IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

March 25, 2014 Session

STATE OF TENNESSEE v. ANTHONY ADINOLFI

Appeal from the Circuit Court for Sullivan County

No. S59, 796 Honorable R. Jerry Beck, Judge

No. E2013-01286-CCA-R3-CD - Filed June 2, 2014

The Defendant, Anthony Adinolfi, entered an Alford “best-interest” plea to two counts of

solicitation to commit statutory rape, for which he received an effective sentence of 11

months and 29 days to serve at 75%. On appeal, the Defendant contends that the trial court

erred in denying his application for judicial diversion and alternative sentencing. Upon our

review of the record, we affirm the judgment of the trial court.

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

CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which JEFFREY S. BIVINS

and ROGER A. PAGE, JJ., joined.

R. Wayne Culbertson, Kingsport, Tennessee, for the Defendant-Appellant, Anthony Adinolfi.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney

General; Barry Staubus, District Attorney General; and Julie Canter, Assistant District

Attorney General, for the Appellee, State of Tennessee.

OPINION

On October 30, 2012, the Defendant entered a negotiated plea of guilty to two counts

of solicitation to commit statutory rape pursuant to North Carolina v. Alford, 400 U.S. 25

(1970). The underlying facts, as summarized by the State at the guilty plea hearing, are as

follows:

Sgt. Sam Reed with the Johnson City Police Department contacted the

Kingsport Police Department and advised that he had information about

possible inappropriate activity occurring between a 16-year-old victim, who

will hereafter be referred to as “V.H.,” and a 54-year-old male[, the
Defendant]. The information was obtained from an independent witness that

the victim, “V.H.,” had been receiving inappropriate and sexually explicit text

messages from the Defendant[.]

Detective Chris Tincher began the investigation in which he determined

that [the Defendant] was also a pastor of a church . . . where the victim had

attended on one occasion, and initially began speaking with the Defendant in

regards to spiritual advice. Sgt. Reed also informed Detective Tincher that the

Defendant had shown up at – at “V.H.’s” bus stop on at least one occasion.

The victim stated that she was in communication many times with the

Defendant via text message. The phone records of the Defendant were

obtained and depicted approximately 26,000 text messages between the

Defendant and “V.H.” . . . between August 2010 and October of 2010.

The victim stated that she first began having regular communication

with the Defendant in August of 2010, and it continued through October

[2010]. The victim further elaborated that at some time in September 2010[,]

the Defendant made known to her that he loved her, and wanted a relationship

with her, and wanted her to have his children. She also stated that he had

made sexual advances that made her feel uncomfortable.

The victim also stated that the Defendant had kissed her on the lips, and

additionally told her that he was in love with her near her house one day.

The State would have offered evidence that the victim’s testimony is

corroborated by the phone records of the Defendant, [and] would have

established the offense of solicitation of statutory rape had the crime been

completed[.]

Pursuant to the plea agreement, the Defendant received a sentence of 11 months and 29 days

for each count, to be served concurrently at 75%. The Defendant agreed to the length of the

sentence but sought judicial diversion and alternative sentencing.

At the April 30, 2013 sentencing hearing, the State introduced the Defendant’s

presentence report, the Defendant’s psychosexual risk assessment report, and an impact

statement from the victim. The court reviewed the presentence report and noted that the

Defendant expressed remorse as evidence by his acknowledgment that he “crossed

boundaries that shouldn’t have been crossed.” The report did not include any criminal

history for the Defendant, but the State informed the court that the Defendant had a prior

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sexual offense for indecent exposure that was later expunged. The Defendant did not

disclose the offense to the probation department but did report it during his psychosexual risk

assessment as reflected in the report, which was introduced into evidence without objection

from the Defendant. The State also read into the record the victim’s impact statement, and

the court noted the “emotional impact” the offense had on the victim. The Defendant

presented no proof at the hearing other than a certificate of eligibility for judicial diversion

from the Tennessee Bureau of Investigation.

At the conclusion of the hearing, the trial court emphasized the fact that the Defendant

violated a position of private trust and caused emotional damage to the victim and concluded

that judicial diversion and alternative sentencing were not warranted. The court entered the

judgment orders on May 1, 2013. On May 24, 2013, the Defendant filed a motion to rehear

denial of probation. On May 28, 2013, the Defendant then filed a notice of appeal.

Consequently, the trial court denied the motion to rehear for lack of jurisdiction in an order

dated June 14, 2013.

ANALYSIS

On appeal, the Defendant challenges the trial court’s denial of judicial diversion and

probation or other alternative sentencing. He argues that the trial court committed reversible

error by failing to consider all of the required factors for judicial diversion and by failing to

consider the sentencing principles underlying probation or alternative sentencing. The State

responds that the trial court properly denied diversion and alternative sentencing. Upon

review, we agree with the State.

I. Judicial Diversion. The Defendant first asserts that the trial court committed

reversible error in denying his request for judicial diversion. He maintains that the trial court

failed to properly consider and weigh all of the required factors for judicial diversion and

failed to state on the record specific reasons supporting its decision. The State responds that

the trial court considered all of the appropriate sentencing factors and did not abuse its

discretion in denying diversion.

Tennessee Code Annotated section 40-35-313 outlines the requirements for judicial

diversion. After a qualified defendant is either found guilty or pleads guilty, a trial court has

the discretion to defer further proceedings and place that defendant on probation without

entering a judgment of guilt. T.C.A. § 40-35-313(a)(1)(A) (2012). A qualified defendant

is defined as a defendant who pleads guilty to or is found guilty of a misdemeanor or a Class

C, D, or E felony; is not seeking diversion for a sexual offense as defined in the statute or a

Class A or Class B felony; and does not have a prior conviction for a felony or a Class A

misdemeanor. Id. § 40-35-313(a)(1)(B)(i) (2012). Upon the qualified defendant completing

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a period of probation, the trial court is required to dismiss the proceedings against him. Id.

§ 40-35-313(a)(2) (2006). The qualified defendant may then request that the trial court

expunge the records from the criminal proceedings. Id. § 40-35-313(b) (2012).

Eligibility for judicial diversion does not entitle the defendant to judicial diversion as

a matter of right. State v. Parker, 932 S.W.2d 945, 958 (Tenn. Crim. App. 1996). Rather,

the statute states that a trial court “may” grant judicial diversion in appropriate cases. See

T.C.A. § 40-35-313(a)(1)(A) (2012). In deciding whether a qualified defendant should be

granted judicial diversion, the trial court must consider the following factors: (1) the

defendant’s amenability to correction; (2) the circumstances of the offense; (3) the

defendant’s criminal record; (4) the defendant’s social history; (5) the defendant’s physical

and mental health; (6) the deterrence value to the defendant and others; and (7) whether

judicial diversion will serve the interests of the public as well as the defendant. State v.

Electroplating, Inc., 990 S.W.2d 211, 229 (Tenn. Crim. App. 1998) (citing Parker, 932

S.W.2d at 958; State v. Bonestel, 871 S.W.2d 163, 168 (Tenn. Crim. App. 1993) (citation

omitted), overruled on other grounds by State v. Hooper, 29 S.W.3d 1, 9-10 (Tenn. 2000)).

The trial court may consider the following additional factors: “‘[the defendant’s] attitude,

behavior since arrest, prior record, home environment, current drug usage, emotional

stability, past employment, general reputation, marital stability, family responsibility and

attitude of law enforcement.’” State v. Washington, 866 S.W.2d 950, 951 (Tenn. 1993)

(quoting State v. Markham, 755 S.W.2d 850, 852-53 (Tenn. Crim. App. 1988) (citations

omitted)). The trial court must weigh all of the factors in determining whether to grant

judicial diversion. Electroplating, Inc., 990 S.W.2d at 229 (citing Bonestel, 871 S.W.2d at

168). Finally, “a trial court should not deny judicial diversion without explaining both the

specific reasons supporting the denial and why those factors applicable to the denial of

diversion outweigh other factors for consideration.” State v. Cutshaw, 967 S.W.2d 332, 344

(Tenn. Crim. App. 1997) (citing Bonestel, 871 S.W.2d at 168).

Prior to State v. Bise, 380 S.W.3d 682 (Tenn. 2012), the grant or denial of judicial

diversion was left to the sound discretion of the trial court. See, e.g., State v. Harris, 953

S.W.2d 701, 705 (Tenn. Crim. App. 1996); State v. Kyte, 874 S.W.2d 631, 634 (Tenn. Crim.

App. 1993). So long as the court adhered to the requirements above, this court would

conclude that the trial court did not abuse its discretion if the record contained “‘any

substantial evidence to support the refusal.’” State v. Anderson, 857 S.W.2d 571, 572 (Tenn.

Crim. App. 1992) (quoting State v. Hammersley, 650 S.W.2d 352, 356(Tenn. 1983)).

Following Bise, however, a split emerged among the panels of this court as to whether the

Bise standard of review – abuse of discretion with a presumption of reasonableness – should

replace the traditional standard of review for diversion decisions. See State v. Kiara

Tashawn King, No. M2012-00263-SC-R11-CD, 2014 WL 1622210, at *5 (Tenn. April 23,

2014) [hereinafter “King”] (discussing the split among the panels of the Court of Criminal

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Appeals). This split was recently resolved by the Tennessee Supreme Court’s decision in

King, wherein the court concluded that Bise provides the proper standard of review for

judicial diversion decisions. Id. at *6. The King Court explained,

[W]hen the trial court considers the Parker and Electroplating factors,

specifically identifies the relevant factors, and places on the record its reasons

for granting or denying judicial diversion, the appellate court must apply a

presumption of reasonableness and uphold the grant or denial so long as there

is any substantial evidence to support the trial court’s decision. Although the

trial court is not required to recite all of the Parker and Electroplating factors

in order to obtain the presumption of reasonableness, the record should reflect

that the trial court considered the Parker and Electroplating factors in

rendering its decision and that it identified the specific factors applicable to the

case before it. Thereafter, the trial court may proceed to solely address the

relevant factors.

If, however, the trial court fails to consider and weigh the applicable

common law factors, the presumption of reasonableness does not apply and the

abuse of discretion standard, which merely looksfor ‘any substantial evidence’

to support the trial court’s decision, is not appropriate. . . . In those instances,

appellate courts may either conduct a de novo review or, if more appropriate

under the circumstances, remand the issue for reconsideration.

King, 2014 WL 1622210, at *9 (internal citations omitted) (footnote omitted).

With these principles in mind, we turn to the case at hand. The Defendant maintains

that the trial court committed reversible error by failing to consider the required factors or

properly weigh them before denying judicial diversion. He notes that the psychosexual risk

assessment report rated his risk for re-offending at “low-moderate.” Further, he expressed

remorse for his actions, his criminal history is minimal, and he has a supportive family with

whom he lives that can aid in his rehabilitation. Additionally, he asserts that his physical

health is poor, and he is currently seeking both physical and mental treatment, which would

be interrupted by incarceration. He argues, however, that the court did not consider these

positive factors, and thus, improperly denied him judicial diversion. We disagree.

In reviewing the presentence report, the court discussed the circumstances of the

offense and acknowledged the Defendant’s expression of remorse. After hearing the victim’s

impact statement, the court noted the negative emotional impact that the incident had on the

victim and stated that it considered that as a factor. The court then reviewed the

psychosexual risk assessment report, which discussed the Defendant’s criminal and substance

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abuse history; his family, educational, and employment background; his physical and mental

health; his credibility; the circumstances of the instant offense and any prior sexual offenses;

and his overall psychosexual history. After reviewing the report, the court noted that the

Defendant violated a position of trust and indicated that it considered that “as an adverse

factor.” The court also summarized the Defendant’s social history, physical and mental

health, and his background of substance abuse. The court acknowledged the Defendant’s

prior criminal offense for indecent exposure and the report’s assessment that the Defendant

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had a “low-moderate” risk to re-offend. The court then identified the factors it deemed most

relevant and placed those on the record in its final ruling. Specifically, the court stated:

The victim in this case has suffered, as previously stated. The

Defendant has stated his history of sex offense – offending in the

[psychosexual risk assessment] report. Evidently volunteered that.

The Court finds the Defendant has violated a [position of] private trust

involved with him being a minister at a church where he had – would have

exercised control over this child, or at least had an authority figure situation

over the child, or in dealing with the child.

[The] Court’s going to deny judicial diversion for those reasons.

We acknowledge that the trial court did not explicitly state each factor on the record

during its review, and in that regard, we note that the better course for the trial court is to

more specifically discuss each factor on the record to aid in appellate review. However, the

trial court is not required to “utilize any ‘magic words’ or specifically reference the case

names ‘Parker’ and ‘Electroplating’ when discussing the relevant factors in order to receive

the presumption of reasonableness.” King, 2014 WL 1622210, at *9 n.8. A review of the

entire record establishesthat the court considered and weighed the required factors, identified

those most relevant to the case at hand, and placed on the record its reasons for denying

diversion. Id. at *9. Accordingly, the trial court’s decision is afforded a presumption of

reasonableness, and we must only determine whether there is “any substantial evidence” in

the record to support the trial court’s decision. See King, 2014 WL 1622210, at *9.

 The Defendant maintains that this offense was later expunged and argues that it should not have 1

been considered by the trial court in denying diversion. However, in State v. Schindler, the Tennessee

Supreme Court held that “testimony and evidence of the criminal acts preceding the arrest are admissible as

evidence of prior bad acts or evidence of social history even if expungement is later obtained” and may be

considered as a basis to deny diversion. 986 S.W.2d 209, 211-12 (Tenn. 1999). The Defendant admitted

this prior offense, and it was documented in the psychosexual risk assessment report, which was admitted

into evidence without objection. Therefore, we conclude it was properly considered by the trial court. 

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The Defendant, 54 years old at the time of the offense, engaged in an inappropriate

relationship with a 16-year old child victim. The Defendant was a minister at a church that

the victim had attended, and the victim reached out to the Defendant for spiritual guidance

prior to the development of the relationship. The victim was greatly impacted by the offense

and expressed very negative emotional consequences as a result of the relationship with the

Defendant. The trial court highlighted these facts in its ruling, noting that the Defendant

violated a position of trust by engaging in the relationship. Like the trial court, we are deeply

troubled by the facts of this case and agree that this factor weighs very heavily against

diversion. See State v. Brian Carl Lev, No. E2004-01208-CCA-R3-CD, 2005 WL 1703186,

at *3 (Tenn. Crim. App. Mar. 22, 2005) (“The denial of judicial diversion may be based

solely on the nature and circumstances of the offense, so long as all the other relevant factors

have been considered, and this factor outweighs others that might favorably reflect on the

[defendant]’s eligibility.”) (citing State v. Curry, 988 S.W.2d 153, 158 (Tenn. 1999)).

Additionally, the record reflectsthat the Defendant minimized hisresponsibility in the instant

offense, expressed limited empathy for the victim, has a prior offense for indecent exposure,

and has a long history of drug and alcohol abuse. In sum, there is ample evidence in the

record to support the trial court’s denial of diversion, and as such, we may not revisit the

issue. See Electroplating, 990 S.W.2d at 229.

II. Alternative Sentencing. The Defendant further contends that the trial court

abused its discretion in denying alternative sentencing. He asserts that the trial court failed

to consider the purposes and principles of the sentencing act and failed to state on the record

its reasoning for denying alternative sentencing. The State responds that the trial court

properly considered the appropriate sentencing factors, and therefore, did not abuse its

discretion.

As discussed above, the Tennessee Supreme Court has held that the appropriate

standard of review for all sentencing decisions is “an abuse of discretion standard of review,

granting a presumption of reasonableness to within-range sentencing decisions that reflect

a proper application of the purposes and principles of our Sentencing Act.” Bise, 380

S.W.3d at 707. This abuse of discretion standard of review also applies to a trial court’s

decision regarding “probation or any other alternative sentence.” State v. Caudle, 388

S.W.3d 273, 278-79 (Tenn. 2012). To date, the Tennessee Supreme Court has not addressed

whether the abuse of discretion standard with a presumption of reasonableness applies to

misdemeanorsentencing. Notwithstanding, the reasoning espoused in King, that Bise applies

to “all sentencing decisions,” suggests that it is the appropriate standard of review to apply

to misdemeanor sentencing cases as well. See King, 2014 WL 1622210, at *6 (emphasis

added). Moreover, this court has recently applied the Bise standard of review to

misdemeanor sentencing cases. See State v. Michael Glen Walsh, No. E2012-00805-CCAR3-CD, 2013 WL 1636661, at *4 (Tenn. Crim. App. Apr. 17, 2013); State v. Sue Ann

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Christopher, No. E2012-01090-CCA-R3-CD, 2013 WL 1088341, at *7 (Tenn. Crim. App.

Mar. 14, 2013). Accordingly, we will do the same in the instant case.

Misdemeanor sentencing is governed by Tennessee Code Annotated section 40-35-

302, which provides, in part, that the trial court shall impose a specific sentence that is

consistent with the purposes and principles of the 1989 Sentencing Reform Act. See T.C.A.

§ 40-25-302(b). The sentencing court is granted considerable latitude in misdemeanor

sentencing. State v. Johnson, 15 S.W.3d 515, 518 (Tenn. Crim. App. 1999) (citing State v.

Troutman, 979 S.W.2d 271, 273 (Tenn. 1998)). The trial court must consider the purposes

and principles of sentencing and the appropriate enhancement and mitigating factors, but the

court is not required to place specific findings on the record. T.C.A. § 40-35-302(d);

Troutman, 979 S.W.2d at 274. “Rather, the court must only avoid arbitrarily imposing

incarceration.” State v. Heath Baldwin, No. W2005-02906-CCA-R3-CD, 2007 WL 845911,

at *4 (Tenn. Crim. App. Mar. 21, 2007) (citing Troutman, 979 S.W.2d at 274).

Unlike felons, “misdemeanants are not given the presumption of a minimum

sentence.” State v. Creasy, 885 S.W.2d 829, 832 (Tenn. Crim. App. 1994). Further, those

convicted of a misdemeanor are not presumed eligible for alternative sentencing. State v.

Williams, 914 S.W.2d 940, 949 (Tenn. Crim. App. 1995) (citing State v. Creasy, 885 S.W.2d

829, 832-33 (Tenn. Crim. App. 1994)). When considering probation, the trial court should

consider the nature and circumstances of the offense, the defendant’s criminal record, the

defendant’s background and social history, the defendant’s present condition, including

physical and mental condition, the deterrent effect on the defendant, and the best interests of

the defendant and the public. See State v. Kendrick, 10 S.W.3d 650, 656 (Tenn. Crim. App.

1999) (citing State v. Grear, 568 S.W.2d 285, 286 (Tenn. 1978)). The defendant bears the

burden of proving his or her suitability for probation. Id. § 40-35-303(b) (2010).

A trial court should consider the following when determining whether confinement

is appropriate:

(A) Confinement is necessary to protect society by restraining a

defendant who has a long history of criminal conduct;

(B) Confinement is necessary to avoid depreciating the seriousness of

the offense or confinement is particularly suited to provide an effective

deterrence to others likely to commit similar offenses; or

(C) Measures less restrictive than confinement have frequently or

recently been applied unsuccessfully to the defendant[.]

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Id. § 40-35-103(1)(A)-(C) (2010); see State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).

Additionally, the principles of sentencing require the sentence to be “no greater than that

deserved for the offense committed” and “the least severe measure necessary to achieve the

purposes for which the sentence is imposed.” Id. § 40-35-103(2), (4) (2006). Moreover,

“[t]he potential or lack of potential for the rehabilitation or treatment of the defendant should

be considered in determining the sentence alternative or length of a term to be imposed[,]”

and “[t]he length of a term of probation may reflect the length of a treatment or rehabilitation

program in which participation is a condition of the sentence[.]” Id. § 40-35-103(5).

Upon review, we conclude that the trial court’s denial of probation and alternative

sentencing did not exceed the wide latitude afforded to the trial court in misdemeanor

sentencing. The record establishes that the court reviewed the presentence report, the

victim’s impact statement, and the psychosexual risk assessment report when determining

whether to grant probation or alternative sentencing. The court noted the negative emotional

impact that the incident had on the victim and emphasized that the Defendant violated a

position of private trust as factors weighing against alternative sentencing. The court also

considered the Defendant’s admitted prior sexual offense of indecent exposure. See State

v. Lane, 3 S.W.3d 456, 461-62 (Tenn. 1999) (“[C]riminal acts underlying an expunged

conviction may properly be considered to determine whether a defendant is a suitable

candidate for alternative sentencing.”). The court acknowledged that the Defendant

expressed remorse for his actions and was seeking counseling but determined that probation

and alternative sentencing were inappropriate in this case. Despite the lack of formal

findings by the trial court, the record reflects that the court properly considered the

sentencing principles and imposed a sentence that was not arbitrary. Accordingly, we affirm

the judgment of the trial court in this respect.

CONCLUSION

Upon review of the record, we conclude that the trial court properly considered and

weighed the required factors set forth in Parker and Electroplating prior to denying the

Defendant’s request for judicial diversion and set out its justification for denial of diversion

in its final ruling. The record supports the trial courts ruling, and therefore, we discern no

abuse of discretion. Additionally, the court properly considered the sentencing principles in

denying probation and alternative sentencing, and thus, did not abuse its discretion. The

judgment of the trial court is affirmed.

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CAMILLE R. McMULLEN, JUDGE

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