### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT NAS HVILLE A ssi gne d on Br ie fs Jul y

22, 200 8

STATE OF TENNESS EE v . DENNIS CHARLE S ARELLANO , A 

### / K 

### / A 

### CHUCK ARELL ANO, A 

### / K 

### / A 

### DR. CHUCK ARELLANO

Appeal f rom the Circ uit Court for F ranklin County Nos. 17076, 17152 Thomas W. G raham , Judge

No. M2007- 02394-CCA -R3-C D - F iled March 19, 2009

Th e de fe nd a

nt , D e nn i s C h a

r l e s A r e lla

no , a /k/ a Chu c k A re lla

no , a /k/ a Dr . Chuc k A re lla

no , p le d g uil ty to one count of Te nnCare fra ud valued betwee n $10,000 and $60,000, one c ount of impersonating a license d profe s s i o n al
, an d one count of rec kless endang erme nt. The def endant a g ree d to a total eff ective se ntence of six y ear s and re stitut ion in the amount of $30,000, with the manne r of se rvice

o f t h e d ef en d an t ’s s en t en ce l ef

tt o t h e d i s cr et i o n o f t h e t ri al co u rt

. Fo l l o wi n g a s en t en ci n g h ea ri n g, the tr ia l c ourt

se ntenced th e defe nd ant t o n ine mon ths in t he c ounty ja il a nd the ba lanc e of

his
sentenc e on prob at i o n

. He was also ordere d to perfor m 200 hours of public ser vice wor k. On
appea l, the defe ndant asser ts that the t rial court err ed by denying his reque st for judicial diver sion or, in the alter

native, a se ntence of full probation. After revie wing the re cord, w e conc lude that the
tr ia l c ourt pr op e rl y se nte nc e d th e de fe nd ant a nd a ff ir m th e jud g me nts of

the tr ia l c ourt

.
Tenn. R. App . P . 3 Appeal as of Right; Judgme nts of

the Circ uit Court Aff

irm ed

D. K EL L Y T HOMAS , J R ., J

. , delivere d the opinion of the cour t, in which D AVI D H. W EL L ES and T H O M A S T. W O O D A LL , J J ., joined.

J oseph E. F ord, Winchester, Te nnessee , for the a ppellant, Dennis Char les Are llano.

Robe rt E

. Co o p e r , Jr

. , A tt o r n e y G e n e r a l a

n d Re p o rte r ; E li za

b e th B

. M ar n e y , A s s is ta

n t A ttorney Ge n eral; J . Michae l Taylor, District Attorney Gene ral; and Steve n M. Blount, Assistant District Attorney Gene ral, for

the appe llee, State of Te nnessee

.

OP IN ION

The rec ord ref

lects that in Ma

y 2006, the Fr anklin County Gra nd J ury indicted the def

endant on one count of

theft of pr operty

valu ed o v er $ 6 0
, 000, one count of TennCar e fr aud value d over $60,000, and one c ount of impersonating a license d profe ssional based upon pra cticing medicine without a license. In J uly 2006, in a separate indictment, the gra nd jury indicted t he def

endant on one additional count of

impersonat i n g a license d profe ssional and fiftee n counts of ra pe by fra ud,A ccor di ng t o t he pros ecu t i ng at t orn ey , t he def endan t ’ s f

at her di ed bef

ore t he def

endan t en t er ed hi s gu i l t y pl ea. 1

-2- involving five victims. On J uly 20, 2007, the def

endant pled guilty

to one count of Te nnCare f raud

va lue d b e tw e e n $ 10 ,0 00 and $6 0, 00 0, a Cla ss C fe lony , on e c ount of re c kle ss e nd ang e rm e nt, a Cla ss E felony
, an d o n e c o u n t o f im p e r s o n a ti n g a li c e n s e d me d ic a l p r o f e s s io n a l, a Cl a s s E f

e lo n y . The

rema ining c ounts of the two indictments were dismiss ed.

At the g uil ty

ple a su bmi ssi on he ari ng , th e pro secut or

su mma ri zed the pr oo f t

hat th e state would have pr esente d had the c ase g one to trial. B etwee n May 1998 and May 2006, the def

endant’ s fathe r, a lice nsed phy sician, operated a medical pra ctice in Huntland, T ennesse e. Dur ing that time, 1 the pr a c tic e fi le d c la ims wi th se ve ra l in sura nc e c omp anie s th ro ug h th e state ’s Te nn Care pr og ra m. T e n n C ar e p a i d

t h e p r a c t i c e a

p p r o x i m a t e l y

$ 1
, 0 9 9
, 0 0 0

. 0 0 d

u r i n g t h i s e i gh t

- ye ar

p e r i o d

. A d d i t i o n a l l y, during this ti me “a

fema le patient of the Are llano prac tice, whose daug hters had been a patient [sic] there made a

claim . . . reg arding a conce rn about some treatment provided to her da ug hter.” The person tre ating that patient was the def en d an t , wh o was not license d to prac tice medicine . The

com p laint led the Tenne ssee B urea u of Investig ation (TB I ) to investigate the pra ctice’ s insurance billings during the per iod.

Acc ording to the prosec utor, in the course of the investigation, the defe ndant admitted to the TBI that he had attended medica l school in Grena da but had never be en license d to prac tice medicine in any state. The defe ndant told investig ators that his f ather hired him to be his office manag er, but once the number of p at i en t s seen by the pra ctice inc rea sed fr om “about eig ht patients a day to 50 patients a da

y . . . [t he def

endant’ s] father could not hand le that,” so the de fenda nt beg an see ing patients. The de fenda

nt admitted to investigators that he was called “ Doctor Chuck” by patients, and that he saw“at lea st 40 perce nt of the [ p ra ct i ce’s] patients.” The def endant sa id that he billed TennCar e f

o r th e p a ti e n ts h e s aw , u s in g h is f a th e r ’ s n a me w h e n f

il in g th e T e n n Ca

r e c la im s . The
prosec utor noted t h at of the insurance claims paid to the pra ctice dur ing the eig ht-y ear period

c ov e re d by the ind ic tme nt, “ in e xce ss o f q ua rt e r m ill ion

do lla rs of ins ur anc e pr oc e e ds ha d b e e n p a id out inappropriate ly .”

Pursuant to the plea ag ree ment, the defe ndant was sentenc ed to f our y ear s fo r T ennCare fr a ud , tw o y e ars fo r r e c kle ss e nd ang e rm e nt, and tw o y e ars fo r i mpe rs on a tin g a lic e ns e d p ro fe ssi on a l. The two-y ear

sentenc es we re imposed c oncurr ently to eac h other but conse cutively to the four- y ear

se nte nc e, res ul ti ng in an

e ff e c tiv e six- y e ar s e nte nc e . T he de fe nd ant a lso a g re e d to pa y the state $3 0, 00 0 in

re sti tut ion . T he mann e r o f s e rv ic e wa s le ft to the dis c re tio n of the tr ia l c ourt , w hic h h e ld a sentencing hear ing on Aug ust 31, 2007. Be fore the hearing
, the defendant filed a motion seeking judicial diversion.

At the sentenc ing he aring , L ona Medle y testified that she a

nd her three da

ug hters we re patients at t he medical prac tice operated by the def endant’ s father . Medley

said that the def

endantM edl ey t es t i f i ed t hat s he f

i r s t not i ced t he “ kn ot ” i n h er daug ht er ’ s ch es t i n N ovemb er 200 2. H owever , medi cal 2

re c o rd s a n d te stim o n y fro m T B I ag e n t K im b e rly H a rm o n c o n firm tha t t h e e v e n ts c o n c e rn ing M e d le y’s d a u g h te r a c tua lly

occ u r r ed bet we en N ov embe r 2003 a n d Fe br u ar y 2004.

T h e ph y s i ci an ’ s f

i r s t n ame i s n ot a ppar en t i n t h e r ec or d. 3 -3- p r o v i d e d m e d i c a l c ar e f

o r h e r an d h e r t h r e e d a

u g h t e r s , i n c l u d i n g p e r f

o r m i n g p a p s m e ar s f o r M e d l e y. She said that one da

y , she noticed a

“knot sticking out” of her daug hter Er ica’ s shirt, a knot which 2 Me dle y de sc ri be d a s “ a

kn ot a s b ig a s [a] fi st in h e r c he st. ” At that po int , s he c a lle d th e de fe nd a nt, who examined E rica

. The defe ndant told Me dley and Erica that Erica had a ly mph node infec tion. After Erica took antibiotics for two wee ks without improving, Medley took her da ug hter ba ck to the de fe nd ant, wh o r e sp on de d b y say ing“ he wo uld tr y

ano the r a

nti bio tic .” Af

te r t wo mor e we e ks
, Me dle y be g an to be lie ve that “ so me thi ng e lse [wa s] w ro ngwi th h e r, ” so sh e a tte mpt e d to sp e a k to the def endant, who r efuse d to speak with her . Medley spoke with a nurse at the prac tice, telling the nurse that Er ica ne eded “an ultrasound or som ething beca use t hose m eds t hat he had gave her [wer e] not working .” Acc ording to Me dley
, the nurse a sked the de fenda nt to approve the ultrasound, but the de fe nd ant d e nie d th e re qu e st.

Medley said that she made additional reque sts for an ultrasound, but that the defendant ke pt denying the reque sts. Ultimately
, on Dec ember 15, 2003, Erica was given an ultrasound ex am. The

n e x t d ay, M e d l e y c a l l e d t h e d e f e n d an t ’ s o f

f i c e an d r e qu e s t e d t h e r e s u l t s

. A c c o r d i n g t o M e d l e y, “[t] hey told me that ev ery

thing wa s fine, in the ultrasound, that e very thing looked nor

mal.” Ho we ve r, sti ll c on c e rn e d ov e r Er ic a ’s c on dit ion
, Me dle y re qu e ste d that the de fe nd ant re fe r E ri c a to

ano the r p hy sic ian, Dr . Ru do lph

. Th e de fe nd ant de nie d the re qu e st, wh ic h le d M e dle y to p e rs on a lly 3 visit t he p ra ct i ce a

nd ang rily

reque st that the defe ndant re fer her da ug hter to Dr. Rudolph. The defe ndant ac quiesce d, and af ter Dr . Rudolph ex ami ned Eric a, she w as sent to Vande rbilt Medical Center, whe re D r. He rber

t Schwartz conducte d a biops y on Marc h 5. The biopsy reve aled that Er ica had chondr osarc oma, a bone canc er.

Medley said that initially
, Erica was only g iven six months to live. She noted that Er ica ha d “beat[ en] the odds” by surviving three y ear s afte r her initial diag nosis, but as o f t h e s entenc ing he ari ng , th e c anc e r h a d r e tur ne d, wi th t

he c anc e r be ing pr e se nt in bo th of Er ic a ’s hip s. Me dle y sa id that her da

ug hter ha d to g o throug h “[n] inety -two hours of chemo eac h time she had to g o and have chemother apy . That’s a lot of chemother apy for a child, at sevente en y ear s of ag e.” She a lso noted that Erica en d u re d s ix wee ks of ra diation treatment, a nd that the doctors “ wanted to amputate her arm [and] half of her

chest.” Medley

testified that while she did not blame the d efendant for her daug hter having c ance r, she e x presse d conce rn over the fa ct that the defe ndant did little to tr eat Er ica over the course of seve ral months.

Medley testified that she suff

ere d from dep re s s i o n an d anxiety attacks a s a re sult of her family ’s orde al. She said that she f elt “violated . . . by

being touched a

nd Ihave f

elt like Ihave be en betra y ed by a man who w as supposed to be a doctor, my

doctor. I t is hard to trust a doctor now that-4-

one has l i ed t o [ m e]

. ” She also felt that her children ha d been “ violated” a s well. Reg ardingthe defe ndant’s punishment, Medley said that “[i] mpersonating a doctor is a crime and he should have to pay for that.” Howeve r, she a lso said that she did not be l i eve that the defe ndant nee ded to be imprisoned.

Erica S ca m m on’s testimony consisted of he r re ading her vic tim im pact state ment into the

rec ord. In the statement, she said that the defendant first examined her whe n she wa s twelve y ear s old . Wh e n s he e xpe ri e nc e d “ ba d cr a mps ” duri ng he r pe ri od , she so ug ht tr e a tme nt by the de fe nd a nt. She noted that the defen d ant also administere d her pa p smears a

nd brea st ex ams, and that the defe ndant also treated her y oung er sister when she experience d problems with her pe riod. She then testified r eg ardingthe eve nts which led to her be ing dia g nosed with ca ncer , with the substance of her te stimony

larg ely mirroring that of her

mother.

Scammon said that she wa s ang ry over the fac t that she had been examined by the def endant when he was not a lice nsed phy sician. She said that she di d not blame the defenda nt for her having

cance r, bu t sh e a lso sa id, “ Ido n’ t un de rs tand wh y Iha d to g o thro ug h f

ive mon ths of

mis e ra ble

s u ff eringfor no r eason.” She said that while she did not believe the def endant ne eded to be imp ri so ne d, and

wh ile sh e fe lt that th e de fe nd ant w ou ld m a ke a g oo d d oc tor

we re he to g e t hi s license, she opined that “something need[ed] to be done” to the de fenda nt. She noted that she had
g one throug h “an e motional, phy sical, psy cholog ical[,] [and] mental state of de pression and it’s not fair f or me a nd my family to sit back and have to g o throug h what he did.”

TBI Ag ent Kim berly Har

mon testified that the TB Iinvestigation of the prac tice run by the defe ndant’s father star

ted when B ob Kenne dy , an investig ator with B lueCross BlueShield of Tenne ssee, infor

med her that “he ha d visited the prac tice and had intervie wed some patients and the finding s were that [t he def endant] was pra cticing as a phy sician and the ins u ra n ce co m p any had billed as if he wa s a cr edentiale d phy sician[,] [but ] he w as n o t

. ” Ag ent Har mon testified that the ins ur anc e c omp any

pa id t he c la ims “ a s if it w a s [th e de fe nd ant’ s f a the r] s e e ingthe patie nts be c a us e he was cre dentialed with B lueCross Blue Shield and licensed in the State of Tenne ssee to do so.” Duri ngthe inv e sti g a tio n, Ag e nt Ha rm on and ano the r TB I a g e nt int e rv ie we d the de fe nd ant, wh o to ld the ag ents that his father

had estimated that the defe ndant’s patients a ccounte d for 40 perc ent of the claims filed by the prac tice. Ag ent Har mon te stified that the actua l a mount pa id by TennCar e base d on claims filed as a

result of wor

k done by the def endant wa s “a little over $220,000.”

Ag ent Ha rm on testified that the TB Iinvestigation identified sever al women to whom the defe ndant had g iven pap smea rs. Howe ver, she said that some of the def endant’ s patients did not

wa nt t o b e lis te d a s v ic tim s in thi s c a se

. F ur the rm or e , th e state sti pu la te d th a t “ the fi ve lis te d v ic tim s [i n the indictment] di d not indicate that i t appea red that he did this for any sort of sexual
g ratification.” On cross-e x amination, Ag ent Har mon sa id that the defe ndant was c ooperative during the TB Iinvestigation, voluntarily turning over to T BI all of the pra ctice’ s medical re cords f rom the time in question.-5-

Six differ ent witnesses, including the defe ndant’s former pastor, brother- in-law, pr es ent employ er, and family friends, testified for the defe ndant. The witnesses g ener ally testified that the d efendant wa s a g ood man who loved his family and who attended chur ch re g ularly . The defe ndant’s pre sent employ er, Br ian New my er, te stified that he owne d a roof ing c ompany

and

e mpl oy e d th e de fe nd ant as a sh op mana g e r. Ne wm y e r t e sti fi e d th a t a s p art of the de fe nd ant’ s d

uti e s, he super vised “a couple of

employ ees,” interac t ed with “most customers” on sa les, and he lped unload mater ials from trucks. N ewmy er sa id that the defe ndant, who had a s et o f k ey s to the business, was a de pendable employ ee w ho ear ned appro x imately

$26,000.00 per y ear . Newmy er said that despite his awa

rene ss that the defe ndant had be en ar re s t ed and pled g uilty in the instant

c a se , h e sti ll tru ste d th e de fe nd ant.

Cindy Are llano, the def

endant’ s wife, testified that she met the de fenda nt in 1980 while they

a tte nd e d c oll e g e tog e the r. She marr ie d the de fe nd ant in J uly 19 83 , a ft e r w hic h ti me the y mov e d to Ric hmo nd , V ir g ini a , w he re sh e e nr oll e d in de nta l hy

g ie nis t sc ho ol a

nd he e nr oll e d at V ir g ini a Commonwealth University . The de fenda nt and Mrs. Are llano both g raduated, with Mr s. Arellano working six y ear s as a de ntal hy g ienist in Virginia. I n 1988, the def

endant en rolled in medica l

sc ho ol at St. Ge or g e ’s Un ive rs ity in G re na da . M rs . A re lla

no sa id t hat th e de fe nd ant d id n ot f ini sh his classroom studies at St. Georg e’s until the winter of 1991 or 1992 because he t ook time off a fter the couple’ s first child was born.

Mrs. Are llano said that afte r th e d ef en dant finished his course work at St. Georg e’s, he
att empted to pass the f

irst part of his medica l boards, a pr ocess whic h “took a f ew trie s.” The defe ndant also spent som e ti me i n Eng land, wher e he pe rfor med some clinica l work. In Dec ember 19 95
, a f t e r h e p a s s e d t h e f

i r s t p art o f t h e A m e r i c an b o ar d s , t h e d e f e n d an t d i d c l i n i c a l w or k in Washington, D.C., and B rookly n, New York. I n April 1997, afte r he ha d finished his clinical work, the def endant, Mrs. A rellano, a

nd their f o u r ch i l d ren moved to Huntland, Tennesse e, whe re the defe ndant worke d at his father ’s newly -founde d medical pr actice

. M rs

. Ar ellano said that the de fe nd ant i nit ia lly

wo rk e d a s an o ff

ic e mana g e r, bu t he ult ima te ly be g an s e e ingpatie nts

.

Mrs. Are llano said that the defe ndant was an excellent husband and f ather . She said that the de fe nd ant’ s d e vo tio n to his fa mil y wa s so str on g that he ne g lected c omp le tin g his bo ard e xams “bec ause he would have [ had] to be home and st udy for long periods of t ime[,] which would [ have] l e[ ft ] u s wi thout a means of suppor t and a da d in the house.” Reg ardingthe family ’s financ ial situation, Mrs. Arellano said that the de fenda nt never made a lot of money

while he was working at his father ’s clinic. She said that the family would be forced to f ile for ba nkruptcy g iven the fa

mily ’s

cre dit card a

nd student loan debt.

Th e de fe nd ant t e sti fi e d th a t hi s f a the r, wh o wa s se ve nty -t

wo y e ars old

wh e n h e be g a n h is
pra c tic e , e sta

bli sh e d h is p ra c tic e in H un tla nd be c a us e “ he wa

nte d to he lp p e op le wh o o the rw ise wouldn’t be a

ble to af ford c are or we re disadva ntag ed throug h the medica l community .” The defe ndant said that he initially worke d at the pra ctice a s the office manag er, w ith his dut ies including-6-

answe ri n g t h e o ffice telephones a nd establishing a

computerized billing sy stem. He said that
eventua lly , “i t g ot to the point where instea d of on a g ood day [t he pra ctice sa

w] 10 patients[ ,] on

an ave rag e day

we we re se eing 15 or 20 patients.” T he number of the pra ctice’ s patients continued to gr ow once the pra ctice sta rted a cce pting Te nnCare; the de fenda nt said that by time the prac tice closed in Jul y

2004, the pra ctice sa

w thirty -five to f

orty patients per da

y

.

The de fenda

nt said that he beg an see ing patients after being asked to do so by

his father . The d e f e n d an ts a i d

t h a th i s f a t h e r c l o s e l y s u

p e r v i s e d h i s w o r k
, c h an g i n g t r e a t m e n tp l an s a s n e c e s s a r y, and tha t h is f

a th e r w r o te a ll p r e s c r ip ti o n s f

o r th e d e f e n d an t’ s p a ti e n ts

. T h e d e f e n d an t s a id

th a t he

ne ve r b e lie ve d th a t he wa s b re a kin g the law b y se e ing patie nts wi tho ut a

lic e ns e . H e sa id t

hat hi s patients ca lled him “doctor,” and while the tr ial court noted during the def endant’ s testimony

that “to the man on the stre et . . . [being a doctor] [ m] eans [having a] license t o act a s a doctor,” the defe ndant said, “I ’m an M.D.

. . . That makes me a doctor.” When a sked about Erica Scammon, the

canc er patient w hom he had misdiagnose d, the defe ndant said, “I missed other diag noses as we ll, and so did my fathe r[,] and so does e very other doc tor I ’ve e ver w orked w ith . . . .”

Re g ard ing hi s fina

nc ia l si tuatio n, the de fe nd ant s a id t hat he ne ve r r e c e ive d a

sa lary wh ile employ ed at his father’s pr actice . He a lso not ed that he did not “remembe r exactly how” he was p a i d
, an an s w e r w h i c h p r o mp t e d f u rt h e r qu e s t i o n i n g f

r o m t h e t r i a l c o u rt , w h i c h e xp r e s s e d its dis be lie f w ith th e de fe nd ant’ s ans we r. Th e de fe nd ant u lti ma te ly a dmi tte d th a t he wa s p a id

“ so me wh e re in t

he ne ig hb or

ho od of 50 or [$]60 ,0 00 ” pe r y e ar, and that he p a id t a xes o n h is e arn ing s. On cr oss-examination, the defenda nt reiterated that he did not “r eca ll ex act l y how money

g ot funnele d and switche d” to his persona l acc ount, which ag ain prompted the c ourt to state its disbelief
reg ardingthe def

endant’ s answer

. T h e defe ndant also noted that he was una war e why TennCar e stopped paying be nefits to the prac tice. Howeve r, when the trial court told the de fenda nt that “y ou

wer e cut off T ennCare for imprope r conduc t,” the def endant a dmitted that the trial court’s state ment

was c orre ct. Upon additi onal questi oning by the t rial court, the defendant admitt ed that his fathe r, who was e ighty

y ear s old when his pra ctice shut down, w as inca pable of fully supervising his (the defe ndant’s) a ctivities give n his father ’s dec lining hea lth.

At the conc lusion of the sentenc ing he aring , the trial court de nied the def endant’ s motion for judicial diversion. The tria l court imposed a se ntence of split confinem en t , order ing that the defe ndant serve nine m onths in the county jail and the bala nce of his six -y ear

sentenc e on probation. The trial c ourt also orde red the defe ndant to perf orm 200 hours of public service work. This appe al followed.

A N A LY S IS Denial of Judicial Dive rsion

The de fenda

nt first contends that the tria l court er red in de ny ing judicia l diversion. B e c a us e-7-

the de fe nd ant, wh o ha d no pr ior c ri min a l r e c or d, wa s c on vic te d o f o ne Cla ss C fe lony and tw o Cl a ss E felonies, he was e ligible f or judicial diversion. See Tenn. Code Ann. § 40- 35-313(a )(1) (B ) (2006)

. Howeve r, a de fenda

nt who is eli gi b le for judicia l diversion is not entitl ed to diversion as a matter of law. See State v. Bone stel, 87 1 S.W .2d 163, 168 (Tenn. Crim. App. 1993) , overr uled on other
g rounds by

State v. Hooper , 29 S.W .3d 1, 9 (Tenn. 2000) ). The decision t o g rant judicial diver sion lies within the discretion of the tria l court and w ill not be dist urbed on a ppeal unless it is shown that the t rial court abused its discretion. State v. Parker
, 932 S.W .2d 945, 958 (Tenn. Crim. App. 1996)

. A denial of

judicial diversion will not be overturne d if the re cord c ontains any substantial evidence to support the trial court’ s action. I d. (citations omitted).

When making a deter

mination r eg arding judicial diversion, the trial court must consider the following fac tors: (1) the de fenda nt’s amena

bility to corre ction, (2) the c ircumstance s of the off ense, (3) the defe ndant’s criminal rec ord, (4) the defendant’s soc ial history , (5) the de fenda nt’s mental and phy sical hea lth and (6) the de terre nt effe ct of the sentenc ing decision to both the defendant and other simil arly situated defe ndant s

. State v. L ewis, 978 S.W.2d 558, 566 (Tenn. Crim. App. 1997) (citations om i t t ed ). Addit ional fac tors which may be conside red inc lude the def endant’ s attitude, his be havio r s inc e arr e st, his ho me e nv ir on me nt, c ur re nt d ru g us a g e , emo tio na l st a bil ity , p a st employ ment, g ener al re putation, family responsibilit i es , an d the attitude of lawenfor ceme nt. I d. (citing State v. Washington, 866 S.W.2d 950, 951 (Tenn. 1993)). The decision should be base d on wh e the r t he g ra nt o f d ive rs ion

wi ll s e rv e the e nd s of jus tic e fo r bo th the pu bli c and the de fe nd a nt. I d. The re cord must re flec t that the t rial court considere d and weighe d all these fa ctors in ar riving at its decision. State v. Electroplating, Inc., 990 S.W.2d 211, 229 (Tenn. Crim. App. 1998).

I n its orde r denying judicial diversion, the trial court indicated that seve ral fa ctors we ighe d in favor of

g ranting diversion. The co urt noted that the de fenda nt had no prior c riminal rec ord or

rec ord of illeg al druguse, had a favor able social history
, and wa s in good phy sical and me ntal health. The trial court also noted that the def endant’ s marria g e appe are d to be stable a nd that his children “appe ar to have thrived.” Howeve r, the trial c ourt noted that seve ral of the other fa ctors we re e ither “at be st neutral” or

weig hed ag ainst diversion. I n its orde r, the trial court noted that the def endant’ s la c k o f s ta

ble e mpl oy

ment be tw e e n g ra du a tin g fr om m e dic a l sc ho ol a nd be g inn ingwo rk

a t hi s fathe r’s pra ctice ne g atively aff ecte d the “past employ

ment” and “fa

mily responsibility ” fa ctors. The
tr ia l c ourt sp e c if ic a lly no te d that the de fe nd ant’ s atti tud e , r e fl e c te d in his a sse rt ion

tha t hi s e rr or in misdiagnosingErica Scammon was something that any doctor could have done, and in his belief that he had done nothing wr ong by prac ticing without a li cense , was e specia lly disturbing. The trial court found that the de fenda

nt’s attitude neg atively

aff ecte d his amenability toward corre ction. The trial
court a ls o f

o u n d th a t th e n a tu

r e o f th e s e o f

f e n s e s , w h ic h th e tr ia l c o u rt d e s c r ib e d a s “ r e ckless and continu[i ng ] for a per iod of y ear s,” were s u ch t hat “[g ranting ] di version would deme an the sig nif ic anc e of a me dic a l lic e ns e and pr op e r me dic a l st and ard s, ” and that g ra nti ngdiv e rs ion

“ wo uld have the eff

ect of condoning such cr imes.” In light of these conclusions, the trial cour t concluded that the “de terre nt effe ct” a nd “ servingthe ends of justice ” fa ctors we ighe d heavily ag ainst diversion, and base d larg ely

on these fa ctors, the tria l court denie d diversion.-8-

Our re view of the rec ord i ndicates that the t rial court considere d all of the re quired fa ctors in r eac hing its decision and that its reasons f or deny ing judicia l diversion wer e fully supported by the re cord. A ccor dingly , we c onclude that the tr ial court did n o t ab u s e i ts discretion by denying judicial diversion.

Denial of Full Probation

The de fenda

nt also argues that the trial c ourt err ed in denying him full probation. The trial court de nied f

ull probation based upon its finding that full probation would “de prec iate the seriousness of the offe nse.” The state contends that the trial court appropr iately denied f ull probation based upon this fa ctor. We ag ree

.

Tenne ssee’ s former sentenc ing act, under which the defe ndant was sentenc ed, provide d that a def endant who did not possess a criminal history showing a clea r disreg ard for society ’s laws a nd morals, had not fa iled past reha bilitation efforts, and wa s “an e specia lly mitigated or

standard offe nder c onvicted of a Class C, D, or E felony [was] presumed to be a fa vorable candidate for alternative sentenc ing options in the abse nce of evidenc e to the contra

ry .” Te nn. Code Ann. § 40-35- 10 2( 6) (a me nd e d 2 00 5) ; se e a lso State v. F ie lds , 4 0 S.W.3 d 435 , 440 (T e nn . 200 1) . M ind fu l of thi s pr e su mpt ion , th e tr ia l c ourt or de re d th e de fe nd ant’ s si x-y e ar s e nte nc e to b e se rve d in sp lit

c on fi ne me nt, wi th t

he de fe nd ant s e rv ingnin e mon ths in t he c ounty ja il a

nd the ba lanc e of

his
sentenc e on probation. See Tenn. C o d e Ann. § 40-35-104(c)( 4) (one of the many alternative
sentenc ing options the trial c ourt may impose is “[a] sentenc e of pe riodic conf inement that may

be

serve d in a local jail or w orkhouse in conjunc tion with a term of probation[ .]”).

Howeve r, “[t] he dete rmination of whethe r the a ppellant is e ntitled to an alternative sentenc e and whether the appellant is e ntitled to full probation are diff ere nt inquiries.” State v. B og g s, 932 S.W .2d 467, 477 (Tenn. Crim. App

. 1996). Where a defe ndant is entitled to the statutory
pr e su mpt ion of a lte rn a tiv e se nte nc ing , th e state ha s th e burd e n o f o ve rc omi ngthe pr e su mpt ion wi th evidenc e to the contr ary . State v. Bingham, 910 S.W .2d 448, 455 (Tenn. Crim. App. 1995)
, overr uled on ot her g rounds by

State v. Hooper , 29 S.W .3d 1, 9-10 (Te nn. 2000). Converse ly , the defe ndant has the bur den of e stablishing his or her suitabilit y for full probation, even if the def endant is entitled to the statutory presumption of alternative sentenc ing. I d.; se e Bog g s, 932 S.W .2d at 477. No cr iminal defenda

nt is automatically entitled to pr obation as a matter of law. State v. Davis, 940 S.W. 2d 55 8, 55 9 ( Te nn . 1 99 7) . Rathe r, the de fe nd ant m us t de mon str a te tha

t pr ob a tio n w ou ld “subser ve the e nds of justice and the best interests of both the publ ic and the defendant.” State v. Souder, 105 S.W.3d 602, 607 (Tenn. Crim. App. 2002) (c itations omi tted).

I n this case, the tr ial court de nied the defenda nt’s reque st for probation to avoid depr eciating the se ri ou sn e ss o f t

he de fe nd ant’ s o ff

e ns e s. Al tho ugh th e tr ia l court did no t inc lud e the “ e sp e c ia lly violent, horrif

y i n g, shocking , repr ehensible, of fensive or

otherwise of

an exag g erated deg ree ”W hen t he “ ser i o usnes s o f t he o f f ense” f act o r f o rms t he b asi s f

o r denyi ng al t ernat i ve sent en ci ng, “ ‘ t he 4

ci r cu ms t an ce s of

t h e of f en s e a s commi t t ed mu s t be es pec i al l y v i ol en t , h or r i f y i n g , s h ock i n g , r epr eh en s i bl e, of f en s i v e or ot her wi s e of

an ex agg er at ed degr ee, ’ an d t he na t ur e o f t he of f ens e m us t out wei gh al l f act ors f avor i ng a s ent enc e ot her tha n c o n fine m e n t.” S ta te v. G risso m , 9 5 6 S .W .2 d 5 1 4 , 5 2 0 (T e n n . C rim . A p p . 1 9 9 7 ) (c itatio n s o m itt e d ). -9- lang uag e i n i ts ruling de ny ing f ull probation, a finding that the cr ime was e specia lly shocking or 4 offe nsive was inher ent in the re mainder of the trial court’s finding s. The trial court noted that “the licensing issue is really

important beca

use the lice nse itself is the protec tion the public has . . . when the y g o in and se e k [me dic a l a dv ic e ],” and that the pu bli c de mand s that the a dv ice it recei ves “ is wi thi n s ome re a so na

ble le ve l of

me dic a l c omp e te nc e . T he wo rs [t] thi ngtha t c an h a pp e n is a dis e a se that is undiag nosed . .

. it’s importa nt to the public that we just not say that well, whether y ou have a license or not, no big deal.” The trial court stated that the defe ndant “should have know n that he

wa sn ’t up to sta

nd ard s on his me dic a l kn ow le dg e ” and that his fa the r wa s unabl e to adeq uate ly

su pe rv ise his wo rk

g ive n h is f

a the r’ s h e a lthiss ue s. F ur the rm or e , th e tr ia l c ourt

no te d th a t th is c a se

wa s im po rt a nt i n ma int a ini ngthe int e g ri ty of the Te nn Car e s y ste m, s ta tin g , “ Whe the r [m on e y ] in this

case [was] the prime re ason for it, there’s a

lot of incentive if pe ople th o u gh t they could g et awa

y with a re latively

small to no punishm ent . . . we ne ed to make sur e that people [who] do this are qualified a

nd leg al to do that.” Addi t i o n al l y , as st ated a bove, in deny

ing the defe ndant judicial diversion the trial c ourt found that the defenda nt’s potential for r ehabilitation was low ba sed on the de fe nd ant’ s b e lie f t

hat he ha d d on e no thi ng wr on g , and it a lso fo un d th a t a lte rn a tiv e se nte nc ingin this case would not serve the ends of justice . The trial c ourt’s finding s were also indicative that the
nature of the off

ense f ar outwe ighe d any

fac tor s weighing in favor of g ranting full probation. As

su c h, we c on c lud e that th e tr ia l court di d n ot a bu se its dis c re tio n in

imp os inga

se nte nc e of

sp lit

c on fi ne me nt.

CONCL USI ON

Upon co n s id e r a ti o no f

th e f o r e g o in g an d

th e r e c o r d

a s a w h o le
, th e ju d g me n ts o f th e trial
court a re a ffirme d.

______________________________ D. KEL L Y THOMAS, JR ., J UDGE