FILED

July 12, 1999

Cecil Crowson, Jr.

Appellate Court Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

JUNE SESSION, 1999

STATE OF TENNESSEE, ) C.C.A. NO. 02C01-9805-CR-00128

)

Appellee, )

)

) SHELBY COUNTY

VS. )

) HON. CHRIS CRAFT

CHARLES SMITH, ) JUDGE

)

Appellant. ) (Judicial Diversion)

ON APPEAL FROM THE JUDGMENT OF THE

CRIMINAL COURT OF SHELBY COUNTY

FOR THE APPELLANT: FOR THE APPELLEE:

A.C. WHARTON PAUL G. SUMMERS

Shelby County Public Defender Attorney General and Reporter

W. MARK WARD R. STEPHEN JOBE

Assistant Public Defender Assistant Attorney General

Criminal Justice Complex, Suite 201 425 Fifth Avenue North

201 Poplar Avenue Nashville, TN 37243-0493

Memphis, TN 38103

WILLIAM L. GIBBONS

District Attorney General

AMY WEIRCH

Assistant District Attorney General

Criminal Justice Complex, 

Suite 301

201 Poplar Avenue

Memphis, TN 38103

OPINION FILED ________________________

AFFIRMED

DAVID H. WELLES, JUDGE
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OPINION

The Defendant, Charles Smith, was charged by criminal information with

aggravated burglary. He pleaded guilty on April 8, 1998, with an agreed

sentence of three years and one day. The agreement called for the trial judge to

determine the manner of service of the sentence, and the Defendant requested

that the trial court suspend his sentence or grant him judicial diversion. Following

a hearing, the trial court denied the Defendant’s request for judicial diversion,

suspended his sentence, and placed him on probation for three years. The sole

issue for our consideration on appeal is whether the trial court erred by denying

his request for judicial diversion. W e affirm the judgment of the trial court.

At the sentencing hearing, the Defendant admitted to having burglarized

the home of Agnes Park, the victim in this case, on September 30, 1997. He

stated that he “forced the door open,” walked into the home, and took personal

property belonging to the victim, including a stereo, a vacuum cleaner, and a

computer game. He testified that the items were too heavy for him to carry, so

he enlisted the help of the maintenance man at the complex where the victim

lived to help him transport the stolen property. The Defendant apparently told the

maintenance man that he had been given the items and simply needed help

carrying them. They transported the property to the home of a friend of the

Defendant, where the Defendant hid the property. Shortly afterwards, police

discovered the property and placed the Defendant under arrest.

The Defendant testified that he made a “spur of the moment” decision to

burglarize the victim’s home. He stated that he acted out of desperation because
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of his “income problems.” He explained that he was living with his pregnant sister

and pregnant cousin at the time; he was paying all the bills for the three of them;

he was having difficulty finding a job due to his lack of transportation; and he was

facing a possible eviction. He stated that he chose to break into the victim’s

house in an effort to obtain property to sell for money. The Defendant admitted

that he had made “the wrong choices in life” and maintained that he was “trying

to better [him]self.” 

The Defendant also testified about his background. He stated that he was

twenty-five years old. He reported that he dropped out of high school in the

eleventh grade because he was “running along with the crowd.” He stated that

he had worked as a maintenance man and at a McDonald’s restaurant. His

presentence report indicates that he had worked for a total of only six months and

that he had abandoned his most recent jobs. The Defendant has no prior

criminal record.

The sentencing option commonly known as judicial diversion is codified at

Tennessee Code Annotated § 40-35-313. A defendant is eligible for judicial

diversion if he or she (a) “is found guilty or pleads guilty to a misdemeanor which

is punishable by imprisonment or a Class C, D or E felony,” (b) “has not

previously been convicted of a felony or a Class A misdemeanor,” and (c)

consents to the deferment of proceedings and placement on probation “for a

period of time not less than the period of the maximum sentence for the

misdemeanor with which the person is charged, or 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).
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The fact that the accused meets these prerequisites does not entitle

the accused to judicial diversion as a matter of right. The statute

states that a trial court “m ay” grant judicial diversion in appropriate

cases. . . . Thus, whether the accused should be granted judicial

diversion is a question which addresses itself to the sound discretion

of the trial court.

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

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). In assessing a defendant’s amenability to

correction, a court may consider the defendant’s truthfulness on the stand. State

v. Dowdy, 894 S.W .2d 301, 305 (Tenn. Crim. App. 1994); see Anderson, 857

S.W.2d at 574. If, after assessing all relevant factors, the trial court chooses to
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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 a 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 Bonestel, 871

S.W.2d at 168; 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. 

In the case at bar, the trial judge expressed concern with the Defendant’s

decision to drop out of high school and his sporadic work history. He also

pointed out that some of the Defendant’s statements to the court were

“misleading”. Apparently, the Defendant had previously alleged police

misconduct to the court, claiming that he was unfairly singled out for prosecution

because the police did not arrest the maintenance man or his friend in whose

home the stolen property was hidden. W hen confronted with this complaint by

the trial judge, the Defendant maintained that his allegations of misconduct were

a result of a misunderstanding. 
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 The judge concluded that the Defendant was not a credible witness,

stating, “I just don’t think Mr. Smith is a proper candidate for diversion . . . . I just

don’t feel he is telling us what is going on in his life. . . . The court just doesn’t

believe Mr. Smith.” He continued, 

[The Defendant is] 25 years old and for seven years he never went

to get his GED, didn’t work to amount to nothing, didn’t try to

improve himself at all. And then all of a sudden says he’s just

walking down the street and decides to commit a burglary. I don’t

see it. There’s som ething else going on. 

We cannot conclude that the trial judge abused his discretion by denying

judicial diversion in this case. Because the trial judge was in a better position to

assess the Defendant’s attitude and dem eanor, we defer to his findings with

regard to the Defendant’s candor. Although the trial judge’s finding of

untruthfulness alone is enough to uphold his denial of judicial diversion, see State

v. Dowdy 894 S.W.2d 301, 305 (Tenn. Crim. App. 1994), we note that the judge

delved into the Defendant’s attitude, background, and the circumstances of the

offense before making his ruling. The record reflects that the trial judge acted

within his discretionary authority. Therefore, we affirm the judgment of the trial

court. 

____________________________________

DAVID H. WELLES, JUDGE
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CONCUR:

___________________________________

THOMAS T. WOODALL, JUDGE

___________________________________

NORMA McGEE OGLE, JUDGE