                                                                                         07/19/2018
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                          Assigned on Briefs March 21, 2018

                STATE OF TENNESSEE v. TRE DESEAN BELL

                Appeal from the Criminal Court for Davidson County
                    No. 2014-B-1563 Mark J. Fishburn, Judge
                     ___________________________________

                           No. M2017-00843-CCA-R3-CD
                       ___________________________________

The Defendant-Appellant, Tre Desean Bell, was convicted by a Davidson County jury of
voluntary manslaughter, see T.C.A. § 39-13-211, for which he received a sentence of six
years in continuous confinement. On appeal, the Defendant argues that the trial court
erred in (1) denying his request for judicial diversion; (2) imposing the maximum
sentence permissible; and (3) imposing a sentence of continuous confinement. Upon our
review, we affirm the judgment of the trial court.

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

CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which THOMAS T.
WOODALL, and NORMA MCGEE OGLE, JJ., joined.

Dawn Deaner, District Public Defender, Jeffrey A. DeVasher (on appeal), Assistant
Public Defender, James M. Chaffin (at trial and on appeal), Assistant Public Defender,
Annie Berry (at trial), Assistant Public Defender, Nashville, Tennessee, for the appellant,
Tre Desean Bell.

Herbert H. Slatery III, Attorney General and Reporter; Clark B. Thornton, Senior
Counsel; Glenn Funk, District Attorney General; and Janice Norman, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                       OPINION

       On the morning of August 2, 2013, after learning that his ex-girlfriend was in a
relationship with the victim, Delano Blair, the Defendant approached and fired several
shots at the victim and killed him. The Defendant was indicted by a Davidson County
grand jury for first degree murder, and following a jury trial, he was convicted of
voluntary manslaughter and sentenced to six years imprisonment as a Range I offender.
At the January 11, 2017 sentencing hearing, Sergeant Joseph Winters of the Metro
Nashville Police Department’s gang unit was tendered an expert in gangs and drug
investigations. Sergeant Winters described his knowledge of the Vice Lord gang and
testified that he was not previously familiar with the Defendant or the victim as gang
members. However, he explained that certain evidence adduced at trial and presented at
sentencing showed that the Defendant was likely an unknown member of the Vice Lord
gang and the People Nation. He came to this conclusion based on his review of the
database of confirmed and unknown gang members, transcripts of the Defendant’s texts
and Facebook messages, and transcripts and audio of the Defendant’s phone calls while
he was in jail.

        Sergeant Winters stated that the Defendant’s Facebook messages with various
individuals from 2010 to 2014 revealed a strong familiarity with the gang, making
“numerous references to symbols . . . associated with the People Nation [and] Vice
Lords,” including explicit statements regarding his gang rank and saying “I’m Vice
Lord[.]” Sergeant Winters also pointed out multiple references in the Defendant’s
Facebook messages from 2011 to 2014 to selling drugs, including marijuana. He noted
that the Defendant’s phone number changed often throughout the messages and explained
that “an experienced seller [of drugs] will change numbers on a fairly frequent basis just
because they’re aware of the tactics that [the police] use[.]” Over defense counsel’s
objection, those messages were admitted into evidence.

        The Defendant’s jail phone call from August 2016 was admitted into evidence and
played for the court. Sergeant Winters testified that this call was between the Defendant
and his brother, Victor, and that specific references to the Vice Lords can be heard on the
call, including the Defendant’s gang rank.

       On cross-examination, Sergeant Winters confirmed that he could not definitively
connect the victim’s murder with gang affiliation. On redirect, Sergeant Winters testified
to additional Facebook messages from the Defendant, specifically one wherein he stated,
“I gotta kill my baby mama baby daddy. He done threatened me and sh[-]t. I know
where he lives,” and “I’m ready to kill dude[.]” The recipient of those messages also
asked the Defendant, “You got a lick for me[?]” which Sergeant Winters explained
indicates “some kind of robbery or theft.” The Defendant responded that that the target
was “named Laneo (as stated), a chump,” and Sergeant Winters confirmed that “Laneo”
could reference “Lano.” These additional messages were admitted into evidence.

       The State admitted the Defendant’s presentence report and pre-trial motion
transcript into evidence and incorporated by reference “all the testimony from trial, as
well as the pretrial motions” into the sentencing hearing. The victim’s mother gave a
statement to the court on behalf of the victim’s family describing how the victim’s death
had affected them. Defense counsel introduced the statement of Rick Slaughter, which
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expressed his support of the Defendant, and presented several character witnesses. Tracy
Bates testified that she was a criminal justice teacher and had known the Defendant since
he was in middle school. She said the Defendant was not a “troublemaker” and that he
dated her daughter when they were teenagers. Bates stated that her daughter maintained
contact with the Defendant and that she was very surprised to learn that the Defendant
was involved in the instant offense. She said she did not believe the Defendant was
violent or a danger to others, but said she thought he could benefit from psychological
counseling. She testified that she supported a sentence of probation and expressed her
desire to support the Defendant once the case was over, including helping him find a job.
On cross-examination, Bates testified that she was not previously aware that the
Defendant sold drugs or that he was a gang member. Although she was disappointed in
the Defendant’s criminal activity, she said it did not change her perception of him as a
person.

        Chris Hilton testified that he had known the Defendant since middle school and
that they had maintained a friendship since then. He described the Defendant as “very
uplifting” and like a “big brother” to him and said the Defendant was one of the reasons
he went to college. He said he was “flabbergasted” and “hurt” to learn of the
Defendant’s involvement because he “never in a million years would have thought that
[the Defendant] would or he could do something like that.” Hilton testified that he
supported the Defendant receiving probation and that he would support him if he were
released. On cross-examination, Hilton testified that he was not previously aware that the
Defendant sold drugs or was a gang member. Although he was disappointed in the
Defendant’s criminal activity, he said it did not change his perception of him as a person.

        The Defendant gave an allocution to the court and explained that he did not intend
to take a life but that he was only acting out of self-defense. In response to the family’s
statement regarding the impact the victim’s death had on them, the Defendant said, “it’s
just as hard on me.” He explained that “as far as other choices that I’ve made, as in
selling weed or becoming a member of an organization, I’ve made mistakes, but I didn’t
let neither one of those things overcome the person that I really am.”

        At the conclusion of the sentencing hearing, the trial court stated that the evidence
showed that, once the Defendant learned that his ex-girlfriend was dating the victim, “he
drove up with a gun, pointed it at [the victim], [] the [victim] saw what was about to
happen and he turned to run and got shot before he could get out of the line of fire.” The
trial court said that “there’s nothing to suggest that there was any self-defense in this
case, and nothing to suggest or to justify that [the Defendant] was under some emotional
state that overwhelmed his ability to rationalize on a reasonable basis.” The trial court
reasoned:

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       [T]he [c]ourt has considered the evidence presented at the trial and at the
       sentencing hearing, the presentence report, sentencing principles embodied
       in [Tennessee Code Annotated section] 40-35-103, arguments made as to
       alternative sentencing, including judicial diversion, the nature and
       characteristics of the criminal conduct involved, the evidence and
       information offered on enhanced and in mitigating factors, the allocution
       made by the [D]efendant on his own behalf at the sentencing hearing, the
       [D]efendant’s potential for rehabilitation or treatment, as well as general
       purposes for which the Sentencing Reform Act of 1989 was enacted, as set
       forth in [Tennessee Code Annotated section] 40-35-102[.]

       The trial court found that the Defendant was a Range I, standard offender and
applied several enhancement factors but no mitigating factors. The court found that the
Defendant had a “history of criminal behavior,” including selling marijuana, pills, and
other drugs, and that he was unlikely to be amenable to correction as “he knew that he
was doing wrong and he continued to do it for a period of at least four years[.]” The
court determined that there may have been other people in the area where the shooting
occurred, creating a risk to human life, but stated that it was not putting significant
weight on that factor. The court also found that the Defendant “possessed or employed a
firearm during the commission of the offense[.]” The trial court further found that there
was no evidence of provocation and that the evidence adduced at trial could have
supported a conviction of first degree murder. The court asserted that the jury rejected
the Defendant’s claim of self-defense and that there was “no evidence of self-defense at
all.” The court further rejected the Defendant’s claim that he assisted the authorities with
the case and found his allocution statement to be insincere.

       Regarding alternative sentencing, the trial court found that the Defendant’s
physical and mental conditions were in good standing, that his work history “appeared to
be good for the last couple of years[,]” that his educational history was average, that his
character “appear[ed] to have been superlative up until about the age of 17, 18,” and that
his social history reflected that, although the evidence does not show that “he was
engaged in gangster activity, [] he was engaged with a gang.” The court noted that the
Defendant’s family and community support seemed very strong but stated that “it didn’t
prevent him from committing this crime[.]” The court acknowledged that the Defendant
had a history of criminal behavior but no criminal record. The court also considered the
Defendant’s “honesty and candor[,]” finding that the evidence was in direct contradiction
to the Defendant’s testimony at trial and sentencing, and noting that the Defendant
changed his testimony regarding “very substantive issues” multiple times throughout.
The court also found that society’s interests in deterring this kind of behavior and conflict
resolution outweighed the Defendant’s interests.

                                            -4-
       The trial court ultimately concluded that “[a]lthough the [D]efendant qualifies for
alternative sentencing, the [c]ourt finds the [D]efendant is not an appropriate candidate to
receive alternative sentencing because confinement is necessary to avoid depreciating the
seriousness of the offense[.]” The trial court denied judicial diversion and alternative
sentencing and imposed a sentence of six years. The Defendant timely filed a notice of
appeal.

                                       ANALYSIS

       I. Judicial Diversion. The Defendant argues that the trial court erroneously
denied his request for judicial diversion by relying on the circumstances of the offense
and finding that the Defendant was not amenable to correction, even though “many other
relevant factors weighed in the [D]efendant’s favor[.]” The State responds that, although
the Defendant was “indisputably a ‘qualified defendant’” for judicial diversion, the trial
court properly considered and weighed the applicable factors in denying the Defendant’s
request for judicial diversion. Upon review, we agree with the State.

       In State v. King, 432 S.W.3d 316, 324-25 (Tenn. 2014), the Tennessee Supreme
Court held that the abuse of discretion standard of review accompanied by a presumption
of reasonableness, which was delineated in Bise and its progeny, applied to appellate
review of a trial court’s decision to grant or deny judicial diversion. However, the court
made clear that the application of the Bise standard of review does not abrogate the
common law factors for judicial diversion set out in State v. Parker, 932 S.W.2d 945, 958
(Tenn. Crim. App. 1996), and State v. Electroplating, Inc., 990 S.W.2d 211, 229 (Tenn.
Crim. App. 1998).

        Tennessee Code Annotated section 40-35-313 outlines the requirements for
judicial diversion. A qualified defendant is defined as a defendant who pleads guilty to
or is found guilty of a misdemeanor or a Class C, D, or E felony; is not seeking diversion
for a sexual offense or a Class A or B felony; and does not have a prior conviction for a
felony or a Class A misdemeanor. T.C.A. § 40-35-313(a)(1)(B)(i). After a qualified
defendant either pleads guilty or is found guilty, a trial court has the discretion to defer
further proceedings and place that defendant on probation without entering a judgment of
guilt. T.C.A. § 40-35-313(a)(1)(A). Upon the qualified defendant completing a period of
probation, the trial court is required to dismiss the proceedings against him. T.C.A. § 40-
35-313(a)(2). The qualified defendant may then request that the trial court expunge the
records from the criminal proceedings. T.C.A. § 40-35-313(b).

       The trial court must consider the following factors in deciding whether a qualified
defendant should be granted judicial diversion: (1) the defendant’s amenability to
correction; (2) the circumstances of the offense; (3) the defendant’s criminal record; (4)
                                           -5-
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 interests of the public as well as the defendant. Electroplating, Inc., 990 S.W.2d at
229 (citing Parker, 932 S.W.2d at 958; State v. Bonestel, 871 S.W.2d 163, 168 (Tenn.
Crim. App. 1993)). The trial court may consider the following additional factors: “‘the
[defendant]’s attitude, behavior since arrest, prior record, home environment, current
drug usage, emotional stability, past employment, general reputation, marital stability,
family responsibility and attitude of law enforcement.’” State v. Washington, 866
S.W.2d 950, 951 (Tenn. 1993) (quoting State v. Markham, 755 S.W.2d 850, 852-53
(Tenn. Crim. App. 1988) (citations omitted)). The trial court must weigh all of the
factors in determining whether to grant judicial diversion. Electroplating, Inc., 990
S.W.2d at 229 (citing Bonestel, 871 S.W.2d at 168). Finally, “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. Cutshaw, 967 S.W.2d 332, 344 (Tenn. Crim. App. 1997) (citing
Bonestel, 871 S.W.2d at 168).

       Turning to the case sub judice, the Defendant argues that the factors significantly
weigh in his favor, asserting that he has no criminal history, that he is amenable to
correction, and that the circumstances of the offense, while serious, were not so grave to
outweigh the remaining factors. The State responds that the trial court properly
considered and weighed the necessary factors in its determination to deny judicial
diversion, emphasizing the deterrence value.

       In denying judicial diversion, the trial court acknowledged that the Defendant had
no prior convictions and that his mental and physical conditions were in good condition.
However, the court stated:

       He showed his ability to be a responsible, productive citizen, but chose,
       despite that ability, to engage in a regular course of criminal activity
       throughout the same period of time, if not longer, than his work period. It
       didn’t impede his criminal activity at all in terms of selling drugs. So the
       fact that he had a fairly decent work history loses a lot of effectiveness or
       weight because it didn’t deter him from continuing to engage in criminal
       activity.

The court ultimately concluded that the Defendant was “not an appropriate candidate to
receive alternative sentencing because confinement is necessary to avoid depreciating the
seriousness of the offense[.]” The trial court further expressed that the denial of judicial
diversion would serve the best interests of the public.

                                           -6-
        Our review of the record demonstrates that the trial court explicitly analyzed each
of the Electroplating, Inc. and Parker factors on the record during its ruling. The trial
court considered and weighed all of the required factors, identified those most relevant to
the case, and placed on the record its reasons for denying diversion. Thus, the trial
court’s decision is presumed reasonable. Although the Defendant asserts that he was the
perfect candidate for judicial diversion, the record reflects that several factors weighed
against the Defendant, including the seriousness of the offense, amenability to correction,
and deterrence value. See State v. Parsons, 437 S.W.3d 457, 496 (Tenn. Crim. App.
2011) (affirming the denial of judicial diversion where the defendant’s amenability to
correction and the circumstances of the offense weighed heavily against judicial
diversion despite the satisfactory remaining factors) (citing State v. Jonathan B. Dunn,
No. M2005-01268-CCA-R3-CD, 2006 WL 1627335, at *9 (Tenn. Crim. App. June 12,
2006) (affirming the denial of judicial diversion where, even though several factors
weighed in the defendant’s favor, the circumstances of the offense were “particularly
troublesome”)); State v. Brian Carl Lev, No. E2004-01208-CCA-R3-CD, 2005 WL
1703186, at *3 (Tenn. Crim. App. Mar. 22, 2005) (“The denial of judicial diversion may
be based solely on the nature and circumstances of the offense, so long as all the other
relevant factors have been considered, and this factor outweighs others that might
favorably reflect on the [defendant]’s eligibility.”) (citing State v. Curry, 988 S.W.2d
153, 158 (Tenn. 1999)). The trial court determined, and we agree, that these factors
outweighed the other factors considered by the court. Accordingly, we conclude that the
trial court did not abuse its discretion in denying the Defendant judicial diversion. He is
not entitled to relief.

       II. Excessive Sentencing. The Defendant also argues that the trial court erred in
sentencing him to the maximum sentence within the applicable statutory range and erred
in denying him probation or alternative sentencing by imposing a sentence of continuous
confinement. The State responds that the trial court properly sentenced the Defendant
within the statutory requirements. Upon review, we agree with the State.

       This court reviews a trial court’s sentencing determinations under “an abuse of
discretion standard of review, granting a presumption of reasonableness to within-range
sentencing decisions that reflect a proper application of the purposes and principles of our
Sentencing Act.” State v. Bise, 380 S.W.3d 682, 707 (Tenn. 2012). Moreover, “a trial
court’s misapplication of an enhancement or mitigating factor does not invalidate the
sentence imposed unless the trial court wholly departed from the 1989 Act, as amended
in 2005.” Id. at 706. “So long as there are other reasons consistent with the purposes and
principles of sentencing, as provided by statute, a sentence imposed by the trial court
within the appropriate range should be upheld.” Id. This standard of review also applies
to “questions related to probation or any other alternative sentence.” State v. Caudle, 388
S.W.3d 273, 278-79 (Tenn. 2012).
                                           -7-
      Pursuant to the 2005 amendments to the Sentencing Act, a trial court must
consider the following when determining a defendant’s specific sentence and the
appropriate combination of sentencing alternatives:

       (1) The evidence, if any, received at the trial and the sentencing hearing;
       (2) The presentence report;
       (3) The principles of sentencing and arguments as to sentencing
       alternatives;
       (4) The nature and characteristics of the criminal conduct involved;
       (5) Evidence and information offered by the parties on the mitigating and
       enhancement factors set out in § 40-35-113 and 40-35-114;
       (6) Any statistical information provided by the administrative office of the
       courts as to sentencing practices for similar offenses in Tennessee;
       (7) Any statement the defendant wishes to make in the defendant’s own
       behalf about sentencing; and
       (8) The result of the validated risk and needs assessment conducted by the
       department and contained in the presentence report.

T.C.A. § 40-35-210(b). The defendant has the burden of showing the impropriety of the
sentence on appeal. T.C.A § 40-35-401(d), Sentencing Comm’n Cmts. In determining
the proper sentence, the trial court must consider the defendant’s potential for
rehabilitation or treatment. T.C.A. §§ 40-35-102(3)(C), -103(5). In addition, the court
must impose a sentence “no greater than that deserved for the offense committed” and
“the least severe measure necessary to achieve the purposes for which the sentence is
imposed[.]” T.C.A. § 40-35-103(2), (4).

       We note that the trial court’s determination of whether the defendant is entitled to
an alternative sentence and whether the defendant is a suitable candidate for full
probation are different inquiries with different burdens of proof. State v. Boggs, 932
S.W.2d 467, 477 (Tenn. Crim. App. 1996). The defendant has the burden of establishing
suitability for full probation, even if the defendant is considered a favorable candidate for
alternative sentencing. Id. (citing T.C.A. § 40-35-303(b) (1994 Supp.)).

       A. Imposition of Maximum Sentence. The Defendant argues that the trial court
imposed an excessive sentence. The Defendant specifically argues that the trial court
erroneously applied enhancement factors without applying relevant mitigating factors.
The State argues that the trial court properly imposed the maximum within-range
sentence in this case and based its decision on the relevant factors and sentencing
principles. Upon review, we conclude that the trial court did not abuse its discretion in
sentencing the Defendant within the applicable statutory range.

                                            -8-
       The Defendant asserts that he should have received the benefit of three mitigating
factors: (1) he committed the instant offense under unusual circumstances and did not
have the proper motive; (2) he has no criminal record and expressed his “genuine
remorse;” and (3) his sentence was not in line with the principles and purposes of the
Sentencing Act. The Defendant further argues that the trial court’s imposition of the
maximum sentence was “greater than that deserved for the offense committed” and was
not “the least severe measure necessary to achieve the purposes for which the sentence
[was] imposed[.]” T.C.A. § 40-35-103(2), (4).

        Here, the Defendant was convicted of voluntary manslaughter and was subject to a
sentencing range of three to six years as a Range I offender convicted of a Class C felony.
See T.C.A. §§ 39-13-211(b), 40-35-105(b), -112(a)(3). Thus, the trial court’s sentence of
six years was within the statutory range. In determining the appropriate length of the
sentence, the trial court applied several enhancement factors, including his history of
criminal behavior, his possession and employment of a firearm during the offense, and
his lack of hesitation to commit a crime when the risk to human life was high. See
T.C.A. § 40-35-114(1), (9), (10). The trial court did not find that any mitigating factors
applied. On appeal, the Defendant argues that that the trial court relied solely on the risk
to human life factor in its sentencing. However, the trial court explicitly stated that,
while it considered this factor in its decision and multiple people were out in the
neighborhood when the shooting occurred, it did not give it much weight. The record
reflects that enhancement of the Defendant’s sentence was supported by the proper
application of these factors. The trial court thoroughly considered the purposes and
principles of sentencing before imposing a within-range sentence of six years. See Bise,
380 S.W.3d at 707-08. The Defendant is not entitled to relief.

        B. Imposition of Continuous Confinement. The Defendant also argues that the
trial court erred in imposing a sentence of continuous confinement. Specifically, he
contends that the trial court failed to consider him for probation or alternative sentencing
and that he does not meet the requirements for continuous confinement. The State
responds that the trial court properly sentenced the Defendant to continuous confinement
instead of probation by finding that “confinement was necessary to avoid depreciating the
seriousness of the offense.” Upon review, we conclude that the trial court did not abuse
its discretion in denying an alternative sentence in this case.

       The Defendant maintains that he does not have a long history of criminal behavior,
that he does not have any prior convictions, that the State did not present evidence to
show that a sentence of confinement would deter others in the jurisdiction from
committing similar criminal acts, and that the Defendant has not previously been the
subject of failed rehabilitative measures. The Defendant therefore asserts that he should
have been granted supervised probation for his sentence.
                                           -9-
        Here, the Defendant was eligible for probation because his sentence was ten years
or less and because the offense was not specifically excluded by statute. See T.C.A. §
40-35-303(a); State v. Langston, 708 S.W.2d 830, 832-33 (Tenn. 1986) (concluding that
a defendant is eligible for probation if each of the sentences is ten years or less regardless
of the effective sentence). However, an eligible defendant “is not automatically entitled
to probation as a matter of law.” T.C.A. § 40-35-303(b), Sentencing Comm’n Cmts.
Although the trial court shall automatically consider probation as a sentencing alternative
for eligible defendants, the defendant bears the burden of proving his or her suitability for
probation. T.C.A. § 40-35-303(b). The defendant must demonstrate that probation
would serve “the ends of justice and the best interest of both the public and the
defendant.” State v. Souder, 105 S.W.3d 602, 607 (Tenn. Crim. App. 2002) (citations
omitted).

        Here, the trial court properly concluded that the Defendant was not deserving of an
alternative sentence as the seriousness of the particular facts of his offense required
confinement in order to deter similar behavior. The trial court was also concerned with
the Defendant’s history of criminal activity, dishonesty, and lack of candor. The record
reflects that the trial court considered the relevant enhancement and mitigating factors in
determining the proper sentence for the Defendant. The record also reflects that the trial
court complied with the appropriate statutes and sentenced the Defendant within the
range applicable to his conviction. Furthermore, the Defendant has failed to prove that he
was suitable for probation or that probation would serve the best interests of himself and
the public. Because the record shows that the trial court carefully considered the
evidence, the enhancement and mitigating factors, and the purposes and principles of
sentencing prior to imposing a sentence of confinement, we conclude that the Defendant
has failed “to either establish an abuse of discretion or otherwise overcome the
presumption of reasonableness afforded” to the trial court’s sentence in this case.
Caudle, 388 S.W.3d at 280. The Defendant is not entitled to relief.

                                      CONCLUSION

       Based on the foregoing reasoning and analysis, the judgment of the trial court is
affirmed.


                                              ____________________________________
                                              CAMILLE R. MCMULLEN, JUDGE




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