IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs February 5, 2019

STATE OF TENNESSEE v. AARON LONG

Appeal from the Circuit Court for Fayette County

No. 18-CR-65 J. Weber McCraw, Judge

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No. W2018-01387-CCA-R3-CD

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The defendant, Aaron Long, appeals the denial of his request for judicial diversion by the 

Fayette County Circuit Court. The defendant contends the trial court erred in denying his 

request for diversion by improperly relying on two previous misdemeanor convictions for 

which he served no jail time. After our review, we affirm the trial court’s denial and 

imposition of an effective three-year sentence of supervised probation. The judgments of 

the trial court are affirmed.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

J. ROSS DYER, J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS,

P.J., and CAMILLE R. MCMULLEN, J., joined.

J. Colin Rosser, Somerville, Tennessee, for the appellant, Aaron Long.

Herbert H. Slatery III, Attorney General and Reporter; Brent Cherry, Senior Assistant 

Attorney General; Mark E. Davidson, District Attorney General; and Falen Chandler, 

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

OPINION

Facts and Procedural History

The defendant was indicted for and pled no contest to two counts of child abuse 

and neglect committed against his minor sons on May 8, 2017. Tenn. Code Ann. § 39-

15-401. Prior to entering the plea, the defendant filed a “Brief on the Issue of Diversion”

wherein he argued he qualified for judicial diversion. Within the brief, the defendant 

acknowledged two, prior Class A misdemeanor theft convictions entered against him on 

August 12, 2003 and April 19, 2010. Despite the prior convictions, the defendant

04/09/2019
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maintained he qualified for judicial diversion because he did not serve any jail time for 

the same. Tenn. Code Ann. § 40-35-313(a)(1)(B)(i)(d). Additionally, the defendant 

noted the presentence report identified him as a “low risk factor.” 

At the plea hearing, the trial court reviewed the presentence report and considered 

the agreed-upon sentence of three years for each conviction as offered by the parties. The 

State, however, explained the parties had “not agreed upon diversion or not,” and the 

defendant confirmed he intended to proceed with the no contest plea regardless of the 

granting of diversion. The State presented the following facts for the record:

Had this matter gone to trial, the State would have introduced proof 

that Investigator Tim Neill with the Fayette County Sheriff’s Department, 

along with Dorothy Long and her two children with the initials “AL,” date 

of birth 09/07/08, and “JL,” date of birth 07/08/2012, that on or about May 

8, 2017, Investigator Neill responded to 201 Lakeview Road where Dr. 

Derek Pendleton’s office is located on a juvenile complaint. Upon arrival, 

Investigator Neill spoke with Dorothy Long who advised that her two sons, 

“AL” and “JR” (sic), were physically abused by their biological father, [], 

the defendant, while they were at his home.

When her sons returned home, “AL []” was complaining that his leg 

and butt were hurting because his dad had whipped him. Ms. Long noticed 

that “AL []” had bruises on his legs and buttock area. Ms. Long also 

noticed bruises on the upper and lower buttocks of “JL.” According to “AL

[]” they were whipped after they got out of the bathtub while unclothed 

with an unknown object. “AL []” stated that he got a whipping because 

“JL” lied and said that he downloaded a game on the iPad and his dad told 

him not to. He also stated that “JL” got a whipping because he pee-peed in 

his clothes. Investigator Neill did notice visible bruising and open 

abrasions on the right to mid-thigh area, upper left, and side buttocks area 

as well as the lower left leg area of “AL [].” There were also bruises on 

“JL’s” legs. 

This did occur in Fayette County. Had this matter gone to trial, the 

State feels confident it would have met its burden of proof and ask[s] the 

[c]ourt to accept this plea and sentence.

The trial court conducted a plea colloquy wherein the defendant waived his right 

to a jury trial and testified he understood the terms of the no contest plea for two Class D 

felonies for child abuse and neglect. The trial court accepted the plea and then addressed 
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diversion.1 In doing so, the trial court reviewed the presentence report, a report by the 

Tennessee Bureau of Investigation (“TBI”), and affidavits offered by the defendant. 

Regarding the presentence report, the State objected to the “Strong-R assessment” which 

suggested the defendant “has not displayed any threatening, aggressive, or violent 

behaviors within the last five years” based upon “the plea entered here today.” The trial 

court noted the TBI report indicated the defendant served time for the theft conviction

entered in 2010. The defendant, however, disputed the same and offered affidavits 

indicating the Fayette County Jail had no record of him serving jail time for the 2010 

conviction. The State offered photographs of the victims’ injuries for consideration.

Upon its review, the trial court denied the defendant’s request for diversion and 

imposed concurrent, three-year sentences for each conviction. The trial court, however, 

suspended the defendant’s sentences to 2 years and 362 days of supervised probation.2

Additionally, the trial court imposed a $500 fine for each conviction and ordered the 

defendant to complete anger management and parenting classes. The defendant timely 

appealed.

Analysis

On appeal, the defendant asserts the trial court abused its discretion in denying 

judicial diversion, asserting he was eligible for the same. The defendant further contends 

the trial court incorrectly relied on two prior misdemeanors for which he served no jail 

time, erroneously weighed the prior convictions against the factors in support of granting 

diversion, and “did not explain why this factor weighed more . . . than the other factors.” 

The State argues the trial court did not abuse its discretion, and we agree.

Our standard of review of the trial court’s sentencing determinations in this case is 

whether the trial court abused its discretion, but we apply a “presumption of 

reasonableness to within-range sentencing decisions that reflect a proper application of 

the purposes and principles of our Sentencing Act.” State v. Bise, 380 S.W.3d 682, 707 

(Tenn. 2012). The application of the purposes and principles of sentencing involves a 

consideration of “[t]he potential or lack of potential for the rehabilitation or treatment of 

the defendant . . . in determining the sentence alternative or length of a term to be 

imposed.” Tenn. Code Ann. § 40-35-103(5). Trial courts are “required under the 2005 

amendments to ‘place on the record, either orally or in writing, what enhancement or 

mitigating factors were considered, if any, as well as the reasons for the sentence, in order 

to ensure fair and consistent sentencing.’” Bise, 380 S.W.3d at 706 n.41 (citing Tenn. 

 

1We note, the judgment forms indicate the defendant pled guilty whereas the plea paperwork 

shows the defendant entered a “plea of no contest.”

2The defendant received three days of jail credit for May 10 through 12, 2017.
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Code Ann. § 40-35-210(e)). Under the holding in Bise, “[a] sentence should be upheld so 

long as it is within the appropriate range and the record demonstrates that the sentence is 

otherwise in compliance with the purposes and principles listed by statute.” Id. at 709. 

The Bise standard of review applies to “appellate review for a trial court’s sentencing 

decision to either grant or deny judicial diversion,” State v. King, 432 S.W.3d 316, 325 

(Tenn. 2014), and to “questions related to probation or any other alternative sentence,” 

State v. Caudle, 388 S.W.3d 273, 278-79 (Tenn. 2012).

Judicial diversion is a means by which qualified defendants may avoid a criminal 

record following a guilty plea or conviction by successfully completing a period of 

probation and payment of court-imposed supervision fees. Tenn. Code Ann. § 40-35-

313. “Qualified defendant” is a statutorily defined term referring to a defendant who:

(a) Is found guilty of or pleads guilty or nolo contendere to the offense for 

which deferral of further proceedings is sought;

(b) Is not seeking deferral of further proceedings for any offense committed 

by any elected or appointed person in the executive, legislative or judicial 

branch of the state or any political subdivision of the state, which offense 

was committed in the person’s official capacity or involved the duties of the 

person’s office;

(c) Is not seeking deferral of further proceedings for a sexual offense, a 

violation of § 39-15-502, § 71-6-117, § 71-6-119, or § 39-15-508, driving 

under the influence of an intoxicant as prohibited by § 55-10-401, vehicular 

assault under § 39-13-106 prior to service of the minimum sentence 

required by § 39-13-106, or a Class A or B felony;

(d) Has not previously been convicted of a felony or a Class A 

misdemeanor for which a sentence of confinement is served; and

(e) Has not previously been granted judicial diversion under this chapter or 

pretrial diversion.

Tenn. Code Ann. § 40-35-313(a)(1)(B)(i). Diversion requires the consent of the qualified 

defendant. Id. § 40-35-313(a)(1)(A). “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 (citing Tenn. Code Ann. § 40-35-313(a)(1)(A) (“The court may defer proceedings 

against a qualified defendant....” (emphasis added)); State v. Teresa Turner, No. M2013-

00827-CCA-R3-CD, 2014 WL 310388, at *4-5 (Tenn. Crim. App. Jan. 29, 2014)). 
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Following a determination that the defendant is eligible for judicial diversion, the 

trial court must consider,

“(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)). 

“Further, the 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)). Adoption of the Bise standard of review for 

judicial diversion “did not abrogate the requirements set forth in Parker and 

Electroplating, which are essential considerations for judicial diversion.” Id. The trial 

court need not “recite all of the Parker and Electroplating factors when justifying its 

decision on the record in order to obtain the presumption of reasonableness,” however, 

“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.” Id. at 327.

In reviewing the trial court’s sentencing determinations, we are unable to find an 

abuse of discretion as the record makes clear the trial court carefully considered the 

Parker and Electroplating before denying judicial diversion. After determining the 

defendant to be “qualified” for judicial diversion, the trial court addressed the 

Parker and Electroplating factors, as follows:

The [c]ourt is required to consider several things in determining 

whether to grant or deny judicial diversion so I will go through those 

factors. First, the [c]ourt looks to the accused’s amenability to correction. 

The [c]ourt does note he has two prior Class A misdemeanors. One was in 

2003; one was in 2010. So with regard to his amenability to correction it 

does show that not only has he committed one Class A misdemeanor, then 

he’s committed another. He does have several traffic violations. The 

[c]ourt notes that just so the record is accurate that he does have other 

convictions, just to correct the record, but the [c]ourt really does not focus 

on his speeding tickets as a reason to consider or -- in considering the 

judicial diversion, but he does have two different convictions, so the [c]ourt 
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is concerned about his amenability to correction because now he’s here on a 

third offense, now it’s a felony. 

Circumstances of the offense, it is an abuse situation. It does 

involve younger children which is of concern to the [c]ourt. Again, the 

[c]ourt is to look at the accused’s criminal record. I’ve touched on it. He 

does have a prior criminal record. While technically he may be eligible for 

consideration, he does have a criminal record. Social history, I don’t know 

of any reason why there’s a negative on the social history so that does not 

factor against him. The status of the accused’s physical and mental health, 

I don’t know of any physical or mental health issue that would be a 

negative. Deterrence value to the accused as well as to others, well, there’s 

always some deterrent value that’s out there, somewhat neutral on whether 

or not that’s a factor. Certainly, we all recognize child abuse is an issue as 

is any criminal offense and the Legislature has made child abuse something 

that can be considered, so really there’s no positive or negative either way 

on that. And, then, lastly, whether judicial diversion will serve the interests 

of the public as well as the accused, you know, I understand [the 

defendant’s] desire to keep the felony off his record. To me, he’s had two 

chances to have kept a good clean record but again he has violated the law. 

[Defense counsel] argues that the gentleman was younger and maybe not as 

wise as any of us were at that time but along that argument then while we 

may not have been real bright when we were young, we didn’t commit 

crimes that were misdemeanors and now a felony, so I think the [c]ourt has 

to look at all these factors. The [c]ourt does weigh all of them and the 

things that weigh most heavily is he’s already been convicted of two Class 

A misdemeanors. Therefore, I don’t find he’s a good candidate for judicial 

diversion so that request is denied.

As noted above, the trial court determined three factors weighed against the 

defendant and his request for judicial diversion: the defendant’s amenability to 

correction, the defendant’s criminal history, and whether diversion would serve the ends 

of justice. In weighing these factors, the trial court considered the presentence report 

which indicated the defendant had two prior Class A misdemeanor convictions and 

numerous traffic violations. These prior crimes “concerned” the trial court in relation to 

the defendant’s amenability to correction as the trial court noted the defendant continued 

to commit crimes which were increasing in severity. The trial court also found the 

physical abuse committed by the defendant against his two minor children to be “of 

concern.” Turning to the remaining Parker and Electroplating factors, including the 

defendant’s social history, his physical and mental health, and the deterrence value to 

others, the trial court considered each factor to be “neutral” in its sentencing 
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determination. The trial court ultimately determined the defendant’s prior criminal 

history and his low amenability to correction outweighed the other factors considered. 

King, 432 S.W.3d at 326. Accordingly, the record demonstrates the trial court carefully 

considered the relevant Parker and Electroplating factors before denying judicial 

diversion and imposing suspended, concurrent sentences of three years for each 

conviction. 

While the defendant is correct in arguing his prior misdemeanor convictions did 

not disqualify him from consideration for judicial diversion, merely qualifying for 

diversion does not resolve the issue. Id. Rather, upon finding the defendant eligible for 

judicial diversion, the trial court was required to consider if diversion was warranted by 

weighing the Parker and Electroplating factors, and the record on appeal demonstrates 

the trial court did just that. Id. (quoting Parker, 932 S.W.2d at 958). As such, the 

defendant is not entitled to relief. 

Conclusion

Based upon the foregoing authorities and reasoning, we affirm the judgments of 

the trial court.

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 J. ROSS DYER, JUDGE