# FILED
February 1, 1999 Cecil W. Crowson Appellate Cou rt Clerk IN THE SUPREME COUR T OF TENNESSEE AT KNOXVILLE

FOR PUBLICA

TION Filed: February 1, 1999

STATE OF TENNESSEE, ) ) APPELLEE, ) KNOX CRIMINAL ) v. ) Hon. Mary Beth Leib owitz, Judge ) KRISTINA SCHINDLER, ) No. 03S01-9804-CR-00040 ) APPELLANT. )

FOR APPELLANT : FOR APPELLEE : MARK E. STEPHENS JOHN KNOX WALKUP DISTRICT PUBLIC DEFENDER ATTORNEY GENERAL & REPORTER PAULA R. VOSS MICHAEL E. MOORE ASSISTANT PUBLIC DEFENDER SOLICITOR GENERAL Knoxville PETER M. COUGHLAN ASSISTANT ATTORNEY GENERAL GREGORY D . SMITH Clarksville Nashville



# O P I N I O N

AFFIRMED HOLDER, J.2 OPINION
We granted this appeal to address whether a trial court can consi der prior grants of diversion or previously expunged offenses in determining a defendan t's suitability for div

ersion. In the case now before us, the trial court deni ed the defendant's request for judicial diversion because the def endant had previously been placed on diversion on two different occasions. The ap pellate court affirmed the trial court's deci sion to deny the defendant's appli cation for judicial diversion. Upon rev

iew, we hold that ev

idence of prior diversi ons may be considered in determining whether a defendant is a suitable candidate for diversion.

FACTUAL BA CKGROUND
The defendant, Kristina Schindler, was convicted of agg ravated burglary

. In 1994, Schindler learned that her boyfriend of two ye ars was leaving

her for the victim. Schindler searched through her boyfriend's mail and found the victim's address in Knoxvil le. Schindler then drov e from Texas to Knoxvill e, found the victim's residence, retrieved an eighteen- inch axe handle from the truck, and approached the victim's apa rtment. Schindler stated that she found a key under the victim's doormat and entered the apartment. Schind ler confronted the victim and instructed her not to scr eam. The victim apparently called for help. Schindler then repeatedly struck the victim w

ith the axe handle.
Schindler was charg ed with especially aggravated burgl ary but was convicted of the lesser i ncluded offense of aggravated burg lary. Schindler requested post-trial di

version. Her present

ence report indicated that she had a prior conviction for s hoplifting in Texas and had pr eviously pled gui lty to charges3 of telephone harassment in Kansas. She further acknowledged these prior convictions in her pos

t-trial diversi on application. According to the defendant, she was granted div

ersion in both cases and her records were expunged following successful completion of diversion programs.

The trial court denied the defendant's request for post-trial

diversion. The trial court's order s

tated:
As to judicial diver

sion--which is, for

the record, strongly

opposed by the State--there have been two other diversions. Ms. Hendricks has cited me s

ome cases, w

hich the Cou rt is famili ar with. In terms of evidentiary rulings and as to evidence in admissions of guilt in those types of cases, whi ch is what those inv olved, diversion mi ght otherwise not be admissi ble. In this case, whether there has been previous diversi on is admissible in determi ning whether or not judicial diversio n is appropriate. An indiv idual can't just keep having dive rsion and expunging r ecords an d keep goi ng, and we are now dealing with the third state inv olved. The other thing that the Court is very concerned about, as far as judicial diversion is that this Court takes this type of offense extremely seriousl

y in its seriousness . I am trying to use the right word--in an effort to support how serious the Court takes this offense and not to mitigate its effect, the C ourt does not feel that Ms. Schin dler is eli gible for judicial d iversion, based up on the two other diversions and the nature of the offense.
The Court of Criminal Appeals affirmed the trial court's denial of diversion.

STATUTORY BACKGROUN D

Judicial diversion is legislative l argess whereby a defendant adjudicated guilty may, upon suc

cessful completion of a divers ion program, receive an expungement from all "official records" any recordation r elating to "arrest, indictment or information, tri al, finding of guilty, and dismissal and discharg e" pursuant to the diversion statute. Tenn. Code Ann. § 40-35 -313(b). The effect of discharge and dismissal under the diversion statute "is to restore the perso n,4 in the contemplation of the law, to the status the person occupied before such arrest or indictment or i nformation." Id. When general inquiries are made by prospective employers

in non-related civi l matters or in other matter s not precluded by statute, a cr iminal defendant granted expung ement pursuant to the diversion statute may deny or refuse to acknowl edge being arrested, tr ied, or convicted. See generallyTenn. Code Ann. § 40-35-313(b)(1) & (2).
The Sentencing Reform Act of 1989 ("Act") establishes the general requirements for program eligibility. The A ct provides in perti nent part:
If any person who has not pr eviously been conv

icted of a felony or a Class A misdemeanor is found g uilty or pleads gui lty to a misdemeanor which is puni shable by imprisonment or a Class C, D or E felony, the court may , without entering a j udgment of guilty and with the conse nt of such pers on, defer fu rther proceedin gs

. . . . Tenn. Code Ann. § 40-35-313(a)(1)(A) (1997 Repl.). In addition, certa in statutory offenses have been excluded from program eligibility and are enumerated in Tenn. Code Ann. § 40-35-31 3(a)(1)(B). A defendant, however, may be placed in a judici al diversion progr am only once. Tenn. Code Ann. § 40-35-313(a)(2).

Tennessee co urts may retain rec ords pertaining t o cases where disch arge and dismissal is grant

ed under the Tennessee diversi on statute. These "nonpublic" records are retained for the purpose of dete rmining whether, in subsequent proceedings, an applicant meets the general pr ogram eligibility requirements set forth in § 40-35-313(a)(1)(A). SeeTenn. Code Ann. § 40-35-313(a)(2) ("but a non-public record thereof is retained . . . solely for the purpose of . . . determining [pr ogram eligibility

], or for the limited purposes provided in subsection (b)."). In the case now befor e us, however, the defendant5 was twice grant

ed diversion in states other than Tennessee, and court rec ords are not ava ilable in Tenness ee which re flect th e prior gran ts. Accord ingly, we must decide whether trial courts can consider ex punged records of previous convictions occurri ng in states other than Tennessee when determining eli gibility under Tenn. Code Ann. § 40-35-313(a)(1)(A).

ANAL YSIS
Expungement following successful completion of a judici al diversion program removes from certa in official records record ation relating to the defendant's arrest, indictment, t rial, finding of guilt, and dismissal and discharg e. Tenn. Code Ann. § 40-35-313. Ex pungement returns the person to the position "occupied before such arrest or indictment or information." Tenn. C ode Ann. § 40-35-313(b). Expung ement does not return a person to the position occupied prior to committing the offense. Defendants obtaining ex pungement may have committed crimin al acts resulting in lasting physical, emotional, or financial injuries to v

ictims. In many cases, the injured victims can not be returned to the status quo. Accordingly, the l aw would blind its elf to reality if the law refused to recogniz e these criminal acts and ac cord them any legal significance whatsoever.
We hold that the testimony and evidence of the cr iminal acts preceding the arrest are admissible as evidence of prior bad act s or evidence of social history even if exp ungement is later obtained. See generally State v. Willia ms , 645 S.W.2d 258, 260 (Tenn. Crim. App. 1982) (holding diversion act cannot be used to shield witness from credibility attack when witness is a

sked about prior bad acts); see also State v. Dishman , 915 S.W.2d 458, 463- 64 (Tenn. Cri m. App. 1995). Moreover, th e judicial diversi on statute does not preclude6 consideration of subsequent w itness admissions or publi c records compiled after the expungement that reveal the fact of a prior grant of div ersion.
The defendant's presentence report in the case now before us was not a public record subject to a previous expungement. Accordingly, the information in this report was admissible and properly considered by the trial judge. This report indicates that the defendant was convicted of shoplifting i n Texas in the mid1980s. She received one y ear probation. The shoplifting offense was later expunged from her record upon her completion of the probationary period. In 1990 or 1991, she pled guilty to telephone harassment in Kansas.She received three months probation and judici al diversion. She stat ed that this record had also been expunged.
Our legislature has ex

plicitly stated that a

defendant may be placed on judicial diversio n only once under Tenn. Code Ann. § 40-35-313. The defendant's prior grants of div ersion in Kansas and Texas, however, were not pursuant to Tenn. Code Ann. § 40-35-3 13. Accordingly, th e defendant is not statutorily precluded from being placed on diversion by § 40-35-313(a)(2) merely by reason of the prior gr ants. The defendant must still meet the el igibility requirements pursuant to Tenn. Code Ann. § 40-35-313 of not having been previously convicted of a felony or a Class A misdemeanor.

The record before us does not indic ate the classifications of the defendant's prior offenses, and it is impossible to grade those offenses based on the information before us. Accordi ngly, the defendant was s tatutorily eligi ble for diversion. Evidenc

e of the defendant's prior bad acts and p rior grants of diversion, however, support the denial of diversion. This evidence was directly relevant in determining : (1) the defendant's potential for rehabilitation; (2) the7 deterrent value of diver sion upon the defendant; and (3) the l ikelihood that the defendant will become a repeat offen der. The decision of the appellate court affirming the trial court's denial of diversion is affirmed as m odified. Costs of this appeal shall be taxed to the defendant fo r which execution shall issue if
necessa ry.

JANICE M. HOLDER, JUSTICE
Concurring: Anderson, C.J. Birch, J. Tipton, Sp.J. Drowota and Barker, J. J., Not Participating