IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs at Knoxville May 21, 2013

STATE OF TENNESSEE v. PARESH J. PATEL

Appeal from the Circuit Court for Warren County

No. F-13471 Larry B. Stanley, Jr., Judge

No. M2012-02130-CCA-R3-CD- Filed July 10, 2013

JAMES CURWOOD WITT, JR., J., concurring.

I concur in the results reached in Judge McMullen’s opinion, but I respectfully

depart from the conclusion that State v. Bise, 380 S.W.3d 682 (Tenn. 2012), and State v.

Caudle, 388 S.W.3d 273 (Tenn. 2012), changed the methodology for reviewing judicial

diversion determinations.

What once was new ground is now trampled by judicial feet pounding out the

refrain that the Sixth Amendment to the United States Constitution forbids the use of any

fact, “‘[o]ther than the fact of a prior conviction, [to increase] the penalty for a crime beyond

the prescribed statutory maximum [unless the same] be submitted to a jury, and proved

beyond a reasonable doubt.’” Blakely v. Washington, 542 U.S. 296, 301 (2004) (quoting

Apprendi v. New Jersey, 530 U.S. 466, 490 (2000)) (emphasis added). I will neither trample

again, see State v. Schiefelbein, 230 S.W.3d 88, 140-50 (Tenn. Crim. App. 2007), nor will

I take the time to identify those who have previously covered this ground. We know that the

United States Supreme Court case law provided the impetus for Tennessee’s amending its

sentencing law to comply with constitutional requirements. See Caudle, 388 S.W.3d at 278

(citing David L. Raybin, The Blakely Fix: New Tennessee Law Restores Judicial Discretion

in Criminal Sentencing, 41 Tenn. B.J. 14, 16 (2005)). Consequently, Bise and Caudle

address no judicial activity other than sentencing. Suffice it to say that the lever that invoked

Sixth Amendment concerns and that unleashed the flood of Blakely progeny was that of

exacting a “penalty” – or imposing a sentence – in a criminal case. Indeed, the legislature’s

2005 amendments targeted specific provisions of our law governing sentences.

The most obvious reason why Bise and Caudle have no influence over judicial

diversion is that a grant of judicial diversion is not a sentence and is not punitive. Our case
law is clear that a judicial diversion term is not a sentence under the terms of the Sentencing

Act. See, e.g., State v. Turco, 108 S.W.3d 244, 247 (Tenn. 2003); Alder v. State, 108 S.W.3d

263, 267 (Tenn. Crim. App. 2002) (“The judicial diversion probationary period is not a

sentence nor is it punishment.”). Judicial diversion is not listed among the sentencing

alternatives found in Tennessee Code Annotated section 40-35-104. A grant of judicial

diversion does not result in a judgment, see State v. Norris, 47 S.W.3d 457, 462 (Tenn. Crim.

App. 2000), which by definition, in the case of a finding of guilty, imposes both a conviction

and a sentence, T.C.A. § 40-35-209 (e)(2); Tenn. R. Crim. P. 32(e). Indeed, our supreme

court recently recognized that the inclusion of a “judicial diversion” option for disposing of

a case had been improvidently inserted into the uniform judgment form, and it not only

adopted a new judgment form deleting the judicial diversion “box” but also adopted new

Rule 17A that promulgated the use of a separate judicial diversion order. See Tenn. Sup. Ct.

R. 17, 17A (adopted July 27, 2011, effective November 1, 2011). Cf. State v. Deandre

Marcellus Howard, No. M2010-00327-CCA-R3-CD, slip op. at 4 n. 3 (Tenn. Crim. App.,

Nashville, Dec. 14, 2010) (“The inclusion of this box [for judicial diversion in the previous

judgment form] as well as the box labeled “Guilty Plea--Pursuant to 40-35-313” is contrary

to the action taken when deferring proceedings under Code section 40-35-313 and invites

confusion, as is evident in this case.”). Unquestionably, a term of judicial diversion is not

a sentence. For this reason, I cannot see that Bise and Caudle have any application to the

present case.

Furthermore, even if these cases somehow address judicial diversion, I cannot

subscribe to the proposition that the notion of presumptive reasonableness works a rejection

of established methodology for handling and reviewing judicial diversion cases. The grant

or denial of diversion has always been reviewed for an abuse of discretion, see State v.

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

Hammersley, 650 S.W.2d 352, 353 (Tenn. 1983) (pretrial diversion), but just because a

judicial activity is discretionary and is reviewed for abuse of discretion does not signify that

the activity must be unstructured and devoid of principles and guidelines. The diversion

principles and guidelines embodied in Hammersley and 30 years of progeny no doubt have

developed because of the need to guide a court’s discretion – to provide that “soundness” of

which we often speak. See Bonestel, 871 S.W.2ds at 168 (stating, after proclaiming the

abuse of discretion standard of review, that “[w]hen the trial court refuses to grant judicial

diversion to an accused, the court should clearly articulate and place in the record the specific

reasons for its determination”). I have no doubt that were we to toss out these guidelines or

the mandate that the trial court follow them, we would soon have to replace them. Such is

the nature of legal development.

Indeed, the so-called Bonestel factors for guiding the adjudication of diversion

bear substantive similarity to the sentencing principles and guidelines still in use pursuant to

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our sentencing code. Cf. Bonestel, 871 S.W.2d at 168 (listing “(a) the accused’s amenability

to correction, (b) the circumstances of the offense, (c) the accused’s criminal record, (d) the

accused’s social history, (e) the status of the accused’s physical and mental health, and (f)

the deterrence value to the accused as well as others”) with T.C.A. § 40-35-210(b) (listing

“(1) [t]he evidence, if any, received at the trial and the sentencing hearing; (2) [t]he

presentence report; (3) [t]he principles of sentencing and arguments as to sentencing

alternatives; (4) [t]he nature and characteristics of the criminal conduct involved; (5)

[e]vidence and information offered by the parties on the mitigating and enhancement factors

set out in §§ 40-35-113 and 40-35-114; (6) [a]ny statistical information provided by the

administrative office of the courts as to sentencing practices for similar offenses in

Tennessee; and (7) [a]ny statement the defendant wishes to make in the defendant’s own

behalf about sentencing”). Despite the use of an abuse of discretion standard of review of

sentencing decisions, we expect those decisions to be in harmony with the sentencing

considerations. See T.C.A. § 40-35-401(b) (authorizing a sentencing appeal when the

“sentence was not imposed in accordance with [the sentencing act],” the “sentence is

excessive under the sentencing considerations,” or the “sentence is inconsistent with the

purposes of sentencing” set out in the sentencing act) (emphasis added); see also Bise, 380

S.W.3d at 698 (stating that the 2005 sentencing law amendments only insignificantly

amended the factors listed in Code section 40-35-210(b)). Thus, the statement quoted in

Judge McMullen’s opinion that a reviewing court should “‘treat all in-range sentences

imposed by trial courts as presumptively reasonable’” is deflective. Bise actually says, “[W]e

adopt 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 (emphasis added). The Bonestel

factors influence and inform the exercise of discretion in judicial diversion decisions in the

same way the skeletal structure of the sentencing considerations, principles, and guidelines

influence and inform sentencing discretion. The presence of neither is inimical to the

professed ambit of discretion; indeed, the presence of these hierarchies help to ensure the use

of discretion that is sound. See MacDonnell v. Blankenship, 417 S.W.2d 713, 715 (Tenn. Ct.

App.1967) (explaining that “sound discretion” is that which is “‘exercised, not arbitrarily or

wilfully, but with regard to what is right and just under the circumstances and the law, and

directed by the trial judge’s reason and conscience to a just result’”).

We as a reviewing court cannot discern whether a trial court utilized an

applicable standard of principles in exercising its discretion unless the trial court, in some

manner, tells us so. Therefore, when that standard of principles exists, we do not encroach

upon the trial court’s discretion to require it not only to be in harmony with the applicable

standard but also to inform us of its conformity.

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For the foregoing reasons, I can see neither the basis nor the merit of applying

Bise and Caudle to the judicial diversion determination. I would, however, affirm the trial

court’s denial of diversion based upon the time-honored method of review. That being said,

I fully concur in the separate opinion of Presiding Judge Tipton.

JAMES CURWOOD WITT, JR., JUDGE

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