         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT NASHVILLE             FILED
                              MAY SESSION, 1998         September 10, 1998

                                                      Cecil W. Crowson
STATE OF TENNESSEE,             )                   Appellate Court Clerk
                                     C.C.A. NO. 01C01-9707-CC-00306
                                )
      Appellee,                 )
                                )
                                )    WILLIAMSON COUNTY
VS.                             )
                                )    HON . DON ALD P . HARR IS
TIMOTHY LANE,                   )    JUDGE
                                )
      Appe llant.               )    (Direct Appeal - Judicial Diversion)




FOR THE APPELLANT:                   FOR THE APPELLEE:

J. TIMOTHY STREET                    JOHN KNOX WALKUP
136 Fo urth Ave nue, So uth          Attorney General and Reporter
Franklin, TN 37064
                                     KAREN M. YACUZZO
E. COVINGTON JOHNSON                 Assistant Attorney General
136 Fo urth Ave nue, So uth          425 Fifth Avenu e North
Franklin, TN. 37064                  Nashville, Tn. 37243

                                     JOE D. BAUGH, JR.
                                     District Attorney General

                                     MARK PURYEAR
                                     Assistant District Attorney
                                     P. O. Box 937
                                     Franklin, TN 37065-0937



OPINION FILED ________________________

AFFIRMED

JERRY L. SMITH, JUDGE
                                 OPINION

      On March 25, 1997, in the Williamson County Circuit Court, the Appella nt,

Timothy L. Lane , pled guilty to a charge of aggra vated assa ult. As a Range I

standard offender, he was sentenced to a two year sus pended sentence a nd five

years of supervised probation. Mr. Lane was also ordered to continue counseling

with respect to the issues which had caused him to attack the victim, and he was

ordered to pa y restitution to the victim for the injuries su stained by her.



      The Appe llant pre sents one is sue fo r our co nside ration o n app eal:

      Whether the trial c ourt er red in refusing to grant the Appellant so-
      called judicial diversion pursuant to Tennessee Code Annotated
      Section 40-35-313.


      We find that the judgment of the trial court must be affirmed.



                          I. FACTUAL BACKGROUND

      In November, 1994, the Appellant was charged with two counts of

aggravated assault involving an attack upon Ms. T eresa McC ord, the Appe llant’s

sister. Mr. Lane applied fo r pretrial divers ion pursu ant to Tennessee Code

Annotated Section 40-35-1 01, et seq.          This application was denied and an

interlocutory appe al to this Court was gra nted. State v. Lane, Williamso n County,

No. 01C01-9 506-CC -00213 (T enn. Crim. App. Sept. 5, 1996).                      The

circumstances surrounding the charges against the Appellant are summarized

in that opinion:




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       On Septem ber 29, 1 994, the defendant resided in a trailer located upon
property owned by his sister, Teresa McCord, who is listed in the indictment as
the victim of the alleged offense. The defendant, now 32 years of age, is the
custodian of his two minor children; at the time of the charges, he shared his
residence with his mother. The defendant had been employed for the last
several years in security at Baptist Hospital in Nashville. Although not a high
school graduate, he has an em ployment h istory that includes work as a
dispatcher in the Fairview Police Department and work in traffic control in
Nashville. The de fendan t is licensed to carry a firearm. He has no prior criminal
record.

       An altercation occurred after the victim, who lived next door, swore out an
unlawful detainer warrant against the defen dant. After being notified of the action
by local authorities, the defendant had one or more te lephon e conve rsations w ith
the victim abou t how long he could ma intain his trailer on her prop erty.

        Later, the de fenda nt and the victim argued. While the facts are contested,
the victim claimed that the defendant attacked her in her own front year, struck
her in the face, and punched his finger into her eyes until she was helpless. The
victim, who suffered serious injuries to her eyes, was hospitalized. Photographs
in the record s ubstan tiate the severity of her injuries. The defendant claimed that
the victim initiated the altercation. He asserted that his sister grabbed him by the
throat, cuttin g off his air supply, and that he panicked, swinging wildly, until she
release d her ho ld. Lane, Slip Op. at pp. 4-5.


       This Cour t affirme d the d istrict atto rney’s denial of pretrial diversion based

on the Appellant’s lack of acceptance of responsibility for the offense and the

severity of the in juries s ustain ed by th e victim . Slip O p. p.5. T his Co urt did

indicate that judicial diversion pursuant to Tennessee Code Annotated Section

40-35-3 13, mig ht be a co nsidera tion in the futu re. Id.



       In Marc h of 19 97 the Appe llant en tered a plea o f guilty to a single count of

aggravated assault. He applied for judicial diversion pursuant to Tennessee

Code Annotated Section 40-35-313, but this request was denied and he was

sentenced to a suspended sentence and probation.



       At the hearing on the request for judicial diversion the Appellant presented

testimony concerning his good work history, and his care for his ailing mother.

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He admitted he was the aggressor in the attack on his sister and stated he was

remorseful and that he had begun counseling for the issues betwe en him and h is

sister that had led to the assault. However, the proof also showed that for over

two years after the assault the Appellant showed no remorse, made no attempt

to pay restitution an d actua lly blamed the victim fo r the incide nt. Only after the

victim, Ms. McCord told the Ap pellan t that sh e wou ld not p ress fo r his

incarceration did he “remember” he had initiated the attack and become

remor seful.



                      II. DENIAL OF JUDICIAL DIVERSION

      The Appe llant’s o nly contention in this appeal is that the trial cou rt erred in

denying him judicial diversion pursuant to Tennessee Code Annotated Section

40-35-313. We disagree.



      In order to b e cons idered fo r judicial divers ion und er Section 40-35-313,

a defendant must meet three criteria:

      (1)      conviction of a misdemeanor punishable by imprisonment or
               conviction of a Cla ss C, D, or E fe lony;

      (2)      no prior felony or Class A misdemeanor convictions;

      (3)      consent by the defendant to deferment of the proceedings and
               imposition of probation for up to the maximum sentence length for
               the crime in question.

Tenn. Code Ann. S ec. 40-3 5-313(a )(1). If these criteria are met and the trial

court sentences the defendant pursuant to Sec. 40-35-313, at the completion of

the proba tionary period the de fenda nt is disc harge d witho ut an a djudication of

guilt and the records of the entire proceeding are subject to expungement. Tenn.

Code A nn. § 40-35-3 13(a)(2) and (b ).


                                          -4-
      Although the Appellant in the instant case meets the statutory prerequisites

for judicial diversion he is not entitled to the benefits of Sec. 40-35-313 as a

matter of right. State v. Bonestal, 871 S.W.2d 163, 168 (Ten n. Crim. App . 1993).

The decision to grant or deny judicial diversion rests within the discretion of the

trial court whose decision will not be reversed on appeal if there is any substantial

evidence to support it. Tenn. Code Ann. § 40-3 5-313(a)(1); State v. Anderson,

857 S.W .2d 571 , 572 (T enn. C rim. App . 1992); Bonestal, 871 S.W.2d at 168.



      This Court had held th at in determining whether to grant judicial diversion

the trial court should co nsider:

      (1)     the defendant’s amenability to correction;
      (2)     the circumstances of the offense;
      (3)     the defendant’s criminal record;
      (4)     the defenda nt’s social history;
      (5)     the status of the defendant’s physical and mental health;
      (6)     the deterrence value to the defendant as well as others; and
      (7)     whether judicial diversion will serve the be st interests of both the
              public an d the de fendan t.


Bonestal, 871 S.W.2d at 168 (applying pretrial diversion considerations

enumerated in State v. Hammersley, 650 S.W .2d 352 (Te nn. 1983)); Anderson,

857 S.W .2d at 573 . In addition to the factors enum erated abo ve, the trial court

may conside r the defe ndant’s a ttitude and behavior sinc e his arres t. State v.

Washington, 866 S.W .2d 950-95 1 (Tenn. 19 93).



      Judicial diversion is similar in purpose to pretrial diversion and its gran t is

left to the discretion of the trial cou rt subject o nly to the sa me co nstraints

applicable to prosecutors in applying pretrial diversion. Anderson, 857 S.W.2d

at 572.     This Court has previously concluded that pretrial diversion was

appro priately denied in this case.       The question now becomes whether

                                         -5-
circumstances have sufficiently changed so as to characterize a denial of judicial

diversion as an abuse of discretion.



      In the instant case re lations between the Appellant a nd his sister have

improve d. However, only after his sister’s assurances that she would not seek

his incarceration did the Appella nt expres s his rem orse an d acce pt respo nsibility

for his actions. One could clearly conclude from this that the Ap pellan t’s remorse

is less that genuine .    He also app arently lied in his application for pretrial

diversion when he claimed his sister initiated the altercation which resulted in her

rather severe injuries.    This lack of candor also causes us doubt as to the

Appellant’s amenability to rehabilitation.



      W e therefo re con clude the trial c ourt did not ab use h is discr etion in

denying judicial diversion and granting the Appellant probation. Accordingly, the

judgment of the trial court is affirmed.




                                  ____________________________________
                                  JERRY L. SMITH, JUDGE



CONCUR:



___________________________________
GARY R. WADE, PRESIDING JUDGE


___________________________________
DAVID G. HAYES, JUDGE




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