. However, there was no evidence that any of these other commissioners ever provided false

information when registering to vote.

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Id. If pretrial diversion is denied, the denial must be written, must list the evidence considered,

discuss which factors were considered, and discuss the weight accorded to each factor. See State v.

Pinkham, 955 S.W.2d 956, 960 (Tenn. 1997). “This requirement entails more than an abstract

statement in the record that the district attorney general 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 writ of certiorari. See Tenn. Code Ann. § 40-15-105(b)(3). On review, the trial court is

constrained to consider only the evidence considered by the district attorney general and must

determine whether the district attorney general has abused his or her discretion. SeeBell, 69 S.W.3d

at 177. An abuse of discretion may only be found where the prosecutor fails 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 general is presumed to be correct. See

Curry, 988 S.W.2d at 158. Therefore, in a close case where the prosecutor could have legitimately

granted or denied the application, the trial court must defer to the judgment of the prosecutor. See

State v. Carr, 861 S.W.2d 850, 856 (Tenn. Crim. App. 1993). For purposes of our review, this Court

is “bound by the factual findings made by the trial court unless the evidence preponderates against

them.” Bell, 69 S.W. 3d at 177.

“However, if the evidence of record is undisputed and calls for no finding of fact to resolve

the issue, a trial court’s determinations constitute conclusions of law to which an appellate court is

not bound.” 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 general abused his or her discretion in denying pretrial diversion. See id.; State

v. Terry A. Rogier, No. W2001-00551-CCA-R9-CD, 2001 Tenn. Crim. App. LEXIS 783, at *9

(Jackson, Sept. 19, 2001); State v. Brooks, 943 S.W.2d 411, 413 (Tenn. Crim. App. 1997).

In the written response denying pretrial diversion the district attorney general stated that the

Defendant “has no prior criminal record, a stable work history, no physical or mental impairments,

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 weight [sic]

favorably in Mr. Johns’ favor.” However, the district attorney denied the Defendant’s request for

diversion based upon the Defendant’s status as an elected public official, his abuse of his position

of public trust, the fact that his act of falsifying his voting registration undermined public confidence

in government, the need to deter other similarly situated elected officials from engaging in similar

conduct,1

 and the likelihood that pretrial diversion would not serve the ends of justice and the best

interests of both the public and the Defendant.
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TheDefendant contends that the district attorney should not be allowed to deny him diversion

based upon his status as an elected official. However, we have held that public officials are called

upon to act in accordance with a higher standard than that applied to an average citizen. See

Woodson v. State, 608 S.W.2d 591, 594 (Tenn. Crim. App. 1980); State v. Houston, 900 S.W.2d

712, 715 (Tenn. Crim. App. 1995). The prosecutor cited in his letter the position of public trust held

by the Defendant as an elected official and his abuse of that position, the need for deterrence, and

the public interest in maintaining the integrity of governmental process as the main reasons for

denying diversion.

The Defendant also argues that the prosecutor did not give due consideration to the diversion

application and therefore abused his discretion by not contacting the Defendant’s references.

However, the district attorney stated in the hearing on the petition for writ of certiorari that he

believed that the references would have supported the Defendant’s application for diversion and that

he conceded that the references weighed in favor of diversion. However, relying primarily on the

circumstances of the offense, he determined that the application for pretrial diversion should be

denied. Although the Defendant’s personal history does demonstrate his amenability to

rehabilitation, the circumstances of the offense and the need for deterrence may outweigh all other

relevant factors and justify a denial of pretrial diversion. See Curry, 988 S.W.2d at 158. 

There were no factual disputes to be resolved by the trial court in this case. The issue is

therefore whether, as a matter of law, the prosecutor abused his discretion by denying the Defendant

pretrial diversion. SeeCarr, 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 protect the interests of the public outweigh all

factors in favor of diversion. We therefore hold, as did the trial court, 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

denying him judicial diversion after the sentencing hearing. The sentencing option commonly

known as judicial diversion is codified at Tennessee Code Annotated section 40-35-313. A

defendant is eligible for judicial diversion if he or she (a) “is found guilty or pleads to . . . a class C,

D or E felony,” (b) has not previously been convicted of a felony, and (c) consents to the deferment

of proceedings and placement on probation “for a period of time . . . not more than the period of the

maximum sentence of the felony with which the person is charged.” Tenn. Code Ann. § 40-35-

313(a)(1)(A). However, 

the fact that an accused meets these prerequisites does not entitle the accused to

judicial diversion as a matter of right. The statute states that a trial court “may” grant

judicial diversion in appropriate cases . . . . Thus, whether an accused should be

granted judicial diversion is a question which addresses itself to the sound discretion

of the trial court.
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State v. Bonestel, 871 S.W.2d 163, 168 (Tenn. Crim. App. 1993), overruled on other grounds by

State v. Hooper, 29 S.W.3d 1, 9 (Tenn. 2000).

Tennessee courts have recognized the similarities between judicial diversion and pretrial

diversion and, thus, have drawn heavily from the case law governing pretrial diversion to analyze

cases involving judicial diversion. For instance, in determining whether to grant pretrial diversion,

a district attorney general should consider the defendant’s criminal record, social history, mental and

physical condition, attitude, behavior since arrest, emotional stability, current drug usage, past

employment, home environment, marital stability, family responsibility, general reputation, and

amenability to correction; as well as the circumstances of the offense, the deterrent effect of

punishment upon other criminal activity, and the likelihood that pretrial diversion will serve the ends

of justice and best interests of both the public and the defendant. See State v. Washington, 866

S.W.2d 950, 951 (Tenn. 1993).

A trial court should consider generally the same factors when deciding whether to grant

judicial diversion. See Bonestel, 871 S.W.2d at 168; State v. Hammersley, 650 S.W.2d 352, 355

(Tenn. 1983); State v. Anderson, 857 S.W.2d 571, 572-73 (Tenn. Crim. App. 1992). If, after

assessing all relevant factors, the trial court chooses to deny judicial diversion, the court must

articulate on the record both the specific reasons supporting the denial and why those factors

applicable to the denial of diversion outweigh 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 same level of review as that which is applicable to a review of the district attorney general’s

action in denying pre-trial diversion.” State v. George, 830 S.W.2d 79, 80 (Tenn. Crim. App. 1992);

see also Anderson, 857 S.W.2d at 572. In other words, this Court reviews the record to determine

whether the trial court abused its discretion. See Bonestel, 871 S.W.2d at 168; Anderson, 857

S.W.2d at 572. To find an abuse of discretion, we must determine that no substantial evidence exists

to support the ruling of the trial court. See Bonestel, 871 S.W.2d at 168; Anderson, 857 S.W.2d at

572.

Concerning the trial court’s denial of judicial diversion as well as its sentencing decision,

“the trial court may look behind a plea agreement and consider the true nature of the offense

committed.” State v. Latoya Anderson, No. 02C01-9707-CR-00251, 1998 Tenn. Crim. App. LEXIS

950, at *6 (Jackson, Sept. 11, 1998); see also State v. Hollingsworth, 647 S.W.2d 937, 939 (Tenn.

1983); State v. Biggs, 769 S.W.2d 506, 507 (Tenn. Crim. App. 1988). In this case, the trial 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 court found that the

circumstances of the offense, that is, an elected official falsifying information on his voting

registration, the deterrence to other political figures, and the ends of justice outweighed the positive

factors. In its supplemental order, the trial court stated:
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The facts of this case establish that Mr. Johns moved out of his county

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

district lost their legal representative’s lawful vote in representing their interest in the

county commission. Mr. Johns contends that he had no knowledge that moving

outside of his district was illegal[,] and yet the facts in this case establish that with

full knowledge that he lived outside the district, Mr. Johns[ ] registered to vote at his

sister’s residence[,] which was located in the center of this particular district in order

to perpetuate his ability to be recognized as a county commissioner and to receive the

financial benefits and emoluments of office associated with that elected position.

Faced with the documented facts associated with his actions, . . . Mr. Johns defends

himself by asserting that other commissioners at times have moved outside their

districts temporarily and thereafter moved back into their districts during their term

as county commissioner. Commission members who move outside of their district

in [e]ffect forfeit their elected position[,] and this gives rise to the citizens within the

district having no legal voice in their local government. This type of conduct

undermines the legitimacy of government action. There is a need to deter not only

Mr. Johns[,] but all others who would embark on such actions in participating in such

activities. Therefore, this Court finds that the circumstances of this offense, the

[deterrence] associated with this conviction[,] and the ends of justice would not be

served by a judicial diversion. For these reasons, the request 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 against the grant

of diversion. However, the record clearly reflects that the trial court placed great emphasis on the

fact that the Defendant was an elected official who abused a position of public trust. The trial court

made it abundantly clear that the instant offense constituted more than a citizen merely illegally

registering to vote: it was a deceitful act by an elected government official. The trial court found that

the circumstances surrounding the offense outweighed all the positive factors. The trial court did

not abuse its discretion in reaching that conclusion. Accordingly, this issue is without merit.

Finally, the Defendant argues that his sentence of eighteen months is excessive. When an

accused challenges the length, range, or manner of service of a sentence, this Court has a duty to

conduct a de novo review of the sentence 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 considered the sentencing principles 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 evidence,

if any, received at the trial and sentencing hearing; (b) the presentence report; (c) the principles of

sentencing and arguments as to sentencing alternatives; (d) the nature and characteristics of the

criminal conduct involved; (e) any statutory mitigating or enhancement factors; (f) any statement

made by the defendant regarding sentencing; and (g) the potential or lack of potential for
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rehabilitation or treatment. See Tenn. Code Ann. §§ 40-35-102, -103, -210; State v. Brewer, 875

S.W.2d 298, 302 (Tenn. Crim. App. 1993); State v. Thomas, 755 S.W.2d 838, 844 (Tenn. Crim.

App. 1988).

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

court imposed a lawful sentence after having given due consideration and proper weight to the

factors and principles set out under the sentencing law, and that the trial court’s findings of fact are

adequately supported by the record, then we may not modify the sentence even 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 defendant challenging a trial court’s sentencing decision has the burden of

establishing that his or her sentence is improper. See Tenn. Code Ann. § 40-35-401, Sentencing

Commission Comments; see alsoAshby, 823 S.W.2d at 169. The Defendant has not met his burden

in this case. The Defendant, as a Range I standard offender convicted of a class E felony, was

subject to a one to two year sentence. See Tenn. Code Ann. § 40-35-112(a)(5). The presumptive

sentence was one year. See Tenn. Code Ann. § 40-35-210(c). The Defendant maintains that the trial

court erred in its application of enhancing and mitigating factors in deciding upon a sentence of

eighteen months. As an enhancement factor, the trial judge cited that “the defendant abused a

position of public or private trust . . . .” Tenn. Code Ann. § 40-35-114(16). However, the court also

considered as a mitigating factor that “the defendant’s criminal conduct neither caused northreatened

serious bodily injury.” Tenn. Code Ann. § 40-35-113(1). Also, the trial court considered that the

Defendant had no prior criminal history and had made positive contributions to his community as

relevant mitigating factors. See Tenn. Code Ann. § 40-35-113(13). Obviously, when the trial court

set the Defendant’s sentence at eighteen months, it placed more emphasis on the circumstances of

the offense underlying the plea agreement, which it was entitled to do. See Hollingsworth, 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.

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DAVID H. WELLES, JUDGE