### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON April 10, 2001 Sessi

on STATE OF TEN

NESSEE v. THO

MAS LEON LEWI

S, II Direct Appeal from the Criminal Court for Madison County

No. 99-201; 202 Roger A. Page, Judge

No. W2000-01740-CCA-R3-CD - Filed May 9, 2001

Pursuant to a negotiated plea

agreement, the

defendant pled guilty to contributing to the delinquency of a minor, a Class A mis

demeanor, and un

lawful use

of an altered vehicle registration plate, a Class E felony. He

received conc

urrent sente

nces of el even months, twent y-nine day

s and two yea

rs, res pect ive ly, to be served onprobation. The defendant appe als the trial cour

t's denial of his r

equest for judicial diver

sion. Upon our rev

iew of the recor

d, we affirm the j udgment of the tr ial court. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed J OE G. R ILEY , J., delivered the opinion of the court, in which J OHN E VERETT W ILLI AMS and R OBERT W. W EDEMEYER , JJ., joined. Danie l J. T aylor, Jacks on, Te nness ee, fo r the a ppell ant, T homas Leon Lew is, II. Paul G. Summers, Attorney General and Reporter; Mark E.Davidson, Assistant Attorney Ge

neral; James G. (Jerry

) Woodall, District A

ttorney Ge

neral; andJames W. Thompson, Assistant District Attorney General, for the appellee, State of Tennesse e.

OPINION The defendant was indicted in case 99-200 fo

r statutory r

ape; in case

99-201 for one count of official misconduct and one count of unlawful use of an altered registration plate; and

in case 99- 202 for one count of offic

ial misconduct,

one cou nt o f fu rni shi ng al coh ol t o a p ers on u nde r tw ent yone years of age, one count of contributing to the delinquency of a

minor, and one count of criminal responsibility

for possession of marijuana by another. Pursuant to a negotiated ag reement, the defendant pled guilty to the unlawful u se of an altered registration plate and contributing to the delinquency

of a minor. The other charges wer e dismissed. The defendant received an effective sentenceof two years probation. The trial court was to determine whether the defendant should be granted judicial diversion . A se ntencing hearing was held, and the trial court found that judicial diversion was not appr opriate. Th e defendant n ow challenge s the trial court's denial of judicial-2-

diversion. Specifical ly, the defenda nt contend s the trial court erred i n basing i ts decision to deny judicial diversion solely upon the fact that the def

endant was a

law enforceme

nt officer at the

time of the commission of

the offenses.

ABSENCE O F GUILTY PLEA TRANSCRIPT The record before this cour t doe s not contain a tra

nscript of the gu

ilty plea. I

n order to conduct an effective appellate review of sentencing, a transcript of the guilty plea

hearing is necess ary. Sta te v. Keen , 996 S.W.2d 842, 844 (Tenn. Crim. App. 1999). The transcript of the guilty plea is usually necessary in orde r for thi s courtto ascertain the facts and circumstances surrounding the offense. I ndeed, the guilt

y plea hearing is the equivalent of a trial. Id . at 84 3. In the absence of a t ranscript o f a guilty plea, t his court m ust ge nerally conc lude that the sentence imposed by the trial court was correct. Id . at 844. We further note that neither the defendant nor any other per s on testifie d at the sentencing hearing. The pre-senten

ce report conta

ins incriminating

allegations of f

acts beyond

the charges to whichthe defendant pled. The defendant gave no statement in the pre-s entence repo rt. Althou gh the trial court state

d it did not rely

upon the dism

issed charges, we are still without the factual circumstances surrounding the two charges to which the defendant pled. Defense counsel’s ve rsion of the circumstances stated during argument does not suffice. We are, therefore, handicapped in providing effective

appellate revie

w. We have electe

d to review this matter

, but we do so in ligh

t of the record be

fore us.

EVIDENCE PRESENTED AT THE HEARING The trial court conduc ted a hearing to determine whether the defendant should be granted judicial diversion. The state argued that the defendant should be denied judicial diversion. The sta

te claimedthat since the defendant was a Tennessee

Highway Pa

trolman, his

convictions demonstrated an abuse of public trust. Furthermore, the state argued that granting diversion would depreciate the wrongfulness

of the defendan

t's acts,especially in light of the fact that at least one of the defendan t's convictions involved minors and the use of alcohol. The defense proof consisted totally of documentary evidence. This evidence reflected that the defendant was marr

ied with t wo children; was a graduate of the Tennessee Highway Patrol Acad emy; had no prior convictions; and had received numerous letters of commenda tion . The defendant also presented evidence that he wasa mem ber of the Air Na tional Guard, ser

ved in Operation Desert Storm, and was classified as a disabled veteran; had completed his Bachelor of Science degree during

the time that his ca

se was pending in

the trial court; a

nd currently

owned his own carp et c lea nin g bus ine ss. Add iti ona lly, the defendant presented the court with various letters attesting to his good character and standing in the community.-3-

Defense counsel argued that, with regard t o the charge of unlawful use of an altered registrationplate, the def endant did have a proper license plate but gave his renewal stickers to a personwho then pl aced them on another veh icle's license plate. With regard to the contributing to the delinquency of a minor charge, defense c ounsel claimed that defendant did not furnish any illegal substances to the minors, but admitted that defendant di

d nothing to discou

rage the illeg

al conduct. Fin all y, defe nse counsel argued that the defendant was not acting in his official capacity as a law enforcement officer during the commission of either offense.

TRIAL COURT'S FINDINGS The trial court stated that it reviewed all of the evidence presented

by both the state and the defendant and was not considering the dismissed charges . The trial court specifically considered: (1) the attitude a

nd behavior of the

accused since a

rrest; (2) the accused’s amenability to correction; (3) the circumstances of the offense; (4) the accu sed ’s c rim ina l hi sto ry; (5) the accu sed ’s s oci al h ist ory; (6) the accused’s physical and mental health; (7) the deterrence value to the accused as well as to others; and (8) whether judicial diversion would serve the ends of justice, considering the interests of the public as well as the accused. See State v. Parker , 932 S.W.2d 945, 958 (T enn. Crim. App. 1996

). The trial cour

t found that most of these factors were favorable to the defendant. However, the tri

al court conclude

d that it must determine whether judicial diversion would "serve the ends of justice" in the instant case. Withregard to the d

efendant's sta

tus, the trial cour

t found that it "ha

s some interest . . .

in making sure that individuals who are in the public trust do not abuse that trust." Ultimately, the trial court held that, ". . . in this case, considering ev erything, I cannot find

that the ends of jus

tice will be served by placing Mr. Lewis on judicia l diversion."

JUDICIAL DIVERSION When a defendant contends that the tri al co urt committed error in refusing to impose a sentence pursuant to Tenn. Code Ann. § 40-35-313, commonly referred to as “judicial diversion,” this Court must determine whether the trial court abused its discretion in failing to sentence pursuant to the statute. State v. Cutshaw , 967 S.W.2d 332, 344 (Tenn. Crim. Ap p. 1997); State v. Bonestel , 871 S.W.2d 163, 167 (Tenn. Crim. App. 1993). Judicial diversion is similar to pretrial diversion; however, judicial d iversion f ollows a de terminati on of guilt, and the deci sion to gr ant judi cial diversion rests with the tria l court, not the prosecutor

. State v. Anderson , 857 S.W.2d 571, 572-4-

(Tenn. Crim. App. 1992). When a defendant challenges the trial court’s denial of judicial diversion, we may not revisit the issue if the record contains an y substantial evidence supporting the trial court’s decision. Cutshaw , 967 S.W.2d at 344; Parker , 932 S.W.2d at 958. The criteria that must be considered in determining whether an eligible acc used should be granted judicial diversion include: (a) the defendant’s amenability to co rrection; (b) the circumstances of the offense; (c) the defendant’s criminal record;(d) the defe nda nt’ s so cia l hi sto ry; (e) the defendant’s physical and mental health; and (f) the deterr ence value to thede fendant and others. Cutshaw , 967 S.W.2d at 343-44; Parker , 932 S.W.2d at 958. An additional consideration is whether judicial diversion will serve the ends of justice, i.e., the interests of the public as well as the defendant. Cutshaw , 967 S.W.2d at 344; Parker , 932 S.W.2d at 958.

ANALYSIS Firs tly, we do not feelwe can effectively review the circumstances of the offenses due to the absenceof the guilty plea transcript. See Keen , 996 S.W.2d at 844. The circum stances of the offenses are indeed i mportant i n determin ing whether the defendant should be granted judicial diversion. See Cutshaw , 967 S.W.2 d at344; Parker , 932 S.W.2d at 958. We, therefore, p resume the trial court was correct. Keen , 996 S.W.2d at 844. Sec ond ly, we reject the defenda nt's conten tion that he has bee n unduly pena

lized simply because he was a law enforcement officer. A defendant's status as a law enforcement officer need notbe ignored by a sentencing court in deciding whether or not to grant

the lar gess of judicial diversion. On the other hand, a law enforcement officer should not automatically be excluded from considerationfrom

judicial diversion simply because of his or her employment status, especially for an off -du ty, non-job related offense. One's employment status is s imp ly on e fac tor , am ong m any, to consider in making

the judicial diver

sion determination. The issue befor e this court is

not whether defendant is a suitable candidate for alternative sentencing. He is a good candidate for and has been granted an alternative s

entence in

the form of

full probation. The

sole question befo

re this court is whether there is any substantial

evidence to support the denial of judicial diversion. Anderson , 857 S.W.2d at 572. We conclud e, after cons idering the entire recor d in light o f the findi ngs of the trial court, that there is. The defendant relies upon our opinion in State v. James M. William s , No. 02C01-9710-CR

00388, 1999 WL 2848 (Tenn. Crim. App. filed January 5, 1999, at Jackson), perm. to app. denied (Tenn. 1999), and argues that defendant's status as a law enforcement officer should not be used as the basis for deny

ing judicial dive

rsion for offens

es u nrelat ed to his employ ment. However, in Williams we upheld the denial of judicia l diversion while

granting probation. While a defendant may be presumed

to be a favorable

candidate

for alternative

sentencing, no s

uch presumption exis

ts withregard to judicial diversion. Thus, in Williams we concluded that, even though diversion would have been appro

priate, we should

defer to the decision of the trial court to deny judicial diversion, absent a clear abuse of discretion.-5-

The trial court determined that gr anting j udicial diversion would seriously depreciate the seriousness

of the defendant's conduct. Examining the evidence before it, the trial court ultimately concluded

that the ends of jus tice would be ill served by granting judicial diversion in the instant case. Like the court in Williams , we find th at although the trial judge w ould have acted w

ithin his discretionary

auth ority had h e granted judic ial diversion, we c

an not say tha

t he abused his discretionary authority by denying it. Thus, we affirm th

e judgment of the

trial court.

___________________________________ JOE G. RILEY, JUDGE