### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE Assigned on Bri efs December 16, 2003
STATE OF TENNESS EE v. RICHARD ROBI NSON Direct Appeal from the Criminal Court for Sullivan County

No. S47,033 Phyllis H. Miller, Judge

No. E2003-01042-CCA-R3-CD February 3, 2004

The defenda

nt, pharmac

ist Richard Robinson, pled guilty to five c ounts of the unlawful disbursement of a contro lled substa

nce. The Sullivan Cou

nty Crimi nal C ourt imposed an effective sentence of four ye ars prob ation. On

appeal, the defendant

contends (1) the trial court erred in deny ing judicial diversion, and (2) the trial court improperly restricted his employment as a pharmacist as a condition of probation. Upon review of the record and the a pplicable law, we a ffirm the trial court’s denial of judicial diversion but vacate the trial court’s imposition of the probationary condition. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court

Affirmed in Part; Reversed in Part ; Remanded

J OE G. R ILEY , J., delivered the opinion of the court, in which T HOM AS T. W OODA LL an d N ORM A M C G EE O GLE , JJ., joined. Donald E. Spurrell, Johnson City, Tennessee, for the a ppellant, Richard Robinson.

Paul G. Summers, Attorney General and Reporter; Brade n H. Boucek, Assistant

Attorney Genera l; H. Greeley

Wells, Jr., District Attorney Gene ral; and William B. Harper, Assistant District Attorney General, for the appellee, State of Te nnessee.
OPINION

The defenda

nt pled g uilty to fiv e count s of unlawfully dispensing a controlled substance during the course of his employ ment as a pharmacist, Class D felonies, for transactions which occurred on three separa te occa sions betw een July and August 2001. See Tenn. Code Ann. §§ 53- 11-308(c), -401(a) , (b)(1) . After t he defe ndant ent ered his pleas, th

e tria l court held a hearing

to determine the length and manner of sente ncing.

The defenda

nt’s convic tions re sulted from transactions involving Amy Lane who was working as a police

informant on those occasions. In 1997, L ane was a customer at the pharmacy in which the defendant was then employ ed. At the time, both the defendant and L ane were married-2-

to other individuals, and Lane had a young

child. In late 1999 or early 2000, the defendant and La ne became romantically

involved.

The defendant testified that in early 1998, L

ane informed him that she had suffered a severe sunburn and requested pain medication. The defendant stated that upon c hecking her records, he discovered

Lane had a pre scription for Lortab wi t h one refill remaining and lega lly filled the prescription for her. According to the defendant, on subsequent occasions when L ane entered

the pharmacy and requ ested me dication , he would unlawfu lly r

eprint a label whi ch had be en previ ously used and dispense the medication to her. Thedefendant testified he provided L ane with both Lortab and Xanax. The defendant stated that when L ane received the medication, she paid the c o-payment
on he r i ns ur an ce po li cy, bu t h e d id no t s en d a bi ll to he r i ns ur an ce co mp an y.
The defendant testified that upon noticing a decrease in L ane’s self-esteem and a lack of car e for her personal appearance , he began to worry about her health. T he defe ndant sta ted his att empts to wean Lane f

rom the medication failed. The def endant furthe r stated he was unaware of other medications that Lan e may have b een tak ing, but he did notobserve any evidence that the medication wh ic h h e s up pl ie d La ne ca us ed he r s er io us bo di ly i nj ur y.
The defendant testified that on May 1, 2002, he wa s interviewed by TBI Ag ent Barry

Carrier who questione d him

regarding instances of Me dicaid or Medicare fraud at Marcum’s Pharmacy , the pharmacy in which the defendant was then employed. The defendant told Agent Carrier tha t he was unaware of any

such activities, and Agent Carrier instructed him to report any obse rvations which he believed would aid law enforcement in their investig ation.

Th e defenda

nt testified that foll owing the interview with A gent Ca rrier, h e was t he n interviewed

by Ag ents Shaun Chambers and Joey Gra ham regarding his involvement with L ane. The defendant gave a statement in which he admitte d providin g La ne with me dication

without a valid prescr iption. The

defenda nt stated t

hat afterthe agents informed him of the possibility of pretrial diversion, he agreed to cooper ate. The defenda nt furthe r stated t he age nts instructed him to stay away from L ane and

that he ob ey ed their

instructi ons.
The defenda

nt testified that in

September 2002, he was again interviewe d by Ag ent Carrier during which time he provided the agent with inform ation reg arding fraudulent activities. The defendant stated he was also prepared to testify for the state in various forgery trials; however, each
case wa s resolve d prior to trial.

The defendant stated that while employed at Marcum’s Pharmacy, he received a portion of his salary in cash in order to avoid income taxes. The defendant stated he has since r evised his 2001 income tax return and is prepared to pay the penal ty and interest which tota

led appr oximately $2,500.

The defendant testified he remarried in Oc tober 2002 and has a three-y

ear-old stepson. At the time of the hearing, he was employ ed with a different pharmacy but was on leave due to the present case. The defendant stated he “[i]ndirectly ” contacted the Board

of Pharmacy

regar ding this-3-

case through his pharmacy ’s district manager. He further state d t hat if he lost his pharmaceutical license, he would have no way to support himself.
I. TRIAL C OURT’S FINDI NGS

The trial court noted that the offenses for which the defendant was indicted were not the onl

y instances in which the defe ndant ille gally

dispense d medica

tion to L ane; ra

ther, a r elationsh ip had been established. In de

nyi ng judic ial diver sion, the t rial cou rt examine d factor s which we ighed b oth fora nd aga

inst the de

fendant . The tria

l court no ted the de

fendant had an e ducation , a profe ss ion , acquaintances who could

not believe he co mmitted the offense s, a good history

of employment and service in the military, good grades while in school, and a “respectable life at one time.” Howe ver, the trial court applied

the following enhancement factors: enhanceme nt factor (2), the defendant has
a previous histor y of criminal conduct; enhancement factor (3) , the defendant was a leader in the commission of the offense; and enhancement fa ctor (16), the defenda

nt abused a position

of priva te trust. See Tenn. Code Ann. § 40-35-1 14(2), ( 3), (16) (2003). T he trial c ourt also

applied mitigating factor (9), the defendant assisted law enforce ment officials in uncovering offenses committed by others, andmitigating factor (13), “[a]ny other factor

consistent with the purposes of this chapter” noting the defendant’s lack of a criminal record, sincere remorse, excellent wor k history, voluntary confession of guilt, and honorable discharg e from the military. See id. § 40-35-113(9), (13).

The trial court denied the defendant’s request for judicial d iversion and orde red him to serve his four-ye ar sentence o n probati o n. The court noted the defe ndant ille gally

supplied L

ane with medication for an extended time; the defendant was involved in other criminal activity by filing f alse tax returns ; and the defendant had a poor social history as evidenced by

his involvementwith Lane.

The trial court sentenced the defendant to the minimum sentence of two yea rs for each count to be served concurrently as a Range I

standardoffender. The cour t then ord ered the defenda nt to serve four yea

rs probation. As a condition of p robati on, the trial court prohibited the defendant from worki ng a s a pharmacist during the four-y ear period of probation. The trial court noted the condition regarding the defe ndant’s employment

applied even if the Board of Pharmacy chose not to suspend the defendant’s license.
II. JUDIC IAL DIVERSI ON

The defendant contends the trial court erroneously denied his request for judicial diversion. We disagree.
A. Waiver

The record bef

ore t his court

does not c ontain a t

ranscr ipt of the g

uilty plea. I n order t o conduct an effective appellate review of sentencing, a transcri pt of the g

uilty plea hea ring is
ne ce ss ar y. State v. Keen , 996 S.W.2d 842, 844 (Tenn . Crim. A pp. 1999). The transcript of the guilty plea is us ually

necessa ry in order for this c ourt to as certain th e facts and circumstances surrounding the offense. Inde ed, the guilty ple a hearing is the equivalent of a trial. Id . at 843. In-4-

the absence of a transcript of a g uilty plea, this court must gene rally conclud

e that the s entence imposed by the trial court wa s correct. Id . at 844. In the case at ba r, the trial court

referenced the facts underlying

the offenses as a basis for deny ing judicial diversion. Regardless of this procedural shortcoming, we conclude the trial court proper ly denied judicial diversion. B. Analysis

Judicial diversion is a “legislative largess” whe re a defendant, upon bei ng found guilty or pleading guilty, may

complete a diversion program and rec eive expungement of recor ds and dismissal of the charges. State v. Schindler , 986 S.W.2d 209, 211 (Tenn. 1999). When a defendant contends that the tr

ial cour t committed

error in refusing to impose a sentence pursuant to Tennessee Code Annotated section 40-35-313, commonly referred to as “j udicial d iversion ,” this court must determine whether the trial court abused its discretion in failing to sentence pursuant to the statute. Statev. Cutshaw , 967 S.W.2d 3 32, 344 (T enn. Crim. App. 1997 ); State v. Bonestel , 871 S. W. 2d 163, 167 (Ten

n. Crim. App. 1993). When a defendant challenge s the trial court’s denial of judicial diversion, we may not

revisit the issue if the record contains any substantial evidence supporting the trial court’s decision. Cutshaw , 967 S.W.2d at 34 4; State v. Parker , 932 S.W.2d 945, 958 (Tenn. Crim. App. 1996).

The criteri a that must

be consid

ered in d etermini ng whet her an e lig ible accused should be granted judicial diversion include: (a) the defendant’s amenabi lity to correction; (b) the circumstances of the offense; (c) the def endant’s criminal record; (d) the defe ndant’s social history; (e) the def endant’s p hys ical and

mental he alth; and

(f) the d eterre nce valu e to the de

fendant and other s. Cutshaw , 967 S.W.2d at 343-44; Parker , 932 S.W.2d at 958. An additional consideration is whether judicial diversion will serve the ends of justice, i.e ., the i nterests of the public as well as the defendant. Cutshaw , 967 S.W.2d a t 344; Parker , 932 S.W.2d at 958.

We conclude the trial court properly denied the d efendant’s request for judicial diversion basedupon th e c ircumstances of the offenses and his involvement in other instances of c riminal conduct. While acting in his capacity as a pharmacist and under the “trapping s of legitimacy ,” the defendant illegally distributed medica tion to a woman with w hom h e was romantically involved. The defenda

nt continu ed to comm

it these offenses for an extended period of time. In a ddition, the defendant violated a position of private trust placed in him by his employ er. See Tenn. Code Ann. § 40-35-114(16) (2003).

The defend ant maint ains the trial court erred in considering other instances of criminal conduct because no ev i dence was presented that he filed fa lse tax returns or committed any other cri minal offenses in accepting a portion of his salar y in cash. Howe

ver, during the sentencing hearin g, the defendant admitted he rece ived a por tion of his s alary

in cash; he

had since revised his 2001 income ta

x return; a

nd he wasrequire d to pay a penalt y a nd intere st totaling

approxima

tely $2,500. Furthermore, the trial court admitted into evidence Ag ent Carrier’s typewritten notes from his second interview with the def enda nt during which the defendant admitted rece iving undocumentedcash disbursemen ts in orde r to avoid pay

ing inco me taxes. The tria l court pr operly-5-

considered

this evidence as prior criminal conduct. Accordingly , we conclude the trial court did not abuse its discretion in denying judicial diversion.
III. CONDI TIONS OF P ROBATION

The defendant contends the trial court erred in prohibiting him from practicing as a pharmac ist as a condition of his probation. We agree.

Pursuant to Tennessee Code Annotated section 40-35-303(d), a trial court has great latitude in determining the conditions of probation. State v. Burdin , 924 S.W.2d 82, 85 (Tenn. 1996). The court may require

a defendant to “[s]atisfy any other c onditions r

easonab ly r

elated to the purpo se of the offender’s sentence and not unduly restric tive of the

offende r’s liber ty, or incomp atible with the offender’s freedom

of conscience, or otherwise prohibited by this chapter[.]” Tenn. Code Ann. § 40-35-303(d)(9). The primary purpose of a sentence of probation is rehabilitation of the defe ndant. Burdin , 924 S.W.2d at 86. Further more, tri al court s are not permitted to impose punishments which
are “b eyo nd the bou nds of traditional notions of rehabilitation.” Id. at 87; State v. Mathes , 114 S.W.3d 915, 918 (Tenn. 2003). There is little guidance

in Tennessee’s appellate cases re lating to probation conditions that restrict a defendant’s employ

ment and method of livelihood. Howeve r, this court has concluded that prohibiting a defendant from engag ing in “any

type [of] construc tion busines s or solicitation for business” was “far too broad” considering this was the defendan t’s primary means of livelihood. Statev. Robert

Lew is Herri n , No. M1999-00856-CCA-R3-CD, 2001 Tenn. Crim. App. LEXI S 118, at *15 (Tenn. Crim. App. Feb. 9, 2001). In Herrin , the def endant w as convicted of the ft relat ing to
a construction scam and had prior convi c tions for the same type of criminal activity. This court narrowed the employ

ment restriction to solicitation and collecting funds in the construction trade. Id.

Other

jurisdictions have addressed this issue. See, e.g., United States v. Pastore , 537 F.2d 675, 683 (2d Cir. 1976) (requiring attorney convicted of filing false tax returns to res i gn from bar held improper); Thomas v. State , 710 P.2d 1017, 1018 (Alas. App. 1985) (prohibiting commercial fisherman convicte d of stea ling cr ab pots fr om enga ging in commerc ial fishin g held imp roper); Hussey v. State , 504 So.2d 796, 797 (Fla. App. 1987) (prohibiting defendant convicted of various charges from eng aging

in work in the

carniva l business held impro

per); State v. Graham , 633 N.E.2d 622, 625 (O hi o App. 1993) (prohibiting certified public accountant convicted of securities violations involving numerousvictims from providing accounting service s to the general public, but allowing employment for a pr

ivate company, he

ld proper).

In United States v. Sterber , 846 F.2d 842 (2dCir. 1988), a pharmacist convicted of false ly reporting drug informationwas required by the trial court to surrender his pharmacist’s license. The federal appella

te court vacate d the orde

r to surre

nder, no ting th e state

had a comprehensive regulatory

sys tem to han dle prof

essional misconduct. Id. at 844. Similarly, a pharmac ist convicted of illegally selling

drugs to drug dealers was pr ohibited by the trial co urt from working in a pharmacy during his probationary

period. Towers v . State , 607 A.2d 10 5, 108 (Md. App. 1992).1 The record is not entirel y cle ar as t o the def endant’ s st atus w ith the Board of Pharmacy . Defens e counse l indica ted to the trial co urt that the d efend ant “will be able to keep his license and k eep his work” if granted divers ion. Bec ause we have affir med the denial of diversi on, the tri al court’s restri ction o n pra cti cing p harm acy m ay be m oot. Regard less, under the facts a nd circ umsta nces o f this case, w e belie ve the p owe rs of the b oard are ad equ ate to regula te the de fenda nt’s pro fessiona l cond uct.
-6- The appellate court struck the restriction, noting the State B oard of Pharmacy should make such a determination. Id. at 110. See also McPike v. S tate , 473 So.2d 291, 292 (Fla. App. 1985) (holding
a prohibition on writing prescriptions imposed as a conditionof probation on a doctor convicted of theft was improper, noting the Board of Me dical Examiners should make such a determination).

We conclude

that a pr obation c onditi on tha t deprive s a defe ndant of t

he oppor tunity to pursue la wful employment should be closely scrutinized. This is especially true in the ca se of a professional whose conduct is regulated by a regulatory

agency . We fi nd instructive the threepronged test set fort h in Graham relating to a proba

tion condition which

restric ts employ

ment;
na me ly, (1) it must

reasona bly relate t o rehabi litation; ( 2) it m

ust have a rel ationship

to the cr ime
com mitted; and (3) it must relate to conduct which is criminal or reasonably relate t o futur e cr im in al it y. 633 N.E.2d a t 624 (citi ng State v. Jones , 550 N.E. 2d 469, 470 (Ohio 199 0)). The se criteri a appear to be consistent with the statutory g uidelines in Tennessee. See Tenn. Code Ann. § 40-35-303(d) (2003).

Ini ti al ly, we note that the employme nt restriction indeed relates to the of fen ses committed because the offenses were committed by the defendant in hi s ca pacity as a pha rmacist. However,
we qu es ti on wh et he r t he re st ri ct io n i s r eh ab il it at iv e a nd wh et he r i t p ro pe rl y relates to f uture
cr im in al it y. The pra

ctice of pharmac y is a lawful occupation, and the ban imposed by the trial court deprives the fifty-nine -year -o ld defendant of engag ing in his means of livelihood. Unlike many other cases, the criminal conduct at issue related only to one person, even though it went on for an extended time. The

record reveal s that othe

r th an the instan t infractions, the defendant has committed no other professional improprieties over his many years of practice. Thep ractice of pharmacy is stri ctly reg

ulated in this state by the Tennessee Board of Pharmacy , see Tenn. Code Ann. §§ 63-10-504, -505; the re is no sh owing th at the defendant present s a dang er to the

public should he practice pharmacy

under supervision of the Tennessee Boar d of Pharmacy ; and the trial court did not indicate the ban was imposed out of concern for future criminality . Under the facts and circumstances of this case, we believe the powers of the Tenn essee B oard of Ph armacy are adequate to regulate the defendant’s conduct within the profession. 1
By vacating the restriction on the practice of pharmacy , this court is not holding tha t a prohibition of profe ss ional emp loyment is never justified. Eac h case must be carefully

examined based upon the circumstances. There may well be times when a c ourt coul d proper ly p rohibit one from pr act icing a profession during the period of pr obation, especially if ba sed upon the court’s concern for future criminality . However, that does not appear to be the ca se here.

We conclude that in the event theBoard of Pharmacy doe s not suspend the defendant’s license, the trial

court’s ban on the

practic e of phar

macy durin g the fou r-yea

r probationary

period-7-

(1) is punitive and not rehabilitative, (2) is not ba sed upon con cerns of future c riminality , (3) is unnecessary

and overbroad in light of the reg ulatory authority of the Tenne ssee Board of Ph ar ma cy, and (4) is unduly restrictive in pre venting lawful employ

ment. Acco rding ly, we vac ate this condition of probation.
CONCLUSION

We affirm the trial court’s denial of judicial diversion. However, we reverse the trial court’s order prohibiting the defendant from practicing as a pharmacist as a condition of his probation.

____________________________________ JOE G. RILEY, JUDGE