# FILED September 10, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT NASHVILLE MAY SESSION, 1998 STATE OF TENNESSEE, ) C.C.A. NO. 01C01-9707-CC-00306 ) Appellee, ) ) ) WILLIAMSON COUNTY VS. ) ) HON . DON ALD P . HARR IS TIMOTHY LANE, ) JUDGE ) Appe llant. ) (Direct Appeal -

JudicialDiversi on)

FOR THE APPELLANT : FOR THE APPELLEE : J. TIMOTHY STREET JOHN KNOX WALKUP 136 Fo urth Ave nue, So uth Attorney Generaland Reporter Franklin, TN 37064 KAREN M. YACUZZO E. COVI NGTON JOHNSO N Assistant Attorney General 136 Fo urth Ave nue, So uth 425 Fifth Avenu e North Franklin, TN. 37064 Nashvill e, Tn. 37243 JOE D. BA UGH, JR. Distri ct Attorney General MARK PURYEAR Assistant Distri ct Attorney P. O. Box 937 Franklin, TN 37065-0937
OPINION FILED ________________________ AFFIRMED JERRY L . SMI TH, J UDGE-2- 

# OPINION

On March 25, 1997, in the Willi amson County Circui t Court, the Appella nt, TimothyL. Lane , pled guilty to a charge of aggra vate d assa ult. As a Range I standard offender, he was sentenced to a two year sus pended sentence a nd five years of supervi sed probation. Mr. Lane was als o ordered to cont inue counseli ng with respect to the issues which had caused him to attack the vi ctim, and he was ordered to pa y restitution to the victim for the injuries su stained by her.

The Appe llant pre sents one is sue fo r our co nside ration o n app eal: Whether the trial c ourt er red in refus ing to grant the Appellant

socalled j udic ial di version pur suant to Tennessee Code Annotated Section 40-35- 313. We find that the j udgment of the t rial cour t must be aff irmed.

I. FACTUAL

BACKGROUND In November, 19 94, the Appella nt was char ged withtwo count s of aggravated assault i nvolvi ng an attackupon Ms. T eresa McC ord, the Appe llant’s sister. Mr. Lane applied fo r pretrial divers ion pursu ant to Tennessee Code Anno tated Section 40-35-1 01, et seq . This appli cation was deni ed an d a n interlocutory appe al to this Court was gra nted. State v. Lane , Williamso n County, No. 01C01-9 506-CC -00213 (T enn. Crim. App. Sept. 5, 1996). The circumstancessurrounding t he charges against the Appellant

are summarized in that op inion:-3- On Septem ber 29, 1 994, the defe ndant res ided in a t railer located upon property owned by his si ster, Teres a McCord, who is l isted i n the indict ment as the victi m of the all eged offen se. The defendant, now 32 years of age, is the custodian of his t

wo minor chil dren; at t he time of t he charges, he shar ed hi s residence with his

mother. The d e fendant had been employed for the last several years in secu rit y at Bapti st Hospitalin Nashvil le. Alt hough not a high school graduate, he has an em ployment h istory t hat i ncludes work as a dispatcher

in the Fai rview Poli ce Department and work i n traff ic cont rol in Nashvill e. The de fendan t is licensed to carry a f irearm. He has noprior criminal record. An altercat ion occurred after the victim, who lived next door, swore out an unlawful detainer warrant against the defen dant. After bei ng notifi ed of the act ion by local authorit ies, the defendant had one ormore te lephon e conve rsations w ith the victim abou t how long he could ma intain his trailer on her prop erty. Later, the de fenda nt and the victim argued. While thefacts are contested, the victi m claimed that the defendant attacked her in her own front year , struck herin the face, and punched his fi nger into her eyes until she was helpless . The vi cti m, who suffered s erious injuries to her eyes, was hos pitali zed. Photographs in the record s ubstan tiate the severi ty of her injuri es. The defendant c laimed that the victi m initi ated the altercat ion. He asserted that hi s sister grabbed him by the throat, cuttin g off his air supply, and that he pani cked, swingi ng wildly , untilshe release d her ho ld. Lane , Slip Op. at pp. 4-5.
This Cour t affirme d the d istrict atto rney’s denial of pretrial di version based
on the Appellant’s lack of acceptance of r

esponsibil ity for the o ffense and t he
s everit y of the in juries s ustain ed by th e victim . Slip O p. p.5. T his Co urt did indicate tha t judic ial di version pur suant to Tennessee Code Annotated Section 40-35-3 13, mig ht be a co nsidera tion in the futu re. Id.

In Marc h of 19 97 the Appe llant en tered a plea o f guilty to a single count of aggravated assaul t . He applied f or judici al diver

sion pursuant

to Tennessee Code Annotated Secti on 40-35-313, but this reque st was denied and he w as sentenced to a sus pended sentence and probat ion.

At the hearingon the request for judi cial di version t he Appellant pr esented testimony con cerning hi s good work histo ry, and hi s care for hi s aili ng mother.-4-

He admitted he was t he aggressor i n the attac k on his sisterand stated he was remorseful and that he had begun counseling f or the issues betwe en him and h is sister that had l ed to the assault. However, the pr oof also showed that for over two years after the assaul t the Appellant s howed no remorse, made no attempt to payrestitution an d actua lly blamed the victim fo r the incide nt. Only after the vi cti m, Ms. McC ord told the Ap pellan t that sh e wou ld not p ress fo r his incarcerat ion didhe “ reme mber ” hehad initi ate d th e attac k an d become remor seful.

II . DENI AL OF J UDICI AL DI VERSI ON The Appe llant’s o nly contenti on in thi s appeal is t hat the trial cou rt erred in denying him judici al diver sion pursuant

to Tennessee Code Anno tate d Section 40-35-313. We disagree.

In order to b e cons idered fo r judicial divers ion und er Secti on 40 -35-313, a defendant must meet t hree criteria: (1) convicti on of a misde meano r punishabl e by imprisonment or conviction of a Cla ss C, D, or E fe lony; (2) no prior felony or Class A misdemeanor convictions; (3) consent by the de fend ant to deferment of the proceedings and impositi on of p rob ati on for u p tothemaxi mum sen tence lengt h for the crime i n question. Tenn. Code Ann. S ec. 40-3 5-313(a )(1). If these criteria are met and t he trial court sentences the def endant pursuant

to Sec. 40-35-313, at the completi on of the proba tionary period the de fenda nt is disc harge d witho ut an a dju dicati on of guilt and the records

of the entire proceeding are subject to expungement. Tenn. Code A nn. § 40-35-3 13(a)(2) and (b ).-5- Although t he Appellant in the instant case meets the statutory pr erequisi te s forjudici al diver

sion he is not

entitl ed to the ben efits of Sec. 40-35- 313 as a matterof right. State v. Bonestal , 871 S.W.2d 163, 168 (Ten n. Crim. App . 1993). The decision to grant or deny judic ial di version rests within the di scretion of the trialcourt whose deci sion wil l not be rev ersed on appeal i f there i s any substant ial evidence to support it. Tenn. Code Ann. § 40-3 5-313(a)(1); State v. Anderson , 857 S.W .2d 571 , 572 (T enn. C rim. App . 1992); Bonestal , 871 S.W.2d at 168.

This Court had held th at in determining whether to gr ant judi cial di version the trial court should co nsider: (1) the defendant’ s amenabilit y to corr ection; (2) the circu mstances of the of fense; (3) the defendant’ s criminalrecord; (4) the defenda nt’s social history; (5) the status

of the defe ndant’s phys ical and mentalhealth; (6) the deterr

ence value to the defendant as well as ot hers; and (7) whetherjudicial diversion will serve the be st intere st s of both t he public an d the de fendan t.
Bonestal , 871 S.W.2d at 168 (applyi ng pretri al diver sion consider

ations enumerated in State v. Hammersley , 650 S.W .2d 352 (Te nn. 1983)); Anderson , 857 S.W .2d at 573 . In addition to the factors enum erated abo ve, the trial court may conside r the defe ndant’s a ttitu de and be havior sinc e his arres t. State v. Washington , 866 S.W .2d 950-95 1 (Tenn. 19 93).

Judicialdiversion is si milar in purpose to pretrial di version and its gran t is left to the d iscreti on of the trial cou rt subject o nly to the sa me co nstraints applicabl e to prosecutors in appl ying pret rial diversion. Anderson , 857 S.W.2d at 572. This Cou rt has previously concluded t hat pretrial di version was appro priately denied in t his case. The quest ion now becomes whether-6-

circumstanceshave sufficient ly changed so as to characterizea denial of judici al diversi on as an abuse of di scretion.

In the instant case re lations between the Appellant a nd his sister have improve d. However, only after hi s sister’s assurances t hat she would not seek his incarcerat ion did theAppella nt expres s his rem orse an d acce pt respo nsibility forhis acti ons. One could cl early concl ude from this thatthe Ap pellan t’s remorse is less that genuine . He also app are ntly l ied in his appl icatio n for pret rial diversi on when he claimed his sister initi ated the altercati on which resulted i n her rather s evere injuri es. This l ack of candor al so causes us doubt as to the Appellant’ s amenabilit y to rehabi litat ion.

We t herefo re con clude the trial c ourt did not ab use h is discr etion in denying judici al diver

sion and grant ing the Appellant pr obation. Accordingly , the judgment of t he trialcourt is affirmed.

____________________________________ JERRY L . SMI TH, J UDGE

CONCUR:

___________________________________ GARY R. WADE, PRESI DING J UDGE

___________________________________ DAVID G. HAY ES, J UDGE