                                                                                        07/19/2019
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                          Assigned on Briefs May 30, 2019

           STATE OF TENNESSEE v. JOSHUA MICHAEL WARD

                  Appeal from the Criminal Court for Scott County
                       No. 11370 E. Shayne Sexton, Judge
                     ___________________________________

                           No. E2018-01781-CCA-R3-CD
                       ___________________________________


The Defendant, Joshua Michael Ward, entered a guilty plea to reckless homicide, a Class
D felony, after the all-terrain vehicle (“ATV”) he was driving ran down an embankment,
killing his passenger. The trial court denied the Defendant judicial diversion and
sentenced him to three years, with ninety days to be served in confinement and the
remainder on unsupervised probation. The Defendant appeals the denial of judicial
diversion and the denial of full probation. We conclude that the trial court did not abuse
its discretion in sentencing, and we affirm the judgment.

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

JOHN EVERETT WILLIAMS, P.J., delivered the opinion of the court, in which ROBERT W.
WEDEMEYER and ROBERT L. HOLLOWAY, JR., JJ., joined.

James A.H. Bell, Jacob Feuer, and Chelsea Harris, Knoxville, Tennessee, for the
Appellant, Joshua Michael Ward.

Herbert H. Slatery III, Attorney General and Reporter; Benjamin A. Ball, Senior
Assistant Attorney General; Jared R. Effler, District Attorney General; and David
Pollard, Assistant District Attorney General, for the Appellee, State of Tennessee.


                                       OPINION

                    FACTUAL AND PROCEDURAL HISTORY

       The Defendant’s ATV ran over the side of a road and tumbled down a steep
embankment, and the victim, Ms. Danielle Stahley, was killed when her seat was ejected
from the vehicle. The Defendant entered a guilty plea to reckless homicide. The parties
did not have an agreement as to the sentence that would be imposed, but they entered into
a stipulation regarding the factual basis for the plea.1

       According to the stipulation, the accident occurred at 7:35 p.m. on May 27, 2016,
as the Defendant was driving the ATV with the victim in the passenger’s seat. The
victim’s father was following in a separate vehicle. At the time of the accident, the
Defendant was negotiating a left curve and “moving over [to] the right passing other
vehicles.” The Defendant was attempting to avoid a collision with an oncoming vehicle
when the ATV’s passenger’s side tires went over the edge of the road. The ATV rolled
over multiple times as it tumbled down the cliff and eventually came to rest upside down
in a river. Both occupants were wearing helmets, but the helmets were not properly
fastened. The victim’s seat was ejected from the vehicle as it fell down the embankment.

        In an interview with law enforcement, the Defendant acknowledged that he had
purchased two twelve-packs of beer, which were in the ATV, and that he had consumed
five to six beers that day. He stated that he was avoiding oncoming traffic and had seen
“everybody else get real close to the side of the dirt road.” He was able to unlatch his
seatbelt and escape after the vehicle came to a rest under water, and he reentered the
vehicle in an effort to assist the victim. After he discovered that the entire passenger’s
seat had ejected from the ATV, the Defendant found the victim with her father on the
embankment, “her face … lodged between … a log and the bank.” The Defendant stated
that the victim had been driving the ATV during the bulk of the day and that he had
begun driving approximately twenty minutes prior to the accident. The victim suffered
multiple injuries, and she died from a laceration of the heart and hemorrhage while being
transported from the scene.

       At the sentencing hearing, the State noted that the Defendant initially was indicted
for vehicular homicide by intoxication. The State explained that due to the termination
of the trooper involved in the investigation, the issues raised in a motion to suppress
which was never litigated, and the trial court’s refusal to continue the case for settlement,
the indictment was dismissed; and the Defendant pled guilty by criminal information to
reckless homicide based on the stipulated facts. The State attempted to introduce a
toxicology report, but the Defendant objected that it was outside the stipulated facts, and
the State withdrew its motion to introduce the report.

      The presentence report reflected that the Defendant was a high school graduate
who had an unblemished work history and who owned a successful trucking company.
He had no history of drug use or alcohol abuse, had a supportive family, and had no prior
criminal record. He spent approximately three hundred days of the year driving a truck

       1
           The plea hearing is not part of the record on appeal.
                                                 -2-
for his company but had no prior traffic violations. The risk-needs assessment concluded
he was at low risk of reoffending.

       The presentence report included statements from the police report, which reflected
that the Defendant had told law enforcement at the scene that “he needed to hurt because
of what he had done to cause [the victim] to get hurt during the crash.” The trooper who
responded to the accident indicated in his report that the Defendant showed signs of
intoxication, including a strong odor of alcohol, slurred speech, an acknowledgement that
he had consumed alcohol in the three hours prior to the accident, difficulty standing, and
poor performance on a field sobriety test.

       In a written statement for the presentence report, the Defendant summarized the
offense as “an accident that involved an ATV that I was driving. While doing so [the
victim] was thrown from the passenger seat of my ATV and was struck by the roll cage
as we rolled down a cliff approximately 150 feet down into a river. [The victim] did not
survive.” Asked about sentencing, the Defendant stated, “I feel like this has been a very
long process and I am ready to move forward in a way that allows me to continue
working and running my trucking company. I love what I do for a living and feel
privileged to be able to say that.”

       The victim’s mother and sister submitted victim impact statements asking the
court to order incarceration for the Defendant. They emphasized that the accident was
the result of driving while intoxicated, and they observed that the victim’s death had
created a breach in the family because the victim’s father and brother viewed the death as
an accident rather than a criminal offense. The victim’s father submitted a statement
asserting that he had retained continuous custody of the victim after his divorce and that
the victim’s mother had not supported the victim emotionally or financially. He believed
the victim’s death was a tragic accident caused by a faulty seat in the ATV, and he
maintained contact with the Defendant after the victim’s death. The victim’s brother
likewise stated that her death was an accident and that the Defendant did not deserve
punishment.

        Mr. Shane Cooper, a staff investigator for defense counsel, was the sole witness at
the hearing. Mr. Cooper introduced photographs of the accident site taken immediately
after the accident, showing no barrier between the road and embankment and a drop of
approximately one hundred feet over the side of the ridge. Mr. Cooper also showed more
recent photographs which depicted that a guardrail had been installed at the site. The
photographs also depicted a cross which the Defendant had placed at the scene of the
accident in memory of the victim.



                                           -3-
       Mr. Cooper testified about a telephone interview that he conducted with the
victim’s father after the victim’s death. During the interview, the victim’s father had
confirmed that the Defendant was not driving erratically or recklessly at the time of the
accident. The victim’s father had stated that his own ATV suffered a broken front brake
line and that he was accordingly going slowly but still keeping up with the vehicle driven
by the Defendant. Mr. Cooper acknowledged that when he asked the victim’s father if
alcohol had played a role in the incident, the victim’s father responded that the Defendant
was a conscientious driver but did not directly answer the question. Mr. Cooper also
acknowledged that a report noted that the victim’s father had himself been consuming
alcohol.

       The Defendant gave an allocution in which he expressed sympathy for the victim’s
family and stated, “[N]ot a day goes by that I do not wake up with the weight of [the
victim’s] death on me.” The Defendant also introduced a letter from Mr. James Garland,
who wrote that the Defendant had single-handedly created his business transporting rare
cars and that he exemplified professionalism and excellence in his work.

        The State argued that the Defendant did not comprehend the gravity of the
situation and that he should be sentenced to periodic confinement scheduled around his
work obligations. The Defendant argued that he should receive judicial diversion and
presented several mitigating factors. He noted that the prosecution had introduced no
proof on the issue of deterrence, and he referred the court to a filing of statistics from the
Tennessee Department of Safety and Homeland Security (“DOS”) which he contended
indicated that statewide ATV accidents were declining. The DOS report established that
there were 19 fatalities involving ATVs in 2014, 6 fatalities in 2015, 15 fatalities in 2016,
the year that the accident involving the Defendant occurred, and 8 fatalities in 2017. The
report showed 116 ATV crashes in 2013; 124 in 2014; 132 in 2015; 124 in 2016; and 116
in 2017. The State then introduced two newspaper articles for the purpose of
demonstrating publicity related to the event. The trial court noted that the press was not
present during the sentencing hearing.

        In determining whether to grant judicial diversion, the trial court examined the
Defendant’s amenability to correction primarily in light of the written statement in the
presentence report. The trial court noted that the statement about moving forward
indicated “that he does not understand the criminality, not just the seriousness but the
criminality[,] of the behavior.” The court stated, “I don’t think that he sees this as a
crime against another, and that’s troubling.” The court also observed, “I’m familiar with
this culture and, you know, I — not that that has a whole lot to do with this case other
than there is a recklessness in the manner in which many of these — these wrecks occur,
and the defendant has pled guilty to reckless homicide.” The trial court acknowledged
that the Defendant had also stated that he thought frequently about the victim’s death, but
                                            -4-
concluded “waking up and thinking about this — the circumstances of what happened,
that’s something of a tender notion; however, it’s clear from this [presentence report] the
defendant just wants to put this inconvenient truth behind him.”

       The trial court noted that the Defendant appeared to think the death was an
accident rather than the result of recklessness. In examining the circumstances, the court
observed that “it was a terrible homicide, but that’s not the basis for the denial.” The trial
court found that the Defendant’s complete lack of criminal history, his positive social
history of employment, and his lack of physical and mental obstacles weighed in favor of
judicial diversion. The trial court noted that judicial diversion would almost always be in
the best interest of the accused.

       On the issue of deterrence as it related to judicial diversion, the trial court found
that “the media accounts may or may not suggest any sort of deterrence” but found that
they did indicate interest from the public. The court went on to say,

       this Court has dealt with numerous situations such as this. There is a
       culture in the ATV world that they’re — a lot of bulletproof ideas, and I’ve
       seen them over and over and over, but they’re not. Whether or not we have
       loss of life or whether we may have EMT’s coming out to take people in,
       … there is a culture that I hope to goodness to see the end of. And I think
       the State has shown to — enough evidence that deterrence and what this
       Court does in this case might have some impact in the behaviors of others.

       The trial court denied judicial diversion on the basis that the Defendant’s
statements failed to acknowledge his culpability, indicating a lack of amenability to
correction, and that deterrence also weighed against judicial diversion.

       Regarding the length of sentence, the trial court found as enhancement that the
injuries suffered by the victim were particularly great. As mitigation, the trial court
found that the circumstances of the offense indicated that the Defendant was not
motivated by a sustained intent to violate the law but gave the factor little weight. See
T.C.A. § 40-35-113(11). The trial court also found the Defendant’s positive social
history was a mitigating factor. See T.C.A. § 40-35-113(13). The trial court imposed a
three-year sentence.

       In determining the manner of service, the trial court noted that the Defendant had
no criminal history, was a good candidate for rehabilitation, was likely to abide by the
terms of probation, and was not a danger to the public. However, the trial court denied
full probation based on a need to avoid depreciating the seriousness of the offense and
based on deterrence. Regarding the circumstances of the offense, the trial court stated,
                                            -5-
“And enormous and gross and heinous, it was a tragic accident, I mean, from a — or a
tragic wreck that — and the victim clearly died a horrible, horrible death.” The trial court
noted that “this is the second time in a year that I’ve dealt with outdoor behaviors taking
the life of someone.” The court noted that the DOS report covered the State of Tennessee
as a whole rather than the county and observed, “I’ve seen enough up in this Court in five
counties, two in particular[,] that this type of thing is on the verge of being a major
problem.” The trial court acknowledged that it was unclear if the public would be
informed about the sentence but noted that the public should be aware of the dangers of
“that setting.” The court sentenced the Defendant to serve ninety days of periodic
confinement and the remainder of his three-year sentence on unsupervised probation.
The Defendant appeals.

                                       ANALYSIS

        On appeal, the Defendant challenges the trial court’s failure to sentence him as an
especially mitigated offender, the denial of judicial diversion, and the trial court’s denial
of full probation. We conclude that the issue regarding offender classification has been
waived and that the trial court did not abuse its discretion in denying judicial diversion
and imposing a sentence of split confinement.

                            I. Especially Mitigated Offender

        The Defendant asserts that the trial court erred in failing to sentence him as an
especially mitigated offender. In particular, the Defendant observes that the trial court
erred in applying the sole enhancement factor. See State v. James Henry Davis, No.
M1999-02467-CCA-R3-CD, 2000 WL 1130139, at *3 (Tenn. Crim. App. Aug. 2, 2000)
(“In a homicide case, the personal injuries inflicted upon the homicide victim are by
definition ‘particularly great.’”). He argues that the court orally found at least one
mitigating factor to apply, should have found others, and failed to indicate the mitigating
factors when it completed the written form regarding sentencing findings of fact. The
State responds that the classification of the Defendant as an especially mitigated offender
is discretionary. We conclude that the challenge to offender classification has been
waived by the Defendant’s guilty plea and failure to raise the issue at sentencing.

       When a defendant has no prior felony convictions and the trial court finds
mitigating but no enhancement factors, it “may” sentence the defendant as an especially
mitigated offender. T.C.A. § 40-35-109(a)(1), (2). Sentencing a defendant as an
especially mitigated offender allows the court to reduce the Range I minimum sentence
by ten percent, to reduce the release eligibility date to twenty percent, or both. T.C.A. §
40-35-109(b). The trial court’s decision to sentence an offender as an especially

                                            -6-
mitigated offender is discretionary. T.C.A. § 40-35-109, Sentencing Comm’n Cmt; see
State v. Braden, 867 S.W.2d 750, 762 (Tenn. Crim. App. 1993).

       The record here reflects that the Defendant’s offender classification was never in
dispute before the trial court. The plea agreement in the technical record reflects that the
Defendant was entering a guilty plea to reckless homicide, a Class D felony, as a Range I
offender with a thirty percent release eligibility date and a recommended sentence of two
to four years. The plea agreement, accordingly, established the parameters for the length
of the Defendant’s sentence and his release eligibility. The terms of the agreement
precluded a reduction of the release eligibility to twenty percent and identified the
recommended range as two to four years. A defendant’s knowing and voluntary guilty
plea constitutes a waiver of any challenge to offender classification or release eligibility.
Davis v. State, 313 S.W.3d 751, 760 (Tenn. 2010) (citing Hoover v. State, 215 S.W.3d
776, 780 (Tenn. 2007)). Moreover, the Defendant never presented the trial court with the
argument that he should be sentenced as an especially mitigated offender. See Tenn. R.
App. P. 36(a) (“Nothing in this rule shall be construed as requiring relief be granted to a
party responsible for an error or who failed to take whatever action was reasonably
available to prevent or nullify the harmful effect of an error.”). Because the issue was not
raised at sentencing, it is waived.

                                  II. Judicial Diversion

        The Defendant asserts that the trial court did not adequately explain why the
factors weighing against judicial diversion outweighed those in favor of diversion. The
Defendant alternatively contends that the record lacks any substantial evidence to support
the trial court’s findings regarding amenability to correction and deterrence. The State
responds that the trial court considered and weighed the proper factors and that the record
supports its discretionary decision. Because the presumption of reasonableness applies
and because the record contains evidence supporting the denial of judicial diversion, we
conclude that the Defendant is not entitled to relief.

       Judicial diversion is a “‘legislative largess’” granted to certain qualified
defendants whereby the judgment of guilt is deferred and the defendant is placed on
probation. State v. King, 432 S.W.3d 316, 323 (Tenn. 2014) (quoting State v. Schindler,
986 S.W.2d 209, 211 (Tenn. 1999)); see T.C.A. § 40-35-313(a)(1)(A) (2018). If the
defendant is successful in completing the probation assigned as part of judicial diversion,
the charges will be dismissed and the defendant may seek expungement. T.C.A. § 40-35-
313(a)(2), (b). Upon successful completion, the defendant may be restored “‘to the status
the person occupied before the arrest or indictment or information.’” State v. Dycus, 456
S.W.3d 918, 925 (Tenn. 2015) (quoting T.C.A. § 40-35-313(b)). The statute defines
which defendants are qualified to apply for judicial diversion, and the parties here do not
                                            -7-
dispute that the Defendant was a qualified to be considered for diversion. See T.C.A. §
40-35-313 (a)(1)(B)(i). However, “[t]here is no presumption that a defendant is a
favorable candidate for judicial diversion.” Dycus, 456 S.W.3d at 929.

        Like other sentencing decisions, the decision to grant or deny judicial diversion is
reviewed for an abuse of discretion. King, 432 S.W.3d at 324-25. “Reviewing courts
will find an abuse of discretion only when the trial court applied incorrect legal standards,
reached an illogical conclusion, based its decision on a clearly erroneous assessment of
the evidence, or employed reasoning that causes an injustice to the complaining party.”
State v. Banks, 271 S.W.3d 90, 116 (Tenn. 2008). Although the deferential standard of
review articulated in State v. Bise, 380 S.W.3d 682, 706 (Tenn. 2012) applies to the
decision to grant or deny judicial diversion, the common law factors which the trial court
has long been required to consider in its decision have not been abrogated. King, 432
S.W.3d at 326. Accordingly, in determining whether judicial diversion is appropriate, a
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 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.

State v. Parker, 932 S.W.2d 945, 958 (Tenn. Crim. App. 1996) (footnote omitted). In
addition to considering these factors, the trial court must weigh them against one another
and place an explanation of its ruling on the record. King, 432 S.W.3d at 326 (citing
State v. Electroplating, Inc., 990 S.W.2d 211, 229 (Tenn. Crim. App. 1998)).

       “Under the Bise standard of review, when the trial court considers the Parker and
Electroplating factors, specifically identifies the relevant factors, and places on the record
its reasons for granting or denying judicial diversion,” this court must apply a
presumption of reasonableness and uphold the trial court’s decision so long as there is
any substantial evidence to support the decision. King, 432 S.W.3d at 327. Substantial
evidence is “‘evidence which a reasoning mind would accept as sufficient to support a
particular conclusion. It consists of more than a mere scintilla of evidence but may be
somewhat less than a preponderance.’” State v. James Nathan Wilkerson, No. W1999-
00978-CCA-R3-CD, 2000 WL 763971, at *2 (Tenn. Crim. App. June 8, 2000) (quoting
Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966)); see State v. Clark, 452 S.W.3d
268, 280 (Tenn. 2014).



                                            -8-
       The trial court need not “recite” all of the factors, but the record must reflect that it
considered each factor, identified the specific factors applicable to the case, and
addressed the relevant factors. King, 432 S.W.3d at 327. “‘[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. Walter Townsend, No. W2015-02415-CCA-R3-CD, 2017 WL
1380002, at *2 (Tenn. Crim. App. Apr. 13, 2017) (quoting State v. Cutshaw, 967 S.W.2d
332, 344 (Tenn. Crim. App. 1997)). When the trial court has neglected to consider and
weigh the factors, its decision may either be reviewed de novo or remanded for
reconsideration by the trial court. King, 432 S.W.3d at 327-28.

       Although the Defendant contends that the trial court did not adequately weigh the
required factors, the record reflects that the trial court considered all of the factors listed
in Parker and Electroplating and made a determination regarding whether each weighed
in favor of or against judicial diversion. The trial court ultimately concluded that it
would give more weight to the factors weighing against judicial diversion, the
Defendant’s amenability to correction and the need for deterrence, than to those that
weighed in favor of judicial diversion. Accordingly, the presumption of reasonableness
applies, and we will uphold the trial court’s decision so long as there is any substantial
evidence to support the decision. See King, 432 S.W.3d at 327.

        The Defendant alternatively asserts that there is no substantial evidence in the
record to support the conclusion that he was not amenable to correction. He contends
that his positive work and social history, absence of drug or alcohol addiction, low risk of
reoffending, clean driving record, and the trial court’s finding, made in determining
probation, that the Defendant was likely to abide by the terms of probation and was not a
danger to the public, all demonstrate his amenability to correction. He argues that the
statement relied on by the trial court that he wished to “move forward” did not constitute
substantial evidence of a lack of amenability to correction.

       The trial court found that while the Defendant expressed the “tender notion” that
the victim was on his mind daily, his statement in the presentence report indicated that he
wanted “to put this inconvenient truth behind him.” In particular, the trial court noted
that the Defendant never acknowledged the criminality of his conduct and that the
victim’s death “was an accident in his mind” rather than the result of his reckless
conduct. A defendant’s unwillingness to accept responsibility may “reflect unfavorably
on his amenability to correction.” Electroplating, Inc., 990 S.W.2d at 230; see State v.
Daniel T. Maupin, No. M2016-01483-CCA-R3-CD, 2017 WL 4331053, at *10 (Tenn.
Crim. App. Sept. 28, 2017); State v. Jesse Grant Craven, Tommy Davenport, and Greg
Pope, No. M2010-00516-CCA-R9-CO, 2011 WL 2201141, at *10 (Tenn. Crim. App.
May 27, 2011). The failure to admit any wrongdoing or accept any responsibility is a
                                             -9-
relevant consideration to the denial of diversion. Stanton v. State, 395 S.W.3d 676, 688-
89 (Tenn. 2013) (analyzing the denial of pretrial diversion). According to the record, the
Defendant consumed alcohol prior to the accident, passed other vehicles, moved over to
avoid oncoming traffic, and went over the edge of the narrow road. The record supports
the trial court’s conclusion that while the Defendant expressed regret at the victim’s
death, he never acknowledged or expressed remorse regarding his reckless conduct.
None of the Defendant’s statements include an acknowledgement that the victim’s death
was anything but a tragic accident. The record contains “evidence which a reasoning
mind would accept as sufficient to support” the conclusion that the Defendant’s failure to
acknowledge the criminality of his conduct reflects on his amenability to correction. See
James Nathan Wilkerson, 2000 WL 763971, at *2.

        The Defendant also argues that the record does not contain substantial evidence
supporting the trial court’s conclusion that judicial diversion should be denied based on
the need for deterrence because the trial court did not consider the DOS report or the
newspaper articles. The trial court noted that the DOS report contained statistics for the
State of Tennessee as a whole and would not necessarily reflect the need for deterrence
within the county. The trial court stated that “the media accounts may or may not suggest
any sort of deterrence,” but quickly followed by stating that the publicity “certainly
shows that there is an interest by the public in these types of things.” The court noted,
however, that no members of the media were present for sentencing. We conclude that
the trial court apparently considered but did not rely on the DOS statistics. The trial court
also properly considered that the victim’s death had received some media attention, and it
noted that this indicated “that there is an interest by the public in these types of things.”

       The Defendant further suggests that the proof in the record was insufficient under
State v. Hooper, 29 S.W.3d 1, 10 (Tenn. 2000), to establish a need for deterrence because
the DOS report indicated a decline in the offense and the newspaper articles did not show
coverage above that in a typical case. When the denial of probation is based solely on
deterrence, the record must establish that: “(1) a need to deter similar crimes is present in
the particular community, jurisdiction, or in the state as a whole, and (2) incarceration of
the defendant may rationally serve as a deterrent to others similarly situated and likely to
commit similar crimes.” Hooper, 29 S.W.3d at 10. Hooper further outlines several
factors to be considered in determining “whether a need for deterrence is present and
whether incarceration is ‘particularly suited’ to achieve that goal.” Id. at 10-12.

       We note initially that Hooper required these findings about deterrence in the
context of probation. Recently, the Tennessee Supreme Court has expressly declined to
determine whether the same considerations apply in the context of judicial diversion. In
State v. Hamilton, the defendant argued that the prosecutor failed to address the Hooper
factors in the denial of pretrial diversion, and the Tennessee Supreme Court concluded
                                           - 10 -
that, because other factors supported the denial of diversion, “the prosecutor did not err
by failing to enumerate the Hooper factors, even assuming, without deciding, that
Hooper applies to the current pretrial diversion statute.” 498 S.W.3d 7, 19 n.7 (Tenn.
2016); but see Hooper, 29 S.W.3d at 8 n.9 (noting that “deterrence in pre-trial diversion
cases is guided by the same considerations as deterrence in probation cases”); cf. King,
432 S.W.3d at 327 (noting that the factors to be analyzed for pretrial diversion are
identical to those in judicial diversion cases). This court has likewise distinguished
Hooper on the basis that it involved probation rather than judicial diversion. See Dylan
Ward Hutchins, 2016 WL 7378803, at *6 (upholding the denial of judicial diversion
when the defendant argued that the trial court did not engage in the proper analysis under
Hooper but the record reflected the denial was based on several factors including
deterrence).

       The holding in Hooper clarified that additional findings were necessary only when
the need for deterrence was the sole basis for incarceration, and this court has rejected the
argument that the Hooper factors must be addressed in a judicial diversion case when
other factors weighed against judicial diversion. Id. at *6-7; State v. Rosa Emma
Honeycutt, No. E2015-00790-CCA-R3-CD, 2016 WL 5540224, at *5 (Tenn. Crim. App.
Sept. 29, 2016) (analyzing deterrence without relying on the Hooper factors); State v.
Jared M. Barnes, No. E2001-00325-CCA-R3-CD, 2001 WL 1565484, at *7 (Tenn. Crim.
App. Dec. 10, 2001) (concluding that the denial was supported even if the trial court
could not consider deterrence for failure of the prosecution to introduce proof on the
Hooper factors); see Hooper, 29 S.W.3d at 13. Because the trial court’s denial of judicial
diversion was supported by other findings, we likewise do not decide whether Hooper
applies to a determination regarding judicial diversion.

       Ultimately, the trial court relied on the Defendant’s lack of amenability to
correction, as evinced by his failure to accept responsibility, as well as deterrence in
denying judicial diversion. Because the record is not void of any substantial evidence to
support the denial of judicial diversion, we conclude that the trial court did not abuse its
discretion.

                                      III. Probation

        The Defendant asserts that the trial court erred in denying him full probation
because the record does not establish a need for deterrence and because the record does
not establish the need to avoid depreciating the seriousness of the offense. The State
responds that the trial court made appropriate findings supporting incarceration and
properly relied on the DOS report and the newspaper reports. We conclude that, because
the trial court relied on multiple bases in denying probation, the heightened standard of
review does not apply and the trial court did not abuse its discretion.
                                           - 11 -
       This court reviews a decision regarding alternative sentencing under an abuse of
discretion standard, accompanied by a presumption of reasonableness when the sentence
falls within the appropriate range and reflects that the decision was based on the purposes
and principles of sentencing. State v. Caudle, 388 S.W.3d 273, 278-79 (Tenn. 2012).
“[A] trial court’s decision to grant or deny probation will not be invalidated unless the
trial court wholly departed from the relevant statutory considerations in reaching its
determination.” State v. Sihapanya, 516 S.W.3d 473, 476 (Tenn. 2014) (order) (per
curiam). In reviewing for abuse of discretion, an appellate court may not substitute its
judgment for that of the trial court. Id. at 475.

        The party appealing the sentence has the burden of demonstrating its impropriety.
T.C.A. § 40-35-401, Sentencing Comm’n Cmt. Likewise, the Defendant bears the
burden of establishing that he is a suitable candidate for probation. T.C.A. § 40-35-
303(b). “This burden includes demonstrating that probation will ‘subserve the ends of
justice and the best interest of both the public and the defendant.’” State v. Carter, 254
S.W.3d 335, 347 (Tenn. 2008) (quoting State v. Housewright, 982 S.W.2d 354, 357
(Tenn. Crim. App. 1997)).

       A defendant is eligible for probation if the actual sentence imposed upon the
defendant is ten years or less and the offense for which the defendant is sentenced is not
excluded by statute. T.C.A. § 40-35-303(a). Defendants who have committed the most
severe offenses, whose criminal histories evince a clear disregard for the laws and morals
of society, and who evince a failure of past efforts at rehabilitation are to receive priority
for incarceration. T.C.A. § 40-35-102(5). A standard offender convicted of a Class C, D,
or E felony who does not fall into the categories listed above “should be considered as a
favorable candidate for alternative sentencing options in the absence of evidence to the
contrary.” T.C.A. § 40-35-102(6)(A). The court “shall consider, but is not bound by”
this guideline. T.C.A. § 40-35-102(6)(D).

      In determining whether incarceration is an appropriate sentence, the trial court
should consider whether:

              (A) Confinement is necessary to protect society by restraining
              a defendant who has a long history of criminal conduct;

              (B) Confinement is necessary to avoid depreciating the
              seriousness of the offense or confinement is particularly
              suited to provide an effective deterrence to others likely to
              commit similar offenses; or



                                            - 12 -
              (C) Measures less restrictive than confinement have
              frequently or recently been applied unsuccessfully to the
              defendant.

T.C.A. § 40-35-103(1)(A)-(C). Additionally, “[t]he sentence imposed should be the least
severe measure necessary to achieve the purposes for which the sentence is imposed,”
and “[t]he potential or lack of potential for the rehabilitation or treatment of the defendant
should be considered in determining the sentence alternative or length of a term to be
imposed.” T.C.A. § 40-35-103(4), (5).

       The Tennessee Supreme Court’s order in State v. Sihapanya indicates that when
the denial of alternative sentencing is based solely on a concern regarding depreciating
the seriousness of the offense or solely on deterrence, this court must apply a “heightened
standard of review.” 516 S.W.3d at 476. When alternative sentencing is denied based on
the seriousness of the offense, “‘the circumstances of the offense as committed must be
especially violent, horrifying, shocking, reprehensible, offensive or otherwise of an
excessive or exaggerated degree, and the nature of the offense must outweigh all factors
favoring a sentence other than confinement.’” State v. Trotter, 201 S.W.3d 651, 654
(Tenn. 2006) (quoting State v. Grissom, 956 S.W.2d 514, 520 (Tenn. Crim. App. 1997)).
When the denial of probation is based solely on deterrence, the record must establish that:
“(1) a need to deter similar crimes is present in the particular community, jurisdiction, or
in the state as a whole, and (2) incarceration of the defendant may rationally serve as a
deterrent to others similarly situated and likely to commit similar crimes.” Hooper, 29
S.W.3d at 10. Under Hooper, in determining whether the record demonstrates a need for
deterrence, the trial court should consider the following factors:

       (1) Whether other incidents of the charged offense are increasingly present
       in the community, jurisdiction, or in the state as a whole.

       (2) Whether the defendant’s crime was the result of intentional, knowing,
       or reckless conduct or was otherwise motivated by a desire to profit or gain
       from the criminal behavior.

       (3) Whether the defendant’s crime and conviction have received substantial
       publicity beyond that normally expected in the typical case.

       (4) Whether the defendant was a member of a criminal enterprise, or
       substantially encouraged or assisted others in achieving the criminal
       objective.



                                            - 13 -
       (5) Whether the defendant has previously engaged in criminal conduct of
       the same type as the offense in question, irrespective of whether such
       conduct resulted in previous arrests or convictions.

State v. Bottoms, 87 S.W.3d 95, 104 (Tenn. Crim. App. 2001) (citing at Hooper, 29
S.W.3d at 10-12). The court need not find that all the factors are present to order
incarceration, and may consider other factors so long as they are stated with specificity
and supported by the record. Hooper, 29 S.W.3d at 12.

       In Sihapanya, the defendant, who had no criminal record and a positive social
history, had been drinking, had stayed up all night, and had caused a fatal accident. 516
S.W.3d at 475. This court found that the trial court did not err in denying judicial
diversion but erred in denying probation because there was insufficient evidence in the
record to show that the defendant’s conduct was aggravated in order to support a need for
deterrence or need to avoid depreciating the seriousness of the offense. State v. Kyto
Sihapanya, No. W2012-00716-CCA-R3-CD, 2013 WL 6001925, at *8 (Tenn. Crim.
App. Nov. 8, 2013), aff’d in part, rev’d in part by State v. Sihapanya, 516 S.W.3d 473
(Tenn. 2014). The Tennessee Supreme Court reversed the part of the decision related to
probation, concluding that because the trial court’s denial of probation was based on
combining “the need to avoid depreciating the seriousness of the offense with the need
for deterrence and the nature and circumstances of the offense,” the heightened standards
of review in Trotter and Hooper did not apply. Sihapanya, 516 S.W.3d at 476; see State
v. Daniel Edrick Lutrell, No. W2016-01947-CCA-R3-CD, 2017 WL 2876249, at *1
(Tenn. Crim. App. July 6, 2017) no perm. app. filed (upholding denial of probation based
on both depreciating the seriousness of the offense and deterrence when the defendant
pled guilty to vehicular homicide by reckless conduct after having consumed alcohol and
driven at excessive speeds); see also State v. Kenneth Guthrie, No. M2017-02441-CCA-
R3-CD, 2019 WL 978687, at *5 (Tenn. Crim. App. Feb. 27, 2019), no perm. app. filed;
State v. Robin Kathern Burton, No. E2016-01597-CCA-R3-CD, 2017 WL 3923556, at *3
(Tenn. Crim. App. Sept. 7, 2017), no perm. app. filed.

       We conclude that, as in Sihapanya, the heightened standard of review does not
apply because the denial of probation was based on the need to avoid depreciating the
seriousness of the offense, the need for deterrence, and the nature and circumstances of
the offense. The trial court, examining whether the offense was “enormous and gross and
heinous,” found that it was a “tragic wreck” and that “the victim clearly died a horrible,
horrible death.” It also determined that the newspaper articles indicated an interest by the
public in the offense.

      The record reflects that, although the Defendant ultimately pled guilty to reckless
homicide rather than vehicular homicide by intoxication, the Defendant’s failure to
                                           - 14 -
maintain his lane and ultimate plunge down the cliff was accompanied by the
consumption of alcohol. He acknowledged having consumed five to six beers in the
hours prior to the accident, and he placed a large amount of alcohol in the ATV. The
presentence report indicates that the trooper who responded observed the Defendant
exhibit signs of intoxication. See State v. Micah Alexander Cates, No. E2014-01322-
CCA-R3-CD, 2015 WL 5679825, at *12 (Tenn. Crim. App. Sept. 28, 2015) (upholding
the denial of probation to a defendant convicted of vehicular homicide by intoxication
when the trial court found that the accident was horrific, involved alcohol and excessive
speed, and that the defendant gave no thought to the consequences of his actions). While
the Defendant has certainly demonstrated a positive social history, an absence of criminal
history, a low risk of reoffending, and a good potential for rehabilitation, we conclude
that the trial court’s denial of probation based on depreciating the seriousness of the
offense, deterrence, and the circumstances surrounding the offense was not an abuse of
discretion but was in keeping with the purposes and principles of sentencing.

                              IV. Facts Outside the Record

       The Defendant also challenges the trial court’s sentencing decisions based on its
reliance on facts not in the record. In particular, the Defendant notes the trial court’s
references to the culture of invulnerability in the “ATV world,” its reference to
recklessness in the use of ATVs, its mention of another case in which “outdoor
behaviors” resulted in a death, and its observation that “this type of thing [was] on the
verge of being a major problem” in two counties in which the trial judge presided.

       A trial court should not “‘assume facts not in the record, base a sentence on
extraneous facts, or take judicial notice of facts not available to this court nor included in
the record transmitted to this court.’” State v. Nunley, 22 S.W.3d 282, 287 (Tenn. Crim.
App. 1999) (quoting State v. Smith, 735 S.W.2d 859, 864 (Tenn. Crim. App. 1987))
(relying on the fact that appellate courts review sentences de novo as a rationale). This is
because “[a] trial court’s extrajudicial observations are not the proper basis for
sentencing.” State v. Shani Carr, No. M2002-02261-CCA-R3-CD, 2003 WL 1018142, at
*4 (Tenn. Crim. App. Mar. 11, 2003). “In other words, ‘[i]t matters not what is known to
the judge personally if it is not known to him in his official capacity.’” Vaughn v. Shelby
Williams of Tennessee, Inc., 813 S.W.2d 132, 133 (Tenn. 1991) (quoting Galbreath v.
Nolan, 429 S.W.2d 447, 450 (Tenn. Ct. App. 1967)). Furthermore, “the trial court’s
observation and general reference to the docket cannot serve as a substitute for factual
findings containing comparisons to indicate … a need for deterrence.” State v. Fields, 40
S.W.3d 435, 442 (Tenn. 2001).

       A trial court’s reliance on facts outside the judicial proceedings may constitute
reversible error. See State v. Henri Brooks, No. W2015-00833-CCA-R3-CD, 2017 WL
                                            - 15 -
758519, at *16 (Tenn. Crim. App. Feb. 27, 2017) (“Based on the trial court’s
impermissible and heavy reliance on facts not in evidence, we conclude that the trial
court abused its discretion, as the record lacks any substantial evidence to support its
findings.”); Vaughn., 813 S.W.2d at 133-34 (the trial court’s personal, extrajudicial
observations played a significant role in its exercise of discretion and warranted reversal).

        Nevertheless, in determining whether these errors warrant reversal, we examine
whether “the trial court’s personal observations played a significant role in the exercise of
judicial discretion.” Vaughn, 813 S.W.2d at 134. Reversal is not warranted when the
trial court considers facts in the record and the statutory criteria and when its decision is
“consistent with the purposes and principles of sentencing.” Sihapanya, 516 S.W.3d at
476 (“Although the trial court erroneously relied on a fact not in the record in support of
the denial of probation, the court properly considered the statutory criteria as well other
facts and circumstances supported by the record.”); see State v. Jackie Darrell Messer,
No. E2011-00156-CCA-R3-CD, 2011 WL 6016887, at *6 (Tenn. Crim. App. Dec. 5,
2011) (upholding the denial of an alternative sentence and applying a presumption of
correctness when the trial court made observations not drawn from the evidence but the
record as a whole showed that the court considered the purposes and principles of
sentencing and properly relied on other evidence). In State v. Dylan Ward Hutchins, the
defendant argued that the trial court improperly relied on facts outside the record in
denying judicial diversion. No. E2016-00187-CCA-R3-CD, 2016 WL 7378803, at *7
(Tenn. Crim. App. Dec. 20, 2016). The court’s comments included an observation from
the judge’s own teaching experience that colleges were attempting to deter the type of
crime at issue. Id. This court concluded that the decision regarding judicial diversion
was supported by substantial evidence aside from any improperly considered by the
court. Id.; compare Kalandra Lacy, 2017 WL 1969764, at *4 (reviewing denial of
judicial diversion de novo when the trial court had failed to weigh the factors, had
conducted “independent research,” and had weighed the research heavily in denying
diversion).

        In the case at bar, even if we were to conclude that the trial court improperly
referenced facts outside the record, the trial court properly also relied on facts in evidence
and the purposes and principles of sentencing in making its decision. We note that the
trial court followed some of its comments with the observation, “not that that has a whole
lot to do with this case.” The trial court based its decision to deny judicial diversion on
the Defendant’s lack of amenability to correction, as evinced by his failure to accept
responsibility for the role his recklessness played in the victim’s death. The court found
that the nature and circumstances of the offense, combined with the need to avoid
depreciating the seriousness of the crime and the need for deterrence, warranted a
sentence of split confinement. The trial court considered evidence regarding the
Defendant’s consumption of alcohol, the Defendant’s failure to acknowledge that the
                                            - 16 -
offense was more than a tragic accident, and the public’s interest in the matter.
Accordingly, we determine that even if the trial court’s comments were improper, its
decision was ultimately based on statutory criteria, proof in the record, and the purposes
and principles of sentencing. See Sihapanya, 516 S.W.3d at 476. Accordingly, the
Defendant is not entitled to relief.

                                    CONCLUSION

      Based on the foregoing analysis, we affirm the judgment of the trial court.




                                  ____________________________________________
                                   JOHN EVERETT WILLIAMS, PRESIDING JUDGE




                                          - 17 -
