FILED

September 10, 1998

Cecil W. Crowson

Appellate Court Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

MAY SESSION, 1998

STATE OF TENNESSEE, ) C.C.A. NO. 01C01-9707-CC-00306

)

Appellee, )

)

) WILLIAMSON COUNTY

VS. )

) HON. DONALD P. HARRIS

TIMOTHY LANE, ) JUDGE

)

Appellant. ) (Direct Appeal - Judicial Diversion)

FOR THE APPELLANT: FOR THE APPELLEE:

J. TIMOTHY STREET JOHN KNOX WALKUP

136 Fourth Avenue, South Attorney General and Reporter

Franklin, TN 37064

KAREN M. YACUZZO

E. COVINGTON JOHNSON Assistant Attorney General

136 Fourth Avenue, South 425 Fifth Avenue North

Franklin, TN. 37064 Nashville, Tn. 37243

JOE D. BAUGH, JR.

District Attorney General

MARK PURYEAR

Assistant District Attorney

P. O. Box 937

Franklin, TN 37065-0937

OPINION FILED ________________________

AFFIRMED

JERRY L. SMITH, JUDGE
-2-

OPINION

On March 25, 1997, in the Williamson County Circuit Court, the Appellant,

Timothy L. Lane, pled guilty to a charge of aggravated assault. As a Range I

standard offender, he was sentenced to a two year suspended sentence and five

years of supervised probation. Mr. Lane was also ordered to continue counseling

with respect to the issues which had caused him to attack the victim, and he was

ordered to pay restitution to the victim for the injuries sustained by her.

The Appellant presents one issue for our consideration on appeal:

Whether the trial court erred in refusing to grant the Appellant socalled judicial diversion pursuant to Tennessee Code Annotated

Section 40-35-313.

We find that the judgment of the trial court must be affirmed.

I. FACTUAL BACKGROUND

In November, 1994, the Appellant was charged with two counts of

aggravated assault involving an attack upon Ms. Teresa McCord, the Appellant’s

sister. Mr. Lane applied for pretrial diversion pursuant to Tennessee Code

Annotated Section 40-35-101, et seq. This application was denied and an

interlocutory appeal to this Court was granted. State v. Lane, Williamson County,

No. 01C01-9506-CC-00213 (Tenn. Crim. App. Sept. 5, 1996). The

circumstances surrounding the charges against the Appellant are summarized

in that opinion:
-3-

On Septem ber 29, 1994, the defendant resided in a trailer located upon

property owned by his sister, Teresa McCord, who is listed in the indictment as

the victim of the alleged offense. The defendant, now 32 years of age, is the

custodian of his two minor children; at the time of the charges, he shared his

residence with his mother. The defendant had been employed for the last

several years in security at Baptist Hospital in Nashville. Although not a high

school graduate, he has an employment history that includes work as a

dispatcher in the Fairview Police Department and work in traffic control in

Nashville. The defendant is licensed to carry a firearm. He has no prior criminal

record.

An altercation occurred after the victim, who lived next door, swore out an

unlawful detainer warrant against the defendant. After being notified of the action

by local authorities, the defendant had one or more telephone conversations with

the victim about how long he could maintain his trailer on her property.

Later, the defendant and the victim argued. While the facts are contested,

the victim claimed that the defendant attacked her in her own front year, struck

her in the face, and punched his finger into her eyes until she was helpless. The

victim, who suffered serious injuries to her eyes, was hospitalized. Photographs

in the record substantiate the severity of her injuries. The defendant claimed that

the victim initiated the altercation. He asserted that his sister grabbed him by the

throat, cutting off his air supply, and that he panicked, swinging wildly, until she

released her hold. Lane, Slip Op. at pp. 4-5.

This Court affirmed the district attorney’s denial of pretrial diversion based

on the Appellant’s lack of acceptance of responsibility for the offense and the

severity of the injuries sustained by the victim. Slip Op. p.5. This Court did

indicate that judicial diversion pursuant to Tennessee Code Annotated Section

40-35-313, might be a consideration in the future. Id.

In March of 1997 the Appellant entered a plea of guilty to a single count of

aggravated assault. He applied for judicial diversion pursuant to Tennessee

Code Annotated Section 40-35-313, but this request was denied and he was

sentenced to a suspended sentence and probation.

At the hearing on the request for judicial diversion the Appellant presented

testimony concerning his good work history, and his care for his ailing mother.
-4-

He admitted he was the aggressor in the attack on his sister and stated he was

remorseful and that he had begun counseling for the issues between him and his

sister that had led to the assault. However, the proof also showed that for over

two years after the assault the Appellant showed no remorse, made no attempt

to pay restitution and actually blamed the victim for the incident. Only after the

victim, Ms. McCord told the Appellant that she would not press for his

incarceration did he “remember” he had initiated the attack and become

remorseful. 

II. DENIAL OF JUDICIAL DIVERSION

The Appellant’s only contention in this appeal is that the trial court erred in

denying him judicial diversion pursuant to Tennessee Code Annotated Section

40-35-313. We disagree.

In order to be considered for judicial diversion under Section 40-35-313,

a defendant must meet three criteria:

(1) conviction of a misdemeanor punishable by imprisonment or

conviction of a Class C, D, or E felony;

(2) no prior felony or Class A misdemeanor convictions;

(3) consent by the defendant to deferment of the proceedings and

imposition of probation for up to the maximum sentence length for

the crime in question.

Tenn. Code Ann. Sec. 40-35-313(a)(1). If these criteria are met and the trial

court sentences the defendant pursuant to Sec. 40-35-313, at the completion of

the probationary period the defendant is discharged without an adjudication of

guilt and the records of the entire proceeding are subject to expungement. Tenn.

Code Ann. § 40-35-313(a)(2) and (b).
-5-

Although the Appellant in the instant case meets the statutory prerequisites

for judicial diversion he is not entitled to the benefits of Sec. 40-35-313 as a

matter of right. State v. Bonestal, 871 S.W.2d 163, 168 (Tenn. Crim. App. 1993).

The decision to grant or deny judicial diversion rests within the discretion of the

trial court whose decision will not be reversed on appeal if there is any substantial

evidence to support it. Tenn. Code Ann. § 40-35-313(a)(1); State v. Anderson,

857 S.W .2d 571, 572 (Tenn. Crim. App. 1992); Bonestal, 871 S.W.2d at 168.

This Court had held that in determining whether to grant judicial diversion

the trial court should consider:

(1) the defendant’s amenability to correction;

(2) the circumstances of the offense;

(3) the defendant’s criminal record;

(4) the defendant’s social history;

(5) the status of the defendant’s physical and mental health;

(6) the deterrence value to the defendant as well as others; and

(7) whether judicial diversion will serve the best interests of both the

public and the defendant.

Bonestal, 871 S.W.2d at 168 (applying pretrial diversion considerations

enumerated in State v. Hammersley, 650 S.W.2d 352 (Tenn. 1983)); Anderson,

857 S.W .2d at 573. In addition to the factors enum erated above, the trial court

may consider the defendant’s attitude and behavior since his arrest. State v.

Washington, 866 S.W.2d 950-951 (Tenn. 1993).

Judicial diversion is similar in purpose to pretrial diversion and its grant is

left to the discretion of the trial court subject only to the same constraints

applicable to prosecutors in applying pretrial diversion. Anderson, 857 S.W.2d

at 572. This Court has previously concluded that pretrial diversion was

appropriately denied in this case. The question now becomes whether
-6-

circumstances have sufficiently changed so as to characterize a denial of judicial

diversion as an abuse of discretion.

In the instant case relations between the Appellant and his sister have

improved. However, only after his sister’s assurances that she would not seek

his incarceration did the Appellant express his remorse and accept responsibility

for his actions. One could clearly conclude from this that the Appellant’s remorse

is less that genuine. He also apparently lied in his application for pretrial

diversion when he claimed his sister initiated the altercation which resulted in her

rather severe injuries. This lack of candor also causes us doubt as to the

Appellant’s amenability to rehabilitation.

We therefore conclude the trial court did not abuse his discretion in

denying judicial diversion and granting the Appellant probation. Accordingly, the

judgment of the trial court is affirmed.

____________________________________

JERRY L. SMITH, JUDGE

CONCUR:

___________________________________

GARY R. WADE, PRESIDING JUDGE

___________________________________

DAVID G. HAYES, JUDGE