         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                                     April 13, 2004 Session

                STATE OF TENNESSEE v. MICHAEL K. MILLER

                  Direct Appeal from the Criminal Court for Shelby County
                          No. 02-02085    Bernie Weinman, Judge



                      No. W2003-01621-CCA-R3-CD - Filed July 27, 2004


Aggrieved of the order to serve 90 days of his two-year sexual battery sentence in confinement, the
defendant, Michael K. Miller, appeals. We affirm the judgment of the trial court.

               Tenn. R. App. P. 3; Judgment of the Criminal Court is Affirmed.

JAMES CURWOOD WITT , JR., J., delivered the opinion of the court, in which DAVID G. HAYES and
NORMA MCGEE OGLE, JJ., joined.

Joseph Ozment and Jesse W. Dalton, III, Memphis, Tennessee, for the Appellant, Michael K. Miller.

Paul G. Summers, Attorney General & Reporter; Michael Markham, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Kevin Rardin, Assistant District Attorney
General, for the Appellee, State of Tennessee.

                                              OPINION

               During the course of his jury trial on a charge of rape of a child, the defendant entered
into an agreement with the state for the submission of a “best-interests” guilty plea. The plea
agreement specified that the defendant pleaded guilty to sexual battery, a Class E felony, and that
he would receive a Range I sentence of two years. The agreement provided that the trial court would
determine the manner of service of the sentence.

               The trial court conducted a plea-acceptance hearing pursuant to Tennessee Rule of
Criminal Procedure 11(c). The parties agreed that, had the trial progressed to a conclusion, the state
would have presented evidence that the defendant performed cunnilingus upon the victim, the six-
year-old granddaughter of the defendant’s fiancee. Following the guilty plea, the court acquired a
presentence report, see Tenn. Code Ann. §§ 40-35-205, -206 (2003), which revealed that the 43-year-
old defendant had been employed and had acquired a criminal record consisting only of February
2000 convictions of driving on a suspended license and failure to yield.
                In the sentencing hearing, see id. § 40-35-209 (2003), the defendant’s counsel adopted
the defendant’s trial testimony, in which he denied the victim’s allegations that he had sexual contact
with her in her grandmother’s home. In the hearing, the defendant testified that he was employed,
was a skilled mechanic, and had been honorably discharged from the Marines. He testified that he
held an office in his local church, where he attended meetings or services several times a week. On
cross-examination, the defendant agreed that one who commits sexual battery against a six-year-old
girl should be punished, although he maintained that he had not actually had sexual contact with the
victim.

              The trial court, determining that the seriousness of the offense should not be
diminished or depreciated, ordered the defendant to serve 90 days of his two-year sentence in
confinement. Following his release, he would remain on probation for two years.

                On appeal, the defendant claims that the trial court erred in denying his bid for full
probation, in denying periodic confinement, and in failing to consider judicial diversion. The state
argues that the trial court acted within its discretion in denying full probation and ordering split, as
opposed to periodic, confinement. We agree with the state. The state also claims in its brief that the
defendant was ineligible for judicial diversion. In oral argument, the state also posited that the
defendant forfeited any bid to gain judicial diversion because he failed to request it. We agree with
the state on this latter point. As such, we affirm the lower court’s judgment.

               When there is a challenge to the length, range, or manner of service of a sentence, it
is the duty of this court to conduct a de novo review of the record with a presumption that the
determinations made by the trial court are correct. See Tenn. Code Ann. § 40-35-401(d) (2003).
This presumption is “conditioned upon the affirmative showing in the record that the trial court
considered the sentencing principles and all relevant facts and circumstances.” State v. Ashby, 823
S.W.2d 166, 169 (Tenn. 1991).

                In making a felony sentencing determination, the trial court, at the conclusion of the
sentencing hearing, determines the range of sentence and then determines the specific sentence and
the propriety of sentencing alternatives by considering (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 enhancement and mitigating factors, (6) any
statements the defendant wishes to make in the defendant’s behalf about sentencing, and (7) the
potential for rehabilitation or treatment. See Tenn. Code Ann. § 40-35-210(a), (b) (2003); id. §
40-35-103(5) (2003); State v. Holland, 860 S.W.2d 53, 60 (Tenn. Crim. App. 1993).

                A defendant who “is an especially mitigated or standard offender convicted of a Class
C, D, or E felony is presumed to be a favorable candidate for alternative sentencing options in the
absence of evidence to the contrary.” Tenn. Code Ann. § 40-35-102(6) (2003). However, a
defendant who commits “the most severe offenses, possess[es] a criminal histor[y] evincing a clear
disregard for the laws and morals of society, and [has failed] past efforts at rehabilitation” does not


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enjoy the presumption. See id. § 40-35-102(5), (6) (2003); State v. Fields, 40 S.W.3d 435, 440
(Tenn. 2001). Furthermore, the defendant’s potential for rehabilitation or lack thereof should be
examined when determining whether an alternative sentence is appropriate. Tenn. Code Ann. §
40-35-103(5) (2003). Sentencing issues are to be determined by the facts and circumstances
presented in each case. See State v. Taylor, 744 S.W.2d 919, 922 (Tenn. Crim. App. 1987).

                The defendant in this case enjoys the presumption of favorable candidacy for
alternative sentencing. See Tenn. Code Ann. § 40-35-102(6) (2003). Moreover, he is eligible for
probation. See id. § 40-35-303(a) (2003). Unlike the presumption of favorable candidacy for
alternative sentencing in general, a defendant bears the burden of demonstrating the suitability of
probation, in particular. State v. Bingham, 910 S.W.2d 448, 455 (Tenn. Crim. App. 1995), overruled
on other grounds by State v. Hooper, 29 S.W.3d 1, 9 (Tenn. 2000). To meet that burden, the
defendant must show that probation will “subserve the ends of justice and the best interest of both
the public and the defendant.” Id. at 456 (citation omitted). In that regard, the trial court
appropriately considers the defendant’s candor and credibility, or lack thereof, as indicators of his
potential for rehabilitation. See, e.g., State v. Nunley, 22 S.W.3d 282, 289 (Tenn. Crim. App. 1999),
perm. app. denied (Tenn. 2000); State v. Goode, 956 S.W.2d 521, 527 (Tenn. Crim. App. 1997).

                Looking first at the issue of whether the trial court should have granted a shorter term
of confinement or, at least, periodic confinement, we notice that the defendant did receive an
alternative sentence. Split confinement is an alternative sentencing option. State v. James A.
Howard, No. 03C01-9608-CC-00284, slip op. at 7 (Tenn. Crim. App., Knoxville, Feb. 24, 1997).
State v. James E. Allred, No. 03C01-9504-CR-00110, slip op. at 2 (Tenn. Crim. App., Knoxville,
Mar. 20, 1996). “The benefit the defendant enjoyed in being presumed a suitable candidate for
alternative sentencing has been depleted [by the grant of alternative sentencing].” State v. Kenneth
B. Johnson, No. 02C01-9612-CR-00476, slip op. at 8 (Tenn. Crim. App., Jackson, Feb. 12, 1998).

                 Moreover, we discern no basis in the record for implementing periodic confinement,
as opposed to split confinement, or in imposing confinement shorter than 90 days. Accordingly, our
analysis is directed to whether the trial court erred in denying full probation to the defendant. See,
e.g., id. This analysis is grounded in the rule that the defendant bore the burden of demonstrating
in the trial court that he was entitled to full probation. See Bingham, 910 S.W.2d at 455.

               Because the trial court declined to review on the record the statutory principles and
considerations applicable in the present case, we decline to afford the trial court the presumption of
correctness of its sentencing determination. Nevertheless, the defendant has failed to carry his
burden on de novo appellate review of establishing entitlement to full probation.

                We are mindful that it is “proper for a trial court to look behind the plea bargain and
consider the true nature of the offenses committed.” State v. Hollingsworth, 647 S.W.2d 937, 939
(Tenn. 1983) (citing State v. Welch, 565 S.W.2d 492 (Tenn. 1978)). In the present case, the trial
court heard the victim’s testimony that the defendant had not only sexually battered the victim but
that the sexual battery to which the defendant pleaded was actually aggravated. Compare Tenn.


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Code Ann. § 39-13-505 (2003) (proscribing sexual battery, a Class E felony, as unlawful sexual
contact accomplished, inter alia, without the victim’s consent) with id. § 39-13-504 (2003)
(proscribing aggravated sexual battery, a Class B felony, as sexual battery committed against one
who is less than thirteen years of age). Thus, taking into account the “true nature” of the offense
under review as part of the “nature and circumstances of the criminal conduct” that we are mandated
to consider, see id. § 40-35-210(b)(6) (2003), we conclude, as did the trial court, that some measure
of confinement is necessary to avoid depreciating the seriousness of the offense, see, e.g., State v.
Steven A. Bush, No. 01C01-9605-CC-0022, slip op. at 6-7 (Tenn. Crim. App., Nashville, Jun. 26,
1997) (Code section 40-35-103(1)(B)’s reference to the sentencing court avoiding depreciating the
seriousness of the offense as a basis for a sentence involving confinement has conceptual genesis in
“the nature and circumstances” of the offense as a sentencing factor). We conclude that the public
interests in not depreciating the “true” offense under review justifies a sentence involving 90 days’
confinement. Accordingly, we affirm the trial court’s imposition of such a sentence.

                 In the defendant’s final issue, he claims that the trial court erred in not considering
– and presumably granting – judicial diversion. “Judicial diversion” is a reference to Tennessee
Code Annotated section 40-35-313(a)’s provision for a trial court’s deferring proceedings in a
criminal case. See Tenn. Code Ann. § 40-35-313(a)(1)(A) (2003). The result of such a deferral is
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 be found – or plead – guilty to an
offense that is not “a sexual offense or a Class A or Class B felony,” and the defendant must not have
previously been convicted of a felony or a Class A misdemeanor. Id. § 40-35-313(a)(1)(B)(i) (2003).
Diversion requires the consent of the qualified defendant. Id. § 40-35-313(a)(1)(A) (2003).

                The state argues that the defendant is ineligible for judicial diversion because he has
pleaded guilty to a sexual offense. Although Code section 40-35-313(a)(1)(B)(ii) defines “sexual
offense” as “conduct which constitutes . . . [a]ggravated sexual battery . . . ; [r]ape of a child . . . ;
[or] [s]exual battery by an authority figure,” and although the section’s definition of “sexual offense”
does not include a non-authority-figure act of sexual battery, the state claims that the reviewing court
should look to the offense charged and not to the guilty-pleaded offense in determining eligibility.
The state relies upon the section’s definition of sexual offenses as including “conduct which
constitutes” offenses such as aggravated sexual battery or rape of a child. See id. § 40-35-
313(a)(1)(B)(ii) (2003) (emphasis added).

               As interesting as this issue may be, we need not and should not adjudicate it because,
in our view, the defendant has waived our consideration of his claim to judicial diversion.

               Judicial diversion is available when a qualified defendant consents to the deferral.
See id. § 40-35-313(a)(1)(A) (2003). Although a trial court is required to automatically consider
probation for defendants who are eligible for probation, see id. § 40-35-303(b) (2003), and although
probation is a component of judicial diversion, see id. § 40-35-313(a) (2003), the Code does not
require automatic consideration of judicial diversion, which is a tentative disposition wherein a
probationary term is imposed without the entry of a conviction judgment. Moreover, the statutory


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presumption of favorable candidacy for alternative sentencing does not embrace judicial diversion
as an alternative sentence. See id. § 40-35-104 (2003); State v. Anderson, 857 S.W.2d 571, 573
(Tenn. Crim. App. 1992). Rather, the defendant hopeful of judicial diversion must consent to
deferral of the proceedings, the probationary regimen, and the payment of administrative expenses.
See Tenn. Code Ann. § 40-35-313(a) (2003). Although section 40-35-313 does not per se prescribe
a petition or application for judicial diversion, the defendant who wishes to raise the issue on appeal
must plan his reckoning with Tennessee Rule of Appellate Procedure 36(a), which provides that
“relief may not be granted in contravention of the province of the trier of fact” and that relief is not
assured to an appellant “who failed to take whatever action was reasonably available to prevent or
nullify the harmful effect of an error.”

                Therefore, we cannot countenance a request for judicial diversion raised for the first
time on appeal; the trial court had no opportunity, in the absence of the defendant’s indication of
consent to judicial diversion, to evaluate the merits of a disposition via diversion. See State v.
Hammersley, 650 S.W.2d 352, 355 (Tenn. 1983) (a court considering a diversion request must
consider, along with the circumstances of the offense, “the defendant’s criminal record, social
history, the physical and mental condition of a defendant where appropriate, and the likelihood that
pretrial diversion will serve the ends of justice and the best interest of both the public and the
defendant”). The issue of judicial diversion has been waived.

                 This determination of waiver is buttressed by the recognition that the defendant
pleaded guilty via a negotiated plea agreement that called for a specific sentence, without provision
for a judicial diversion request. In this situation, “judicial diversion was not available . . . absent a
clear understanding with the State that such a request would be made.” State v. Hollie D. Campbell,
No. E2000-00373-CCA-R3-CD, slip op. at 3 (Tenn. Crim. App., Knoxville, July 2, 2001), perm.
app. denied (Tenn. 2001).

                 For the foregoing reasons, the judgment of the trial court is affirmed. We have
noticed, however, an error in the trial court’s judgment. It fails to indicate the service of 90 days’
confinement followed by two years’ probation. The transcript of the sentencing hearing clearly
articulates the trial court’s imposition of 90 days’ confinement followed by two years’ probation.
In this situation, the transcript controls. State v. Davis, 706 S.W.2d 96, 97 (Tenn. Crim. App. 1985).
Therefore, upon remand, the trial court shall amend the judgment to reflect the terms of the sentence
as announced in the sentencing hearing transcript.




                                                        ___________________________________
                                                        JAMES CURWOOD WITT, JR., JUDGE




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