State v. Charles Smith ( 1999 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
JUNE SESSION, 1999 FILED
July 12, 1999
STATE OF TENNESSEE, ) C.C.A. NO. 02C01-9805-CR-00128
) Cecil Crowson, Jr.
Appellee, ) Appellate Court Clerk
)
) SHELBY COUNTY
VS. )
) HON. CHRIS CRAFT
CHARLES SMITH, ) JUDGE
)
Appe llant. ) (Judicial Diversion)
ON APPEAL FROM THE JUDGMENT OF THE
CRIMINAL COURT OF SHELBY COUNTY
FOR THE APPELLANT: FOR THE APPELLEE:
A.C. WHARTON PAUL G. SUMMERS
Shelby County Public Defender Attorney General and Reporter
W. MARK WARD R. STEPHEN JOBE
Assistant Public Defender Assistant Attorney General
Criminal Justice Complex, Suite 201 425 Fifth Avenu e North
201 Poplar Avenue Nashville, TN 37243-0493
Memphis, TN 38103
WILLIAM L. GIBBONS
District Attorney General
AMY WEIRCH
Assistant District Attorney General
Crimina l Justice C omple x,
Suite 301
201 Poplar Avenue
Memphis, TN 38103
OPINION FILED ________________________
AFFIRMED
DAVID H. WELLES, JUDGE
OPINION
The Defendant, Charles Smith, was charged by criminal info rmation with
aggravated burglary. H e plead ed guilty on April 8, 1998, with an agreed
sentence of three years and one day. The agreement called for the trial judge to
determine the manner of service of the sentence, and the Defendant requested
that the trial court suspend his sentence or grant him judicial diversion. Following
a hearing , the trial court d enied th e Defendant’s request for judicial diversion,
suspended his sentence, and placed him on probation for three years. The sole
issue for our consideration on appeal is whether the trial court erred by denying
his reque st for judicial d iversion. W e affirm the judgm ent of the tria l court.
At the sente ncing he aring, the D efenda nt adm itted to having burglarized
the home of Agnes Park, the victim in this case, on September 30, 1997. He
stated that he “forced the door open,” walked into the home, and took personal
property belonging to the victim, including a stereo, a vacuum cleaner, and a
computer game. He testified that the items were too heavy for him to carry, so
he enlisted the help of the maintenance ma n at the com plex wh ere the victim
lived to help him transport the stolen property. The Defendant apparently told the
maintenance man that he ha d bee n given the item s and simp ly need ed he lp
carrying them. They transported the property to the home of a friend of the
Defen dant, where the Defendant hid the property. Shortly afterwards, police
discove red the p roperty an d placed the Defe ndant u nder arre st.
The Defendant testified that he made a “spur of the mom ent” dec ision to
burglarize the victim’s home. He stated that he acted out of desperation because
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of his “income problems.” He explained that he was living with his pregnant sister
and pregnant cousin at the time; he was paying all the bills for the three of them;
he was having difficulty finding a job due to his lack of transportation; and he was
facing a pos sible e viction. He state d that h e cho se to b reak in to the vic tim’s
house in an effort to obtain prop erty to sell for money. The Defendant admitted
that he had made “the wrong choices in life” and maintained that he was “trying
to better [him]self.”
The Defendant also testified about his background. He stated that he was
twenty-five years old. He reported that he dropped out of high school in the
eleventh grade becau se he w as “runn ing along with the cro wd.” He stated that
he had worked as a maintenance man and at a Mc Don ald’s re staura nt. His
presentence report indica tes tha t he ha d work ed for a total of o nly six months and
that he had abandoned his most recen t jobs. The Defendant has no prior
criminal record.
The sentencing option commonly known as judicial diversion is codified at
Tennessee Code Annotated § 40-35-313. A defenda nt is eligible for judicial
diversion if he or she (a) “is found guilty or pleads guilty to a misdemeanor which
is punishable by imprisonment or a Class C, D or E felony,” (b) “has not
previo usly been c onvicted of a felony or a Class A misdemeanor,” and (c)
conse nts to the deferm ent of proceed ings and plac ement on probation “for a
period of time no t less than the period of the m aximum sentence for the
misdemeanor with which the person is charged, or not more than the period of
the maximum sentence of the felony with which the person is charged.” Tenn.
Code A nn. § 40-35-3 13(a)(1)(A).
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The fact that the ac cuse d me ets the se pre requis ites do es no t entitle
the accused to judicial diversion as a matter of right. The statute
states that a trial court “m ay” gra nt judic ial divers ion in approp riate
cases. . . . Thus, whether the accused should be granted judicial
diversion is a question which addresses itself to the sound discretion
of the trial cou rt.
State v. Bonestel, 871 S.W .2d 163, 168 (Tenn. Crim . App. 1993 ).
Tennessee courts have recognized the similarities between judicial
diversion and pretrial diversion and, thus, have drawn heavily from the case law
governing pretrial d iversion to ana lyze ca ses inv olving ju dicial diversion. For
instance, in determining whether to grant pretrial diversion, a district attorney
general should consider the defendant’s criminal record, social history, mental
and physical condition, attitude, behavior since arrest, emotional stability, current
drug usage , past employm ent, ho me e nviron men t, marita l stability, fa mily
responsibility, genera l reputation , and amenability to correction; as well as the
circumstances of the offense, the deterrent effect of punishment upon other
crimin al activity, and the likelihood that pretrial diversion will serve the ends of
justice and best interests of both the public and the defend ant. See State v.
Washington, 866 S.W .2d 950, 951 (Tenn. 199 3).
A trial cou rt shou ld con sider g enera lly the sa me fa ctors w hen d ecidin g
whether to grant judicial divers ion. See Bonestel, 871 S.W .2d at 168 ; State v.
Hammersley, 650 S.W.2d 352, 355 (T enn. 19 83); State v. Anderson, 857 S.W.2d
571, 572-73 (Tenn. Crim. App. 1992). In assessing a defend ant’s am enability to
correction, a court may consider the defend ant’s truthfu lness on the stand . State
v. Dowdy, 894 S.W .2d 301 , 305 (T enn. Crim. App. 19 94); see Anderson, 857
S.W.2d at 574. If, after a ssessin g all relevan t factors, the trial court cho oses to
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deny judicial diversion, the court must articula te on th e reco rd both the sp ecific
reasons supporting the denial and why those factors applicable to the denial of
diversion outweigh the other factors for con sideration . See Bonestel, 871 S.W.2d
at 168.
In reviewing the de cision of a trial court to grant or deny judicial diversion,
this Court applies “the same level of review as that which is applicable to a review
of a district attorney gene ral’s action in denying p re-trial diversion.” State v.
George, 830 S.W .2d 79, 8 0 (Tenn. Crim. A pp. 199 2); see also Bonestel, 871
S.W.2d at 168; Anderson, 857 S.W .2d at 572 . In other words, this Court reviews
the record to determine whether the trial court ab used its d iscretion. See
Bonestel, 871 S.W.2d at 168; Anderson, 857 S.W.2d at 572. To find an abuse
of discretion, we must determine that no substantial evidence e xists to support
the ruling of the trial court. See Bone stel, 871 S.W .2d at 16 8; Anderson, 857
S.W .2d at 572 .
In the case at bar, the trial judg e expr esse d con cern w ith the D efend ant’s
decision to drop out of high school and his sporadic work history. He also
pointed out that some of the Defendant’s statements to the court were
“misleading”. Apparently, the Defendant had previously alleged police
misconduct to the court, claiming that he was unfairly singled out for prosecution
because the police did not arrest the maintenance man or his friend in whose
home the sto len pro perty w as hid den. W hen c onfron ted with this complaint by
the trial judge, the Defen dant main tained that his allegation s of miscond uct were
a result of a misun derstan ding.
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The judge concluded that the Defendant was not a credible witness,
stating, “I just don’t thin k Mr. Sm ith is a prop er cand idate for diversion . . . . I just
don’t feel he is telling u s wha t is goin g on in his life. . . . T he co urt just d oesn ’t
believe M r. Smith.” H e continu ed,
[The Defendant is] 25 years old and for seven years he never went
to get his GED, didn’t work to amount to noth ing, didn’t try to
improve himself at all. And then all of a sudden says he’s just
walking down the street and decides to com mit a burg lary. I don ’t
see it. Th ere’s som ething els e going on.
W e cannot conclude that the trial judge abused his discretion by denying
judicial diversion in this case. Because the trial judge w as in a be tter position to
assess the Defendant’s attitude and dem eanor, w e defer to his findings with
regard to the Defend ant’s candor. Although the trial judge’s finding of
untruthfulness alone is eno ugh to upho ld his denial of judicial diversion, see State
v. Dowdy 894 S.W.2d 301, 305 (Tenn. Crim. App. 1994), we note that the judge
delved into the Defe ndan t’s attitude, background, and the circumstances of the
offense before making his ruling. The record reflects that the trial judge acted
within h is discretionary authority. Therefore, we affirm the judgment of the trial
court.
____________________________________
DAVID H. WELLES, JUDGE
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CONCUR:
___________________________________
THOMAS T. WOODALL, JUDGE
___________________________________
NORMA McGEE OGLE, JUDGE
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