### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE June 19, 2001 Session
STATE OF TENNESSEE v. DONALD J. MOORE
Appeal from the Circuit Court for Coffee County No. 29, 824F John W. Rollins, Judge

No. M2000-02621-CCA-R3-CD - Filed August 7, 2001

At the conclusion of a sentencing hearing, the trial court imposed a sentence of 11 months and 29 days in the Cof fee C oun ty ja il w ith Defe nda nt t o se rve 9 0 da ys before being released to probation for the offense of simple possession of a controlled substance, to wit: methamphetamine, plus a fine of $1,000. In this appeal as of right, Defendant asserts: (1) That the trial cou

rt abused its

discretion in failing to sentence the Defendant to judicial diversion provided by Tenn. Code Ann. § 40- 35-313; (2) Whether the trial court properly weighed the mitigating f actors presented by De fendant in the sentencing hearing?; and (3) Whether the trial court imposed an excessive sentence? After a review of the entire record, briefs of parties, o ra l arguments and applicable law, we find the trial court abusedits discretion in

denying judicial

diversion and remand for a judgment of judicial diversion. Thus, the trial court’s judgment is reversed and remanded. Tenn. R. App. P. 3; Ju

dgment of the Circ

uit Court is Rever

sed and Remanded.

L. T ERRY L AFFERTY , S R

. J., delivered the opi nion of the court,

in which D AVID G. H AYES , J., joined. T HOMAS T. W OODALL , J., filed a dissenting opinion. Timothy S. Priest, Winchester, Tennessee, for the appellant, Donald J. Moore.

Paul G. Summers, Attorney G eneral and Repor ter; Elizabeth B. M

arney, Ass

istant Attorney

General; and Kenneth

J. Shelton, Jr., Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION

In a two count

indictment, the Coffee County grand jury accused Defendant of possessing
a controlled substance, to wit: Methamphetamine, Schedule II, with the intent to sell or deliver and the possession of drug paraphernalia, to wit: a p ipe and but ane pencil torch. Defendant ag reed to pleadguilty to the

simple possessi

on of me thamphetamine an d the offense of d

rug parapher

nalia would be dismissed. The record does not contain a transc

ript of the actua

l guilty ple

a proceedings , buta sentencing hearing was conducted by the trial court to determine a request for judicial diversion or in the alterna

tive probation on June

1, 2000. The pre- sentence repor t (Exhibit 1), revea

ls:-2-

On March 16, 1999, the Defendant was stopped on Interstate 24 in Coffee Cou nty, Tennessee, for speeding by Manchester Police Of ficer Victor

Jones. Officer

Jones obtained perm ission to search the Defendant’s vehicle and found a quantity of a substance later identified to be methamphetamine, a weapon, cash, a pipe and a butane torch.

At the sentencing hearing, Defendant, age 44, a resident of Edgewater, Florida, testified that
on the date in question, he was driving to Indiana to see his newborn granddaughter. He was pulled
over for speeding, given a warning ticket, and when the officer a sked permission to search his car, Defendant

gavepermission. Defendant stated that he had purchased the methamphetamine at a truck stop in Georgia from

a truck driver about three weeks prior to his arrest for his personal use. Defendant

testified that he had a drug arrest while in Indiana 22 y ear s ago , which was dismissed. Defendant

den ied any p resent use of drugs or using drugs in the past. When asked why he gave permission to s earch the car, Defendant responded, “He just asked me. I had no re ason not to let him.” Defendant stated that he had $1,200 on him at the time of his arrest, $600 for traveling expenses, and $600 for his daughter and granddaughter. Also, his car w as seized, which was returned to him, but his $1,200 was forfeited. Defendant assured the trial court that he could abide by the conditions of ju

dicial diversion a

s wellas probation, in that he had a good job, and hi

s boss had been nice to let him come to Tennessee and take care of his problem. The State declined t o cross-examine Defendant.

In support of

Defendant’s request for judicial diversion, Defendant tendered to the trial court his application for p

re-trial divers

ion. The applicat

ion established tha

t Defendant was 4

3 at the time of the offense and

divorced with two grown childr en. He was a life

long resident in L

ogansport, Indiana, until moving to Florida. He is a high school graduate, and his employment background is primarily in the automobile service industry. Defendant pr es ently customizes Harley-Davidson motorcycle

s. Defendant has no mental or physical disabilities. At the time of his arrest, Defendant
was not under the influence of any drugs or alcohol, and had bought the methamphetamine for $100 for his personal use, with no intention to sell or deliver the drug. Attached to the application were three letters of support for Defendant’s request for relief. The Tennessee Bur eau of Investigations issued a ce rtif

ication showing no problems in Defendant's past. Thus, he was qualified for consideration of

judicial diversion. The proof estab lished that Defen

dant is a productive citi

zen with a good employment record.

The State requested the trial court to impose a sentence of 11 months and 29 days, with the recommendation that Defendant serve 90 full days and the balance of the se ntence to be served

on probation with a $1,000 fine, and 200 hours of public service work. The reason was based on the fact that Defendant had received a substantial concession from the original charge. The amount of the substance whichhe possessed was s ignificant (1.5

grams), which c

learly could have falle

n within the realm of a r esale ch arge. Furthe r, the State arg

ued that the natur

e and circumstan

ces of this offense and the need for dete

rrence of other

s in the county

, this particular s

entence is necessary

to avoid depreciating the seriousness of this particular offense. Based upon the Court’s docket, there-3-

is a rampant nature of this type of violation in Coffee County. Defendant urged, based upon the evidence in the record, that the trial court grant a deferred judg ment.

In its ruling, the tria

l court acknowle

dged its obliga

tion to consider the

principle s of th e Sentencing Act, specifically, Tennessee Code Annotated § 40-35- 103. The trial court ruled:

The thing that disturbs me the most about it is that this is a Schedul e II drug, and that’s pretty

serious stuff. This man is 44 years o ld. I think that d

oesn’t mitigate;

I think it probably is more along

the line that he oug

ht to have known be

tter. From all the proof I have

heard, this Judge

finds the confine

ment sentence is a

bsolutely necessary to avoid depreciating the seriousness of the offense, and confin ement is particularly

suited to provide an ef

fective det errent to others prone to commit this type of offense.
Therefore, gentlemen, based on this record, I’m in agreement with the Attorney General’s recommendation. I am going to impose 11 months and 29 day s to serve 90 days, $1,000

fine, 200 hours of public service work, which can be done in Florida. I just can’t view -- I think he has been given a break. I think if this matter had gone to trial on the felony charge, considering the qua ntities involved, it would have been pretty serious.
LEGAL ANALYSIS

Defendant

as serts that the trial court abused its discretion in failing to sentence Defendant to judicial diversion. The State counters that Defendant glosses over or ignores the facts militating against diversion.

In addressing Defendant's challenge, we are mindful that our de novo review is conditioned withthe presumption that the sentencing determination of the trial court is correct. See Tenn. Code Ann. § 40-35-401(d). M o reover, Def

endant bears the burden of establishing that the sentence imposed by

the trial court

is improper. Sentencing Commission Comments, Tenn. Code Ann. § 40- 35-401(d). The sentencing considerations g

enerally used in determining the manner of service for bothmisde meanors a

nd fel ony sen tence s are c odifi ed at T enn. C ode An n. § 40 -35-1 02,-1 03. In addition to the st atut ory considerations for issuing sentences of confinement, the misdemeanor sente ncing statut e, Tenn. Code Ann. § 40-35-302(d), merely requires a trial judg e to consider enhancement

and mitigating factors when calculating the percentage o

f a misdemeanor s

entence to be served in confinement. State v. Troutman, 979 S.W.2d 271, 274 (Tenn. 1998). Misdemeanor offenses contain no senten cing range, a

nd as opposed to

fel ony sentencing, trial courts are not required to make specific findings on the record. See State v. Troutman, 979 S.W.2d at 274; State
v. Allen, M1998-00213-CCA-R3-CD, 2000 WL 641150, at *2 (Tenn. Crim. App. 2000). However,
a trial court s findings are of great benefit and the better practice is to do so. See State v. Troutman, 979 S.W.2d at 274. The offense in this case involves the misdemeanor offense of simple possession of a controlled substa

nce. A misdemean

or is not entitled to

the presumption of a minimum sentence.-4-

State v. Baker, 966 S.W.2d 429, 434 (Tenn. Crim. App. 1997). Further misdemeanor sentences do
no t contain r anges of punishments, and a misdemeanor Defendant may be se ntenced to the maximum termprovided for the offense as long as the sentence imposed is consistent with the purposes of the sentencing act. Id. See State v. Palmer, 902 S.W.2d 391, 393 (Tenn. 1995).

When an accused has been convicted of a misdemeanor or certain design

ated felonies,

the trial court may

, in the exercise of

its discretion, defer further proceedings and place the Defendant
on probation without entering a judgment of guilty. Tenn. Code Ann. § 40- 35- 313(a)(1). If a Defend ant succ essfully completes the probationary per iod, then the Defendant is entitled to a dismissal of the offense and the records expunged. Tenn. Code Ann. § 40-35-313( b). To be eligibl

e for judicial diversion, the Defendant (a) was convicted of a misdemeanor, wh ich is punishable by imprisonment,

or a Class C, D, or E felony, (b) has never been convict ed o f a felony o

r a Class A misdemeanor, and (c) consents to deferment of the proceedi ngs and the imposition of probation up to the maximum length of punishment for the offense in question. State v . Bonestal , 871 S.W.2d 163, 167 (Tenn. Crim. App. 1993); Tenn. Code Ann. § 40-35-313(a)(1 ). A Defenda nt may meet these requirements, but that does notindicate one is en titled to judicial div

ersion as a matter

of right. Id. Whether

a Defendant should be granted judicial diversion is a question which

addresses itself to the sound discretion of the trial court. State v. Electroplating, Inc., 990 S.W.2d 211, 229 (Tenn. Crim. App. 199 8); State v. Cutshaw, 967 S.W.2d 332, 344 (Tenn. Crim. App. 1997). Therefore, upon review, if “any

substantial evide

nce to support the r

efusal” exists

in the record, we will give the trial court the be

nefit of its

discretion. Only an abuse of that discretion will allow us to overturn the trial court. State v. Anderson, 857 S.W.2d 571, 572 (Tenn. Crim. App. 1992).

The criteria that the trial court must consider in determining whether a qualified Defendant should be granted judicial diversion include the following: (1) the Defendant’s amen abi lit y t o correction; (2 ) the circumstances of the offense; (3) the Defendant’s criminal record; (4) the Defendant’s social history; (5) the Defendant’s phy sical and mental health; and (6) the deterrence value to the Defendant

and others. See Cutshaw, 967 S.W.2d at 343-44

. An additional consideration (7) is whether judicial diversion will serve the ends of justice, e.g., the interests of the public as well
as the Defendant. Cutshaw, 967 S.W.2d at 344. Also, relevan t to the cons ideration of judicial diversion a

trial court must

consider (8) the Defendant's attitude; (9) the Defendant’s behavior since arrest; (10) a Defendant’s home environment; (11) current drug usage; (12) emotional sta bil ity; (13) past employments ; (14) general reputation; (15) family responsibilities; and (16) the attitude of law enforcement. See State v. Lewis, 978 S.W.2d 558, 566 (Tenn. Crim. App. 1997).

In this case, the State requested the trial court to assess some period of confinement based upon the amount of methamphetamine, depreciating t he offense

and deterrence due to the rampant nature of this type of violation in this county. However, the trial court did not addre

ss Defendant’s request for consid

era tion of judicial diversion, but accepted the State’s recommendation for the appropriate

sentence. The trial court f ound that some

confinement was necessary to depreciate the seriousness

of the offense and a need

for deterrence. Further, the trial court felt Defendant had been given a break due to the quantity of drugs involved, otherwise the offense would hav e bee n quite serious.-5-

In State v. Curry, 988 S.W.2d 153, 158 (Tenn . 1999), our Supreme Court addressed the question of denial of pre-trialdiversion based upon the seriousness of the offense. The Court stated:

A review of the case law reveals, however, that the circumstances of the offense and the needfor

deterrence may alone justify a denial of diversion, but only if all of the relevant factors have been considered as well. E.g., Washington, 866 S.W.2d at 951 (“circumstances of the case and the need for deterrence may be considered as two of the many facto

rs, [but] they c

annot be giv

en contr olling weight unless they are of such overwhelming significance that they. . . outweigh all

other factors”

). The facts and circumstanc

es of nearly

all criminal offense

s are by de

finition serious; on

ly by analyzing all of the relevant factors, including those favorable to the Defendant, can appropriate

candidates for this legislative largess be identified in a manner

consistent with the purpose of

the pre-trial div

ersion act.

In State v. Hooper, 29 S.W.3d 1, 13, (Tenn. 2000), the Supreme Court addressed deterrence
as a sole reason to

deny probation or an alternative sentence; “we hold that a trial judge may sentence
a Defendant to a

term of incarceration based solely on a need for deterrence when the record contains evidence which would enabl e a reasonable

person to conclud

e that (1) deter

rence is neede

d in the
com mun ity, jurisdiction, or sta te; and (2) the De

fendant’s incar

ceration may

rationall y serve as a deterrent to others similarly situated and likely to commit similar crimes.” The criteria, for incarceration, favoring deterrence are: (1) whether other incidents of the cha rged of fense are increasingly

present in the commu nity, jurisdiction, or in the state as a whole; (2) whether the Defendant’s crime was the result of in tentional, knowing , or reckless con

duct or was other

wise motivated by a desire to profit or gain from the criminal behavior; (3) whether the Def endant’s crime and conviction have r

eceived substan

tial publicity

beyond that

normally expected in the typical case; (4) whether the Defendant was a member of a criminal enterprise, or substantially encouraged or assisted others in achieving the criminal objective; and (5) whether the Defendant has previou sl y engaged in criminal conduct of the same type as the offense in question, irrespective of w hether such conduct resulted in previous arrests or convictions. Hooper, 29 S.W.3d at 10,-12. Although the trial court stated it consideredthe principles of the sentencing act, the trial court didnot state

any reason as to why judicial diversion should be g rantedor denied in this case. Since the trial court did not grant judicial diversion, we must make a de novo determination if t here is any substantial evidence to support this non-grant. The only substantial evidence in this record is the State ’s st atement that Defendant was in the possession of 1.5 grams of methamphetamine, which raises the inference of an intent to sell or deliver. This statement, we find is insufficient in and of itself to overcome the overwhelming evidence presented by Defenda nt as to his suitability for judicial diversion. Thus, w e find the trial co

urt abused it

s discretion in not considering judicial diversion as an alternative sentence based upon the facts in this record.
Therefore, we reverse the trial court’s judgment and remand for entry of an order of judgment placing the Defendant on

judicial diversion for a period of 11 months and 29 days, payment of a fine of $1,000, with 200 hours of public work servi ce. Furthermor e, we recommend that the order of-6-

judgment should comply with Rule 17, Rules of Supreme Court, as to the proper judgmen t o rder. This order provides for specific sentencing determination on misdemeanor

offenses and the granting of diversion or a community based alternative sentence.

___________________________________ L. TERRY LAFFERTY, SENIOR JUDGE