IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs at Knoxville May 21, 2013

STATE OF TENNESSEE v. PARESH J. PATEL

Appeal from the Circuit Court for Warren County

No. F-13471 Larry B. Stanley, Jr., Judge

No. M2012-02130-CCA-R3-CD - Filed July 10, 2013

JOSEPH M. TIPTON, P.J., concurring and dissenting.

I concur with the majority opinion’s conclusion that the trial court did not err by

denying judicial diversion because it properly considered and weighed all the appropriate

factors. See State v. Electroplating, Inc., 990 S.W.2d 211, 229 (Tenn. Crim. App. 1998);

State v. Parker, 932 S.W.2d 945, 958 (Tenn. Crim. App. 1996). I respectfully disagree,

though, with the conclusion that the standard of review announced in State v. Bise, 380

S.W.3d 682 (Tenn. 2012), and State v. Caudle, 388 S.W.3d 273 (Tenn. 2012), is applicable

to judicial diversion.

The majority opinion quotes and cites recent unpublished cases for the propositions

that (1) the Bise standard of review affording trial court sentencing decisions a presumption

of reasonableness applies to a court’s granting or denying judicial diversion and (2) the

previous principles guiding this court to reverse a denial of judicial diversion for a trial

court’s failure to consider expressly “one or more of the seven legally-relevant factors (or

merely because it failed to specify why some factors outweighed others)” is no longer good

law. See State v. Kiara Tashawn King, No. M2012-00236-CCA-R3-CD, slip op. at 8 (Tenn.

Crim. App. Mar. 4, 2013), petition for perm. app. filed (Tenn. May 2, 2013); State v. Lewis

Green, No. W2011-02593-CCA-R3-CD,slip op. at 13 n.1 (Tenn. Crim. App. Mar. 28, 2013),

petition for perm. app. filed (Tenn. May 29, 2013). I respectfully disagree, and I believe we

are bound by Electroplating, Inc. and Parker.

In Kiara Tashawn King, this court rejected Electroplating, Inc. and Parkerinsofar that

they require a trial court to consider and weigh the following factors during its judicial

diversion determinations and that failure to do so was cause for reversal: (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 defendant’s physical and mental health; (6)

the deterrence value to the defendant and others; and (7) whether judicial diversion willserve

the ends of justice. Kiara Tashawn King, slip op. at 8; see Electroplating, Inc., 990 S.W.2d

at 229 (stating that a trial court must consider and weigh each factor in determining whether

to grant or deny diversion (emphasis added)). I note that although a trial court’s failure to

consider and weigh each factor may be cause for a reversal, this court is permitted to review

the record to determine whether the court properly denied judicial diversion. See

Electroplating, Inc., 990 S.W.2d at 229. In Lewis Green, this court noted that the mandate

requiring express consideration of each Electroplating factor “may no longer be appropriate

in light of” our supreme court’s decisions in Bise and Caudle. Lewis Green, slip op. at 13

n.1. The court stated that the mandate conflicted with this court’s duty imposed by Bise and

Caudle to “treat all in-range sentences imposed by trial courts as presumptively reasonable.”

Id. Although this court did not abrogate a trial court’s obligation to consider each factor, it

concluded that a trial court’s failure to consider one or more of the factors or to state its

reasoning why some factors outweighed others was no longer cause for reversal. Id.

In essence, the majority opinion relies on Kiara Tashawn King and Lewis Green to

conclude that Bise no longer permits a reversal in judicial diversion cases when a trial court

fails to consider each factor as mandated by Electroplating, Inc. and Parker as long as the

court did not wholly depart from the principles and purposes of the Sentencing Act. See

Kiara Tashawn King, slip op. at 8 (citing Bise, 380 S.W.3d at 706); Lewis Green, slip op. at

13 n.1. I respectfully disagree that Bise overruled Electroplating, Inc. and its progeny and

conclude that the proper standard of review regarding a trial court’s decision to grant or deny

judicial diversion is abuse of discretion. See Electroplating, Inc., 990 S.W.2d at 229.

In Bise, our supreme court concluded that the length of a sentence “within the

appropriate statutory range [is] to be reviewed under an abuse of discretion standard with a

‘presumption of reasonableness.’” Id. at 708. Our supreme court has, likewise, applied the

abuse of discretion standard with a presumption of reasonableness to “questions related to

probation or any other alternative sentences.” Caudle, 388 S.W.3d at 279. Recently, this

court applied the supreme court’s rationale in Bise and Caudle to misdemeanor sentencing.

See State v. Sue Ann Christopher, No. E2012-01090-CCA-R3-CD, slip op. at 9 (Tenn. Crim.

App. Mar. 14, 2013).

Although the Bise standard applies to the length of a sentence, alternative sentencing,

and misdemeanor sentencing, judicial diversion is a unique legislative concept. Judicial

diversion permits a trial court to defer judicial proceedings in a criminal case and to place a

defendant on probation “without entering a judgment of guilty.” T.C.A. § 40-35-

313(a)(1)(A) (2010). This court has previously distinguished between the appellate review

of the range, length, and the manner of service of a sentence and judicial diversion. See State

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v. Anderson, 857 S.W.2d 571, 572 (Tenn. Crim. App. 1992). Before Bise, review of the

range, length, and the manner of service of a sentence was reviewed de novo with a

presumption of correctness. See T.C.A. § 40-35-401(d) (2010); see also Anderson, 857

S.W.2d at 572. Judicial diversion, though, is “more than these characteristics - it affects the

underlying conviction as well.” Anderson, 857 S.W.2d at 572. Likewise, Tennessee Code

Annotated section 40-35-104 (2010), addressing sentencing alternatives such as probation

and community corrections, does not include judicial diversion. I conclude that our

legislature did not intend judicial diversion to be considered a form of “alternative

sentencing” and that Bise is inapplicable to matters concerning judicial diversion.

Moreover, although a defendant must admit his or her guilt before receiving judicial

diversion, judgment is withheld during the deferral period. The probation a defendant is

required to complete during the deferral period is simply the mechanism used by the State

to supervise a defendant, not a sentence of probation. I conclude that judicial diversion is

a distinct legislative concept and that nothing in Bise and Caudle suggests our supreme court

intended to alter a trial court’s obligations or the appellate review of a decision to grant or

deny judicial diversion. As a result, this court is bound by existing, published case law

addressing judicial diversion. As previously noted, though, the trial court did not err in

denying diversion.

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JOSEPH M.TIPTON, PRESIDING JUDGE

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