IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs November 1, 2012

STATE OF TENNESSEE v. DEON MARQUETT BOYKINS

Direct Appeal from the Circuit Court for Hardeman County

No. 2012-CR-79 J. Weber McCraw, Judge

No. W2012-01012-CCA-R3-CD - Filed March 27, 2013

The appellant, Deon Marquett Boykins, pled guilty to two counts of introducing contraband

into a penal institution and one count of possessing a Schedule II controlled substance with

intent to deliver. He was sentenced as a Range I, standard offender to an effective five years

on probation. On appeal, the appellant contends that the trial court erred by denying his

request for judicial diversion. Based upon the record and the parties’ briefs, we reverse the

judgment of the trial court and remand the case for a new sentencing hearing.

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

NORMA MCGEE OGLE, J., delivered the opinion of the Court, in which JOSEPH M. TIPTON,

P.J., and ROGER A. PAGE, J., joined.

Shana Johnson, Somerville, Tennessee, for the appellant, Deon Marquett Boykins.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney

General; D. Michael Dunavant, District Attorney General; and Joe Van Dyke, Assistant

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

OPINION

I. Factual Background

On April 12, 2012, the appellant pled guilty to two counts of introducing contraband

into a penal institution. Count 1, which involved cellular telephones, was a Class E felony,

and count 2, which involved a Schedule II controlled substance, Codeine, was a Class C

felony. The appellant also pled guilty in count 3 to possession of a Schedule II controlled

substance, Codeine, with intent to deliver, a Class C felony. At the plea hearing, the State

gave the following factual account of the crimes:
[O]n or about the 2nd of March, 2012, a box was received at the

Hardeman County Correctional Facility located in Whiteville

here in Hardeman County. Upon searching the box, 50 cell

phones, 13 bags of tobacco, 16 ounces of liquid codeine was

found. Agents of TDOC were dispatched to the facility and

they, upon their investigation, learned that Mr. Boykins was the

one that mailed this to the Hardeman County Correctional

Facility. The way this was done is one of the inmates set up an

account with the company that the prison bought their plumbing

fixtures from and he made an order that was to be shipped at an

address outside the prison and then that box was mailed to the

prison and they just saw that label from the plumbing company

that the prison is used to getting stuff from, so that was just

shipped right into the prison. One of the inmates that worked

with the folks in maintenance would intercept that box and then

get the product out and deliver to the inmate that had set

everything up. We’ve got a lot of introduction cases but I

thought this one was pretty fascinating. I kind of was interested

with the creativity behind it, but that’s the way Mr. Boykins got

50 cell phones in as well as some liquid codeine. That would be

the proof had this matter gone to trial, Judge.

Defense counsel informed the trial court that the appellant’s brother was an inmate at the

facility and that “that’s how [the appellant] came to be a part of this conspiracy basically.”

Pursuant to the plea agreement, the appellant received a two-year sentence for count 1, a

three-year sentence for count 2, and a three-year sentence for count 3. The sentences in

counts 2 and 3 were to be served concurrently with each other but consecutively to the

sentence in count 1 for a total effective sentence of five years, with all sentences to be served

on probation. The appellant applied for judicial diversion.

At the sentencing hearing, the then thirty-one-year-old appellant testified that he had

been employed at a factory for about one month at the time of his arrest in this case and that

he had never been convicted of a crime. However, he spent one night in jail for a traffic

event when he was twenty-one years old. The appellant became involved in this case when

his brother’s girlfriend gave him a package to mail. He acknowledged that he put himself

in a “bad position” by getting involved on behalf of his brother.

The State noted that the appellant was “technically eligible” for judicial diversion but

stated that “I understand the Court’s position related to taking drugs into the prison.” The

trial court noted on the record that the parties had waived the preparation of a presentence

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report. In determining whether to grant the appellant’s request for judicial diversion, the

court stated that with regard to the appellant’s amenability to correction, nothing was

presented “to show that he would not be amenable to any correction or probation.” Regarding

the circumstance of the offense, the trial court stated that the introduction of contraband was

a “huge problem” and that there were “many, many cases of contraband.” The trial court also

stated that it considered the circumstance of the offenses to be “of great concern” because

the contraband involved drugs and telephones.

The trial court noted that the appellant did not have a criminal record, that nothing in

his social history had been brought to the court’s attention to show that he would not be a

good candidate for judicial diversion, and that he appeared to be in good physical and mental

health. With regard to deterring the appellant and others, the trial court stated,

Again, we’ve been here today. We’ve probably done three or

four cases just today on this type of problem at the prison. It’s

a huge problem. It presents a problem for the community, for

the prison community and the Court needs to send some

deterrence to others who would likely have thoughts of breaking

the law in this way. You know, you would think the deterrent

value of just seeing a loved one or friend locked up would be of

consequence. Apparently, that alone is not enough so this Court

needs to also send a message to others that this is not accepted

behavior, which laps over into whether or not it would serve the

ends of the public. There is no interest to the public for prisons

which are supposed to be incarcerating criminals allowed to

pursue – have others pursue criminal activity within the laws of

the prison. It just makes no sense that it serves anyone well,

particularly the public.

The trial court denied judicial diversion and ordered that the appellant serve his effective

five-year sentence on probation.

II. Analysis

The appellant contends that the trial court erred by denying his request for judicial

diversion because it relied solely on deterrence rather than the appellant’s amenability to

correction, his lack of a criminal record, and his good physical and mental health. The State

argues that the trial court did not abuse its discretion.

A defendant is eligible for judicial diversion when he or she is found guilty or pleads

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guilty or nolo contendere to a Class C, D, or E felony; has not previously been convicted of

a felony or a Class A misdemeanor; and is not seeking deferral for a sexual offense. See

Tenn. Code Ann. § 40-35-313(a)(1)(B)(I). Additionally, in determining whether to grant a

defendant judicial diversion, the trial court must consider all of the following factors: (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, and (6) the deterrence value to the defendant and

others. State v. Lewis, 978 S.W.2d 558, 566 (Tenn. Crim. App. 1997). The record must

reflect that the trial court has taken all of the factors into consideration, and “we may not

revisit the issue if the record contains any substantial evidence supporting the trial court’s

decision.” State v. Electroplating, Inc., 990 S.W.2d 211, 229 (Tenn. Crim. App. 1998).

Furthermore, “[t]he court must explain on the record why the defendant does not qualify

under its analysis, and if the court has based its determination on only some of the factors,

it must explain why these factors outweigh the others.” Id.

Recently, this court filed an opinion in which the issue and facts were very similar to

the issue and facts in the instant case. In State v. Cynthia Denise Marshall, No.

W2012-01011-CCA-R3-CD, 2013 Tenn. Crim. App. LEXIS 60, at ** 7-8 (Jackson, Jan. 23,

2013), this court explained,

With regard to deterrence, the court was greatly concerned about

the circumstances of the offense because visitors taking drugs

and other contraband into the prison was a “significant problem”

in Hardeman County. No evidence was presented regarding the

number of incidents involving visitors bringing illegal narcotics

into the local prison, although the court stated that it had tried to

send a strong message to others that such behavior will not be

tolerated. A trial court must only consider “evidence in the

record of the trial, the sentencing hearing, the presentence report

and the record of prior felony convictions filed by the district

attorney general with the court.” T.C.A. § 40-35-210(f) (2010).

See State v. Hooper, 29 S.W.3d 1, 12 (Tenn. 2001); State v.

Nunley, 22 S.W.3d 282, 288 (Tenn. Crim. App. 1999).

Sufficient evidence establishing the need for deterrence includes

statistics and “testimony by someone with special knowledge of

the level of a particular crime. . . .” Hooper, 29 S.W.3d at 11.

A court’s general observation that a particular offense occurs

frequently within the county “cannot serve as a substitute for

factual findings containing comparisons to indicate” increased

instances of visitors taking drugs and other contraband into the

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local prison. See State v. Fields, 40 S.W.3d 435, 442 (Tenn.

2001). We conclude that the court erred by finding, without

sufficient evidence, that visitors taking drugs and other

contraband into the local prison was a significant problem in

Hardeman County.

For the reasons stated in Marshall, we must again conclude that the trial court lacked

sufficient evidence to deny the appellant’s request for judicial diversion based upon the need

to deter the appellant and others.

The appellant has requested that this court grant his application for judicial diversion.

However, the lack of a presentence report prevents this court from being able to determine

whether the appellant is entitled to judicial diversion. Marshall, W2012-01011-CCA-R3-CD,

2013 Tenn. Crim. App. LEXIS 60, at *10. Therefore, the case must be remanded to the trial

court for a new sentencing hearing. We note that on remand, the trial court should order that

a presentence report be prepared pursuant to Tennessee Code Annotated section 40-35-

205(a), which provides that “[u]pon acceptance of a guilty plea or upon a verdict or finding

of guilty, the court shall, in the case of a felony, . . . direct the presentence service officer to

make a presentence investigation and report.” See also Tenn. Code Ann. § 40-35-203(b)

(stating that “[t]here shall be a presentence report and hearing on any issue of sentencing not

agreed upon by the parties and accepted by the court”); Tenn. Code Ann. § 40-35-205(d)

(providing that a presentence report is required if the parties disagree as to the manner of

service of the sentence). As we stated in Marshall, “[w]hether a presentence report is

prepared for the trial court’s sentencing determination or its granting or denial of judicial

diversion, this court does not condone the practice of failing to prepare and file a report with

the trial court.” W2012-01011-CCA-R3-CD, 2013 Tenn. Crim. App. LEXIS 60, at *10.

III. Conclusion

Based upon the record and the parties’ briefs, the trial court denial of the appellant’s

request for judicial diversion is reversed, and the case is remanded for further proceedings

consistent with this opinion.

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NORMA McGEE OGLE, JUDGE

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