State of Tennessee v. Brandon Luke Baron ( 2020 )


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  •                                                                                           11/13/2020
    IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
    AT KNOXVILLE
    September 29, 2020 Session
    STATE OF TENNESSEE v. BRANDON LUKE BARON
    Appeal from the Criminal Court for Cumberland County
    No. 17-32 Wesley Thomas Bray, Judge
    No. E2019-02062-CCA-R3-CD
    The Defendant, Brandon Luke Baron, appeals from the Cumberland County Criminal
    Court’s denial of his request for judicial diversion following his guilty plea to child
    abuse, a Class D felony. See T.C.A. § 39-15-401 (2014) (subsequently amended). The
    court imposed the agreed-upon two-year sentence and ordered the Defendant to serve it
    in the Department of Correction. The Defendant contends that the court erred in denying
    judicial diversion. We conclude that the trial court failed to consider and weigh all of the
    relevant factors in accord with State v. Electroplating, 
    990 S.W.2d 211
    , 229 (Tenn. Crim.
    App. 1998), and State v. Parker, 
    932 S.W.2d 945
    , 958 (Tenn. Crim. App. 1996), but upon
    de novo review, we affirm the judgment of the trial court denying judicial diversion.
    Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
    ROBERT H. MONTGOMERY, JR., J., delivered the opinion of the court, in which NORMA
    MCGEE OGLE and D. KELLY THOMAS, JR., JJ., joined.
    M. Todd Ridley (on appeal), Assistant Public Defender – Appellate Division; Craig P.
    Fickling (at hearing), District Public Defender; Laura Dykes (at hearing), Assistant
    District Public Defender, for the Appellant, Brandon Luke Baron.
    Herbert H. Slatery III, Attorney General and Reporter; Nicholas W. Spangler, Assistant
    Attorney General; Bryant C. Dunaway, District Attorney General; Phillip A. Hatch and
    Jessie Mayberry, Assistant District Attorneys General, for the appellee, State of
    Tennessee.
    OPINION
    According to the State’s recitation of facts at the guilty plea hearing:
    The proof would show that on August 31st, 2016 [the Defendant]
    did treat a minor child under the age of eight . . . , in a manner causing
    bodily injury to the child. Investigator Gary Green with the Cumberland
    County Sheriff’s Department observed from a photograph bruising and
    marks on the child and interviewed the [D]efendant, who did admit striking
    the child with a belt.
    Pursuant to a plea agreement, the Defendant pleaded guilty to the offense with an agreed-
    upon two-year sentence, with the understanding that the Defendant would seek judicial
    diversion and that the trial court would determine the manner of service of the sentence if
    the court denied judicial diversion.
    At the sentencing hearing, Christopher Goddard, a probation officer, testified that
    he conducted the presentence investigation and prepared the presentence report, which
    was received as an exhibit. Mr. Goddard testified that a security officer and a sheriff’s
    deputy responded to a residential call regarding “an unspecified matter.” Mr. Goddard
    said the officers learned that the Defendant had hit a child on the back with a belt and that
    the Defendant had left the house before the officers arrived. Mr. Goddard said a deputy
    spoke with the victim, who reported soreness on his back and side. The deputy observed
    a large bruise extending from the victim’s lower back to the victim’s shoulders and belt
    marks on the victim’s right shoulder and left eye. Mr. Goddard said the victim told a
    deputy that when the victim arrived at home from school, the Defendant “grabbed him by
    his backpack and threw him on the bedroom floor[,] . . . held the victim down and
    continued to spank him with the belt.” Mr. Goddard said the victim reported that he
    struck the victim “for not being good in school.” Mr. Goddard said the victim was taken
    by ambulance to a hospital, where he was examined and released. Mr. Goddard said the
    victim’s mother declined to give a statement and to seek an order of protection against
    the Defendant.
    Mr. Goddard testified that the Defendant provided a statement to Mr. Goddard
    regarding the incident. In the statement, the Defendant said that the victim, his eight-
    year-old stepson, had misbehaved extensively and that the Defendant and the child’s
    mother had tried various rewards and punishments without success. The Defendant
    stated that the victim intentionally hurt his two-year-old sister and that, after a neighbor
    accused the victim of misbehavior toward the neighbor’s child, the victim had shot out
    the neighbor’s truck window with a BB gun. The Defendant stated that on the date of the
    incident involved in this case, the victim brought home a letter from school which stated
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    he had cursed at a teacher, and that when asked about the incident at school, the victim
    cursed at his mother. The Defendant stated the following:
    I took him inside and pushed him onto the bed to spank him. My
    father used a belt on me and I didn’t know any better. I spanked him harder
    than I meant to because I was frustrated and lost my temper. I told the
    police everything that day and cried because I was so ashamed. I will never
    do anything like this again.
    Mr. Goddard agreed that the Defendant had been charged after the offense in the
    present case with driving while his license was suspended and that the Defendant pleaded
    guilty to “no drivers license,” a Class C misdemeanor. A certified copy of the conviction
    was received as an exhibit.
    Mr. Goddard testified that the Defendant reported using marijuana socially, but
    that he no longer used it. The presentence report reflects that the Defendant last used
    marijuana in 2018, two years after the offense in the present case. Mr. Goddard said the
    Defendant reported that he drank alcohol but that he did not drink excessively. Mr.
    Goddard said the Defendant’s drug screen was positive for marijuana and negative for
    other substances. Mr. Goddard said the Defendant signed an acknowledgment stating he
    had used “CBD marijuana from a hemp shop.” Mr. Goddard said the laboratory that
    analyzed the drug test could not differentiate between CBD oil and marijuana.
    Photographs of the victim’s injuries were received by stipulation as an exhibit.
    Mr. Goddard testified that the twenty-seven-year-old Defendant was a high school
    graduate and had maintained continuous employment and supported his wife and the
    children who lived with them, one of whom was the Defendant’s biological child. Mr.
    Goddard said the Defendant had appeared for court proceedings as scheduled in the three
    and one-half years the case had been pending. Mr. Goddard said that the Strong-R report
    indicated the Defendant was “low risk” in all categories except mental health and that the
    Defendant reported “a little bit of . . . depression” because of the length of time the case
    had been pending.
    The Defendant testified that, between his wife and himself, they had four children
    “and one on the way.” He said he supported the three children who lived with him and
    that he did not support another one who did not live with them. He said his wife did not
    work.
    The Defendant testified that his positive drug screen result was due to his CBD
    use. He said he used it because he had pain from physical labor with a moving company.
    He said he would not use CBD if granted probation. He said he had not known CBD use
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    “was wrong,” but he also stated he had been told the product he used would not cause a
    positive drug test result “unless I used plenty of it.”
    The Defendant testified that he had cried on the night of the offense because he
    was scared and knew he had hurt the victim. He said he was ashamed. He agreed that
    his wife had delivered a baby a month before the offense and that they had not slept well
    with a newborn in the home.
    The Defendant testified that he had received corporal punishment as a child and
    that he thought it was “sometimes the only way to learn if you try everything else.”
    Regarding the incident with the victim, the Defendant said he had not known what to do
    and had been afraid his children would be taken from his home due to the victim’s
    conduct toward other children. He said that he did not strike his children with a belt
    anymore and that they talked through issues. He said he had learned his lesson over the
    past three years. Relative to the offense, he acknowledged telling an officer on the date
    of the offense that he “just lost it” and said he had been angry, tired, and upset. The
    Defendant said he attended anger management classes, which had been ordered by the
    Department of Children’s Services.
    The Defendant testified that before the offense, the victim “would not take any
    direction whatsoever.” The Defendant said the victim hurt the victim’s sister. The
    Defendant said he and his wife tried various disciplinary approaches without success.
    The Defendant said his wife asked the victim why the victim was “doing this,” that the
    victim responded “f--- you” to her, and that this precipitated the incident.
    When shown photographs of the victim’s injuries, the Defendant testified that a
    mark on the victim’s side might have been caused by the Defendant’s hitting the victim
    but might have been caused by the victim’s fall from a motorcycle on the date of the
    incident. The Defendant stated the victim had fallen out of a tree about one week before
    the incident. The Defendant said he would accept responsibility for the victim’s injuries
    “if it gets it over with.” The Defendant said he had not caused the injury on the victim’s
    forehead by hitting the victim’s head but acknowledged he had forced the victim on a bed
    and held down the victim by the loop on the victim’s backpack while administering
    blows with a belt. He acknowledged the victim’s injuries to the victim’s back and
    shoulder area and underarm. He said he had not struck the victim’s buttocks or legs. The
    Defendant said his conduct had been unacceptable. He said he had “whooped” the victim
    in order to keep the victim from hurting other children in the future. The Defendant said
    he had been “lost” and had not known where to obtain help.
    The Defendant testified that he had learned his lesson, that his children had been
    “taken away,” that he had to pay $3000 in child support to regain custody, and that he
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    had “had all this crap.” The Defendant said the victim’s grandmother had tried to “[turn]
    him against” the Defendant.
    After the parties submitted their proof, the prosecutor argued that the trial court
    should deny judicial diversion and impose a split confinement sentence involving sixty
    days of jail service. The defense argued that the court should grant judicial diversion.
    The trial court noted that the Defendant “was blaming [the victim’s injuries] on
    [the] motorcycle and falling out of the tree,” which the court said reflected on the
    question of the Defendant’s remorse. The court found that the victim’s injuries as
    depicted in the photograph exhibits were consistent with “repeated lashing from a belt”
    and were inconsistent with falling from a tree or a motorcycle accident. The court noted,
    as well, that the Defendant’s testimony was the only evidence regarding the victim’s
    misbehavior leading up to the incident. The court stated that it had considered the
    hearing evidence, the presentence report, the principles of sentencing, the arguments as to
    sentencing alternatives, the nature and characteristics of the criminal conduct, and the
    statutory mitigating and enhancement factors. The court found the existence of two
    enhancement factors: that the Defendant had a prior history of criminal convictions and
    behavior, and that the victim of the offense was particularly vulnerable due to age or
    physical or mental disability. See T.C.A. § 40-35-114(1), (4) (Supp. 2016) (subsequently
    amended). In considering the mitigating factors the court found that the Defendant’s
    conduct neither caused nor threated serious bodily injury. See
    id. § 40-35-113(1) (2019).
    Turning to the question of judicial diversion, the trial court denied diversion based
    upon the circumstances of the offense, because granting diversion would not serve the
    public interest, and due to the seriousness of the offense. The court said that, in addition,
    the denial of diversion was appropriate because the Defendant obtained a conviction
    while the charge in the present case was pending and because the Defendant had a
    positive drug test for marijuana use. The court noted that “it’s pretty obvious that [the
    court] wasn’t terribly happy” when it accepted the Defendant’s guilty plea and that a
    person who requested diversion should “not do anything to jeopardize that.” The court
    noted that the Defendant had received a minimum, two-year sentence pursuant to the plea
    agreement.
    In ordering the Defendant to serve his sentence in the Department of Correction,
    the trial court found that the Defendant’s testimony had not been credible and that Mr.
    Goddard’s testimony had been credible. The court found that confinement was
    appropriate in order to avoid depreciating the seriousness of the offense or was
    particularly suited to provide effective deterrence to others. See
    id. § 40-35-103(1)(b). The
    court found that the State’s recommendation that the Defendant serve sixty days was
    an insufficient period of confinement, given the victim’s injuries, the positive drug test,
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    and the Defendant’s explanation of the offense. The court ordered the Defendant to serve
    the two-year sentence. This appeal followed.
    The Defendant contends that the trial court erred in denying his request for judicial
    diversion. A trial court may order judicial diversion for certain qualified defendants who
    are found guilty of or plead guilty or nolo contendere to a Class C, D, or E felony or a
    lesser crime; have not previously been convicted of a felony or a Class A misdemeanor;
    and are not seeking deferral for a sexual offense. See T.C.A. § 40-35-313(a)(1)(B)(i)
    (Supp. 2013) (amended 2014). The grant or denial of judicial diversion is within the
    discretion of the trial court. State v. King, 
    432 S.W.3d 316
    , 323 (Tenn. 2014) (citing
    T.C.A. § 40-35-313(a)(1)(A)). When considering whether to grant judicial diversion, a
    trial court must consider (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 ends of justice.
    State v. Electroplating, 
    990 S.W.2d 211
    , 229 (Tenn. Crim. App. 1998); State v. Parker,
    
    932 S.W.2d 945
    , 958 (Tenn. Crim. App. 1996); see 
    King, 432 S.W.3d at 326
    (stating that
    recent caselaw affecting the standard of review for sentencing determinations “did not
    abrogate the requirements set forth in Parker and Electroplating, which are essential
    considerations for judicial diversion”). “The record must reflect that the court has
    weighed all of the factors in reaching its determination.” 
    Electroplating, 990 S.W.2d at 229
    . If a trial court refuses to grant judicial diversion, “[T]he court should clearly
    articulate and place in the record the specific reasons for its determinations.” 
    Parker, 932 S.W.2d at 958-59
    . “The truthfulness of a defendant, or lack thereof, is a permissible
    factor for a trial judge to consider in ruling on a petition for suspended sentence.” State v.
    Neeley, 
    678 S.W.2d 48
    , 49 (Tenn. 1984).
    On review of a decision to grant or deny judicial diversion, this court will apply a
    presumption of reasonableness if the record reflects that the trial court considered the
    Parker and Electroplating factors, specifically identified the relevant factors, and placed
    on the record the reasons for granting or denying judicial diversion, provided any
    substantial evidence exists to support the court’s decision. 
    King, 432 S.W.3d at 327
    . If,
    however, the trial court failed to consider and weigh the relevant factors, this court may
    conduct a de novo review or remand the case for reconsideration.
    Id. at 328.
    Likewise, a trial court’s reliance upon an irrelevant factor may result in an abuse
    of discretion. See State v. McKim, 
    215 S.W.3d 781
    , 787 (Tenn. 2007). However, a
    court’s mere consideration of an irrelevant factor does not result in an abuse of discretion
    because “it is the undue consideration of an irrelevant factor that is prohibited.” See
    Stanton v. State, 
    395 S.W.3d 676
    , 687 n.2, 691 (Tenn. 2013) (stating the rule in the
    context of a review of a district attorney general’s denial of pretrial diversion). A “trial
    court is not required to recite on the record all of the . . . factors; however, the record
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    should reflect that the trial court considered all of the factors in rendering its decision and
    that it ‘identified the specific factors applicable to the case before it.’” State v. Dycus,
    
    456 S.W.3d 918
    , 930 (Tenn. 2015) (quoting 
    King, 432 S.W.3d at 327
    .).
    The Defendant argues that the trial court failed to consider and weigh the
    Electroplating factors. He argues that, as a result, review for abuse of discretion is
    inappropriate and that this court should conduct a de novo review of the record and grant
    judicial diversion. The State counters that the trial court was not required to mention
    each factor or use “magic language,” that the record reflects the trial court adequately
    identified the Electroplating factors upon which it denied diversion, and that the court’s
    decision was not an abuse of discretion.
    The record reflects that the trial court specifically referred to two of the
    Electroplating factors:
    Number two, in that first case was the circumstances of the offense.
    Number seven, doesn’t serve the public interest. My own reason for
    denying him diversion is while he was out on bond for this offense he did
    pick up a conviction. Although that was a lower level offense, he still did
    pick up a conviction while he was pending on this charge. He also has a
    positive test for marijuana.
    In addition, the court stated, “[T]he seriousness of the offense requires the denial
    of diversion.” The court also stated, “I don’t classify this . . . just as a child abuse, I
    classify it as a beating. And you gave that child a beating. That’s just not something you
    can do.” In its consideration of suitability of judicial diversion, the court did not address
    the remaining Electroplating factors and did not attempt to weigh the factors. We
    conclude, therefore, that the record fails to reflect that the court consider and weigh all of
    the factors in rendering its decision. See 
    Dycus, 456 S.W.3d at 930
    ; 
    King, 432 S.W.3d at 327
    .
    Because the trial court failed to consider and weigh the relevant factors, this court
    may conduct a de novo review or remand the case for reconsideration. 
    King, 432 S.W.3d at 328
    . The record in the present case is sufficient for de novo review, and we will
    consider the question of judicial diversion de novo. See 
    Dycus, 456 S.W.3d at 931
    ; 
    King, 432 S.W.3d at 328
    .
    Regarding the Defendant’s amenability to correction, the trial court found that the
    Defendant minimized his culpability for the offense and blamed his reaction on the
    victim’s misbehavior. The court also found that the Defendant blamed some of the
    victim’s injuries on the victim’s fall from a motorcycle and fall from a tree. We note, as
    well, the Defendant’s use of marijuana and commission of a driving offense after he was
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    charged with the present offense. Although the Defendant claimed his positive drug test
    result was due to his use of a legal CBD product, the presentence report reflects that he
    last used marijuana in 2018, which was after the offense. This factor weighs against a
    grant of diversion.
    Turning to the circumstances of the offense, the trial court found that the facts
    were an egregious use of force on a young child, beyond a mere showing of the elements
    of the offense. The photographs depicting the victim’s injuries support the court’s
    finding. This factor weighs heavily against a grant of diversion.
    The Defendant’s criminal record is minor, consisting of a single conviction of
    driving without a valid license. As we have stated, however, the Defendant committed
    this offense while the present case was pending. We weigh this factor as neutral
    regarding the Defendant’s suitability for judicial diversion.
    Regarding the Defendant’s social history, the record reflects that he is a high
    school graduate, that he is married with children, that he has maintained steady
    employment, and that he has completed anger management coursework though DCS.
    This factor weighs in favor of a grant of diversion.
    Regarding the Defendant’s physical and mental health, the record reflects no
    significant physical ailments, aside from the Defendant’s report of pain from physical
    labor. The record reflects that the Defendant has had some depression due to the long
    pendency of this case. We weigh this factor neutrally relative to a grant of diversion.
    Regarding the deterrence value to the Defendant and others and the question of
    whether a grant of diversion will serve the ends of justice, we note the trial court’s
    findings that the Defendant’s testimony was not credible and that the Defendant
    minimized his culpability for his conduct by placing blame on the victim’s misbehavior
    and on other sources of injuries. We conclude that a grant of diversion would not provide
    an effective deterrence to the Defendant or to others in these circumstances. Likewise,
    we conclude that diversion will not serve the ends of justice. We weigh these factors
    moderately against a grant of diversion.
    Upon de novo consideration of all of the factors and the weight we have afforded
    to each, we conclude that, despite the trial court’s shortcomings in its analysis, the court
    did not err in denying judicial diversion. We are compelled, particularly, by the factors
    regarding the Defendant’s amenability to correction, the circumstances of the offense, the
    deterrence value to the Defendant and others, and whether judicial diversion would serve
    the ends of justice.
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    In consideration of the foregoing and the record as a whole, the judgment of the
    trial court is affirmed.
    _____________________________________
    ROBERT H. MONTGOMERY, JR., JUDGE
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Document Info

Docket Number: E2019-02062-CCA-R3-CD

Judges: Judge Robert H. Montgomery, Jr.

Filed Date: 11/13/2020

Precedential Status: Precedential

Modified Date: 4/17/2021