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

Briefs O ctober 2, 2001 STATE OF TENN ESSEE v. CLIFTON SHELTON Appeal from the Criminal Court for Shelby County No. 99-08436 Carolyn Wade Blackett, Judge

No. W2000-00610-CCA-R3-CD - Filed December 17, 2001

The defendant, Clifton Shelton, pled gu il ty to simple po ssession o f marijua na, a Cla ss A misdemeanor. The trial cou rt senten ced the d efenda nt to 11 mont

hs and 29 d ay s, requir

ing him to spend four months in a halfway house andthe balance of his sentence on probation. The defendant argues that the trial court erred by failing to suspend his en t ire sentence. Because the trial court reliedon the defendant’s prior grant of judicial diversion in denying

full probation, the judgmen t is modified a

nd the ca use is re manded to

the trial court. Tenn. R. App. 3; Judgment of the Trial Court Reversed; Cause Remanded
G ARY R. W ADE , P.J., delivered the opinion of the court, in which J OSEPH M. T IPTON and R OBERT W. W EDEMEYER , JJ., joined. Marvin E. Ballin, Memphis, Tennessee, for the appellant, Clifton Shelton.
Paul G. Summers, Attorney Gene ral and Reporter; John H. Bledsoe, Assistant Attorney General; and Glen Baity, A ssistant District Attorney Gener al, for the appellee, the State of Tennessee

. OPINION
The defendant, who was indicted for one count of possessio n of marij uana with intent to se

ll and one count of possession of marijuana with intent to deliver, both Class E felonies, entered a plea of guilt to one count of

simple poss ession of

marijuan a, a ClassA misdeme anor. At the entr y of his guilty plea, the defendant stipulated that, on November 4, 1998, he was sitting on the porc h when office rs arriv ed to execute a sea rch war rant at th e reside nce of a Mario Young. When the officers patted the defendant down , they found eig

ht gram s of marij uana in th e pocke t of his shir

t.
At the sente ncing h earing i t was e stabl ished that t he defe ndant , age 32, was married and had three children. He had

maintained employment throug hout his adult life. He had no prior criminal record but some te

n ye ars bef

ore his arrest on these charges, he had succ essfully completed a judicia l diversion program. See

Tenn. Code Ann. § 40-35-313.-2-

The state conceded that the defendant wa s a suitable candida te for probation but asked the trial court to r

equire h imto undergo frequent, random drug testing. The trial court gr anted probation, butordered the defendant to spend four months in Project Whatever I t Takes (WIT), a halfwa

y house, as a furt

her cond it ion of probation. In this appeal, the defe ndant argues that the trial court erred by ordering placement in the halfway house as a condition of probation.
When there i s a chal lenge to the length, range, or manner of service of a sentence, it is the duty of this court to conduct a de novo review with a presumptionthat the determinations made by the trial court are correct. Tenn. Code Ann. § 40-35-4 01(d); see also State v. Troutman , 979 S.W.2d 271 (Tenn. 1991). Th

is presumption is "conditioned upon the affirmative showing in the rec ord that the trial court considered the sentencing princ iples andall relevant facts and circumst ances." State v. Ashby , 823 S.W.2d 166, 1 69 (Tenn . 1991); see State v. Jones , 883 S.W.2d 597, 600 (Tenn. 1994). "If the trial court applies inapprop riate fa ctors or otherwis e fails to

follow the

1989 Sente

ncing Act, the presumpti on of correctne ss falls." State v. Shelton , 854 S.W.2d 116, 1 23 (Tenn. Crim. App. 1992). The Sentencing Commission Comments provide that the burden is on the defendant to show the impropriety of the sente nce. Tenn. Code Ann. § 40-35-40 1, Senten cing Com mission Comme

nts.
Our review requires an analy sis of (1) the evidence, if any , received at the trial and sentencing hearin g; (2) the presentence report; (3) the principles of sentencing and the arg um ents of coun sel relative to sentencing alternatives; (4) the nature and characteristics of the off ense; (5) any

mitigating or enhancing factors; (6) any statements made by the de fendant in his own behalf; and (7) the defend ant's potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-10 2, -1 03, -210; State v. Smith , 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987).
In misdemea

nor sente ncing, the trial

court is r

equired to provide

the defe ndant w ith a reasona ble opportuni

ty to be hear d as to the leng

th and manne

r of the s entence . The sen tence mu st be specific

and cons istent with

the purposes of

the 1989 Sentencing Act. Tenn. Code Ann. § 40-35- 302(a), (b). Not greater than 75 perc ent of the sentence should be fixed for ser vi ce by a misdemeanor

offender; however, a

DUI offender

may be requi red to se rve the f ull 100 per

cent of h is sentence. Tenn. Code Ann. § 40- 35-302(d ); Palmer v. State , 902 S.W.2d 391, 393-94 (Tenn. 1995). In determining the percentag e of the sentence, the court must consider enhancement and mitigating factors as well as the legislative purposes and p rinciple s related to sentencing. Tenn. Code Ann. § 40-35-302(d). Upon service of the req uired p ercentage, the administrative ag ency g overning the rehabilitative progra

ms determ

ines which among

the lawf ul progr ams availab le is appropriate. The trial court retains the authority to place the defendant on probation either immediately or after a term of periodic or continuous confinement. Tenn. Code Ann. § 40-35-302(e) . The legisl ature has encouraged

courts to consider

public or private agencies for probation supervision prior to directing super vision b y the Depa

rtment of Correction. Tenn. Code Ann. § 40-35-302(f). The statutory scheme is designed

to provide the trial cou

rt with co ntinuing

jurisdict ion in the mi sdemean or case and a wide latitude of flexibility. The misdemea nant, u nlike the felon, is not entitled to the presumption of a minimum sentence. S tate v. C reasy , 885 S.W.2d 829, 832 (Tenn. Crim. App.-3-

1994). If the trial court' s findings of fact are adequately

supported by the record, this court may not modify the sentence even if it would have prefer red a different

result. State v. Fletcher , 805 S.W.2d 785 (Tenn. Crim. App. 1991). Among the fac tors applicable to probatio n conside

ration a re the c ircumsta

nces of t he offe nse , the defendant's criminal

record, social history

and present condition, and the deterrent effect upon and best interest of the defendant and thepublic. State v. Grear , 568 S.W.2d 285, 286 (Tenn. 1978). The nature and circumstances of the offense may often be so egregious asto preclude the grant of probation. See State v. Poe , 614 S.W.2d 403, 404 (Tenn. Crim. App. 1981). A lack of candor may also militate against a grant of probation. State v. Bunch , 646 S.W.2d 158, 160 (Tenn. 1983). Moreover, in Ashby , our supr eme court encouraged the grant of considerable discretionar y authority to our trial courts in matters such as these. 823 S.W .2d at 171 ; see State v. Mo ss , 727 S.W.2d 229, 235 (Tenn. 1986). "[E]ach case must be b ottomed u pon its ow n facts." State v.Taylor , 744 S.W.2d 919, 922 (Tenn. Crim. App. 1987). "It is not the policy or purpose of this court to place trial judges in a judicial straight-jacket in this or any other ar ea, and

we are alway s relucta

nt to interfere wit h their trad itional d iscretiona ry powers." Ashby , 823 S.W.2d at 171.
The trial court

is granted broad discretion in its imposition of conditions of probation. See Tenn. Code Ann. § 40-35-3 03(d); Stiller v. St ate , 516 S .W. 2d 61 7, 620 (Tenn. 1974). Tennessee Code Annotated section 40-35-303 provides a number of conditions which a trial court ma y imp ose on an offe

nder sen tenced t o probati on. While the statute does not sp ecifica

lly l ist s ervice in a halfway ho use, it provides that the trial court may r equire the defendant to "[s]atisfy any other conditions reasona

bly related to the purpose of the offender's sente nce and not unduly re strictive of the offende

r's libe rty , or incom

patible w ith the off

ender' s freedom of cons cience , or other wise prohibited by this chapter . . . ." Tenn. Cod e Ann. § 40 -35- 303( d)(9). T hus, a tri al court

is free to impose any terms and c onditions that are n ot inconsistent with the Sentencing Act. See State v. Johnson , 980 S.W.2d 410, 413 (Tenn. Crim. App. 1998). The conditions imposed, however , "must be reasona

ble and r ealistic and must n ot be so str

in gent asto be har sh, oppre ssive or p alpably unjust." Stiller , 516 S.W.2d at 620. Here, the trial court

based its decision to require service in the halfway house on the fact that the defendant had been

granted judicial diversion some ten y ears earlier. The trial court made the following observa tions: [W]hat really ag gravates the court at this time is . . . somebody who has been g iven an op po rt un it y by s om e j ud ge on ce be fo re co nt in ue s t o p ar ti ci pa te in il le ga l a ct iv it y. And it seems like you haven't learned your lesson. * * * The court is going to place you at Project WIT for four mont

hs. . . . And

hopefull y this progra

m will teac

h yo u that it is time for you to gr

ow up and be a man and

stop playing around w ith people

that d on't . . . hav e anythin g to do with you being a co nt ri bu ti ng ci ti ze n i n t hi s s oc ie ty.-4-

The judicial diversion statute provides that after an adjudication of guilt, a trial c ourt may defer entry of judgment until a defendant successfully completes a diversion program or violates a condition of his release. See Tenn. Cod e Ann. § 40 -35-313. If a

defenda nt is succ essful, the statut e provides for expungement from "a ll offici al reco

rds . . . all recor

dation re lating to the pers on's ar

rest, indictmentor inform ati on, trial, finding of guilt y, a nd dismissa

l and disc harge

pursuant to this section." Tenn. Code Ann. § 40-35-313(b). The effect of dismissal under the diver sion statut

e "is to restore the person, in the contemplation of the law, to the status the person occupied before such arrest or ind ictment or informati on." Id.
Our sup reme court ha s held that "[e]xpungement does not return a person to the position occupied prior to com mitting t he offense." State v. Schindler , 986 S.W.2d 209, 211 (Tenn. 1999). Our high court ruled that "the testimony and evidence of the criminal acts prece ding the arrest are admissible as evidence of prior bad acts or evidenc e of social history e ven if expungement is later obtained." Id. In State v. Lane , 3 S.W.3d 456, 462 (Tenn. 1999), our supreme court held that "the criminal acts underlying

an expunged conviction may properl y be considered to determine whether a defendant is a suitable candidate for alterna tive sentencing." The court ca utioned that onl y the underlying

acts, not the conviction or grant of diversion itself, could be consider ed. Id. Here, there wa s no proof of the facts which lead to the earlier conviction. The trial court could no t d en y probatio n based so lely upon a pr

ior gra nt of judic ial diver sion. Be cause th e state produced no evidenc e demonst rating that the d efenda nt was not otherwise

a suitable

candidate for probation and because the ci rcumstan ces o f the offense, as stipulated, do not outweigh all other factors pertinent to probation, the presumption of correctne ss attached to the sentence has been overcome.
Ac co rd in gl y, the judgment of the trial court is modified to provide for immediate probation. The cause is remanded to allow the trial court to impose appropriate conditions of probation, such as random drug testing, other than place ment in a halfway

house.

___________________________________ GARY R. WADE, PRESIDING JUDGE