State of Tennessee v. David Elias Hernandez Sanchez ( 2023 )

12/05/2023
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs November 28, 2023 at Knoxville
STATE OF TENNESSEE v. DAVID ELIAS HERNANDEZ SANCHEZ
Appeal from the Circuit Court for Montgomery County
No. CC-2021-CR-1198 Robert Bateman, Judge
No. M2023-00180-CCA-R3-CD
The defendant, David Elias Hernandez Sanchez, appeals the Montgomery County Circuit
Court’s denial of his bid for judicial diversion of the four-year sentence imposed for his
guilty-pleaded conviction of aggravated assault. Discerning no error, we affirm.
Tenn. R. App. P. 3; Judgment of the Circuit Court Affirmed
JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which ROBERT W.
WEDEMEYER, and KYLE A. HIXSON, JJ., joined.
Chase T. Smith, Clarksville, Tennessee, for the appellant, David Elias Hernandez Sanchez.
Jonathan Skrmetti, Attorney General and Reporter; G. Kirby May, Assistant Attorney
General; Robert J. Nash, District Attorney General; and Crystal Morgan, Assistant District
Attorney General, for the appellee, State of Tennessee.
OPINION
The Montgomery County Grand Jury charged the defendant with one count
of aggravated assault of the victim, Janiah Terry. On September 23, 2022, the defendant
entered an open plea to the charged offense with the trial court to determine the length and
manner of service of the sentence and whether the defendant should be granted judicial
diversion. At the plea submission hearing, the State provided the following summary of
facts:
On February 19, 2021, officers responded to 101 University
Avenue, Clarksville, Montgomery County, Tennessee, where
the victim reported that the defendant had slammed her head
into the floor, bit her on her right shoulder blade, dr[agged] her
by her hair across the room, and stuffed a headband into her
mouth while he continued to try to choke her with other
objects. The victim did have physical signs of assault and was
required to seek medical treatment.
At the January 2023 sentencing hearing, the victim testified that she and the
defendant met on Tinder and began a relationship in October 2020. She said that on
February 19, 2021, the defendant came to her home and while there became angry about
something that he saw on her cell phone. The victim went into the bathroom, and the
defendant followed her and threw her telephone “at my right arm.” He threatened to “slap
me in my face” and then “grabbed me and choked me with both hands, and I fell into the
shower with him on top of me.” The victim got up and sat on the toilet, and the defendant
“slapped me on the left side of my face.” He then “grabbed me by my hair and pulled me
onto the floor,” stuffed her headband into her mouth, and covered her head with a towel.
When the victim screamed, the defendant “covered my mouth, and grabbed me by my hair,
and pulled me out of the bathroom.” In the bedroom, the defendant “threw” the victim
“onto the floor,” “took me by my hair,” and “banged my head on the carpet.” The
defendant then took a plastic shopping bag and “[t]ried to put it over my head.” The
victim’s sister came to the room, and the victim yelled for her to “[c]all the cops.” The
defendant again followed the victim into the bathroom where he continued “choking me
with both hands.” When the defendant tried to pull the victim “back into the bathroom”
with his “arms wrapped around” her, he “bit me on my right shoulder.” The victim said
that she sustained injuries from the attack, including nerve pain, losing her voice, and “red
and swollen” scratches and that since the attack, she suffers from “post-traumatic stress
disorder, anxiety, and depression.”
The defendant testified and acknowledged that he hurt the victim. He said
that the victim “would break up with me and then she would get back with me” and that he
lost his temper the night that he attacked her. The defendant said that at the time of the
hearing, he was living in New Mexico with his pregnant fiancé and helping care for his
mother who was undergoing cancer treatment. He said that he worked for a clay
distribution company and that he was trying to get into college.
At the close of the evidence, the defendant asked the trial court to place him
on judicial diversion, citing his youth at the time of the offense, his accepting responsibility,
and his lack of a criminal history. The State argued that although the defendant qualified
for judicial diversion, it was not appropriate in this case because of the nature and
circumstances of the offense. The trial court denied the defendant judicial diversion and
sentenced the defendant as a Range I offender to four-years of supervised probation, taking
into account
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the evidence presented at th[e] sentencing hearing, including
the testimony of Ms. Terry; the pre-sentence report; the
arguments of counsel; the nature and characteristics of the
criminal conduct; and the evidence and information offered by
the parties; statistical information . . . ; the testimony of the
[d]efendant; and the risk and needs assessment.
The trial court found that the defendant’s amenability to correction, lack of criminal
history, social history, and physical and mental health weighed in favor of a grant of
diversion but that the circumstances of the offense and the “special and general deterrence
value weigh against granting a judicial diversion in this case.” The court emphasized that
“this assault occurred over a[n] extended period of time, involved strangulation, biting, and
other attacks.” Although the trial court did not explicitly find that the circumstances of the
offense and the deterrence value outweighed the other factors, the court’s findings and
conclusion indicate that the court gave greater weight to those two factors.
In this appeal, the defendant contends that the trial court abused its discretion
by denying him judicial diversion, arguing that the trial court inappropriately weighed the
circumstances of the offense over numerous factors favoring the grant of diversion. The
State argues that the trial court did not err.
“Judicial diversion” is a reference to the provision in Tennessee Code
Annotated section 40-35-313(a) for a trial court’s deferring proceedings in a criminal case.
See T.C.A. § 40-35-313(a)(1)(A). Pursuant to such a deferral, the trial court places the
defendant on probation “without entering a judgment of guilty.” Id. To be eligible or
“qualified” for judicial diversion, the defendant must plead guilty to, or be found guilty of,
the offense for which deferral is sought; the offense must not be one that is excluded from
deferral pursuant to Code section 40-35-313(a)(1)(B)(ii)(b) and (c); the defendant must not
have previously been convicted of a felony or a Class A misdemeanor for which a sentence
of confinement is served; and the defendant must not have previously been granted judicial
diversion or pretrial diversion. Id. § 40-35-313(a)(1)(B)(i). Diversion requires the consent
of the qualified defendant. Id. § 40-35-313(a)(1)(A). “[A] ‘qualified’ defendant is not
necessarily entitled to diversion. Whether to grant judicial diversion is left to the
discretionary authority of the trial courts.” State v. King, 432 S.W.3d 316, 326 (Tenn.
2014). Following a determination that the defendant is eligible for judicial diversion, the
trial court must consider
(a) the accused’s amenability to correction, (b) the
circumstances of the offense, (c) the accused’s criminal record,
(d) the accused’s social history, (e) the accused’s physical and
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mental health, and (f) the deterrence value to the accused as
well as others. The trial court should also consider whether
judicial diversion will serve the ends of justice--the interests of
the public as well as the accused.
Id. (quoting State v. Parker, 932 S.W.2d 945, 958 (Tenn. Crim. App. 1996)). “Further, the
trial court must weigh the factors against each other and place an explanation of its ruling
on the record.” Id. (citing State v. Electroplating, Inc., 990 S.W.2d 211, 229 (Tenn. Crim.
App. 1998)). The trial court need not provide a recitation of all the applicable “factors
when justifying its decision on the record in order to obtain the presumption of
reasonableness,” but “the record should reflect that the trial court considered the Parker
and Electroplating factors in rendering its decision and that it identified the specific factors
applicable to the case before it.” King, 432 S.W.3d at 327.
Although judicial diversion is not a sentence, our supreme court has
determined that the standard of review first expressed in State v. Bise, applies to “appellate
review for a trial court’s sentencing decision to either grant or deny judicial diversion.”
King, 432 S.W.3d at 325; State v. Bise, 380 S.W.3d 682, 707 (Tenn. 2012) (holding that
the standard of review of the trial court’s sentencing determinations is whether the trial
court abused its discretion, but we apply a “presumption of reasonableness to within-range
sentencing decisions that reflect a proper application of the purposes and principles of our
Sentencing Act”). Importantly, the supreme court emphasized that the adoption of the Bise
standard of review “did not abrogate the requirements set forth in Parker and
Electroplating, which are essential considerations for judicial diversion.” King, 432
S.W.3d at 326. Thus, when the trial court considers each of the factors enumerated in
Parker and weighs them against each other, placing its findings in the record, as required
by Electroplating, we “apply a presumption of reasonableness,” per Bise, and will “uphold
the grant or denial so long as there is any substantial evidence to support the trial court’s
decision.” King, 432 S.W.3d at 327. When “the trial court fails to consider and weigh the
applicable common law factors, the presumption of reasonableness does not apply and the
abuse of discretion standard . . . is not appropriate.” Id. Instead, “the appellate courts may
either conduct a de novo review or, if more appropriate under the circumstances, remand
the issue for reconsideration. The determination as to whether the appellate court should
conduct a de novo review or remand for reconsideration is within the discretion of the
reviewing court.” Id. at 328.
Here, the trial court properly weighed each of the required factors and
concluded that the circumstances of the offense and the deterrence value outweighed the
other factors. Because the trial court weighed the relevant factors on the record, our
standard of review is abuse of discretion. King, 432 S.W.3d at 326. Although the
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defendant qualified for judicial diversion, the circumstances of the offense alone can
support denial of diversion. The facts, conceded as true by the defendant at the plea
submission hearing, established that the defendant beat, bit, dragged by the hair, strangled,
and gagged the victim, causing her physical injury. The victim’s testimony established
that the assault continued even after the victim tried to get away. This evidence supports
the trial court’s decision, and the trial court did not abuse its discretion by denying the
defendant’s request for judicial diversion.
Accordingly, we affirm the judgment of the trial court.
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JAMES CURWOOD WITT, JR., JUDGE
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