IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Brief February 5, 2013

STATE OF TENNESSEE v. LEWIS GREEN

Direct Appeal from the Criminal Court for Shelby County

No. 11-04991-96 Lee V. Coffee, Judge

W-1100692

No. W2011-02593-CCA-R3-CD - Filed March 28, 2013

The defendant, Lewis Green, appeals the trial court’s decision to deny his request for

alternative sentencing and judicial diversion. The defendant pled guilty to seven counts of

possession of cocaine with intent to sell and one count of possession of marijuana with intent

sell. He received an effective five-year sentence for the convictions. Following a hearing,

the trial court ordered that the sentences be served in incarceration and denied the

defendant’s request for judicial diversion. Following review of the record, we affirm the

sentencing decisions of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

JOHN EVERETT WILLIAMS, J., delivered the opinion of the Court, in which ALAN E. GLENN

and CAMILLE R. MCMULLEN, JJ., joined.

Sean H. Muizers, Memphis, Tennessee, for the appellant, Lewis Green.

Robert E. Cooper,Jr., Attorney General and Reporter; Jeffrey D. Zentner, Assistant Attorney

General; Amy P. Weirich, District Attorney General; and Ann Schiller, Assistant District

Attorney General, for the appellee, State of Tennessee.

OPINION

Procedural History and Factual Background

The relevant facts underlying the defendant’s convictions, as recited by the State at

the guilty plea hearing, are as follows:

Under Indictment 11-04991, that on February 24th, 2011, at 679 North
Holmes located here in Shelby County that the defendant did meet with an

undercover officer with the Memphis Police Department and did so [sell] point

one total net weight grams of what tested positive for cocaine.

Under Indictment No. 11-04992, on February 25th, 2011, also at that

same location, 679 North Holmes located here in Shelby County, Tennessee,

the defendant did meet with an undercover officer of the Memphis Police

Department and did sell the undercover officer pointsix total net weight grams

of a substance testing positive for cocaine.

Under Indictment No. 11-04993, on March 8th, 2011, 679 North

Holmes located here in Shelby County, the defendant did meet with an

undercover officer from the Memphis Police Department and did sell him

point one total net grams of cocaine which did test positive.

Under Indictment NO. 11-04994, on March 9th, 2011, at 679 North

Holmes located here in Shelby County, the defendant did sell an undercover

officer with the Memphis Police Department point four total net weight grams

of a substance testing positive for cocaine.

Indictment No. 11-04995, on March 18th, at 679 North Holmes located

here in Shelby County, the defendant did meet with an undercover officer of

the Memphis Police Department and did sell him point two total net weight

grams of cocaine.

Under Indictment No. 11-04996, on March 18th, at 4:26 P.M., that

would be approximately an hour and a half - no, sir, an hour and six minutes

after he had sold him cocaine from the indictment ending in 995. The

defendant did meet with an undercover officer for the Memphis Police

Department at 679 North Holmes located here in Shelby County and did sell

the undercover officer point five total net weight grams of cocaine.

Under Information W1100692, the defendant did, on May 17th, 2011,

. . . was found to be in possession cocaine - of a substance testing positive for

cocaine. The detectives were executing a search warrant, made entry into the

residence of 679 North Holmes, for location of crack cocaine. They used a

canine officer by the name of Buddy who did locate mari[j]uana inside of the

residence - and cocaine. The cocaine did test positive for cocaine weighing

twenty point three two grams total gram weight; and the mari[j]uana did test

positive for THC weighing a hundred fifty-six total gram weight.

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After the recitation by the State, the defendant stipulated that those would have been the facts

had the case gone to trial.

On October 27, 2011, the defendant petitioned the court to accept his guilty pleas to

seven counts of possession of cocaine with intent to sell and one count of possession of

marijuana with intent to sell. The agreement reflected that the defendant would be asking

the court for diversion or an alternative sentence and that the State had no opposition to

concurrent sentencing. The defendant was voir dired by the trial court and acknowledged

that he was entering the agreement voluntarily. The court reviewed the constitutional right

which the defendant would be waiving by entering the guilty pleas, as well the possible

sentence ranges. The court then proceeded to explain the diversion process to the defendant.

The court, in its explanation, made clear to the defendant that diversion was not guaranteed

and, further, that he could face a sentence of incarceration. The defendant chose to proceed

with entry of the pleas.

At the sentencing hearing, held immediately after acceptance of the pleas, the

defendant testified that he was thirty-one years old, that he had never been arrested, and that

he had five children between the ages of eleven and two. The defendant stated that he had

worked in various janitorial positions, but he was unable to get enough hours at his job to

cover his expenses. According to the defendant, he started selling drugs to catch up bills and

support his children. The defendant testified that he had “just made one mistake” and that

he was not a bad person. He stated that he had been unable to find another job at the time,

but if he was released, he was now more motivated to find a better job. He acknowledged

that he had stopped selling drugs because he was arrested; however, the defendant insisted

that he would have stopped anyway if he had been able to get a better job.

The defendant specifically admitted selling the drugs on the days charged in the

indictments, as well as on other days in the time-period covered by the various charges. He

also acknowledged that he had smoked marijuana in the past. Nonetheless, the defendant

was adamant that he would never sell drugs again and that he could comply with the terms

of any sentence imposed. He stated that he would be staying with his aunt if he was granted

diversion or an alternative sentence.

After listening to the testimony and reviewing the evidence, the trial court sentenced

the defendant to five years, as a Range I offender, for each of the cocaine charges and to two

years for the marijuana charge. The court ordered that the sentences be served concurrently

for an effective five-year sentence. The trial court denied the defendant’s request for

diversion, as well an any alternative sentence, and ordered that the sentence be served in

incarceration. This timely appeal followed.

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Analysis

On appeal, the defendant contends that: (1) the trial court erred in denying his request

for alternative sentencing; and (2) the trial court erred in denying judicial diversion. We

disagree.

The trial court, in very extensive oral findings, noted the basis of its sentencing

decisions:

This court, in evaluating this petition under Tennessee Code

Annotated 40-35-210, has considered the facts and circumstances of this

offense. The court has considered statements that [the defendant] has made on

his own behalf. The court has considered statements and arguments of

counsel. The court has also considered the nature and the characteristics of the

criminal conduct involved.

This court has considered those principles of sentencing as reflecting

in 40-35-102 and 103.

The court has considered all things that could be mitigated and

enhancing under 40-35-113 and 114.

This court has considered the statistical data provided by the Supreme

Court/Administrative Office of the Court regarding sentencing practices

around the state of Tennessee.

And the court has also considered [the defendant’s] potential for

rehabilitation and/or treatment or lack thereof.

40-35-113, [defense counsel] asked the court to consider that the

defendant was motivated by a desire to provide necessities for the defendant’s

family and/or the defendant’s self. [The defendant] was motivated by greed.

He was motivated by profit. [The defendant] had a job; and he says that things

were a little bit tough - things were a little bit tight - and he was trying to get

extra money selling drugs for his kids and to pay bills; but he was working.

He was employed. He did have the ability to pay - to raise money, but he

chose to take a shortcut. He said he was making two hundred/two hundred

fifty dollars a month - not that much. So, the court will find and give very

slight weight to the fact that he was, quote, motivated by a desire to provide

necessities for his family.

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The court does not find that his conduct did not cause nor threaten

serious bodily injury. Tennessee cases are crystal clear that when a person

engages in selling cocaine and other drugs; that that, in and of itself is a

dangerous offense; that it is threatening to cause bodily injury - to cause harm

to folks; that, in fact, buy drugs in the community.

This court finds that [the defendant] has engaged in conduct - criminal

behavior in addition to those necessary to establish the appropriate range and

gives great weigh to that enhancement factor. [The defendant] was selling

drugs for at least four months before he was finally arrested and taken off the

street. I don’t know, and I don’t believe that when he was arrested on May

17th that he, all of a sudden . . . stopped selling drugs. He had all of these

other cases that were pending that were committed from February through

March - arrested on May 17th. He made a bond on that case. The bond was

reduced. And I do not believe that on May 17th 2011, after [the defendant] got

arrested, that he went back home and said, “I’m done with being a drug seller.

I’m going to stop.” I do not believe that that, in fact, happened.

This court does find that [the defendant] sold cocaine for an extended

period of time. He was identified by concerned citizens or maybe by one of

his drug users - somebody working on the case - don’t know. Organized crime

has said, “[the defendant] is a dope seller, and this is where he lives. You need

to go get a search warrant for that house,” and based on that, a neutral

detached magistrate signed a search warrant to have a warrant executed on [the

defendant’s] house. [The defendant] was found in possession of digital scales

- found in possession of one hundred fifty-six grams of mari[j]uana, twenty

point three two grams of cocaine. That’s a lot of cocaine. That’s almost an

ounce of cocaine that was located when he was arrested on May 17th, 2011;

and the court has, in fact, considered the facts and circumstances of all these

arrests and finds that these are particularly troublesome.

This defendant had no hesitations of committing a crime in which the

risk to human life was high. Selling drugs in this community, as the court

indicated earlier, is a dangerous offense; and selling cocaine is a crime in

which the risk to human life is, in fact, high; and the court does give great

weight to that finding as an enhancing factor. He did not commit these

offenses while on bond. He committed a bunch of offenses; was arrested, and

then was subsequently indicted for these other six felony offenses; but he has

continued to sell drugs for a long period of time in this community. He has no

other arrests that were able to be located by the Tennessee Board of Probation

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and Parole. He’s been certified as being diversion eligible.

His eligibility for diversion does mean that he is entitled to diversion.

His eligibility for probation does not mean that he is entitled to

probation.

It is still [the defendant’s] obligation - his burden to prove that he is, in

fact, a suitable candidate for probation.

In evaluating his request for diversion, the court has considered all

those factors under Tennessee Code Annotated 40-35-313.

The court has considered whether or not [the defendant] is amenable to

correction. [The defendant] committed multiple offenses over a four-month

period of time; and this court finds that the number of offenses in this case

would indicate that [the defendant] is not necessarily amenable to correction.

This is not, as [the defendant] told the court, that he made one mistake and that

he was careless. This is not one mistake. This is seven convictions - seven

offenses for which he has been arrested - has been indicted - has been charged

- has pled guilty; and there’s no telling how many other times [the defendant]

sold cocaine over that three or four month period of time or longer. This is not

one mistake. This is not an isolated incident where somebody has a hiccup and

says, “I stubbed my toe, and I lost my moral fiber - my moral compass, but I’m

doing better.” This is a continuous continuing sale of cocaine in this

community in which people pointed him out as a dope seller - a living,

breathing dope seller in this community; and the nature of the offenses were

so severe that a judge set a hundred and sixty thousand dollar bond on a drug

seller. And this court does find that because of the number of offenses, that

he does not appear to be amendable to correction because he continued to

commit these offenses over months of time.

This court also finds that the circumstances surrounding these offenses

are, in fact, aggravated. These are seven differentsales for possession of drugs

with intent to sell.

One of these is a B felony. The recommendation is that he serve five

years in prison on the information because of the twenty grams of cocaine.

Had he pled guilty - had he gone to trial and been convicted of what he was

charged with, under Tennessee Law, B felonies are not probateable [sic] - that

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particular B felony, for possessing that amount of cocaine - and he would be

presumed not to be a suitable candidate for probation on a B felony, twentysome grams of cocaine. And the court does consider the facts and

circumstances of the offense, not just the offense for which he has pled guilty.

He has no criminal record. He has not been convicted - has not been

arrested for anything, and that weighs in his favor.

His social history is not good. [The defendant] told the court that he

smoke mari[j]uana - not that often, but he does admit that he smoked

mari[j]uana . . . . And his social history is not good. He does not have a high

school diploma - dropped out of school in the tenth grade, so social history is

not good. I do not have any information about [the defendant’s] physical or

mental health. He would appear to be in fairly good physical health - would

appear to be in good mental health, and that weighs in his favor.

This court has considered the deterrent value as to whether or not

deterrents in this case are particularly important, not only for [the defendant]

but other folks that are similarly situated. When you look at - when this court

considers deterrence under Hooper . . . [,] a 2000 Tennessee Supreme Court

opinion, this court does find that selling cocaine is increasingly prevalent in

this city, in this county, in this community and the state of Tennessee as a

whole. Drugs, guns, and gangs are the three factors that make

Memphis/Shelby County, Tennessee, the second most dangerous metropolitan

area in this country . . . and that weighs heavily against [the defendant].

This court also finds that this is an intentional act. These are knowing

acts, and they were done for one reason and one reason only; and that was to

make money. He was selling drugs for profit; and the court does hold that

against [the defendant] also.

This case has not received any substantial publicity. That weighs in his

favor; but he was, in fact, assisting other people in the commission of this

criminal enterprise.

He told the court that he knows the nickname or maybe the last name

of the drug supplier; and this court does find that he was, in fact, helping other

folks to sell this poison in this community.

And this court also finds that the defendant has previously engaged in

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similar conduct regardless of whether that conduct ended or resulted in a

conviction or not. He was selling drugs for four or five months and continued

to resupply himself. So, under all the facts of Hooper - for those five factors,

[the defendant] fails under the terms of consideration, and the court holds that

against [the defendant].

Lastly, the court has to consider whether or not diversion is in the best

interest of this community as well as the accused. [The defendant] says he

wants to take care of his children. He wants to be better. But this is a case

where people in that community - people in this community have told police,

“We’ve got a drug dealer over here. Will you please do something about

taking this drug dealer off the streets - over on Holmes Street.” To send [the

defendant] back out to that community, and everybody looks at [the

defendant], and he goes out, and his chest is out, and he’s walking around

strutting like a peacock, and the community is going, “My God, this man was

selling drugs for months, and some judge put him on diversion or probation.

Let me start selling drugs, and maybe I can be lucky and get arrested also.”

And it is not in the best interest of this community; it is not in the best interest

of [the defendant] to put him on diversion or to grant him an alternative

sentence.

And for all of those reasons, as indicated earlier, when the court has

considered - and the court has considered all those seven factors pursuant to

State versus Parker . . . [a] 1996 Court of Criminal Appeals opinion - under all

of those factors, only two of those factors possibly, arguably, weigh in [the

defendant’s] favor. The other five weigh heavily against [the defendant].

And this court had to consider the multiplicity of offenses committed

over a short period of time. And if the court finds that there are multiple

offenses - and these are seven convictions that [the defendant] pled guilty to

that occurred in less than four months; and the court does find that these

repeated sales of cocaine is excessive - it is exaggerated - and that based on the

multiplicity of these offenses, that factor, in and of itself, outweighs any

arguments for alternative sentencing. That’s State versus Zeolia . . . [a] 1996

Court of Criminal Appeals opinion. Only one case - just the one information

case, the state made a recommendation that the defendant serve five years on

that case; and that was not even taken into consideration.

It may have had - I don’t know - taken into consideration all of the other

cases that the defendant has before the court. But this court having found the

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presence of aggravating factors, and having found - having given slight weight

to the fact that the defendant was motivated by a desire to provide necessities

for himself or his family, the court finds that [the defendant] is a standard

Range-I offender on these seven felony convictions; and the court finds that

those enhancing factors, as the court has indicated, do outweigh any mitigation

beyond any stretch of the imagination; that they are - they do outweigh any

mitigation; . . . and the court, in light of the fact [the defendant] was offered

a five-year sentence on this C felony information that is actually a B felony

conduct, will set his punishment . . . at five years confinement in the Shelby

County Division of Correction as a standard Range-I offender. This court will

impose a fine of two thousand dollars on the cocaine cases.

On the mari[j]uana case, the second count of this indictment, this court

will set his punishment at two years confinement in the Shelby County

Division of Correction as a standard Range-I offender, a two-thousand-dollar

fine plus cost on that conviction. All seven - all eight of these convictions are

ordered to be served concurrently with each other, making this one effective

sentence of five years in prison; fine of sixteen thousand dollars plus court

costs.

This court has evaluated this petition for diversion under Tennessee

Code Annotated 40-35-313 and has concluded that [the defendant] is not a

suitable candidate for diversion.

This court has also evaluated his petition for alternative sentencing

under Tennessee Code Annotated 40-35-210 and 40-35-102 and 103. And

this court concludes that it is not in the best interest of this community to place

[the defendant] on probation. This is a real live breathing walking drug seller.

It is not in the best interest of this community to place him on probation for his

repeated sales of cocaine; for repeatedly going out and getting more cocaine.

And when he was ultimately arrested in May, he has over twenty grams of

cocaine - almost half a pound of mari[j]uana that’s he’s resupplied himself

with and is out selling this stuff in this community openly, notoriously, and

without any regard to the damage that he’s doing to folks in this community.

. . . .

For all those reason, the court finds that [the defendant’s] request for

alternative sentencing is not well taken; and this court will order that mittimus

and judgment be entered and executed at this time.

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I. Alternative Sentencing

The defendant contends that the trial court erred in denying him an alternative

sentence because the record “clearly shows” that the trial court failed to comply with the

statutory sentencing directives and improperly applied the principles of sentencing in

ordering a sentence of confinement. As an initial matter, on appeal, the defendant asserts that

review of his sentencing complaints should be reviewed de novo. However, that assertions

ignores the recently adopted new standard of review for sentencing decisions. See State v.

Renee Bise, 380 S.W.3d 682, 706 (Tenn. 2012). As such the defendant’s contention is not

well taken.

We now review a trial court’s sentencing determinations under an abuse of discretion

standard, “granting a presumption of reasonableness to within-range sentencing decisions

that reflect a proper application of the purposes and principles of our Sentencing Act.” Id.

This abuse of discretion standard also applies to questions related to probation or any other

alternative sentence. State v. Christine Caudle, 388 S.W.3d 273, 278-79 (Tenn. 2012).

In determining the proper sentence, the trial court must consider (1) the evidence, if

any, received at the trial and the sentencing hearing; (2) the presentence report; (3) the

principles of sentencing and arguments as to sentencing alternatives; (4) the nature and

characteristics of the criminal conduct involved; (5) any mitigating or statutory enhancement

factors; (6) any statistical information provided by the administrative office of the courts as

to sentencing practices for similar offenses in Tennessee; (7) any statement the defendant

made on his own behalf; and (8) the potential for rehabilitation or treatment. T.C.A. § 40-35-

102, -103, -210 (2010).

Under our revised Tennessee sentencing scheme, a defendant is no longer presumed

to be a favorable candidate for alternative sentencing. State v. Carter, 254 S.W.3d 335, 347

(Tenn. 2008) (citing T.C.A. § 40-35-102(6)). Instead, a defendant who is not within the

“parameters of subdivision (5) [of Tennessee Code Annotated section 40-35-102], and who

is an especially mitigated or standard offender convicted of a Class C, D or E felony, should

be considered as a favorable candidate for alternative sentencing options in the absence of

evidence to the contrary.” Id. (footnote omitted). Additionally, we note that a trial court is

“not bound” by the advisory sentencing guidelines; rather, it “shall consider” them. T.C.A.

§ 40-35-102(6) (emphasis added).

Subject to certain exceptions, a defendant is eligible for probation if the sentence

imposed on the defendant is ten years or less. T.C.A. § 40-35-303(a). A defendant is not,

however, automatically entitled to probation as a matter of law. The burden is upon the

defendant to show that he is a suitable candidate for probation. Id. at 40-35-301(b); see also

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State v. Goode, 956 S.W.2d 521, 527 (Tenn. Crim. App. 1997); State v. Boggs, 932 S.W.2d

467, 477 (Tenn. Crim. App. 1996). In order to meet this burden, the defendant “must

demonstrate that probation will ‘subserve the ends of justice and the best interest of both the

public and the defendant.’” State v. Bingham, 910 S.W.2d 448, 456 (Tenn. Crim. App.

1995), overruled on other grounds, State v. Hooper, 29 S.W.3d 1, 9 (Tenn. 2000), (quoting

State v. Dykes, 803 S.W.2d 250, 259 (Tenn. Crim. App. 1990)).

There is no bright line rule for determining when a defendant should be granted

probation. Bingham, 910 S.W.2d at 456. Every sentencing decision necessarily requires a

case-by-case analysis. Id. Factors to be considered include the circumstances surrounding

the offense, the defendant’s criminal record, the defendant’s social history and present

condition, the need for deterrence, and the best interest of the defendant and the public.

Goode, 956 S.W.2d at 527. Also relevant is whether a sentence of probation would unduly

depreciate the seriousness of the offense. State v. Davis, 940 S.W.2d 558, 559 (Tenn. 1997);

Bingham, 910 S.W.2d at 456. Denial of probation may be based solely upon the

circumstances of the offense when they are of such a nature as to outweigh all other factors

favoring probation. Bingham, 910 S.W.2d at 456.

A trial court may deny alternative sentencing and sentence a defendant to confinement

based on any one of the following considerations which establish “evidence to the contrary”

to rebut a defendant’s status as a “favorable candidate” for alternative sentencing:

(A) Confinement is necessary to protectsociety by restraining a defendant who

has a long history of criminal conduct;

(B) Confinement is necessary to avoid depreciating the seriousness of the

offense or confinement is particularly suited to provide an effective deterrence

to others likely to commit similar offenses; or

(C) Measures less restrictive than confinement have frequently or recently

been applied unsuccessfully to the defendant[.]

T.C.A. § 40-35-103(1). In choosing among possible sentencing alternatives, the trial court

should also consider the potential for the defendant’s rehabilitation or treatment. T.C.A. §

40-35-103(5); State v. Dowdy, 894 S.W.2d 301, 305 (Tenn. Crim. App. 1994). The trial

court may consider a defendant’s untruthfulness and lack of candor as they relate to the

potential for rehabilitation. State v. Nunley, 22 S.W.3d 282, 289 (Tenn. Crim. App. 1999);

see also Dowdy, 894 S.W.2d at 305-06. Finally, the court may also consider the mitigating

and enhancing factors set forth in Tennessee Code Annotated sections 40-35-113 and 40-35-

114. T.C.A. § 40-35-210(b)(5).

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Review of the record in this case reveals that the defendant’s argument that the trial

court failed to consider and appropriately apply the purposes and principals of the sentencing

act in reaching its decision to deny alternative sentencing is wholly misplaced. A reading of

the trial court’s oral findings wholly belies that contention. The trial court explicitly set forth

its reasons for imposing the within-range sentence and considered each of the enumerated

factors in great detail. We conclude that the sentence does in fact comply with the purposes

and principals of the sentencing statutes.

On the record, the trial court noted factors weighing for and against the defendant in

reaching the sentencing decision. The court considered the lack of a prior criminal history

and the defendant’s health as positive factors for him. However, the court explicitly stated

that these positive factors were outweighed by the defendant’s poor social history, the

circumstances of the offenses, the deterrence value of denying alternative sentencing, and the

defendant’s poor potential for rehabilitation.

The trial court relied heavily upon the fact that this had been an ongoing criminal

operation, occurring over at least a four-month period, during which the defendant repeatedly

sold a dangerous drug into the community. When the defendant was arrested, he was in

possession of a large quantity of cocaine and marijuana which presumably would also be

introduced into the community. The trial court specifically considered the dangerous effects

of drugs and noted that drugs had contributed to the city of Memphis becoming one of the

most dangerous in the nation. The court was very concerned about the message it would

send to the community and other potential drug dealers if the defendant was granted an

alternative sentence. The court concluded that the number of offenses itself outweighed any

factors favoring the grant of an alternative decision.

Our review of the record reveals no abuse of discretion in reaching the determination

that the defendant was not a suitable candidate for an alternative sentence of either probation

or community corrections. No relief is warranted on this record.

II. Judicial Diversion

Next, the defendant contends that the trial court erred in denying him judicial

diversion. Specifically, he asserts that public policy considerations dictate that his request

should have been granted. He contends that to hold otherwise would “be authorizing law

enforcement officials to risk the safety of the general public in order to deprive offenders of

the chance to take advantage of the Judicial Diversion program and change their lives in a

manner that may benefit society.” He bases this contention on the fact that he committed his

first offense in February but was not arrested and charged until May and that he committed

multiple crimes in the interim.

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Judicial diversion is a legislative largess that affords certain types of convicted

defendants the opportunity to avoid having a permanent criminal record provided certain

conditions are met. T.C.A. § 40-35-313(a). We review a trial court’s decision to deny

judicial diversion under an abuse of discretion standard. State v. Electroplating, Inc., 990

S.W.2d 211, 229 (Tenn. Crim. App. 1998). “[T]his Court will not interfere with the refusal

of the trial court to grant judicial diversion if there is any substantial evidence to support the

refusal contained in the record.” State v. Parker, 932 S.W.2d 945, 958 (Tenn. Crim. App.

1996) (internal quotation omitted). There is no presumption in favor of judicial diversion

under section 40-35-313. See Electroplating, 990 S.W.2d at 228.

“In determining whether to grant judicial diversion, the trial court must consider[:]

(a) the accused’s amenability to correction, (b) the circumstances of the offense, (c) the

accused’s criminal record, (d) the accused’s social history, (e) the accused’s physical and

mental health, (f) the deterrence value to the accused as well as others, and (g) whether

judicial diversion will serve the interests of the public as well as the accused.” Id. at 229.

“[T]he record must reflect that the court has weighed all of the factors in reaching its

determination,” and “if the court has based its determination on only some of the factors, it

must explain why these factors outweigh the others.” Id. If a trial court fails in this duty, we

may review the record to determine whether the trial court reached the correct result

notwithstanding its failure to explain its reasoning. See id.

1

Again, we conclude that no abuse of discretion is apparent in the decision to deny

judicial diversion. The trial court was very explicit in its consideration of the factors and the

importance it assigned to each. The trial court found that the defendant, because of his

continual sale of drugs, was not amenable to correction. The court found that the

Although not at issue in this case as the trial court did comply with these mandates, this court feels

1

that these stringent requirements imposed on trial courts to evaluate and weigh each factor on the record may

no longer be appropriate in light of the recent sea of change in the legal landscape concerning appellate

review of virtually every aspect of sentencing. In Bise and Caudle, our supreme court made clear that

primary responsibility for determining the appropriate sentence rests with trial courts and that their decisions

are presumptively reasonable. Mistakes - even ones that in the past would have been deemed serious

mistakes meriting reversal, such as the complete misapplication of an enhancement or mitigating factor - no

longer serve to invalidate a defendant’sin-range sentence so long as the trial court did not wholly depart from

the principles and purposes of the sentencing act. Bise, 380 S.W.3d at 706. The stringent procedural

requirements governing the judicial diversion process that are currently imposed on trial courts directly

conflict with our duty, imposed by Bise and Caudle, to treat all in-range sentences imposed by trial courts

as presumptively reasonable. Consequently, while courts should still considerthe factors discussed inParker

and Electroplating when making a decision concerning diversion, a mere failure to expressly consider one

or more of the factors or a failure to specify why some factors outweigh others is no longer, standing alone,

grounds for reversal in our opinion. 

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circumstances of the offense were exaggerated in nature and that the interest of the public

would not be served by allowing the defendant, a known drug dealer, to be placed on judicial

diversion. While noting that the defendant had no criminal record, and appeared to be in

good health, the court did not assigned these factors great weight because it felt that the

continual nature of the ongoing criminal enterprise outweighed them. The court also

weighed against the defendant a poor social history. Moreover, the court afforded great

weight to the deterrence factor finding that to afford the defendant this boon would not send

a proper message to the community.

We can discern no error in the trial court’s analysis. The trial court amply explained

on the record why diversion was not appropriate in this case. The defendant’s issue affords

him no relief.

CONCLUSION

Based upon the foregoing, the sentencing determinations of the Shelby County

Criminal Court are affirmed.

_________________________________

JOHN EVERETT WILLIAMS, JUDGE

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