IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs March 21, 2018

STATE OF TENNESSEE v. MATHEW DOUGLAS RICHARDSON

Appeal from the Criminal Court for Putnam County

No. 2017-CR-290, 2016-CR-1111 Gary McKenzie, Judge

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No. M2017-01647-CCA-R3-CD

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The Defendant, Matthew Douglas Richardson,

1

entered a guilty plea in the Putnam 

County Criminal Court to two counts of aggravated statutory rape. See T.C.A. § 39-13-

506. The trial court imposed two-year sentences for each count, to be served 

consecutively under supervised probation. On appeal, the Defendant argues that the trial 

court erred in denying his request for judicial diversion. Upon our review, we affirm the 

judgments of the trial court.

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

CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which THOMAS T.

WOODALL, P.J., and NORMA MCGEE OGLE, J., joined.

Brett A. Knight (on appeal) and Shawn C. Fry (at trial and on appeal), Cookeville,

Tennessee, for the Defendant, Matthew Richardson.

Herbert H. Slatery III, Attorney General and Reporter; Ronald L. Coleman, Assistant 

Attorney General; Bryant C. Dunaway, District Attorney General; and Brett Gunn, 

Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

Between September and October 2016, the Defendant, age 28, met the victim, age 

17, through her high school internship program and began a sexual relationship with her. 

In December 2016, he was indicted for aggravated statutory rape, and on March 3, 2017, 

while out on bond, he was indicted on a second count of aggravated statutory rape 

involving the same victim, for which his bond was revoked. On March 27, 2017, the 

 

1

The Defendant’s name is spelled “Matthew” in the indictment and throughout the majority of

documents in the record on appeal; however, his name is spelled “Mathew” in the case caption, the notice 

of appeal, and his own brief.

06/25/2018
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Defendant entered an open guilty plea to the court for both counts of aggravated statutory 

rape with no agreement as to sentencing.2

Sentencing Hearing. At the July 10, 2017 sentencing hearing, the State entered 

the Defendant’s presentence report and psychosexual evaluation. A collection of letters 

of recommendation on behalf of the Defendant and proof of the Defendant’s military 

service was also admitted into evidence. Significantly, the victim sent a letter of 

recommendation in support of the Defendant receiving judicial diversion. Bridget 

Cornwell, a probation officer with the Tennessee Department of Correction, testified that

she prepared the Defendant’s presentence report and confirmed that the Defendant 

cooperated with law enforcement and did not have a criminal history. The Defendant 

provided her with the letters of recommendation and proof of his military service as part 

of the presentence investigation. 

The victim testified that she turned eighteen in June 2017, approximately one 

month prior to the sentencing hearing. She had participated in an internship program 

through her high school that allowed her to shadow medical professionals in the health 

care field. She began participating in “[r]ide alongs with paramedics” in August 2016 

when she met the Defendant, an emergency medical technician. The Defendant knew she 

was in high school and under the age of 18, and the victim knew the Defendant was 28 

years old at the time. The victim began meeting the Defendant outside of the program

and engaged in a sexual relationship in late September 2016. After the Defendant was 

arrested in December 2016, the victim “showed up” at the Defendant’s house on March

3, 2017, let herself inside while he was asleep in bed, and they engaged in “sexual 

penetration.” Despite court orders for the Defendant to refrain from contact with the 

victim, the victim attempted to contact and pursue a relationship with him.

On cross-examination, the victim confirmed that she had not had contact with the 

Defendant since his bond was revoked on March 27, 2017. She identified the letter of 

recommendation she wrote to the court asking for leniency for the Defendant. She 

confirmed that she specifically wanted the court to remove the restraining order against 

him so that she and the Defendant may have contact with each other. The victim’s 

parents were at the hearing and intimated that they were “behind the [S]tate[.]”

After hearing the proof and arguments from counsel, the trial court addressed 

several factors before determining whether to grant the Defendant’s request for diversion. 

 

2

The Defendant did not provide this court with transcripts from the guilty plea hearing or any 

other hearing for the preliminary motions referenced in the technical record. 
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The trial court found: (1) the Defendant’s amenability to correction weighed favorably 

due to his military background and absence of a criminal history, but noted that it took 

issue with the fact that the Defendant re-offended while on bond; (2) the circumstances of 

the offense weighed unfavorably because the victim was a minor at the time of the 

offense, “she look[ed] up to” the Defendant, and he “took advantage of that[;]” (3) the 

Defendant’s criminal record weighed favorably because he had no prior convictions; (4)

the Defendant’s social history did not weigh against him due to steady employment and 

military service; (5) the status of the Defendant’s physical and mental health did not 

weigh against him; (6) the deterrence value to the Defendant as well as to others weighed

unfavorably due to the need to protect minors (e.g., in the internship program the victim 

participated in) and due to the Defendant’s disregard for the law when he re-offended 

while out on bond; (7) whether judicial diversion would serve the interest of the public 

and the Defendant weighed both favorably and unfavorably, but seemed to weigh more 

unfavorably towards the Defendant in order to serve the interests of society. The court 

also referred to State v. Bonestel, 871 S.W.2d 163 (Tenn. Crim. App. 1993), and stated 

that it would consider additional factors, including the Defendant’s behavior since the 

arrest. The court said that due to the Defendant’s re-offense of the same crime after his 

initial arrest, “it cause[d] difficulty in any plea for mercy” and weighed heavily against 

him.

After weighing all of the different factors, the trial court concluded that there was 

more that weighed against the Defendant than for him, denied the request for judicial 

diversion, and ordered the Defendant to be placed on the sex offender registry. The trial 

court imposed two-year sentences for each charge, to be served consecutively under 

supervised probation, and entered its judgments on July 20, 2017. It is from these 

judgments that the Defendant now timely appeals.

ANALYSIS

The sole issue presented for our review is whether the trial court erred in denying 

the Defendant’s request for judicial diversion. The Defendant argues that the trial court 

miscalculated the factors weighing for and against judicial diversion and considered facts 

not in evidence. The State responds that the trial court adequately weighed all of the 

Electroplating, Inc. and Parker factors and properly exercised its discretion in denying 

judicial diversion. Upon review, we agree with the State.

In State v. King, 432 S.W.3d 316, 324–25 (Tenn. 2014), the Tennessee Supreme 

Court held that the abuse of discretion standard of review accompanied by a presumption 

of reasonableness, which was delineated in Bise and its progeny, applied to appellate 

review of a trial court’s decision to grant or deny judicial diversion. However, the court 

made clear that the application of the Bise standard of review does not abrogate the 
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common law factors for judicial diversion set out in State v. Parker, 932 S.W.2d 945, 958 

(Tenn. Crim. App. 1996), and State v. Electroplating, Inc., 990 S.W.2d 211, 229 (Tenn. 

Crim. App. 1998).

Tennessee Code Annotated section 40-35-313 outlines the requirements for 

judicial diversion. A qualified defendant is defined as a defendant who pleads guilty to 

or is found guilty of a misdemeanor or a Class C, D, or E felony; is not seeking diversion 

for a sexual offense as defined in the statute or a Class A or Class B felony; and does not 

have a prior conviction for a felony or a Class A misdemeanor. T.C.A. § 40-35-

313(a)(1)(B)(i). After a qualified defendant either pleads guilty or is found guilty, a trial 

court has the discretion to defer further proceedings and place that defendant on 

probation without entering a judgment of guilt. T.C.A. § 40-35-313(a)(1)(A). Upon the 

qualified defendant completing a period of probation, the trial court is required to dismiss 

the proceedings against him. T.C.A. § 40-35-313(a)(2). The qualified defendant may 

then request that the trial court expunge the records from the criminal proceedings. 

T.C.A. § 40-35-313(b).

Judicial diversion is not a sentencing alternative for convicted defendants. T.C.A.

§ 40-35-104(c). The trial court must consider the following factors in deciding whether a 

qualified defendant should be granted judicial diversion: (1) the defendant’s amenability 

to correction; (2) the circumstances of the offense; (3) the defendant’s criminal record; 

(4) the defendant’s social history; (5) the defendant’s physical and mental health; (6) the 

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

the interests of the public as well as the defendant. Electroplating, Inc., 990 S.W.2d at 

229 (citing Parker, 932 S.W.2d at 958; Bonestel, 871 S.W.2d at 168). The trial court may 

consider the following additional factors: “‘[the defendant’s] attitude, behavior since 

arrest, prior record, home environment, current drug usage, emotional stability, past 

employment, general reputation, marital stability, family responsibility and attitude of 

law enforcement.’” State v. Washington, 866 S.W.2d 950, 951 (Tenn. 1993) (quoting 

State v. Markham, 755 S.W.2d 850, 852–53 (Tenn. Crim. App. 1988) (citations 

omitted)). The trial court must weigh all of the factors in determining whether to grant 

judicial diversion. Electroplating, Inc., 990 S.W.2d at 229 (citing Bonestel, 871 S.W.2d 

at 168). Finally, “a trial court should not deny judicial diversion without explaining both 

the specific reasons supporting the denial and why those factors applicable to the denial 

of diversion outweigh other factors for consideration.” State v. Cutshaw, 967 S.W.2d 

332, 344 (Tenn. Crim. App. 1997) (citing Bonestel, 871 S.W.2d at 168). 

Turning to the case sub judice, the Defendant argues that the trial court 

miscalculated the weight of the factors discussed in denying his request for judicial 

diversion. Specifically, the Defendant asserts that the trial court found four of the seven 

factors weighed in his favor with a fifth that weighed both for and against him. 
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Furthermore, the Defendant argues that the trial court used facts not in evidence—the 

alleged “rift” between the victim and her parents—in making its determination to deny 

judicial diversion. The State responds that the trial court properly considered and 

weighed the necessary factors in its determination to deny judicial diversion, emphasizing 

the deterrence value and the fact that the Defendant re-offended while out on bond. The 

State also asserts that the trial court focused only on the appropriate factors, and not

outside evidence, when making its ruling.

In denying judicial diversion, the trial court acknowledged that the Defendant had 

no prior convictions and that there was nothing that weighed against him in his social 

history or his mental and physical health. However, the court was concerned because the 

Defendant committed the same offense after he had been indicted and weighed his postarrest behavior heavily against him. The trial court also considered the circumstances of 

the offense and indicated that the Defendant effectively took advantage of the minor 

victim and that the deterrence value to such behavior weighed heavily against him. The 

trial court expressed its difficulty in determining whether judicial diversion would serve 

the best interests of the public and of the Defendant, ultimately deciding that the totality 

of the circumstances were such that judicial diversion would be denied.

Our review of the record demonstrates that the trial court explicitly analyzed each 

of the Electroplating, Inc. and Parker factors on the record during its ruling. The trial 

court considered and weighed the required factors, identified those most relevant to the 

case, and placed on the record its reasons for denying diversion. Thus, the trial court’s 

decision is presumed reasonable. Although the Defendant asserts that the trial court 

relied on facts not in evidence, the record accurately reflects that no outside factors 

impacted the trial court’s determination. Several factors weighed in favor of judicial 

diversion, including his social history, absence of a criminal record, and good physical 

and mental health; however, the trial court was concerned with the circumstances of the 

offenses and the Defendant’s amenability to correction. Despite knowing his conduct 

was illegal and that he was under active prosecution, the Defendant continued to pursue 

the same activity that caused him to be arrested. The circumstances of these offenses and 

the Defendant’s disregard for the law after being arrested weighed heavily against 

judicial diversion. See State v. Randy Shawn Moore, No. E2014-01790-CCA-R3-CD, 

2015 WL 4314107, at *4 (Tenn. Crim. App. July 15, 2015) (affirming the denial of 

judicial diversion where the defendant committed a second offense against the same 

victim while on bond for the first offense); State v. Parson, 437 S.W.3d 457, 496 (Tenn. 

Crim. App. 2011) (affirming the denial of judicial diversion where the defendant’s 

amenability to correction and the circumstances of the offense weighed heavily against 

judicial diversion despite the satisfactory remaining factors) (citing State v. Jonathan B. 

Dunn, No. M2005-01268-CCA-R3-CD, 2006 WL 1627335, at *9 (Tenn. Crim. App. 

June 12, 2006) (affirming the denial of judicial diversion where, even though factors (3), 
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(4), and (5) weighed in the defendant’s favor, the circumstances of the offense were 

“particularly troublesome”)); State v. Brian Carl Lev, No. E2004-01208-CCA-R3-CD, 

2005 WL 1703186, at *3 (Tenn. Crim. App. Mar. 22, 2005) (“The denial of judicial 

diversion may be based solely on the nature and circumstances of the offense, so long as 

all the other relevant factors have been considered, and this factor outweighs others that 

might favorably reflect on the [defendant]’s eligibility.”) (citing State v. Curry, 988 

S.W.2d 153, 158 (Tenn. 1999)). The trial court determined, and we agree, that these 

factors outweighed the other factors considered by the court. Accordingly, we conclude 

that the trial court did not abuse its discretion in denying the Defendant judicial diversion. 

He is not entitled to relief.

CONCLUSION

Based on the foregoing reasoning and analysis, we affirm the judgments of the 

trial court.

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 CAMILLE R. MCMULLEN, JUDGE