IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

August 18, 2010 Session

STATE OF TENNESSEE v. JOSEPH W. DENTON

Appeal from the Circuit Court for Putnam County

No. 08-0777 David Patterson, Judge

No. M2009-02546-CCA-R3-CD - Filed October 19, 2010

The Defendant, Joseph W. Denton, pleaded guilty to one count of forgery and one count of

impersonation of a licensed professional, both Class E felonies. Under the terms of the plea

agreement, he received concurrent terms of two years as a Range I, standard offender to be

served on probation. After a sentencing hearing, the trial court denied the Defendant’s

request for judicial diversion. He challenges that ruling on appeal. After a review of the

record, we affirm the judgments of the Putnam County Circuit Court.

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

DAVID H.WELLES,J., delivered the opinion of the Court, in which NORMA MCGEE OGLE and

ROBERT W. WEDEMEYER, JJ., joined.

Jason R. Grubb, Beaver, West Virginia, for the appellant, Joseph W. Denton.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney

General; William E. Gibson, District Attorney General; and Anthony Craighead, Assistant

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

OPINION

Factual Background

A Putnam County grand jury returned a five-count indictment against the Defendant,

charging him with one count of forgery, a Class E felony, three counts of impersonating a

licensed professional, a Class E felony, and one count of theft of property valued at $1,000

or more but less than $10,000, a Class D felony. See Tenn. Code Ann. §§ 39-14-103, -14-

105, -14-114, -16-302. Thereafter, the Defendant filed an application for pre-trial diversion.

The district attorney general denied the application, and the Defendant sought review in the
trial court. The trial court found that the district attorney general had not abused his

discretion.

Subsequently, on November 4, 2009, the Defendant entered a guilty plea to one count

of forgery and one count of impersonation of a licensed professional. At the guilty plea

hearing the State provided a factual basis for the plea. The prosecutor recited the events as

follows:

[A]s to the forgery count, proof would be that during October 2007 [the

Defendant] went into the business of Mr. Arnold Lefkovitz, who is an attorney

in Putnam County. The [S]tate would offer proof that he would present

himself as an attorney at that time, presenting a card from the Board of

Professional Responsibility of the Tennessee Supreme Court with hissignature

on it, . . . Bar No. [ ]. Subsequent investigation revealed that that is a bar

number belonging to Mr. Patrick Denton, who is a practicing attorney in East

Tennessee. . . .

. . . .

. . . As to count two, . . . the proof would be that on April 30th, [the

Defendant] appeared in Putnam County General Sessions Court and

represented himself as an attorney for Mr. Bobby Dowell and entered a plea

of guilty on a domestic assault case and indeed signed the plea form as his

attorney of record.

Pursuant to the terms of the plea agreement, the Defendant, a Range I, standard

offender, received a sentence of two years at 30% for each offense, which sentences were to

be served concurrently with one another and on probation. Only the availability of judicial

diversion was submitted to the trial court for determination.

A hearing was held immediately following the Defendant’s guilty plea. Barbara

Allen, a probation officer for the State of Tennessee, testified thatshe prepared a presentence

report in the Defendant’s case; the report was prepared for pre-trial diversion purposes. Ms.

Allen discovered that the then thirty-three-year-old Defendant did not have a prior criminal

record other than an arrest for failing to appear on the instant offenses and an arrest for

violation of an order of protection. Ms. Allen did not know the disposition of these charges.

As part of Ms. Allen’s investigation, the Defendant was administered a drug test, and no

drugs were detected in his system.

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The Defendant reported that he was in excellent physical and mental health. In 2005,

he graduated with a bachelor of arts degree from the University of Tennessee. The

Defendant stated that he was employed in computer support for the University of Tennessee

from July 2005 until August 2007. According to the Defendant, he resigned that job to move

to Cookeville to be with his wife, who was caring for her terminally ill mother. At the time

Ms. Allen prepared the report, the Defendant was not employed.

Ms. Allen also took statements from the two attorneys who hired the Defendant (Mr.

Lefkovitz and Mr. Will Roberson) after he claimed to be a licensed attorney, from Rebecca

Jared, a “client” represented by the Defendant, and from the attorney whose bar number the

Defendant utilized (Mr. Patrick Denton). Mr. Lefkovitz cited the damage done to his

practice and his reputation. Mr. Roberson told of his disappointment in the Defendant for

his misrepresentations. Ms. Jared relayed the emotional impact caused by the Defendant’s

representation of her in a case involving her children. All expressed opposition to the

Defendant being granted pre-trial diversion.

Following the introduction of the presentence report, the State called Tennessee

Bureau of Investigation (TBI) Agent Dan Friel to testify about his investigation of the case.

Agent Friel spoke with Arnold Lefkovitz, who supplied him with a copy of an attorney bar

card signed by the Defendant and a copy of a business card used by the Defendant,

representing himself as an attorney. The bar card reflected a bar number of [ ], which was

later determined to belong to a Mr. Patrick Denton, a prosecutor in East Tennessee. Mr.

Patrick Denton had no knowledge of the Defendant or his activities.

Agent Friel also looked through the records of the Putnam County General Sessions

Court and found a petition for acceptance of a guilty plea to domestic assault in the case of

State versus Bobby Wayne Dowell. The Defendant had signed the document as the attorney

of record. The Defendant acknowledged to Agent Friel that he acted as the attorney for Mr.

Dowell in entering the guilty plea. When the Defendant was representing another “client”

in Wilson County, the clerk asked the Defendant for his bar card, and the Defendant provided

the forged card. The clerk looked up the number and, after discovering the bar number did

not belong to the Defendant, contacted the district attorney’s office.

At the conclusion of the hearing, the trial court denied the Defendant’s request for

judicial diversion. He now appeals.

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Analysis

The Defendant argues that the trial court erred by denying judicial diversion.

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Specifically, he argues that the trial court: (1) placed “disproportionate weight . . . on a single

factor”—the circumstances of the offense, impersonation of a lawyer rather than some other

professional; and (2) improperly relied on a “non-factor”—the Defendant’s lack of remorse,

in its decision to deny judicial diversion. He also states that the trial court did not properly

explain why the negative factors outweighed the positive factors.

“Judicial diversion is a legislative largess whereby a defendant adjudicated guilty may,

upon successful completion of a diversion program, receive an expungement from all

‘official records’ any recordation relating to ‘arrest, indictment or information, trial, finding

of guilty, and dismissal and discharge’ pursuant to the diversion statute.” State v. Schindler,

986 S.W.2d 209, 211 (Tenn. 1999). The effect of discharge and dismissal under the

diversion statute “is to restore the person . . . to the status the person occupied before such

arrest or indictment or information.” Id. (citing Tenn. Code Ann. § 40-35-313(b) (1997)).

A criminal defendant is eligible for judicial diversion only if he has been convicted

of a misdemeanor or a class C, D, or E felony, and he must not have been previously

convicted of a felony or a Class A misdemeanor. Tenn. Code Ann. § 40-35-313(a)(1)(A).

However, eligibility under the diversion statute does not ensure the grant of diversion.

Indeed, the decision of whether to place a defendant on judicial diversion is within the sound

discretion of the trial court. State v. Harris, 953 S.W.2d 701, 705 (Tenn. Crim. App. 1996).

Thus, upon review by an appellate court, if “any substantial evidence [exists in the record]

to support the refusal,” the decision of the trial court will be upheld and this court will not

revisit the issue. State v. Hammersley, 650 S.W.2d 352, 356 (Tenn. 1983).

In making the determination of whether to grant judicial diversion, the trial court must

consider the following factors: (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 status of the accused’s physical and mental health; and (f) the deterrence

value to the accused as well as others. State v. Lewis, 978 S.W.2d 558, 566 (Tenn. Crim.

App. 1997) (citing State v. Bonestel, 871 S.W.2d 163, 168 (Tenn. Crim. App. 1993)). The

trial court should also consider whether judicial diversion will serve the ends of justice—the

In his appellate brief, the Defendant also challenged the denial of pre-trial diversion. However, 1

at oral argument in this matter, defense counsel conceded that the issue had not been properly reserved for

our review. See generally State v. Kyra Robinson, No. M2009-00694-CCA-R3-CD, 2010 WL 1221403, at

*4-5 (Tenn. Crim. App, Nashville, Mar. 30, 2010) (holding that a defendant, who forgoes an interlocutory

appeal of the district attorney general’s decision denying pre-trial diversion and who, thereafter, pleads

guilty, has no appeal of pre-trial diversion under Tennessee Rule of Criminal Procedure 3(b), and this Court

lacks jurisdiction to entertain this issue). 

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interests of the public as well as the accused. Id. Additional factors which may be

considered include a defendant’s attitude, behavior since his arrest, home environment,

current drug usage, emotional stability, past employment, general reputation, family

responsibilities, and the attitude of law enforcement. Id. (citing State v. Washington, 866

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

At the outset of its sentencing ruling, the trial court stated that it would look to the

following factors in making its determination as to whether to grant judicial diversion:

Number one is the [D]efendant’s amenability to correction. That is

whether the [D]efendant is likely to cooperate and whether he’s going to be

able to be controlled or influenced by those who are possibly supervising him

and doing other things and whether he’s likely to re-offend.

Second one is the circumstances of the offense.

The third one is the [D]efendant’s record.

The [D]efendant’s social history is number four.

Number five is his mental and physical health.

Number six is the deterrence value to the [D]efendant as well as to

others.

And the seventh is whether the granting of judicial diversion will serve

the interest of justice. That is whether the interest of the public and the

[D]efendant will be served by the granting of judicial diversion.

The trial court then elaborated on these factors. First, considering the circumstances

of the offense, the trial court noted that impersonating an attorney was more serious than

impersonating other licensed professionals, such as beauticians, “due to the trust that is

placed in an attorney.” The specific facts of this offense which were relevant to the trial

court in its analysis were that the Defendant actually went to court to represent “clients,” he

took fees from those individuals, he made business cards describing himself as an attorney,

he forged a bar card, and he involved himself in the practice of two licensed attorneys. Also

important to the trial court was that many other people in the community may have been

represented by the Defendant and were still not aware that the Defendant was not an

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attorney. The court further elaborated that “this was not a one time event,” that the

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Defendant “was earning a living as an attorney,” that “this was a long con that would have

continued if [the Defendant] was not found out,” and that the Defendant “engaged in a

pattern of wrongdoing.”

The trial court then stated positive factors in the Defendant’s favor: the Defendant

passed a drug test, he had received a good education and was in the process of improving his

education, and he was in good health. While the trial court was not certain if the Defendant

was employed at the time of the hearing, the court did not weigh that against him and went

so far as to state, “I believe that he’s very capable of gaining employment and I think that he

is very capable of doing a number of things that could account for making differences in a

community toward the good.” The trial court stated that it considered all of these positive

factors in favor of the Defendant.

The trial court then discussed the Defendant’s amenability to correction and the

likelihood of whether the Defendant would re-offend. The court considered that the

Defendant forged a bar card, printed business cards, and appeared in court as a lawyer. The

trial court also noted the impact to the victims: (1) the “fraud” perpetrated upon Attorney

Lefkovitz and how the Defendant placed Mr. Lefkovitz’s law practice in jeopardy; (2)

Patrick Denton, whose personal information was used in the perpetration of a fraud upon the

court and others in the community; and (3) the Defendant’s “clients” who faced potential

legal problems due to the Defendant’s actions. The trial court again remarked about the

duration of the offense and the fact that the Defendant “began a continued involvement in

illegality, that he had a pattern of wrongdoing.” The trial court observed, “[T]his is a long

term con, C-O-N, against a community, against an institution, against a law partner, against

the number of people that put their trust into him.”

The trial court then stated that one of the “most important” factors was the

Defendant’s lack of remorse. The court cited to the statement the Defendant made as part

of his application for pre-trial diversion:

I practiced law without a license. However, I was hired to be a clerk and the

job escalated into something more than I wanted. I created a bar card. I gave

a . . . statement . . . to TBI Agent Dan Friel. Overall, I am a good citizen and

do not harm or bother anyone. I believe this is frivolous and a waste of

The district attorney’s letter denying pre-trial diversion indicates that the case had received some 2

publicity and, following that publicity, the district attorney’s office became aware of other instances when

the Defendant went into court and represented citizens.

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taxpayer money. However, I admit it and will not be around the legal field in

the future.

The trial court explained that the Defendant’s statement to Agent Friel was different than

what defense counsel had represented during the hearing, relaying that the Defendant wished

to be a part of the legal field as a career. Most concerning to the trial court was the

Defendant’s statement that “this is frivolous and a waste of taxpayer money.” The trial court

then read from Rebecca Jared’s victim impact statement:

[I]t has really bothered me that a lot of my time has been wasted in court by

someone who claimed to be a lawyer and promised to help me. This case

involves my children, which makes matters worse. He had access to a lot of

my personal information, including my Social Security Numbers of me and my

children. This had caused nothing but additional stress and heartache that was

not needed. I needed a lawyer to help and he pretended to be someone he was

not.

The court then ruled that, although the Defendant would be benefitted, the granting of

judicial diversion would not serve the interests of justice or the public. That concluded the

trial court’s ruling.

The Defendant complains that the trial court placed “disproportionate weight” on the

circumstances of the offense, improperly considered the Defendant’s “lack of remorse,” and

did not properly weigh all relevant factors. Here, the trial court denied diversion on the bases

of the circumstances of the offense and the Defendant’s amenableness to correction,

including his “lack of remorse.” The trial court did not abuse its discretion in reaching that

conclusion. Although the trial court did not specifically discuss all of the diversion factors

or explicitly state the weight it was applying to each factor, its findings implicitly show the

weight it applied and evince a knowledge of the factors it was to consider. Substantial

evidence exists to support the refusal.

The trial court discussed the factors it was applying to the Defendant at length. As

for the circumstances of the offense, the trial court found several factors to be relevant: the

impersonation of an attorney rather than some other licensed professional; representing

“clients” in court; the duration of the offense; earing a living as an attorney; taking fees from

clients; making business cards; forging a bar card; and involving himself in the practice of

two licensed attorneys. Regarding his amenability to correction, the trial court reviewed the

materials presented with the presentence report, concluding that the Defendant did not take

any responsibility for his actions, noting that the Defendant called the case “frivolous and a

waste of taxpayer money.” The trial judge obviously believed that the Defendant’s lack of

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remorse militated against his potential for rehabilitation. The trial court’s findings regarding

the Defendant’s behavior and lack of remorse relate to his amenability to correction. See

State v. Kristi Dance Oakes, No. E2006-01795-CCA-R3-CD, 2007 WL 2792934, at *9

(Tenn. Crim. App., Knoxville, Sept. 27, 2007) (citing State v. Edward Arnold Rivera, No.

W2001-00857-CCA-R9-CD, 2002 WL 1482655, at *3 (Tenn. Crim. App., Jackson, Feb. 4,

2002) (“Lack of remorse is an appropriate factor for a trial court to consider in deciding

whether to grant judicial diversion.”)). These factors are sufficient to support the trial court’s

denial of judicial diversion.

Conclusion

We conclude that the trial court did not abuse its discretion in denying the Defendant’s

request for judicial diversion. The judgment of the Putnam County Circuit Court is affirmed.

_________________________________

DAVID H. WELLES, JUDGE

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