1 

# FILED

August 20, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE APRIL 1 998 SE SSION

STATE OF TENNESSEE , §

APPELLEE § VS. C.C.A. No. 01C01-9707-CC-00244 § WILLIAMSON COUNTY HON. HENRY DENMARK BELL ANTONIO JO HNSON, §

APPELLANT (JUDICIAL DIVERSION)

FOR THE APPE

LLANT FOR THE APPELLEE Nil es S . Ni mmo John Knox Walkup Realtors Bldg.,

Suite 200 Attorney General and Report er 306 Ga y St. 425 Fifth A venue, N orth Nashville, TN 37201 Nashville, TN 37243

––––– Daryl J. Brand Assistant Att

orney General 425 Fifth A venue, N orth Nashville, TN 378243 Derek K . Smith Assistant Dist

rict Attor

ney General P. O. Box 937 Franklin, TN 37065-0937

OPINION FILED: _______________________

AFFIRMED L. T. LAFFERTY,

SPECIAL JUDGE2 OPINI ON Following a bench trial, the appel lant, Antonio Jackson, was convicted of the unlawful possession of cocaine, a Clas s A misdemeanor. The trial court sentenced t

he defendant to ser

ve sixty (60) days , day for day, and pay a fine of $2,500. The trial court suspended the sixty (60) day sent ence and placed the def endant on supervised probation for el

even (11) months and twenty-ni ne (29) days. Foll

owing a direct appeal, thi s Court found that t he trial cour

t had abused its

discreti on in sentencing t he defend ant and reman ded the case fo r resente ncing p ursuan t to judic ial diver sion. State v. Anto nio Jac kson, Will iams on Co unt

y, No . 01 C01- 9601 -CC- 0001 4 (Te nn. Cri m. App. Nashv ille, December 13, 19 96). In resentencing the de fendant, the trial court imposed judicial

diversion but r

etained the condi

tions of probat

ion from the origi

nal judgme nt. The defendant presents one issue for r eview: “Whether the tr ial court er

red by imposing a fine as par

t of a sentence ent

ered under authori

ty of Tenn. Code Ann. § 40- 35-313.” After a thorough review of the record, the briefs submitted by both parties, and the law gov erning the issue presented fo r review, it is the opinion of this Cou rt that the sent

ence imposed by the tri al court should be affirmed. A. When an accuse d challeng es the length and ma nner of serv ice of a sente nce, it is the duty of t

his Court to conduct

a de novo review on the record wit h a presumption that the “determinations m ade by the court from which the appe al is taken are correct.” Tenn. Code Ann. § 40-35-401(d). This pr esumption is “condit

ioned upon the affirmati

ve showing in the recor d that the tr

ial court considered the sent encing principles

and all releva

nt facts and ci

rcumstances.” State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1994). The presumpti on does not apply to t

he legal conclusi

ons reached by the trial

court in sent

encing the accused or

to the determinat

ions made by the tri al court w hich are predica ted upo n unco ntrove rted fac ts. State v. B utler, 900 S.W.2d1 In Alberd, this court concl uded that statut

ory fines may not be imposed in cases i nvolving pretrial diversi on

3 305, 311 (Tenn. C rim. App . 1994); State v. S mith, 891 S .W.2 d 922 , 92 9 (Te nn. Cri m. App. 19 94), per. Ap p. Denied (Tenn. 19 94); State v. B oneste l, 871 S.W.2d 1634, 166 (Tenn. Crim. App. 1993). However, this court i s required to gi ve great weight to t

he trial cour t’s determinat

ion of controvert

ed facts because t

he trial cour

t’s determinat

ion of these facts is predicat ed upon the witnesses’ demeanor and appearance when testifyi ng. The party challengi

ng the sentences i

mposed by the trial

court has the burde

n of establishin g that the sen tences are e rroneous. S entencing Comm ission Com ments to Tenn. C ode An n. § 40-35 -401; Ashby , 823 S.W .2d at 169; Butler , 900 S.W.2d at 311. In this case, the defendant has the burden of il

lustrati ng that the sent

ences imposed by the trial court are erroneous. The record indicat

es that duri

ng the resentenci

ng hearing the tr

ial court f

ailed to articulate the condit

ions. The tri al court merely st ated “put on 11/29 super vised probation, r

eport by mail, on or

dinary conditions and drug screens. ” Therefore, t he standard of review on appeal is de novo without a presumption of correctness. Tenn. Code Ann. § 40-35 -402(d ). B. The defendant argues t

hat judicia

l diversion i s similar i

n purpose to pretrial diversion, t

herefore, t

his Court’s holding in State v. Alberd , 908 S.W.2d 414 (Tenn. Crim. App. 1994), controls. 1 Additionally, the defendant ass erts the t rial court lacked authority t

o impose a fine in conj unction with judi cial diversion. (1) Pretrial diversion and j udicial dive rsion are si

milar in natur

e but differ statutori ly. The pretrial diversi on statute i s located in Tenn. Code Ann. § 40-15-101, seq. Th e judicia l diversio n statute , howe ver, is loc ated in T enn. C ode A nn.4 § 40-35-313, and was incorpor ated in the Sent

encing Act of 1989. Under pret rial diversion, Tenn. Code Ann. § 40-15-105(a), a def endant who meets certain c riteri a, enters into a m emoran dum of understan ding with the District A ttorney G eneral, whereby both parties

agree that the

prosecution of ce

rtain cri mes will be suspended for a spe cified pe riod, no t to exce ed two (2) yea rs from the filing of the m emor andum

. The parties agree

that the defenda

nt will be super

vised by an appropria

te agency, department, progr

am, group or associat

ion and at the concl

usion of the super

vised period, if no violations

of the memorandum of understanding ar e proven, the tr

ial court may dismiss the pr osecutions with pr

ejudice. The judicial diversion statute,Tenn. Code Ann. § 40-35-313(a)(1)(A) states:

“If any person w ho has not previou sly been convicted o f a felony of a Class A misdemeanor i s found guilty or pleads guilt

to a misdemea nor which is pun ishable by imprisonm ent of a Class C, D or E felony, the cour

t may, without enter

ing a judgment of guil

ty and with the consent of such pers on, defer furt her proceedings and place the person on probation upon such reasonable conditions as it may requir e, and for a period of time not less

than the period of

the maximum sentence for the misdemeanor with which the person i s charged, or not more than the period of the maximum senten ce of the felony with w hich the person is charg ed. . . .

(2) . . . If, during t

he period of probat

ion, such person does

not violate any of t

he conditions of

the probation,then upon expirati on of such period, the cour

t shall di scharge such person and di smiss the proceedi ngs against the per

son. Discharge and di smissal under thi s subsection i s without court adjudicat

ion of guilt , but a non-publi c record thereof

is retai ned by the court solely fo r the purpo se of use by the courts in d etermining whether or not, in subsequent procee

dings, such pers on qualifies under this subsection, or f or the limited pur

poses provided in subsection (b). Such discharge and dismis sal shall not be deemed a conviction for purpos es of disquali fications or disabili ties imposed by law upon conviction of a cri me or for any other purpose, except as

provided in subsect

ion (b). Dischar

ge and dismissal under this sub section may o ccur on ly once with re spect to any pe rson.” In State v. A lberd, 908 S.W .2d 414 (T enn. Crim . App. 199 4), a panel o f this court concluded tha

t mandatory minimum fines for dr ug offense may not be requir ed as a condition of a m emorandum of understanding for p retrial diversion. This court held that mandatory mini mum fines may only be imposed following a conviction, and pretrial diversion was not a result of convict ion. Because judicial diversion follows a5 determ ination o f guilt, Alberd , does n ot gove rn case s involv ing jud icial dive rsion. Howe ver, even in cases invo lving pretrial d iversion, trial cou rts have the a uthority to require defendant

s to pay resti

tution, cour

t costs, and c osts of supervi sion. Tenn. Code An n. § 40-15-105(a)(2). (2) The judicial di

version stat

ute, Tenn. Code Ann. § 40-35-313 aut horizes the imposition of pr

obation “upon such reas onable conditi ons as it may requir e.” Conditions of probat

ion “must be reasonable and realist

ic and must not be so st ringent as to be harsh, oppr

essive, or pal

pably unjust. ” Stiller v. S tate, 516 S.W.2d 617, 620 (Tenn. 19 74). Trial co urts may im pose any terms and conditions n ot inconsisten t with the Tennessee Sentenci ng Reform Act. See State v. H uff, 760 S.W.2d 633, 639 (Tenn. Crim. App. 19 88). The Co urt finds the im position of a fine or contrib ution of a m onetary am ount, not exceeding the maximum statut ory fine, t

o be a reasonable condi tion of judicial diversion. Tenn. Code Ann. § 40-35-313. The United Stat es Sixth Circui

t Court of Appeals addressed a si

milar question i

n construing Tenn. Code Ann. § 40-21- 109 (now Tenn. Code Ann. § 40-35-313) regardi ng the payment of costs as a condition of probation. The Court

concluded In re H ollis, 810 F.2d 106 , 108 (6th Cir. 1987): “The state c riminal cou rt clearly intend ed the asses sment of c osts to be a conditi on of appellee’s probation under sec

tion 40-21-109. Tenn. Code Ann. § 40-21-109 (1982). An asses sment of costs, moreover , appears to be an appropriate condi

tion of probat

ion under this s ection. . . . We believe that section 40- 24-105(b ) of the Ten nessee C ode, wh ich provide s that costs ‘sh all not be deemed part to the penalty’ in a cr

iminal case, and upon whic h the district court relied in reaching it s decision, i s displaced i n this inst

ance by the more specific provisio ns of se ction 40 -21-10 9.” Federal courts ha

ve also held the i

mposition of fi

nes to be permissi

ble pursuant to the parallel fe deral statute fo r post-conv iction deferra l. See 18 U .S.C. 3651 ; United States v . Tepfer , 748 F.Supp. 31 0, 311 (E.D. Pa. 19 90).6 Althoug h pretrial dive rsion and ju dicial diversio n are simila r in nature, ther e is a signific ant differe

nce between the impositi on of probation pursuant to pretr ial diversion and j udicial dive rsion. The purpose of

judicial di

version is t

o avoid placing the stigma and collatera l consequ ences of a c riminal con viction on th e defenda nt, in addition to pr

oviding the defendant

a means to be restored f ully and to usef

ul and produ ctive citiz enship

. State v. P orter, 885 S .W.2d 93, 95 ( Tenn . Crim . App. 1 994). This Court has recognized the very “fact that a defendant

seeking judicial diversi on stands b efore th e court h aving a lready b een fou nd guil ty--read y to be s entenc ed,” places the defenda

nt in dramatical

ly different

posture than t

hat of a person seeki

ng pretrial diversion. See State v. P orter, 885 S.W.2d at 94-95. A somewhat analogous situati on was addressed by this Court in State v. Vasser, 870 S.W.2d 543 (Tenn. Crim. App. 1993). The def endant, Vasser

, upon being found guilty of drivin g under th e influence of an intoxic ant conten ded he w as entitled to judicial di

version after

serving fort

y-eight (48) hour

s, per Tenn. Code Ann. § 40-35- 313. This Court in construing Tenn. Code Ann. §55-10-403( B)(1)--Penalt

ies for Driving under the influence of intoxicants--concluded that a “convicted” person must serve the “minimum sentence” and t hus is not eli

gible for t

he provisions of

Tenn. Code Ann. § 40-35-313. Thus in a genera l sense, a “convi

ction” has been defi

ned as the “result

of a criminal t

rial (or gui

lty plea) which ends

in a judgment or sent

ence that the accused is gui

lty as charged. ” Technically, a conviction i nvolves not only a verdict, but

also a sentence pas sed by the court. See State v. V asser, 870 S.W.2d 543, at 545; Ru le 32(e) Te nnessee R ules of Crim inal Proced ure. Since th e trial court did not enter an order

of conviction,but ordered the def endant to judicial divers ion, the trial cour t was entitl

ed to set reasona

ble conditions

of probation i

ncluding the payment of fines. In conclusion,this Court fi nds that the or

der of the trial court requi ring the defendant to pay a fi

ne of $2,500 as a condit ion of his probat

ion pursuant to j udicial7 diversion w as approp riate. The im position of a statutory m andatory m inimum fine is acceptable in cases involving j udicial dive rsion because judi

cial diversion, unlike pretrial diversion, involves an adjud ication of guilt by the trial court. Finally, fines are permissible condi

tions of probat

ion under judicial diversi on so long as they do not exceed the maximum specified by st atute for t

he offense committed.

__________________________ L. T. Lafferty,

Special Judge CONCUR:

______________________________ Gary Wade, Presiding Judge

______________________________ Thomas Woodall, Judge