### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE Assigned on Briefs F

ebruary 20, 200 1

STATE OF TENNESSEE v. HOLLIE D. C AMPBELL
Direct Appeal from the Criminal Court for Washington County

No. 24946 Lynn W. Brown, Judge

No. E2000-00373-CCA-R3-CD July 2, 2001

On appeal, the issue is whether a defendant, who p led gui lty pursuant to a plea agreement that allowedfor a request fo

r judicial diversi

on, may be se

ntenced by

the trial court to a dditional time

over and ab ove the negotiated plea agreement in the event the Defendant violates the ter ms and conditions of judicial divers ion. We hold the answ

er to be yes

. Further, after a careful review we conclude that the trial court prop e rly sentenc ed the Defendan

t. The Defendan

t’s sentence is affirmed.
Tenn. R. App. P. 3 Appe al as of Right; Judgme

nt of the Criminal C

ourt is Affirmed

J OHN E VERETT W ILLI AMS , J., delivered the opinion of the court, in which D A VID H. W ELLES , J., joined. J AMES C URWOOD W ITT , J R ., J., filed a concurring opinion.

David F. Bautista, Dis tri ct P ubl ic D efen der; Ivan M. Li lly, Assistant Public Defender; and Julie A. Rice, Knoxville, Ten

nessee, for the a

ppellant, Hollie D . Campbell.

Paul G. Summers, Attorney General and Reporter; Mark A. Fulks, Assistant Attorney General; Joe C. Crumley, Jr., District Attorney General; and Victor Vaughn, Assistant District Attorney Ge

neral, for the appellee, State of Tennessee.

OPINION

On January 5, 19

99, the Defenda

nt, Hollie D. Campbe

ll, was in dict ed by a Washington County Gra nd Jury on eight counts of forgery . On July 12, 1999, the Defendant entered into a

ne go tiated plea agreement and pled guilty to each c ount whereby she would receive a one-y ear sentence for each count, all to run concurrently. The Defenda nt requested, without objection of the State, and was granted judicial diversion and placed on probation for three years. I n addition to the Defendant’s probation, the De fendant was orde

red to complete th

irty-si x hours of community service and pay restitution

to the victim and merchants who accepted the forged checks. On September 10, 1999, the Defendant’s probation officer filed a violation report because the Defendant failed to show-2-

up for any probati on meetings and the Defen dant moved without i nforming her probation officer. A warrant was subsequently issued for the Defendant’s arrest. On December 6, 1999, a probation revocationhearing was held and the Defendant’s previously granted judicial diversion was revoked. On January 21, 2000, the Defendant was sentenced to a two-y ear s en tence in the Tennessee Department

of Correction, but the sentence was again suspended and the Defendant was placed on three years of probation and ordered to make restitution to the victim and merchants. This appeal followed.

FACTS

The Defendant found a

purse that had be

en left in a shoppin

g cart at a Johnson

City Wal-Mart in August 1998. The

Defendant rumma

ged through the

purse and threw t

he contents of

the purse away, with the exception of some checks that she found in the purse. On August 22 and 23, 1998, the Defendant forged eight of the checks that she found. The checks all ranged from between $100 and $400, and totaled $1,751.98.

At one of the establishments where the Defendant forged a check, the manage r of the store became suspicious of the check

and contacted the victim. The victim subsequently went to the store and identifiedthe check as belonging to her. An employee a t the store identified the Defendant as the person who forged the check. At a later date, the checkbook was recovered by a manager of a local McDonald’ s restaurant.

On January 5, 19

99, the Defenda

nt was in d icted by a Washington County Grand Jury on eight counts of forgery. The Defendant later e nteredinto a negotiate

d plea agreem

ent and pled guil

ty to each of the eight counts whereby she w ould receive eight concurrent one-year sentence s. The Defendant

was grante

d judicia l diversion and given three years of probation. I n addition to the Defendant’s probation, the De fendant was o

rd ered to complete

thirty-six hour

s of community service, to pay restitution to the victim, and pay $50 to each merchant to whom a forged check was tendered.
After being granted judicial diversion and being placed on probation, the Defendant failed to meet with her probation of ficer. The Defendant also moved without notifying her probation officer. The Defendant’s failure to meet with her probation officer and to notify her probation officer of her move were both violations of her terms of probat ion. On September 10, 1999, the Defendant’s pr ob ation officer filed a violation report due to the aforementioned violations, and a warrant was subsequently issue d for the Defendant’s arrest. On December 6, 1999, a probation revocationhearing was he ld and the Defendant’s previously granted judicial diversion was revoked. On January 21, 2000, the Def en dant was sentenced to a two-year sentence in the Te nnessee Department

of Correction, but

the sentence was suspended and the Defendant was placed on three years probation and ordered to make restitution to the victim and merchants.-3- ANALYSIS A. Plea Agreement and Judicial Diversion

It is evident from the transcript of the guilty plea that the Defendant’s negotiated

guilty plea

was initially accepted

by the trial court. The defendant then requested the trial court to place her on judicial diversion. The State did not object to the defendant’s request. We note that had the State objected to the consideration by the trial court of the defendant’s request for judicial diversion we would have held consiste

nt with State v. De

nnis W. Daughtry , C.C.A. No. W1999-00792-CCA-R3- CD, 20 00 Tenn. Crim . App. Lexis 486 (Tenn. Crim. App., filed June 21, 2000, at Jackson), that judicial diversion was not available to this Defendant absent a clear understanding with the State that such a request would be made. The State’s silence in the instant case suggests to this court that the negotiated plea w as made with the understanding that the Defendant would request judicial diversion, or the State, by its silence, acquiesced in the defendant’s request for judicial diversion. In turn, the Defend

ant, by requesting judicial diversion, waived any claim she may

have had to the agreed to sentences offered by the State, for the very essence of judicialdiversion is to defer not only the entry of the judgment, but any se ntence at that time.

Under our statutory

scheme of senten

cing, ju dicial div ersion is clearly a more favorabl

e outcome for a defendant than any other available sentence. The Defendant in the

instant case cle

arly got what she wanted, judicial diversion. We will not now hear her complain that she really wanted the one-yea r sent ence o ffered by the S tate. It is totally con

trary to our

sentencing stru

cture to allow

a defendant to rec

eive a plea ag

reement with the St

atewhich allows the D

efendant to requ

est a better sentence from the trial court and then complain when she violates the conditions of probation. The trial court was well

within its authority to impose a two-year sentence unde r the facts of this case.

B. Sentence Imposed After Probation Revocation
Turning our attention to the appropriateness of the sentence imposed after the Defendant’s judicial diversion was revoked, section 40-35-313(a)(2) of the Tennessee Code A

nnotated sets for

th that “[u]pon violation of a condition of the probation, the judge may enter an adjudication of g

uilt and proceed as otherwise provided.” This court has visited this language in the past and suggested that the appropri

ateavenue, via which the trial court should proceed, is to refrain from sentencing the defendant

until such time as the defendant violates probation. “Upon a finding of violation of judicial diversion, the tria l court shall proc

eed to sentence

the defendant fo

r the orig i nal offense.” Statev. Johnson , 15 S .W.3 d 515, 518-1 9 (Ten n. Cri m. App . 1999 ). In the instantcase, it was proper to refrain from sentencing the Defendant until such time that judicial diversion was revoked.

We next turn our attention to the actual sentence imposed by the trial cour t after the Defendant’s probation under judicial diversion was revoked. This court has recognized that in the case where a period of probation was given under a gra nt of judicial diversion, and then later revoked, “[s]entencing shall proceed pursuant to the standard provisions of the Sentencing Act.” Id

. As such, our review of the sentence imposed by the t rial court is de novo with a presumption of correctness.

Tenn. Code Ann. § 40-35-401(d). This presumption is conditioned upon an affirmative-4-

showing in the record that the trial j udge considered the se ntencing princ

iples and all rele

vant facts and circumstances. State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). If the trial court fails to comply with the s tatutory dir

ectives, there i

s no presumption of c

orrectness and o

ur review is de

novo

. State v. Poole , 945 S.W.2d 93, 96 (Tenn. 1997).

The burden is upon the appealing party to show that the sentence is improper. Tenn. Code Ann. § 40-35-401(d) Sentencing Commission Comments. In conducting our r eview, we are requir ed, pursuant to Tenne

ssee Code Annotat

ed section 40-35-

210, to consider th

e following factor s in sentenci ng: (1) [t]he evidence

, if any, re

ceived at the tria

l and the sentenci

ng hearing; (2) [t]he presente

nce report; (3) [t]he principle

s of sentencing

and arguments a

s to sentencing a

lternatives; (4) [t]he nature an

d characterist

ics of the crimina

l conduct involved ; (5) [e]vidence and inf

ormati on offere d by the parties on the enhancement and mitigating factors in §§ 40-35-113 and 40-35-114; and (6) [a]ny statement

the defendant wishes to make in the defendant’s own behalf about sentencing. If no mitigating or enhancement factors fo r sen tencing are present, Tennessee Code Annotatedsection 40-35-210(c) provides that the presumptive sentence for most offenses shall be the minimum sentence within the applicable range. State v. Lavender , 967 S.W.2d 803, 806 (Tenn. 1998); State v. Fletcher , 805 S.W.2d 785, 788 (Tenn. Crim. App. 1991). However, if such factors do exist, a trial court

should start at the minimum sentenc

e, enhance the m

inimum sentence wi

thin the range for enhancement factors, and then reducethe sentence within the range for the mitigating factors. Tenn. Code Ann. § 40-35-210(e). No particular weight for each factor is prescribe d by the statute, as the weight given to each factor is left to the discretion of the trial court as long as the trial court complies with the purposes and principles of the sentencing act and its findings are supported by the record. State v. Moss , 727 S.W.2d 229, 238 (T enn. 1986); Statev. Leggs , 955 S.W.2d 845, 848 (Tenn. Crim. App. 1 997); see Tenn. Code Ann. § 40 -35-210 Sentenci

ng Co mmiss ion Comments. Nevertheless, shou ld there be no mitigating factors, but enhancement factors are present, a trial court may set the sentence above the minimum within the range. Tenn. Code Ann. § 40-35-210(d); Lavender , 967 S.W.2d at 806; Manning v. State, 883 S.W.2d 635, 638 (Tenn. Crim. App. 1994).

If our review reflects that the trial co urt fol lowed the statutory sentencing procedure, imposed

a lawful sentence after giving due consideration and proper weig ht to the factors and principles set out under sentencing law, and the trial court’s findings of fact are adequa tely supp orted by th

e record, then we may not modify the sentence e ven if we would have p refe rred a differe nt result. Fletcher , 805 S.W.2d at 789.

The tra n script of the sentencing hearing, conducted after the Defenda nt’s probation was revoked, indicates that the trial court did consider enhancement factors, setting forth the Defendant’s “fail[ure] ... at a release program into the community” as the “prominent enhancement factor.” See Tenn. Code. Ann. § 40-3 5-114(8). It is also clear that the trial court considered the Defendant’s juvenile record, which included juvenile adjudications for theft and trespass. It is also clear that the trial court took into considera

tion the nature of

the crimes in the in

stant case - eig

ht separate Class1 Our conclusion t hat the trial court considered each of these f actors is derived from a combined reading of the guilty plea transc ript and the p robation re vocation h earing transcr ipt.

-5- E felonies. We also n

ote that the Defe

ndant gave no via

ble excuse for her

probati on violati ons. Fin all y, it is clear that the tr

ial court conside

red as a mitigati

ng factor the f

act the Defenda

nt was a single mother. 1 After conside ring these factors, the trial court imposed a two-year sentence of incarceration

on the Defendant and t

hen suspended the sentence in favor of a three-yea r period of probation. Th e trial court’s sentence was not only well considered and just, but reflects the continuing efforts of the trial court to work with the Defendant instead of imposing a straighttwoyear sentence of incar

ceration . We conclude that there exists no reason to disturb the sentence imposed by the trial court.

Prior to concluding our

analysis, w

e pause to give n

otice to , and br iefly address, the Defendant’s contention that sin ce she was char

ged with eight C

lass E felonies, and since shewas a Range I offender, the three-y ear period of probation she was given while on judicial diversion was outside the permissible limits. The Defendant contends that the m

ost probation the tria

l court could have imposed was two y

ears. The Defe

ndant fails to

understandTennessee Code Annotated section 40-35-313(a)(1)(A) which sets forth that the period of probation allowed under judicial diversion i s “not more than the per iod of the maximum sent ence of the felo

ny with which

the person is charged.” When this language is set against the Defendant’s contention, it is clear that the Defendant is confusing the “

Class” of felony

withthe five distinct “

Ranges” set for th w ith in t he cl ass of f elo ny. The statute clearly refers to the class of felony , not ran ge, in setti ng f

orth the maximum period of probation. Since the Defend ant pled guilty

to a Class E felony

, the trial c ourt, under the judicial diversion statute, could have imposed a period of probation on the Defendant of up to six years - the

max imu m se nte nce a llo wed for a Cl ass E fel ony.

A similar statutory

scheme is set out for

regular probation in cases in which judicial diversion is not granted. Under Tennessee Code Annotated section 40-35-303(b), the Defendant could have been sentenced to

up to five years of probation in addition to the mandatory minimum of one year. The Defendant’s sentence of two years and thre e years of probation was proper.

CONCLUSION

The Defendant has not met the burden of showing that the two-year sentence of incarcera tion, suspe nded in favor of a three-year period of probation, is improper. The sentence imposed onth e Defendant is affirmed.

___________________________________ JOHN EVERETT WILLIAMS, JUDGE