IN THE CRIMINA L COURT OF APPEALS OF TENN ESSEE AT JA CKSON MARCH 1997 SESSION

STATE OF TENN ESSEE, ) ) Appellee, ) C.C.A. No. 02C01-9603-CR-00092 ) vs. ) Shelby County ) GILBERTO R. CANTU , ) Honorable W . Fred Axley, Judge and JOHN P. SCOTT, ) ) (Schedule IV) Appellants, ) )

FOR THE APPELLANTS: FOR THE APPELLEE: MARVIN E. BALLIN JOHN KNOX WALKUP Attorney At Law Attorney General & Reporter 200 Jefferson Avenue, Suite 1250 Memphis, TN 38103 JANIS L. TURNER Counsel for the State Criminal Justi ce Division 450 James Robertson Par kway Nashville, TN 37243-0493 JOHN W. PIERO TTI District Atto rney General ALANDA HORNE Assistant Dist rict Attorney General Shelby County

District Attorney General’s Office 201 Poplar Avenue, Thi rd Floor Memphis, TN 38103
OPINION FILED: _____________ AFFIRMED and REMANDED - JOHN P. SCOTT AFFIRMED, AS MODIFIED and REMA NDED - GILBERTO R. CANTU CURWOOD WITT, JUDGE1 As we discuss below , the record does not reflect w hether the appellants pleaded guilty to posses sion of a controlled substance w ith intent to sell or possession of a controlled subs tance with intend to deli ver. Both appellants were indicted on both char ges. 2

OPINION The appellants, Gilberto R. Cant u and John P. Scott, appeal the Shelby County Criminal Cour

t's denial of judicial diversio n and imposition of a split, partiallysuspended sentence. The appellants both pleadedguilty to possessi on of
a controlled substance 1 and requested judicial d iversion, which was denied. Th e court below imposed identical sentences on the appellant s o f 14 months confinement, with all but 42 days suspended, an d 2 years of probation and payment of fines. On review, we affir m both co nvicti ons, but

we modify

the sentence and the
manner of service of

the sentence of Gilberto R. Cantu, and we remand the case in order fo r the trial court to s pecify th e convicti on offe nses wi th respect toeach appellant.

On January 27, 1 99 5, John P. Scott, a 23-year -old resident of San Antonio, Texas, and Gilberto R. Cantu, a 20-year-old resident of San Antonio, were stopped for traffic v iolations while traveling on I-240 in Memphis. The vehicle in which the appellants were tra v eling w as driven by the appell ant Scott, and the appellantCantu was

the sole passenger. The officer who made the stop app arently noticed a strong smell of marijuana coming from the vehi cle and requested permission to search. Appellant Scott informed the officer hehad marijuana in the
car and consented to the search. Wh ile making the consensual searc h, the officer located four and one-half pounds of marijuana inside luggage in the trunk of the car and a small bag of marijuana under the passenger seat. Appellant Cantu told the officer he had bee n smoking ma rijuana and placed the small b ag under the seat when he beca m e nervous. Thereafter, the appell ants were both indicted for possession of a controlled substance wit h intent to sell and possession o

f a3

controlled substance with intent to deli ver, both in violation of Tennessee Code Annotated section 39-17-417, Class E felonies.

The appellants thereafter entered into an agreement with the District Attorn eyGeneral whereby they would each plead guilty to one of the indic te d offenses. Although the record is not entirely clear, it appears the agreement call ed forsentencing to be left to the di scretion of the trial court , with the state recommending one year's pr obation and a fine.

At the sentenc ing hearing, the appellant Scott testified that when he
was apprehended, he was transporting marijuana from Texas to Virginia. He testified on direct examination he met someone in San Antonio who "offered me an opportunity

t o make some money delivering the drugs involved." During cross examination, however, he said he knew the Virgin i a dealer from working with him at Sam's Club when he was living in Northern Virginia, and he ess entially arranged the transaction based on his k nowledge of the quantity needed by the Virginia dealer, which he purc hased from a San Antonio dealer from whom he previously made small purchases for personal u se. The money for the transactions w as fronted by the Virginia deal er. Scott testified that he was not a drug

dealer and had not engaged in any transac tions other than purchases for pe rsonal use and this one large purchase for resale. He told the court he had entered into this particular deal because he needed money to pay bi lls and college expens es.

On cross-examination, Sc ott wasunable to give the last name of the drug dealer in San Antonio from who m he purchased the marijuana. At this point, the court became very in censed and ordered a recess. Prior to taking the recess, the court m ad e several s tatemen ts, inclu ding, "I' m probab ly not going to give [diversion] to [Scott] anyway" and "I want to he[ar] it, or [div ersion] ain't [sic] going2 The record is devoid of any proof of a conviction, althoug h Scott admitted committing the offense. 4 to happen." He als o told counsel, "[Y]ou know where he 's go ing, and he's going today." After the recess, Scott resumed his testimony and insisted he did not know the San Antonio dealer's last name,although he testified he took San Antonio narcot ics officers to the dealer's apartment and

workplac

e, provide

d them w it h information about the deal and gave th e m this dealer's telephone and beepe r numbers. However, he testified, he declined a proposal that he p articipate in an undercover

purchase of 50 pounds of marijuana from the dealer ou t of fear for his safety. Scott did not elaborate, and this court has no indication of the basis for this appella nt's conc ern for h is safet y.

At t he time of the offenses, Scott was employe d, along with his co
appellantCantu, at Sam's Club i n San Antonio. Scott testified he w as fired from S am's Club as a result of the inst ant offenses. As a result of the offen ses, h e moved from San Antonio into his mother's home in Woodbridge, Virginia, where he enrolled at Northern Virgini a C ommun ity College. He t estified he had incurred financial losses as a result of hi s crime, and he and his family had been embarrassed by his actions. Moreove r, he avowed that if the c ourt gave him the chance he would not commit any crimes in the future.

Scottadmitted a prior misdemea nor trespassing a rrest in Virginia,and t estified he had no other criminal rec ord. 2 He admitted, however,to marijuan a purchases and usage.

The appellant Cantu testified that he methis co-appellant on the job at Sam's Club. Cantu used mari juana with Scott prior

to the offenses in question. Cantu recalled that the drug tr ansaction had been discussed w hen Scott came

to5

Cantu's apartment and told Cantu and his roommate about it. Cantu's roommate initiallyagreed to accompany Scott to deliver the marijuana to Virginia; however, the roommate changed his mind at the last minute and Cantu agreed t o go on the delivery in his place. Cantu was to rec eive approximately

$800 forhis assistance in the delivery. Cantu testified h e knew nei ther the Virginia dealer nor the San Antonio dealer.

Cantu testified that his goal was to become an electrical engineer. He
was pursuing his education and continuing to work at Sam's Cl ub at the time of the hearing

. As pa rt of the presentence report, l etters discussing Cantu's good character

and past accomplishments were submitted from former teachers, a priest and family friends.

Cantu testified that he and his fam ily ha d been embarrassed by his actions. His parents, bothof whom are teachers, had been ridiculed as a result of the offenses. He testified he knew what he had done w as wrong and that he would not violate the law again.

The trial court accepted the g uilty pleas of both appellants on one count of the indictment. T he record does not specify whether the appellants pleaded and were adjudged guilty to possessi on of a controlled substance w ith intentto sell or

possession of a controlled substance with intent to deli ver, although both are Class E felonies. The court then denied judicial diver sion to both Scott and Can tu based on "the enormity of the offen se" and "the nature and circumst ance s of the offense in that they consorted with another or othe rs to transport a la rge quantity to-wit 4.5 pounds of marij uana interstate." The court denied impositionof
a Community Corrections sentence, stating simply, "It does not satisfy the Court's requirements." The court the n imposed a sentence of 14 months, with all but 426

days suspended, two years of probatio n beginning upon the appellants' release from confinement, and fines. The sen tence is identical in all respects as to both appellants.

I

In their first issu e, th e appellants challenge the t rial court's denial of judicial diversion. The Sentencing Reform Act of 198 9 providesin pertinent part: If any person who has not prev iously been convicte

d of a felony or

a Class A misdemeanor is found guilty or pleads guilty t

o a misdemeanor

which is punishable by imprisonment or a Cl ass C, D or E felo ny, the court may, without ent ering a judgment of guilty and with the consent of such person, defer further proceedings and place the pe rson on probation upon such reas onable conditions as it may require an d for a period of time not less than the period of th e maximum sentence for the misdemeanor with which he is

charged, or not more than the period of the maximum sentenc e of the felony

with which he is charged, on condition that the defendant pay, in addition to the payment of not less than ten dollars ( $10.0 0) nor more than thirty-fi ve dollars ($35.00) per month, as determined by the court [as part payment of the expenses of super vision of the defendant]. . . . Tenn. Code Ann. § 4 0-35-31 3(a)(1) (Supp. 1996). The procedure under this provision is commonly referred to as judicial di version. It is substantially similar to pretrial diversion ; however, j udicial d iversion f ollows a guilty plea and the decision to grant diversion r

ests with the

court, not the prosecutor. State v. Anderson , 857 S.W.2d 571, 572 (T enn. Crim. App. 1992).

The lower

court's denial of judicial div ersion is subject to appel late reversal only if that court abused its discretion. State v. Hammersley , 650 S.W.2d 352, 356 (Tenn. 1983). When an appell ant challe nges the denial of judicial diversion, we are constrained not t o revisi t the issue if the record cont ains any substantial evidence supporting th e trial court's decis ion. Hammersley , 650 S.W.2d at 356; accord, State v. Carr , 861 S.W.2d 850, 856 (Tenn. Crim.App. 1993) (where the evidence is capable of justifying differing results, this court allows the prosecutor his or her discretion o n a decision of whether to al low pretrial div ersion).7 In determining whether to grant judicialdiversion, the trial court must consider (a) the accused's amenability t o correction, (b) the circumstances of the offense, (c) the accused's cri minal record, (d) the accused's social history, (e) the status of the accused 's phys ical an d mental health, (f) the deterren ce value to the accu sed as well as others , and (g) whether diversion will

serve the public's and the accused's i nterests in the ends of justice. State v. Bonestel , 871 S.W.2d 163, 168 (Tenn. Crim. App. 1993) (citation omitted). M oreover, the record must reflect that the court has weighed all of the fact ors i n reaching its determinati on. Bonestel , 871 S.W.2d at 168 (citations omitted). The court must ex

plain on the rec ord why the defen dant does

not qua lify

und er its analysis, and if the court has based its determination on only some of the factors, it must explain why these factors ou tweigh the others. Bonestel , 871 S.W.2d at 168.

In the case sub judice , the trial court simply stated its reasons for denying judicial diversi on. It articulated its rel iance on "the enormity of the offense" and "the nature and circumstances o f the offense." In other wor ds, under the Bonestel analysis, the court based its determination on but one of th e seven factors to be considered -- the circumstances of the offense. Moreov er, the court did not explain whether it had consider ed any of the other factors, and if so,why they were not applic

able. U nder the

dictate of Bonestel , the trial court's anal ysis does not adequately appear of record. The question r emai ns, however, whether the trial court reached the correct result notwithstanding its failure to explain its analysis on the record. See State v. Talmadge G

. Wilbanks , No. 02C01-9601-CR-00003 ( Tenn. Crim. App., Jackson, Nov. 19, 1996) (trial court's denial of diver

sion affirmed despite court's failure to explain its considerations and analysis on the record).

With respect to the appellant Scott , we cannot conclude that the court8

abused its discretion in denying ju dicial diversion. The record r eflects Scott was untruthful, or at least lacked candor,with the trial cour t in that he gav

e conflicting accounts asto whether he was r ecruited by someone in Texa s to transport dru gs to Virgi nia or w

hether h e arranged the tr ansacti on himse lf. We believe Scott's lack of candor with the

trial court is ill ustrative of his amenability to cor

rection. See State
v. Paul Emile Oliver , No. 03C01-9510-CC-00322 ( Tenn. Crim. App., Knoxville, July 15, 1996) (denial of pretrial d iversion upheld base d upon appellant's inconsiste nt statements to the trial court about his involvement in drug sales prior to apprehension); State v. Nease , 713 S.W.2d 90 (Tenn. Crim. App. 1986) (defendant who was untruthful w

ith trial court appropriat ely denied diversi on). Second, by all accounts, the circumstances of the offense are that S co tt orchestrated the transportation of or

at least agreed to transport a large quantity of marijuana across several stat es. The record strongly supports a conclusion that Scott planned this endeavor. As b etween himself and Cantu, Scott was clearly the more culpable offender. This "circumstances of the offense" factor was relied on by the trial court in its deni al of judici al diversion. Third, Scott has a history of criminal activity -- trespassing and marijuana purchas es an d use. These factors all militate against judicial diversio n.

Upon consideration of all of the facts and circumstances

and with our
narrow scope of review in mi nd, we conclude that the tr ial court did not abuse it s discretion in denying judicial diversion to the app ellant Scott. In our view , the neg ative factors that we have noted above outweigh this appellant's moderatel y positive social histo ry , good health and the essential ly neutral considerati ons of deterrence and the ends of justice. Accordi ngly, we find there i s evidence of record to support the lower cour t's denial of judicial div

ersion to John P. Scott.

Next, with respect to the appellant Gilberto R. Cantu, the record9

reflects he is a young man who appear s t o be amenable to correction. Sev eral members of his com munity, including his pries t and two former teachers, w rote to the court attesting to his good character and past peer leadership. He readily admi tted his involve ment and expressed his remor se at brea king the la w an d causing shame to his family. Unli ke his co-appellant, there was no indication he
was untruthful with the court about the nature and extent of his involvement in the conviction offense. He testified he is enrolled in college and has steady employment. Second, the circu m stances of the offense were that the appel lant becameinvolvedat the last minute when his roommate deci ded not to accompany Scotton the trip to Virginia. Contrary to the finding of the trial court that Cantu and Scott"consorted with another or others to tran spo rt a large quantity . . . of marijuana" to another state, there is no evidence of record that Cantu was involv ed in arrangi ng the transaction or ev en knew the drug dealers between whom the marijuanawas being transport ed. Next, we note that Cantu has no criminal record, although he admitted smoking marijuana. Moreover, the appellant Cantu's social his toryis extremely positive with the ex ception of his marijuana use. Both of hi s parents are teachers, and the appellant himself was a student leader in high school, serving as a member of the st udent council and as a drum major for the band. According to information in the presentence report, it appea rs Cantu moved into his parents' home following the offense. With respect to Cantu's physical and mental health, the presentence report reflect s no concerns. Next, we see no evidence that this appellant would be any more deterred from future criminal conduct if judici al diversion is deni ed than if i t was granted. Finally, the ends of justice ostensibly would be served by giv

ing a second chance to this young man who made a mistake uncharacteristic of

his past accomplishments, particularly given his comparatively less culpable role in this crime. In this vein, we believe Cantu has generally demonstrated the ability to meet the or dinary obligations of society as well as the ability and incentive to

follow the law in the

future. See Nease , 713 S.W.2d at 92.10 This court has said that the pres ence of only oneof the factors is sufficientto support a denial of judicia l di version. State v. Thomas Dailey , No. 02C01-CR-00008 (Tenn. C rim. App., Jackson, Aug. 21, 1991) (relying on State v. Baron , 659 S.W.2d 811 (Tenn. Crim. App. 1983) (applying this rule in the con text of a den ial of pro bation)) . However, th e suprem e court ha s said tha t two of th e factors, the cir

cumstan ces of t he case and deterrence, may not be given

" controlling

weight unless they

are 'of such overwhel min g significance that they [ne cessarily] outweigh all other fact ors.'" State v. Washington , 866 S.W.2d 950 , 951 (Tenn. 1993) (pretrial di version case) (empha

s is in original) (quotin g State v. Markham , 755 S.W.2d 850, 853 (Tenn. Crim. App. 1988)). The trial court made no finding on the record that the factor it relied on, the circumstances of the offense,
was of overwhelming

significance, but

of course this finding is implicit in the court’s decision.

Under Washington , appellant Cantu presents an “‘especially compelling’” case for judicial diversion, Washington , 866 S.W.2d at 951; h owever, we notice that his role in the crime was not compelled by ex igent circumstances and is not explained by impair ed judgment. Moreover, he did not act inadvertently, nor
even gratuitously. He was, by his own admission, motivated by lucre. He calculated to make a profit by ille gally trafficking in a significant amount of drugs. Such a motive is inimical, we believe, to one’s candidacy for judicial di versio n because it entails a considerati on of serving the pub lic ’s interest in the ends of justice. See Washington , 866 S.W.2d at 951; Bonestel , 871 S.W.2d at 168. In this regard we find that, given the pe cuniary nature of the enterpr ise, a mere reversal of economic fortune may not be anadequ ate penal response, or at leas t the trial judge could have reasonably found that this consideration suff ici ently weighed against the fact ors favor ing diversi on. W hile we view it as a close case, we hold that the denial of

judicial diversion for appellant Cantu is not an abuse of discretion.11 II The remaining issue chall enges the propriety of th e sen tences imposed on the appellants.

In determining whether th e trial court has properly sen tenced an individual, this court engages in a de novo review of the record with a presumption the trial court's determin ations were correct.Tenn. Code Ann. § 40- 35-401 (d) (1990). This presumption is "conditi oned upon the affirmative showing in the record that th e tr ial court considered the s entencing principles and all relevant facts and circumstances.” State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). In conducting
our de novo review, we must consider theevidence at sentencing,the presentence report, the sentencing principles, the arguments of counsel, the sta tements ofthe defendant, the natu re and c haracteristics of the offense, any mitigating and enhancementfactors, and the defendant’s am enability to reha bilitation. Tenn. Code Ann. § 40-35-210(b) (1990); Ashby , 823 S.W.2d at 168. On appeal, the appellant has the burden of showing the se ntence imposed is improper. Tenn. Code Ann. § 40-35-401(d), Sentencing Comm'n Comments (1990); Ashby , 823 S.W.2d at 169.

The record in this case fails to demons trate that the trial cour t gave appropri ate consideration to the principles of sentencing as w ell as the relevant facts a nd circum stances . Althoug h the tria l judge rel ied on "t he enorm ity o f th e offense" and t he "nature and circumstances of the offense" i n denying judicial diversion, there are no statements whatsoever which confirm that the trial judge
c onsider ed any of the relevant factors in determining an appropri ate sentence. Thus, we conduct our de novo review wit hou t the presumption that the trial court properly sentenced the appel lant.

In this case, the appellants, as C la ss E felons, are presumed to be3 This appellant admitted trespass ing on a golf course in 199 1 and

purchasing and using mar ijuana on multiple occasions prior to his offense. While there was no evidence presented of prior convictions , the record shows a history of criminal behavior

. 12 favorable candid ates for alternative sentenc ing under the 1989 Sentencing Act. See Tenn. Code Ann. § 40-35-102(6) ( 1990).

In conducting our de novo review, we hav e rev iewed the enh ancement and mitigatingfactors, neither of which were analyzed by the tr ial court. Likewis

e, neither party has argued for the application of these factors in their briefs. Looking first to the enhancement factors, we find that the appell ant Scott was a leader in the commission of the offense and that he had a history of cr iminal convictions or criminal behavior. 3 See Tenn. Code Ann. § 40-35-114(1) , (2) (Supp. 1996). The record reflects no enhancement factors rel ative to Cantu, except for the prior criminal behavior of usi ng marijuana.

Consideringnext the mitigating factors, we find that Scott as sisted the authoritiesin uncovering offenses committed by other

persons, and he assisted the authoritiesin lo cating or recovering any person involved in the crime. See Tenn. Code Ann. § 40-35-113(1),(9),( 10) (1990). We afford the latter two factors less weight because they are essential ly duplicative of each other on th e fa cts of this
case. In the preceding section o f this opinion we described the personal background of Cantu, and we consider the background factors of

both appellants as mitigating circumstances. Tenn. Code Ann. § 40-35-113(13) (1990 ).

We point out that the presumptiv e sentence for

a Class E felony is the minimum in the range, which in the case before us (Range I), is one year. Tenn. Code Ann. § 40-35-210(c) (Supp. 1 996); Tenn. Code Ann . § 40-35 -111(b)(5) (1990); Tenn. Code Ann. § 40-35-112(a)(5) (1990).4 We note that the appellants are neither resi dents nor domiciliaries of

Tennessee, and thus, we have not considered Commun ity Corrections as a sentencing option. 13

Upon consideration of these factors, as well as the

pr esentence report, the arguments advanced by counsel, the testimony of the appellant and the nature and characteristics of this particular offense, we conclude that the length of the sentence imposed on Scott is justif ied a nd should not be disturbed. In the absence of enhancement factors that outweigh mitig ating factors in Cantu’s case, we modify his sentence of fourteen months and establish it at the minimum within the range, one year.

In susp ending all but forty-two ( 42) days of the sentence that w as im posed, the trial court has accorded alternative sentencing, in the form of spli t confinement, to the appellants. Of course, s plit confinement involves probation, 4 but our de novo review of the use of the or der ed confinement entails our consideration of Tennessee Code Annotated section 40-35- 103(1). This sub sectio n lists grounds that may be used to support an ord er of confinement. None of the stated grounds applies in the case now before us exc ept the ground set forthin the first clause of sec

tio n 103(1)(B), that “confinement is necessary to avoid depreciating the seriousness of the offense[.]” Tenn. Code Ann. § 40-35-103( 1)(B) (1990). The trial cour t essen tially declared the need to avoid depreciating the seriousness of the offense when, with reference to the diversion request, he alluded to the “enormity of the offense” and the “natu re and circumstances of the offense in that [the appellants] consorted wi th another or

others to transport a lar ge quantity to-wit 4.5 pounds o f mariju ana inte rstate.” On review, we find that the ordering of
some confine ment is co mmensu rate with t he need t o avo id depre ciating the seriousness of this offense.14 It does not follow, howev er, in considering the record as a whole, that the periods o f confi nement should be identica l for bot h appella nts. As we have indicated in section I that deals wi th judicial diversi on, supra , there is a discernible difference in the culpability of the two appellants. Appellant Cantu is less culpable for the r easons we have note d. Wh ile we have ruled that this differenc e does not compel us to find that the trial judge abused his discretion in den ying diversion to C antu, we do find that the distinction betw een these two offenders should be recognizedin the provision for probation.Therefore, for these reasons and in the
exer cise of our responsibilities in reviewing this matter de novo , we hold that Cantu’s sentence shall be su spended upon the service of twenty-one (21) days. With this modification and the modificati on of the length of Cant u’s senten ce, the sentences, manner of service, and fines of the appellants

shall remain as they were established by the trial

court.

III The final issue is one which this court has raised ex mero motu

. Our review of the record reveals that nowhere therein is the precise convicting offense foreither ap pellant conclusi vely establi shed. The indictment charges b oth appellantswith possessi on of a controlle d substance with intent to sell and possession of a controll ed su bstance with intent to del iver. It is beyond cavil that the two are separate offenses. See Tenn. Code An n. § 39-17- 417, Sentencing Comm'n Comments (Supp. 1996). The plea documents si gned by both appellants
are not illustrative. Appellant Scott 's pleadocument shows simply "Charge(s) UPCS w/I marijuana" and Appellant Cantu 's reads "Charges UPCS w/IS&D." The judgmentsare identical as to both appel lants, reflecting that they were convicted of "unlawful poss. of

a cont. subst. w/ intent." The transcript reflects that the trial judge accepted the guilty pleas of the appellants and found them guilty of "possession of
a control led subs tance with the intent to sell or deliver." (emphasis added) It is15

apparentthat the appellants pleaded gui lty to only one of

the two counts; however, the record does not reflect to which of the two counts the appellants entered their pleas. This information is essential, and this case is remanded for entry by the trial court. Tenn. R. Crim. P. 36.

In summary, the denial of judici al diversion in both c ases is affirmed. With respect to Gilberto R. Cantu, we modify the trial court's sentence and establish the sentence at one year, to be s uspended upon the service of tw enty-one (21) days, together with the probationary period and fines as ordered by the trial court. With respect to John P. Scott, we affirm the sent ence imp osed bel ow. Finally, we remand this case to the trial c ourt for entry in the rec ord of the convicting offenses
as to both appellants and of the modificati on of appellant Can tu’s sent ence and manner of service of sentence.

____________________________ CURWOOD W ITT, Judge

______________________________ JOSEPH B. JONES, Presiding Judge

______________________________ GARY R. WADE , Judge