# FILED July 12, 1999 Cecil Crowson, Jr. Appellate Cou rt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT JACKSON JUNE SESSION, 1999 STATE OF TENNESSEE, ) C.C.A. NO. 02C01-9805- CR-00128 ) Appellee, ) ) ) SHELBY COUNTY VS. ) ) HON. CHRIS CRAFT CHARLES SMI TH, ) JUDGE ) Appe llant. ) (Judici al Divers ion)

ON APPEA L FROM THE JUDGMENT OF THE CRIMINAL COURT OF SHELBY COUNTY
FOR THE APPELLANT : FOR THE APPELLEE : A.C. WHARTON PAUL G. SUM MERS Shelby County Publ ic Defender Attorney Generaland Reporter W. MARK WARD R. STEPHEN JOBE Assistant Public Defender Assistant Attorney General Criminal Just ice Complex, Sui te 201 425 Fifth Avenu e North 201 Poplar Avenue Nashvill e, TN 37243-0493 Memphis, TN 38103 WILLIAM L . GIB BONS Distri ct Attorney General AMY WEIRCH Assistant Distri ct Attorney General Crimina l Justice C omple x, Suite 301 201 Poplar Avenue Memphis, TN 38103
OPINION FILED ________________________ AFFIRMED DAVID H. WELLES , JUD GE-2- 

# OPINION
The Defendant, Charl es Smith, was chargedby criminal info rmation with aggravated burglary. H e plead ed guilty on April 8, 1998 , with an ag reed sentence of three years and one day. The agreement called for the t rial j udge to determine the manner of ser vice of t he sentence, and the Defendant r equested thatthe tri al court s uspend his sentence or grant hi m judicialdiversi on. Followi ng a hearing , the trial court d enied th e Defendant’s r equest for j udicialdiversi on, suspended his sentence, and placed him on probation for three year

s. The sole issue forour consider ation on appealis whether the trialcourt err ed by denying his reque st for judicial d iversion. W e affirm the judgm ent of the tria l court.

At the sente ncing he aring, the D efenda nt adm itted to hav ing burglarized the home of A gnes Pa rk, the v ict im in thi s case , on Se ptembe r 30, 1997. He stated that

he “forced t he dooropen,” walked into the home, and took per sonal property belonging to the vict im, incl uding a stereo, a vacuum cl eaner, and a computergame. He testif ied that the items were too heavy for hi m to carry, so he enlisted the help of the m aintenanc e ma n at the com plex wh ere the victim lived to help hi m transport t he stolen pr operty. The Defendant apparently told t he maintenance m an that he ha d bee n given the item s and simp ly need ed he lp
carr ying the m. They transported the propert y to the home of a friend of the Defen dant, where the Def en dant hid the property. Shortly after wards, police discove red the p roperty an d placed the Defe ndant u nder arre st.

The Defendant test ified t hat he made a “spur of t he mom ent” dec ision to burglarize the vict im’s home. He stated that he acted out of

desperation because-3-

of his “i ncome problems.” He expl ained that he was livi ng with hi s pregnant si ster and pregnantcousin at t he time; he was pay ing allthe bil ls for t he thr ee of the m; he was having diffi culty f inding a j ob due to his l ack of tran sportati on; and he was facing a pos sible e vic tion. H e state d that h e cho se to b reak in to the vic tim’s house in an effort to obtain prop erty to sell for money. The Defendant admitted thathe had made “the wrong choices i n life” and maintained t hat he was “try ing to better [him]self.”

The Defendant also testifi ed about his backgr ound. He statedthat he was twenty-five years old. He reported t hat he dropped out of high schoolin the eleventh gr

ade becau se he w as “runn ing along with the cro wd.” He stated that he had worked as a maintenance ma n and at a Mc Don ald’s re staura nt. His presentence report indica tes tha t he ha d work ed for a total of o nly six months and thathe had abandoned his mos t recen t jo bs. The Defendant has no p rior criminal record.

The sentencing opt ion commonly known as j udicialdiversi on is codif ied at Tennessee Code Annotated § 4 0-35- 313. A d efenda nt i s eligi ble for j udicial diversi on if he or she (a) “is found guilt y or pleads guilt

y to a misdemeanor which i s punish able by impri sonment or a Class C, D or E felony, ” (b) “has

not previo usly been c onvicted of a fe lony or a Class A misdemeanor,” and (c)
conse nts to t he deferm ent of proceed ings and plac ement on probation “for a period of time no t less than the period of the m aximum sente nce f or the
m isdemea nor with whic h the person i s charged, or not more than the period of the maximum sentence of the f elony wit h which the per son is charged. ” Tenn. Code A nn. § 40-35-3 13(a)(1)(A).-4- The fact thatthe ac cuse d me ets the se pre requis ites do es no t entitle the acc usedto j udi cia l diver sio n asa ma tter o f right. The statute statesthat a trial court “m ay” gra nt judic ial divers ion in approp riate cases. . . . Thus, whether t he accused should be gr anted judi cial diversi on is a questi on which addressesitself to the sound discr etion of the trial cou rt. State v. Bonestel , 871 S.W .2d 163, 168 (Tenn. Crim . App. 1993 ).

Tennessee courts have r ecognized the si milarit ies between j udicial diversi on and pretri al diversi on and, thus, have drawn heavi ly fr om the case law governing pretrial d iversion to ana lyze ca ses inv olving ju dic ia l diver sion. For instance, in det ermining whether to gr ant pretrial di version, a distri ct attorney general should consider the defendant ’s cri minal record, s ocial hi story, mental and physical conditi on, attitude, behavi or since arr est, emoti onal stabi lity , current drug usage , p ast em ploym ent, ho me e nviron men t, marita l stability, fa mily responsibility, genera l reputation , and a menabilit y to corr ection; as well as t he circu mstances of the off ense, the deterrent ef fect of pu nishment upon othe r c rimin al activity, and t he likel ihood that pretri al diver sion wil l serve t he ends of justice and best interests of b oth the public and the defend ant. See State v. Washington , 866 S.W .2d 950, 951 (Tenn. 199 3).

A t rial cou rt shou ld con sider g enera lly the sa me fa ctors w hen d ecidin g whethe r to grantjudicial divers ion. See Bonestel , 871 S.W .2d at 168 ; State v. Hammersley , 650 S.W.2d 352, 355 (T enn. 19 83); State v. Anderson , 857 S.W.2d 571, 572- 73 (Tenn . Cr im. App. 1992). I n assessing adefend ant’s am enability to correcti on, a court may consi der the defend ant’s truthfu lness on the stand
. State
v. Dowdy , 894 S.W .2d 301 , 305 (T enn. Cri m. App. 19 94); see Anderson , 857 S.W.2d at 574. If, after a ssessin g all relevan t factors, the trial court cho oses to-5-

deny judici al diversion, t he court must articula te on th e reco rd both the sp ecific reasons support ing the denialand why those fac tors appli cable to t he denial of diversi on outweigh the o ther fac tors for con sideration
. See Bonestel , 871 S.W.2d at 168.

In reviewing the de cision of a trial court to grant or deny judi cial di version, this Court appli es “the same levelof revi ew as that whi ch is appli cable to areview
o f a distri ct attorney gene ral’s action in denying p re-trial diversion.” State v. George , 830 S.W .2d 79, 8 0 (Tenn. Crim. A pp. 199 2); see also Bonestel , 871 S.W.2d at 168; Anderson , 857 S.W .2d at 572 . In other wor ds, thi s Court r

eviews the record to determine whether the tr ial court ab used its d iscretion. See Bonestel , 871 S.W.2d at 168; Anderson , 857 S.W.2d at 572. To find an abuse of discreti on, we must determi ne that no s ubst antial evidence e xists to support the ruling of the trial court. See Bone ste l , 871 S.W

. 2d at 16 8; Anderson , 857 S.W .2d at 572
.

In the case at bar, the trial judg e expr esse d con cern w ith the D efend ant’s decision to drop out of high school and hi s sporadic w ork history. He also pointed out that some of the Defendant’s statemen ts to the court were “misleading”. Apparently , the Defendant had previous ly al leged police misconduct to the court, claiming t hat he was unfai rly si ngled out for pr osecution because the poli ce did not ar rest themainten ance man or his friend in whose home the sto len pro perty w as hid den. W hen c onfron ted wit h this complai nt by the trial judge, the Defen dant main tained that his allegation s of miscond uct were a result of a misun derstan ding.-6- The judge concluded t hat the Defendant was not a credi bl e wit ness, stating, “I just don’t thin k Mr. Sm ith is a prop er cand idate for diversion
. . . . I just don’t feel he is telling u s wha t is goin g on in his life. . . . T he co urt just d oesn ’t believe M r. Smith.” H e continu ed, [The Defendantis] 25 years old and for seven years he never went to get his GED, did n’t wor k toamo unt to noth ing, didn’t try to improve himself at

all. And then all of a sudden says he’s just walking down the street and decides t o com mit a burg lary. I don ’t see it. Th ere’s som ething els e going on.

We cannot conclude that the trial judge abused his discr etion by deny ing judici al diversi on in thi s case. Because the trialjudge w as in a be tter position to
assess the Defendant’ s attit ude a nd dem eanor, w e defer to his findings with regard to the Defend ant’s candor. A lthough the trialjudge’s f inding of untruthfulnessalone is eno ugh to upho ld his denialof judi cial di version, see State
v. Dowdy 894 S.W.2 d 301 , 30 5 (Te nn. Cri m. App. 1994), we note that thejudge delved into the Defe ndan t’s attit ude, background, and the cir cumstances of the offense before m aking his ruling. The record refl ects that the tri al judge acted within h is discreti onary author ity. Therefore, we affirm the judgment of the tri al court.

____________________________________ DAVID H. WELLES , JUD GE-7-

CONCUR:

___________________________________ THOMAS T. WOODALL, J UDGE

___________________________________ NORMA McGE E OGLE, JUDGE