IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

March 3, 2021 Session

STATE OF TENNESSEE v. MANNAN MEHDI

Appeal from the Criminal Court for Shelby County

No. C1903481, 19-02731 Carolyn W. Blackett, Judge

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No. W2020-00021-CCA-R3-CD

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After being indicted for one count of sexual battery, Mannan Mehdi, Defendant, entered a 

best interest guilty plea with no agreement as to the sentence. The trial court denied judicial 

diversion, ordering Defendant to a one-year sentence, suspended to probation. The trial 

court also ordered Defendant to serve periodic confinement of “6 weekends in jail over the 

course of the probation.” Defendant appealed, arguing that the trial court improperly 

denied judicial diversion. After a review, we determine that the trial court considered 

irrelevant factors in denying diversion. As a result, we reverse and remand the judgment 

of the trial court. 

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

and Remanded

TIMOTHY L. EASTER, J., delivered the opinion of the court, in which JAMES CURWOOD 

WITT, JR., and J. ROSS DYER, JJ., joined.

André C. Wharton, Memphis, Tennessee, for the appellant, Mannan Mehdi.

Herbert H. Slatery III, Attorney General and Reporter; Samantha L. Simpson, Assistant 

Attorney General; Amy P. Weirich, District Attorney General; and Sarah Poe, Assistant 

District Attorney General, for the appellee, State of Tennessee.

OPINION

In April of 2019, Defendant was indicted for one count of sexual battery by the use 

of force or violence. Defendant pled guilty in a best interest plea to the charge as stated in 

the indictment. At the guilty plea hearing, counsel for Defendant explained that there was 

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no agreement as to the sentence, so it was an “open plea.” The State indicated that had the 

matter gone to trial, the State would have proven the following:

[O]n September 29, 2018, officers were dispatched to Bailey Creek 

Apartments in Collierville, Tennessee[.] [A]partment leasing consultant, 

[H.S.]1advised that at approximately 4:30 p.m. on that date [Defendant] 

came into the office to use the business center [and] asked for her help 

printing a document. The victim advised that she was leaning over 

[Defendant] and he started hugging her and grabbing her buttocks and then 

she stated that [Defendant] proceeded to kiss her left breast and moved his 

hand to the front part of her pants and attempted to put his hands on the front 

of her pants, before she brushed his hand away.

The victim stated that this sexual contact was accomplished without 

her consent. 

Counsel for Defendant stipulated to the facts but commented that there was “some debate 

in terms of the context of everything” but agreed that those would have been the facts had 

the matter gone to trial. The trial court accepted the plea to one count of sexual battery. 

Immediately following the entry of the plea, the matter proceeded to a sentencing 

hearing. At the hearing, Defendant testified that he had a wife and small child who went 

to India for five months after the incident but were living in Texas at the time of the hearing. 

Defendant’s wife wrote a note expressing her desire for Defendant to be placed on judicial 

diversion so that he could join his family. 

Defendant’s former neighbor, Abdul Mohammed, wrote a letter in support of

Defendant’s character. Mr. Mohammed described Defendant as a “hard worker” who is 

“conscious of others” and deserves a second chance. 

Defendant explained that he was guilty of the offense and that he was “sorry it 

happened” but that his “intentions [were] not like that.” Defendant did not challenge the 

order of protection that the victim sought and was granted after the incident. In fact, 

Defendant did not ask for a hearing on the order of protection. Defendant explained that 

he went to Christ Community Health Services and had an evaluation for depression. 

Defendant explained that he was placed on medication and took the medication 

“sometimes.” 

 

1 This Court refers to victims of sexual abuse by their initials.
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Defendant told the trial court that he used to drive a taxi in Chicago and worked at 

a mosque before he moved to Memphis. In Memphis, he volunteered at a mosque and 

delivered pizza for Dominos. Defendant assured the trial court that his inappropriate 

actions “won’t happen again” and that he prayed he would “be [a] good husband and father 

to [their] baby.” 

The trial court halted Defendant’s testimony about his past and stated the court 

would give defense counsel “a little guidance.” The court announced that “all I need to 

know is, if he, in fact, did what is alleged in the guilty plea that he did. If he did, I want to 

know what he did.” The court stated that it wanted to know “if he did that, then is he 

remorseful in any way, whatsoever,” ... and “that he will not do it again, and then, turn it 

over to the State, it’s real simple, okay.” When defense counsel informed the court that he 

was attempting to give the court “a little background,” the court stated “I don’t need all 

that, or we will be here all day long talking about his history.” The court told defense 

counsel “and so we are talking about one thing, did it happen, how did it happen, are you 

remorseful and will it happen again. That’s it.”

When asked if he would reoffend, Defendant replied, “No, no, never, ever.” The 

trial court asked Defendant why he committed the crime. Defendant tried to explain that 

sometimes his mind “makes [him] do things” but agreed with the trial court that he could 

have been depressed and missed his wife and did not use his best judgment.

The victim read part of a statement in which she explained that she was engaged to 

be married when Defendant assaulted her. She explained that the incident affected her 

relationship with the man who eventually became her husband. The victim went to therapy 

after the incident and now takes medication. The victim even transferred jobs because of 

the incident. The victim asked for Defendant to be “put on the registry so he can’t hurt 

someone else, especially his daughter.”

The victim admitted that she had an order of protection against Defendant for a year 

after the incident and that she did not hear from him during that time. She also admitted 

that when Defendant came into the office on the day of the incident, she helped him print 

a document. During their conversation, Defendant told her that he missed his wife and 

“felt like he needed someone” so she “patted him on the back.” 

At the conclusion of the proof, the trial court commented that Defendant’s “honesty” 

was appreciated but that his “conduct was unacceptable.” The trial court explained that 

Defendant’s conduct “caused harm and a lot of problems for another individual” and she 

had “a problem with that” and found his conduct “very offensive” because there is no such 

thing as a “free touch[].” The trial court did not order Defendant to pay for the victim’s 

therapy but placed Defendant on probation for one year, required him to serve six weekends 
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in incarceration, pay a $500 fine, and be placed on the sex offender registry for seven years. 

The trial court also ordered Defendant to continue counseling and medication. 

After the court announced its decision, counsel for Defendant expressed his 

intention to appeal and asked the trial court to include the video of the interaction with the 

record. The trial court commented that she did not “need to see the video” because she 

“took into consideration the age of the victim” and the circumstances of the offense, and 

made her decision “considering all of the other facts, the fact that he’s pled guilty to a 

[C]lass ‘E’ felony, the fact that he has a daughter.” The trial court stated that “these types 

of acts, period, whether it is man against woman, woman to man, man to man, woman to 

woman, if someone touches you it’s wrong, especially if you don’t want it. And that’s 

what I am basing my decision on.” The trial court stated that “hopefully this is a deterrence 

for others in this community that you just cannot go up and kiss somebody’s breast because 

you feel like it, . . . .” In closing, the trial court stated:

The reason why he was not placed on diversion is that I do feel that 

people who do things like that, especially the fact that he has a child, I don’t 

ever want to be in a situation that I hear that something happened to his 

daughter as a result of him, because nobody knew, because it was never on 

his record.

I don’t ever want to hear that something happened to another young 

person. And the reason why it happened is because nobody had any idea that 

he had a record, or had done it before, okay.

That’s a very personal, personal thing in terms of touching, sexually 

arousing, raping, all those things, that is in a whole different category. That 

is not stealing somebody[‘s] tires.

Counsel for Defendant told the trial court he was going to appeal and asked the court 

to forego execution of Defendant’s sentence pending the appeal. The trial court agreed to 

hear argument on that matter. During argument, counsel for Defendant again asked the 

trial court to view the video. The trial court declined, telling counsel for Defendant that 

the hearing was over. Counsel for Defendant complained that the trial court limited the 

proof at the hearing. The trial court agreed, claiming that the defense was “totally off in 

terms of where [the proof was] going” in that Defendant’s job and his daily life had nothing 

to with the hearing on diversion. Counsel for Defendant wanted to “make sure that all the 

different factors” were “dealt with” during the hearing and told the trial court it could 

consider the video under “Rule 32.” The trial court again declined, commenting that the 

ruling denying diversion was “based upon the facts” found during the hearing “in terms of 

how serious the charge was, the reaction of the victim and everything.” Counsel for 
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Defendant asked for the ability to enter the video as an offer of proof. The trial court 

declined the request and accused counsel for Defendant of “back-door[ing]” the court. 

Defendant filed a timely notice of appeal. 

Analysis

On appeal, Defendant argues that the trial court “failed to consider and weigh the 

relevant factors when denying Defendant’s request for judicial diversion.” Additionally, 

Defendant complains that the trial court denied Defendant an opportunity to be heard. The 

State, on the other hand, argues that the trial court properly denied diversion by considering 

the requisite factors.

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

this Court reviews the trial court’s sentencing decision under an abuse of discretion 

standard with a presumption of reasonableness. State v. Caudle, 388 S.W.3d 273, 278-79 

(Tenn. 2012); State v. Bise, 380 S.W.3d 682, 708 (Tenn. 2012). This presumption applies 

to “within-range sentencing decisions that reflect a proper application of the purposes and 

principles of the Sentencing Act.” Bise, 380 S.W.3d at 707. This same standard of review 

applies to the trial court’s decision to grant or deny judicial diversion. State v. King, 432 

S.W.3d 316, 325 (Tenn. 2014).

Judicial diversion is a form of probation that affords certain qualified defendants the 

opportunity to avoid a permanent criminal record. See T.C.A. § 40-35-313(a)(1)(A). If a 

defendant qualifies for judicial diversion, a trial court may defer proceedings without 

entering a judgment of guilty, placing the defendant on probation without categorizing the 

defendant as a convicted felon. Id. Upon successful completion of the probationary period, 

the trial court will dismiss the charges and the defendant may seek expungement of the 

record, which “restore[s] the person, in the contemplation of the law, to the status the 

person occupied before such arrest or indictment or information.” King, 432 S.W.3d at 

323 (quoting State v. Schindler, 986 S.W.2d 209, 211 (Tenn. 1999)); see T.C.A. § 40-35-

313(a)(2), (b). However, if the defendant violates the terms of his or her probation, “the 

court may enter an adjudication of guilt and proceed as otherwise provided.” T.C.A. § 40-

35-313(a)(2). “Judicial diversion is a form of ‘legislative largess’ available to qualified 

defendants who have entered a guilty or nolo contendere plea or have been found guilty of 

an offense without the entry of a judgment of guilt.” King, 432 S.W.3d at 323. 

A defendant is eligible for judicial diversion if he or she is found guilty or pleads 

guilty or nolo contendere to a Class C, D, or E felony, has not been previously convicted 

of a felony or Class A misdemeanor, has not been previously granted judicial or pretrial 

diversion, and is not seeking deferral for a sexual offense. See T.C.A. § 40-35-
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313(a)(1)(B)(i). It is undisputed in this case that Defendant is eligible to be considered for 

judicial diversion because he pled guilty to sexual battery, a Class E felony. Id. Sexual 

battery is not one of the enumerated sexual offenses excluded from eligibility for diversion. 

Id. at (a)(1)(B)(ii) (listing sexual offenses that are not eligible for diversion). “Eligibility 

under the statute does not, however, constitute entitlement to judicial diversion; instead, 

the decision of whether to grant or deny judicial diversion is entrusted to the discretion of 

the trial court.” King, 432 S.W.3d at 323. The trial court must consider several common 

law factors:

“(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 accused’s physical and mental health, and (f) the deterrence value to 

the accused as well as others. The trial court should also consider whether 

judicial diversion will serve the ends of justice—the interests of the public as 

well as the accused.”

Id. at 326 (quoting State v. Parker, 932 S.W.2d 945, 958 (Tenn. Crim. App. 1996)). “[T]he 

trial court must weigh the factors against each other and place an explanation of its ruling 

on the record.” Id. (citing State v. Electroplating, Inc., 990 S.W.2d 211, 229 (Tenn. Crim. 

App. 1998)). 

When the trial court considers the common law factors, “specifically identifies the 

relevant factors, and places on the record its reasons for granting or denying judicial 

diversion,” then this Court will “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.” Id. at 327. Our supreme court has explained:

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

Electroplating factors when justifying its decision on the record 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.

Id. Failure to consider the common law factors results in a loss of the presumption of 

reasonableness, and this Court will either conduct a de novo review or remand the case to 

the trial court for reconsideration. Id.

A trial court can abuse its discretion not only by failing to consider all of the relevant 

factors, but also by giving undue consideration to an irrelevant factor. In the context of 
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pretrial diversion,2the supreme court has held that the prosecutor’s consideration of and 

undue reliance upon an irrelevant factor constitutes an abuse of discretion. State v. McKim, 

215 S.W.3d 781, 788 (Tenn. 2007) (holding that “[t]he prosecutor’s consideration of, and 

emphasis upon, an irrelevant factor so tainted his decision-making process as to constitute 

an abuse of discretion”); see also Stanton v. State, 395 S.W.3d 676, 687 n.2 (Tenn. 2013). 

“[J]udicial diversion ‘is to be imposed within the discretion of the trial court subject only 

to the same constraints applicable to prosecutors in applying pretrial diversion.’” King, 

432 S.W.3d at 327 (quoting State v. Anderson, 857 S.W.2d 571, 572 (Tenn. Crim. App. 

1992)) (emphasis added in King); see State v. Cutshaw, 967 S.W.2d 332, 343 (Tenn. Crim. 

App. 1997) (“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.”). If prosecutors can abuse their

discretion by considering and placing undue weight upon an irrelevant factor in 

determining pretrial diversion, then it stands to reason that a trial court can likewise abuse 

its discretion in considering and placing undue weight upon an irrelevant factor in 

determining judicial diversion.

In this case, Defendant argues that the trial court failed to consider and explain how 

the factors weighed in favor of or against diversion and considered and placed undue 

weight on irrelevant factors, namely whether Defendant admitted guilt and whether the 

victim opposed diversion. 

We have reviewed the record on appeal. We determine that the trial court explicitly 

referenced two of the common law factors enumerated in Parker and Electroplating—

deterrence and the circumstances of the offense. However, in our view, the repeated 

references throughout the trial court’s ruling about the fact that sexual battery was “wrong”

were not about the circumstances of the offense but rather general statements about the 

crime of sexual battery. The legislature explicitly excluded several sexual offenses from 

eligibility for judicial diversion. However, sexual battery is not one of them. In addition

to discussing displeasure with the offense itself, the trial court commented at length on the 

victim’s feelings about diversion and on the effect of the offense on the victim. Neither of 

these are factors to be considered when granting or denying judicial diversion. In our view, 

the trial court considered at least one irrelevant factor that tainted the court’s decisionmaking process such that the presumption of reasonableness standard is not appropriate. 

See King, 432 S.W.3d at 327. In some instances, we may attempt to conduct a de novo 

review of the record to determine whether Defendant should be granted judicial diversion. 

 

2 The difference between the two types of diversion is that judicial diversion follows a 

determination of guilt and the decision is made by the trial court, whereas pretrial diversion is a decision 

by the prosecutor to suspend prosecution for a certain period of time. Compare T.C.A. § 40-35-313 with

T.C.A. § 40-15-105.
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In determining whether this Court should conduct a de novo review or remand the case to 

the trial court for reconsideration, we must consider “the adequacy of the record, the factintensive nature of the inquiry, and the ability of [this] [C]ourt to request supplementation 

of the record.” King, 432 S.W.3d at 328. As we will explain below, we believe the record 

in this case is not adequate for a de novo review.

The proof showed that Defendant has never previously received pretrial or judicial 

diversion and has no criminal record. Defendant’s social history, however, is somewhat 

unclear. At fifty-one years old, Defendant used to drive a taxi in Chicago, volunteered at 

a local mosque, and delivered pizza for Dominos. He is married with one young child,

though his wife and child were living in Texas at the time of the hearing. One former 

neighbor wrote a letter attesting to his character. Defendant suffers from depression but 

does not regularly take his antidepressant medication. Defendant attempted to introduce 

additional evidence with regard to his social and family history, but the trial court stopped 

defense counsel, instructing him that the only important information was whether 

Defendant committed the act and if he was “remorseful in any way whatsoever.” The trial 

court deemed social and family history information “totally off” base with regard to a 

determination on diversion. 

As to the circumstances of the offense, the proof was that Defendant acknowledged 

that he committed the offense and that it was wrong. However, the trial court denied 

Defendant the opportunity to introduce a video of the offense, even when defense counsel 

asked to make an offer of proof after the trial court denied diversion. We acknowledge 

that the proof indicated the victim was traumatized by the incident and attended therapy 

afterward. 

As to the deterrence value to Defendant and others, as well as whether diversion 

will serve the public interest, the trial court “based” the decision on the fact that “these 

types of acts” are “wrong.” We agree that we should, in general, seek to avoid depreciating 

the seriousness of the offense; however, we disagree that judicial diversion serves as 

condonation of behavior that violates the law. When a defendant is granted judicial 

diversion, he or she is placed on probation and must comply with all manner of probation 

conditions, including supervision by a probation officer. Only when the defendant 

successfully completes probation will the charges be dismissed and the defendant can seek 

to have his or her record expunged. T.C.A. § 40-35-313(a)(2). If the defendant violates 

the terms of probation, the trial court can “enter an adjudication of guilt and proceed as 

otherwise provided.” Id. Judicial diversion is not a lack of consequences for one’s actions, 

but a one-time opportunity for certain defendants to avoid a permanent criminal record. 

When properly applied, the law of diversion demands that anyone who squanders the

opportunity by violating the conditions of probation, will be held accountable. 
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In our view, the trial court improperly considered irrelevant factors and did not base 

its decision to deny diversion on the application of the common law Parker and 

Electroplating factors. The trial court abruptly ended Defendant’s testimony about his 

social, mental and physical history, all factors that should have been considered by the trial 

court in determining whether to grant or deny diversion. Thus, the record is inadequate for 

a de novo review by this Court. On remand, the trial court should hold a hearing at which 

Defendant is able to enter evidence about each of the common law factors. However, 

whether the trial court ultimately decides to apply merely some or all of those factors, is a 

matter left to the trial court’s discretion so long as the trial court does not consider irrelevant 

factors. 

Conclusion

Based on the foregoing and the record as a whole, we reverse the trial court’s 

judgment denying judicial diversion and remand the case to the trial court for further 

proceedings consistent with this opinion. 

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TIMOTHY L. EASTER, JUDGE