IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs May 1, 2012

STATE OF TENNESSEE v. DEVONTE BLACK

Direct Appeal from the Criminal Court for Shelby County

No. W11-00427 W. Mark Ward, Judge

No. W2011-01731-CCA-R3-CD - Filed July 9, 2012

The Defendant, Devonte Black, pled guilty to aggravated burglary, a Class C felony. The

trial court sentenced the Defendant to one year of incarceration followed by three years on

probation after release from confinement. On appeal, the Defendant contends that the trial

court erred when it imposed a sentence of split confinement, specifically when it: (1) denied

full probation; and (2) denied judicial diversion. After a thorough review of the record and

relevant authorities, we conclude the trial court properly sentenced the Defendant.

Accordingly, we affirm the trial court’s judgment.

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

ROBERT W.WEDEMEYER,J., delivered the opinion of the court, in which D. KELLY THOMAS,

JR., and CAMILLE R. MCMULLEN, JJ., joined.

Phyllis Aluko (on appeal) and Constance Barnes (at trial), Memphis, Tennessee, for the

appellant, Devonte Black.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia Lee, Senior Counsel; Amy P.

Weirich, District Attorney General, and Betsy Wiseman, Assistant District Attorney General,

for the appellee, State of Tennessee.

OPINION

I. Facts

In March 2011, the police charged the Defendant with aggravated burglary. In July

2011, the Defendant waived his right to an indictment and proceeded to the disposition of

the aggravated burglary charge pursuant to the criminal information process. On July 28,
2011, after his arraignment, the Defendant pled guilty to aggravated burglary and agreed to

allow the trial court to determine the manner and length of his sentence. During the guilty

plea submission hearing, the State gave the following summary of the factual basis for the

Defendant’s plea:

Had these matters gone to trial[,] the [S]tate would have alleged proof

that on March 16th, 2011, officers responded to a burglary call at 7628

Richwood. At 12:03 . . . in the afternoon, . . . Martha Hearne advised she

heard a noise, she was in her bathroom. She emerged from her bedroom to see

two male blacks in her living room attempting to disconnect her TV. When

they saw her[,] they fled from the residence.

They had broken out a rear window in the kitchen. Officers did observe

the shattered window and a disconnected TV. They saw one suspect fleeing

through a backyard at another residence and took him into custody. [The

Defendant] wasfound ten minutes later hiding in a backyard of a nearby home.

A Samsung remote control was found on him at the time of his arrest . . . .

There were also three [more] subjects that were detained that had been

involved in [the burglary].

Thereafter, the trial court accepted the Defendant’s guilty plea as knowing and

voluntary and held a sentencing hearing. The Defendant testified that he was eighteen years

old and had lived with his mother when he was a child. He, however, no longer received

familial support from his mother at the time of the hearing. He testified that he lived with

his girlfriend, their five-week-old baby, and his girlfriend’s parents.

The Defendant testified that he and Kevin Bell burglarized the victim’s house. He

said that he was not staying at his mother’s house at the time; rather, he lived with his

“godbrother,” Matthew House. The Defendant testified that House identified a residence he

knew and suggested the burglary. The Defendant agreed that House did not enter the

residence, but maintained that House “came up with the idea.” The Defendant said that

House “scoped [the house] out,” told the Defendant and Bell what to do and what items to

get, and gave the Defendant “the code to the house.”

The Defendant testified that, prior to his arrest in this case, he had been working at

Burlington Coat Factory and part-time with his mother’s cleaning service. He stated that he

graduated from high school, and, if granted judicial diversion, he planned to attend “culinary

art school and then try to start [his] own restaurant.” He also said that, if granted diversion,

he would live with his girlfriend’s family. The Defendant agreed that he would pay

restitution to the victim. Additionally, the Defendant stated that he occasionally used

2
marijuana.

The Defendant testified that he has “had several encounters with juvenile court.” The

Defendant served two weeks in jail as a juvenile for aggravated burglary and was then placed

on probation and house arrest at the Hanover House. The Defendant testified that he had

“other encounters” with juvenile court, but he was “just warned and released to [his]

mother.” The Defendant stated that, when he was in the seventh grade, he was arrested for

aggravated assault after he carried a weapon, a knife, to school. He did not serve jail time

for that offense, but he was placed on probation at the Hanover House for the charge. The

Defendant testified that he had not had any further contact with the juvenile court since he

was in the eighth grade. The Defendant admitted that he had committed the aggravated

burglary involved in this case within a few months of turning eighteen. The Defendantstated

that he did not have any job prospects, but he had applied for jobs in restaurants.

On cross-examination, the Defendant acknowledged that he was arrested for the first

time in seventh grade for bringing a knife to school and threatening a fellow student with it.

The Defendant admitted that a teacher grabbed him before he could use the knife on the other

student. The Defendant agreed that, in September of 2006, he was arrested for criminal

trespass at Southland Middle School after he had been banned from that property. The

Defendant further agreed that, in March of 2008, he received a juvenile summons for

violation of curfew as a result of a call received by police regarding a group of male juveniles

vandalizing vehicles. He further agreed that, on March 31, 2008, he was arrested for theft

of property after shoplifting items from Target. The Defendant admitted that he stole several

items from the store because he did not have any money. The Defendant acknowledged that,

in May of 2008, he went to a residential neighborhood during school hours with a group of

juveniles and stole items from a residence; he further admitted to acting as “a lookout” at

another residence. Lastly, the Defendant admitted that, on April 21, 2009, he assaulted a

fellow student, his girlfriend at the time, at school by repeatedly grabbing her and shoving

her into a wall. The assault was captured by the school’s video cameras. The Defendant

acknowledged that he had “consistently committed crimes, misdemeanors, violent

misdemeanors[,] and [a] felony” over the past five years. The Defendant, however, testified

that he asked for probation in this case because he “changed [his] life” and would try “to be

there for [his] daughter.”

On redirect-examination, the Defendant testified that, of the other males involved in

the aggravated burglary, he currently associated with only one of them. He stated that he

“realize[d] that it’s wrong to take property that doesn’t belong to [him],” and it was

“something that [he had since] stopped doing.” The Defendant testified that, for the past

sixty days, he had been out of custody and had neither been arrested nor broken into any

homes.

3
Ricky Downey, the father of the Defendant’s current girlfriend, testified that he had

known the Defendant for the past six months because the Defendant and Downey’s daughter

have a child together. Downey testified that the Defendant lived with his family, and

Downey had observed a change of attitude in the Defendant. He testified that the

Defendant’s mother had not been involved in the Defendant’s life since the birth of the

Defendant’s baby. Downey also testified that the Defendant had been applying for jobs and

that, if the Defendant received judicial diversion, Downey would help him attend the culinary

arts program at Southwest Tennessee Community Center.

After considering the evidence presented at the sentencing hearing, the trial court

sentenced the Defendant to an effective sentence of three years at thirty percent, specifying

that the Defendant would serve one year in incarceration, and three years of probation after

he served his time in prison. It is from this judgment that the Defendant now appeals.

II. Analysis

On appeal, the Defendant contends that the trial court erred when it imposed a

sentence of split confinement, specifically when it (1) denied full probation and (2) denied

judicial diversion. The State responds that, because measures less restrictive than

confinement had frequently and unsuccessfully been applied to the Defendant, the trial court

correctly sentenced the Defendant and properly exercised its discretionary authority to deny

full probation and judicial diversion. We agree with the State.

1. Denial of Full Probation

The Defendant contends that the trial court erred when it denied the Defendant full

probation because it “based the denial largely on [the Defendant’s] juvenile history.” The

State responds that the trial court properly exercised its discretionary authority in its denial

of full probation to the Defendant.

When a defendant challenges the length, range or manner of service of a sentence, this

Court must conduct a de novo review of the record with a presumption that “the

determinations made by the court from which the appeal is taken are correct.” T.C.A. § 40-

35-401(d) (2010). As the Sentencing Commission Comments to thissection note, the burden

is on the appealing party to show that the sentencing is improper. T.C.A. § 40-35-401

(2010), Sentencing Comm’n Cmts. This means that, if the trial court followed the statutory

sentencing procedure, made findings of facts which are adequately supported in the record,

and gave due consideration to the factors and principles relevant to sentencing under the

1989 Sentencing Act, Tennessee Code Annotated section 40-35-103, we may not disturb the

4
sentence even if a different result was preferred. State v. Carter, 254 S.W.3d 335, 344-45

(Tenn. 2008); State v. Ross, 49 S.W.3d 833, 847 (Tenn. 2001). The presumption does not

apply to the legal conclusions reached by the trial court in sentencing a defendant or to the

determinations made by the trial court which are predicated upon uncontroverted facts. State

v. Dean, 76 S.W.3d 352, 377 (Tenn. Crim. App. 2001); State v. Butler, 900 S.W.2d 305, 311

(Tenn. Crim. App. 1994); State v. Smith, 891 S.W.2d 922, 929 (Tenn. Crim. App. 1994).

In conducting a de novo review of a sentence, we must consider: (1) any evidence

received at the trial and sentencing hearing, (2) the presentence report, (3) the principles of

sentencing, (4) the arguments of counsel relative to sentencing alternatives, (5) the nature and

characteristics of the offense, (6) any mitigating or enhancement factors, (7) any statements

made by the defendant on his or her own behalf and (8) the defendant's potential or lack of

potential for rehabilitation or treatment. See T.C.A. § 40-35-210 (2010); State v. Taylor, 63

S.W.3d 400, 411 (Tenn. Crim. App. 2001).

To meet the burden of establishing suitability for full probation a defendant must

demonstrate that full probation will subserve the ends of justice and the best interests of both

the public and the defendant. State v. Blackhurst, 70 S.W.3d 88, 97 (Tenn. 2001). The

following criteria, while not controlling the discretion of the sentencing court, shall be

accorded weight when deciding the defendant’s suitability for full probation: (1) the nature

and circumstances of the criminal conduct involved; (2) the defendant’s potential or lack of

potential for rehabilitation; (3) whether a sentence of full probation would unduly depreciate

the seriousness of the offense; and (4) whether a sentence other than full probation would

provide an effective deterrent to others likely to commit similar crimes. T.C.A. §§ 40-35-

103(1)(B), -103(5), -210(b)(4) (2010); see also Blackhurst, 70 S.W.3d at 97.

In the case under submission, the Defendant is eligible for full probation because his

sentence is ten years or less (subject to certain statutory exclusions not relevant here). T.C.A.

§ 40-35-303(a) (2010). Although full probation must be automatically considered by the trial

court as a sentencing alternative whenever the defendant is eligible, “the defendant is not

automatically entitled to probation as a matter of law.” T.C.A. § 40-35-303(b) (2009),

Sentencing Comm’n Cmts.

In this case, the trial court sentenced the Defendant to an effective sentence of three

years at thirty percent, specifying that the Defendant serve one year in incarceration, and

three years of probation after he served his time in prison. In making that determination, the

trial court stated that it considered the evidence presented at the sentencing hearing, the

presentence report, the sentencing principles, the nature and characteristics of the criminal

conduct involved, enhancement and mitigation factors, information regarding sentencing

practices for similar offenses in the State, and statements made by the Defendant on his own

5
behalf. After reviewing the criteria for alternative sentencing, the trial court stated that the

Defendant had no prior adult record because he was eighteen at the time of the hearing and

had committed the offense involved in this case, aggravated burglary, within a few months

of turning eighteen. The trial court stated that it had to consider the Defendant’s “quite

extensive juvenile record,” which included “a prior aggravated burglary” and “at least one,

two, three, four, five, six, seven, eight contacts with the juvenile court system.” The trial

court noted that, “in all eight contacts[,] measures less restrictive than confinement” were

applied to “help this young man . . . to no avail.” The trial court concluded that “measures

less restrictive than confinement have been unsuccessfully applied to [the Defendant],” and,

as a result, the trial court “den[ied] any form of alternative sentencing in this matter.” See

T.C.A. § 40-35-103(1)(C) (2010) (“Measures less restrictive than confinement have

frequently or recently been applied unsuccessfully to the defendant”); State v. Hooper, 29

S.W.3d 1, 5 (Tenn. 2000); State v. Ashby, 823 S.W.2d 166, 170 (Tenn. 1991). The record

supports the trial court’s finding because the presentence report included the Defendant’s

juvenile record, and the Defendant admitted to his juvenile criminal history at the sentencing

hearing. Although the Defendant argues that the trial court erred by basing “the denial

largely on [the Defendant’s] juvenile history,” this Court has previously affirmed the use of

juvenile records by trial courts in determining a defendant’s sentence. See State v. Gregory

D. Douglas, No. W2010-00472-CCA-R3-CD, 2011 WL 2899191 (Tenn. Crim. App., at

Jackson, July 20, 2011); State v. Sequna Copeland, No. W2009-02029-CCA-R3-CD, 2010

WL 4117191 (Tenn. Crim. App, at Jackson, Oct. 20, 2010); State v. Timothy C. Jewell, Jr.,

No. W2000-00998-CCA-R3-CD, 2001 WL 524368 (Tenn. Crim. App., at Jackson, May 15,

2001); see also State v. Adams, 973 S.W.2d 224, 230-31 (Tenn. Crim. App. 1997)

(concluding that, in the trial court’s decision to order consecutive sentencing, “a juvenile

record of criminal conduct may properly be considered in assessing a suitable sentence after

a felony conviction by an adult”) (citations omitted). Further, the evidence in this case does

not preponderate against the trial court’s finding that the offense required a term of

confinement. See T.C.A. § 40-35-210(b)(4) (2010). Thus, we conclude that the trial court

properly denied the Defendant full probation, ordering him to serve one year in confinement

and three years on probation. See Blackhurst, 70 S.W.3d at 97. The Defendant is not entitled

to relief on this issue.

2. Judicial Diversion

The Defendant argues that the trial court abused its discretion when it denied the

Defendant’s request for judicial diversion. The State responds that the trial court properly

exercised its discretionary authority in its denial of judicial diversion to the Defendant.

When a defendant is eligible for judicial diversion, a judge has the discretion to defer

proceedings without entering a judgment of guilty. T.C.A. § 40-35-313(a)(1)(A) (2010).

6
The statute states that a trial court may grant judicial diversion in appropriate cases. Id.

Following a grant of judicial diversion, the defendant is on probation but is not considered

a convicted felon. Id. To be eligible for judicial diversion, a defendant must be a “qualified

defendant” as defined by the Tennessee Code section governing judicial diversion:

(B)(I) As used in this subsection (a), “qualified defendant” means a defendant

who

(a) Is found guilty of or pleads guilty or nolo contendere to the offense for

which deferral of further proceedings is sought;

(b) Is not seeking deferral of further proceedings for a sexual offense, a

violation of § 71-6-117 or § 71-6-119 or a Class A or Class B felony; and

(c) Has not previously been convicted of a felony or a Class A misdemeanor.

T.C.A. § 40-35-313(a)(1)(B)(I) (2010). Eligibility does not automatically entitle the

Defendant to judicial diversion. State v. Bonestal, 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).

Once a defendant is deemed eligible for judicial diversion, the trial court must

consider several factors when deciding whether to grant judicial diversion. Due to the

similarities in pre-trial diversion, which is administered by the district attorney general, and

judicial diversion, courts draw heavily from pre-trial diversion law and examine the same

factors:

[A court] 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 [judicial]

diversion will serve the ends of justice and best interests of both the public and

the defendant.

State v. Cutshaw, 967 S.W.2d 332, 344 (Tenn. Crim. App. 1997). Additionally, “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.” Id. (citing Bonestal, 871 S.W.2d at 168). When a defendant challenges

the denial of judicial diversion, we review the trial court’s decision under an abuse of

discretion standard. Cutshaw, 967 S.W.2d at 344. We must conclude that “no substantial

evidence exists to support the ruling of the trial court” in order to grant the Defendant relief.

7
Id. Lastly, it is well settled that “[t]he same guidelines are applicable in diversion cases as

are applicable in probation cases[,] but they are more stringently applied to diversion

applicants.” State v. Holland, 661 S.W.2d 91, 93 (Tenn. Crim. App. 1983).

The trial court considered the evidence presented at the sentencing hearing and stated

that “it’s redundant for [the trial court] to go through the factors necessary for judicial

diversion because those are the same criteria that . . . would apply to determine whether to

grant alternative sentencing but they’re applied more strictly.” The trial court did, however,

expand on the criteria for judicial diversion, stating the following:

. . . [the Defendant is] eligible for diversion[,] but in order to determine

whether or not to give him diversion[,] [the trial court has] got to look at [the

Defendant’s] complete record. In order to determine whether he gets any form

of alternative sentencing[,] including diversion[,] [the trial court has] got to

consider those criteria. And just because [the Defendant] was a juvenile[,] he

can’t come up here and say this is the first time [he’s] ever done anything

wrong and [he] deserve[s] the break of this system to get diversion.

. . . .

. . . [the trial court is] looking at a juvenile record that includes violent offenses

. . .

. . .

. . . But [the trial court is] basing it on measures less restrictive than

confinement have been applied to [the Defendant]. . . . But when they warn

him and counsel him and send him home, that’s a measure less restrictive than

confinement . . . when [the Defendant] gets some kind of alternative in

juvenile court, that’s a measure less restrictive than confinement.

. . . how many measures less restrictive than confinement does he get? . . . [the

Defendant has] had somewhere near eight of those in juvenile court where

they’ve done something with him to try to rehabilitate him and then within a

few months of him turning 18[,] he goes out and burglarizes somebody else.

As a result, the trial court concluded that, due to the Defendant’s juvenile record and his past

failures to learn from measures less restrictive then confinement, “this is a case where [the

trial court] could deny any form of alternative sentencing.”

8
Based upon its consideration of the Defendant’sjuvenile record and prior punishments

less restrictive than confinement, the trial court correctly denied judicial diversion. See

Jewell, 2001 WL 524368, at *4. The trial court properly stated its reasons for denying

judicial diversion, and substantial evidence in the record supports the findings upon which

the trial court based its decision. Considering the circumstances of the offense, the

Defendant’s amenability to correction, the deterrent value of the punishment to the Defendant

and others, and the interests of the public, we conclude that the trial court did not abuse its

discretion when it denied the Defendant judicial diversion. The trial court examined the

factors relevant to diversion, explained why the factors for diversion were similar to those

for determining alternative sentencing, and indicated diversion was not appropriate for the

Defendant. The Defendant, therefore, is not entitled to relief on this issue.

III. Conclusion

After a thorough review of the record and relevant authorities, we conclude that the

trial court properly sentenced the Defendant. As such, we affirm the trial court’s judgment.

________________________________

ROBERT W. WEDEMEYER, JUDGE

9