                                                                                         06/21/2019
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                   Assigned on Briefs April 23, 2019 at Knoxville

        STATE OF TENNESSEE v. MATTHEW HOWARD NORRIS

               Appeal from the Criminal Court for Putnam County
      Nos. 17-CR-546, 17-CR-616, 17-CR-667       David A. Patterson, Judge
                    ___________________________________

                           No. M2018-01236-CCA-R3-CD
                       ___________________________________

The Defendant, Matthew Howard Norris, pleaded guilty to two counts of theft of
property valued at more than $2,500 and one count of burglary in exchange for an
effective eight-year sentence. At a subsequent sentencing hearing, the trial court ordered
that the eight-year sentence be served in the Tennessee Department of Correction. On
appeal, the Defendant asserts that the trial court erred when it denied his request for
judicial diversion and for alternative sentencing. After review, we conclude that the trial
court failed to consider the appropriate factors in determining the issue of judicial
diversion; therefore, we reverse and remand for a new sentencing hearing.

 Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Reversed
                                  and Remanded

ROBERT W. WEDEMEYER, J., delivered the opinion of the court, in which THOMAS T.
WOODALL and ROBERT H. MONTGOMERY, JR. JJ., joined.

Craig P. Fickling, District Public Defender, and Allison R. West, Assistant Public
Defender, Cookeville, Tennessee, for the appellant, Matthew Howard Norris.

Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Senior Assistant
Attorney General; Bryant C. Dunaway, District Attorney General; and Beth E. Willis,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                       OPINION
                                        I. Facts


       The Defendant was arrested for participating in repeated burglaries of storage
units. On July 10, 2017, a Putnam County grand jury indicted the Defendant in Case
Number 546 for theft of property valued over $2,500 on February 22, 2017, in Case
Number 616 for burglary and theft of property valued over $2,500 on February 4, 2017,
and in Case Number 667 for burglary and theft of property valued over $2,500 in late
December 2016. Pursuant to a plea agreement, the Defendant entered a guilty plea to the
theft charge in Case Number 546, the burglary charge in Case Number 616, and the theft
charge in Case Number 667. The agreement provided that the sentence for each
conviction would be four years, with the two sentences for the theft convictions to run
concurrently and the sentence for the burglary conviction to run consecutively, for an
effective sentence of eight years. The parties agreed to allow the trial court to determine
manner of service of the sentence. As part of the plea agreement, the State dismissed the
other charges in the indictments related to this appeal in addition to dismissing charges
from unrelated indictments.

        At the guilty plea hearing, the State offered the following factual basis in support
of the trial court’s acceptance of the Defendant’s guilty pleas.

              On 667, sometime between the dates of December 31st of ’16 and
       January 3rd of ’17, a storage unit on Pigeon Road was broken into. The
       victim reported several unit items that went missing, including ten
       machetes, a Beretta holster, three sets of soft body armor, a tactical vest,
       and multiple other items of military equipment. Detective, former
       Detective Ken Fry, who is now a sergeant on nights, but, anyways,
       investigated the case, developed [the Defendant] as a suspect. On a later
       case, his phone was confiscated. A search warrant was issued and executed
       on that search warrant -- or on that cellphone, and on the cellphone there
       were pictures of these items that I said earlier, the military equipment on his
       cellphone with text messages trying to sell those items to individuals. . . .

               On case [6]16, Detective Fry also investigated this case. This is a
       situation where on February the 4th of 2017, Officer Gibbs, with the
       Cookeville Police Department, responded to another storage unit being
       broken into. When he arrived there, there was a car there that the
       [D]efendant had brought to the scene. He was there, along with a co-
       defendant, and they were caught in the middle of the burglary at that time.
       The victim was subsequently found out and was called to the scene to
       identify all the property that was taken from the storage unit there. That car
       that was sitting there, that the [D]efendant had brought to the scene, there
       was a scooter that was pushed halfway into the back seat where him and a
       co-defendant had tried to steal that scooter, and were in the process of
       pulling the scooter into the car when they were caught by the officers.
       There was also multiple other items that were found, some Nintendos, some
       Nintendo Play Stations, some computers, some Nintendo games, a bow, a
                                            -2-
      sword, just multiple items belonging to this victim, which the victim
      identified. There were bolt cutters that were located there on scene next to
      the fence in case the storage unit had to be cut, and there were other
      burglary tools that were in the car, and all these items were packed in the
      trunk of the car when the officers showed up.

             ....

             The last case is [ ]546, and that was a situation where the state’s
      proof would be that some musical instruments were stolen out of another
      storage unit belonging to a victim here. The victim’s friend is the owner
      and/or works at C & G Mountain Music. One particular day, he realized
      that one of the victim’s items had been brought in and pawned, so he
      contacted the victim. The victim did in fact say that that drum set was his.
      Detective Fry investigated this. An individual who had gone to the music
      store with the [D]efendant had used his ID, because the [D]efendant
      claimed he didn’t have one, to pawn that set of drums. Detective Fry
      hunted that individual down, talked to that individual, and that individual
      indicated [the Defendant] as being the one who wanted to pawn the drum
      set. He goes back to the Mountain Music Store and shows a photo lineup to
      the guy working there at Mountain Music, including [the Defendant’s]
      picture in that photo lineup, and the guy said that he was the one. “He,”
      being [the Defendant], was the one who actually brought in the drum set to
      pawn that particular day.

The trial court accepted the Defendant’s guilty plea to two counts of theft of property
valued over $2500 and one count of burglary.

       At the June 8, 2018 sentencing hearing, Dannon Harbin testified that she prepared
the pre-sentence report for the Defendant’s case. The Defendant met with Ms. Harbin on
April 25, 2018. Before the drug screen, the Defendant disclosed to Ms. Harbin “that he
was going to test positive for marijuana.” The Defendant told Ms. Harbin that, “he had
tried marijuana around 2000 and his last use was 4/9/2018.” The Defendant also reported
methamphetamine use that began in January 2016. He stated that he had not used
methamphetamine since 2017. The Defendant stated that he was not taking any
prescription medication at the time. The results of the drug screen were positive for
marijuana and oxycodone. Ms. Harbin confirmed that the Defendant had not had any
drug or alcohol treatment.




                                         -3-
      During his interview with Ms. Harbin, the Defendant stated that he was employed
at Imperial Staining and Paint but provided no verification of employment. He said that
he began employment at Imperial Staining and Paint in April 2018.

        Tennessee Highway Patrol Sergeant Ronnie Simmons testified about a pending
case against the Defendant. Sergeant Simmons observed the Defendant driving a car
without wearing a seatbelt on March 12, 2018, “[o]n State Route 135, just south of the
interstate, be South Willow Avenue.” After Sergeant Simmons activated his emergency
lights, the Defendant made an abrupt turn from the left lane to the right lane and then into
a gas station parking lot. Sergeant Simmons collected the Defendant’s driver’s license
and went back to his patrol car to check the license number. As he sat in his patrol
vehicle, he observed the Defendant moving around “excessively” in the car. Sergeant
Simmons returned to the Defendant’s car and asked him about his movements. The
Defendant said he had nothing to hide and told Sergeant Simmons, “you can search me
and the vehicle.”

       Sergeant Simmons testified that, pursuant to the Defendant’s consent, he searched
the Defendant’s car and found digital scales stuffed inside work gloves inside the “glove
box.” Sergeant Simmons said that he had earlier seen the work gloves sitting on the front
passenger seat when he first obtained the Defendant’s license. On the driver’s side of the
vehicle Sergeant Simmons observed a “hard shell container” “inside the AC vent.” Upon
opening the container, Sergeant Simmons saw a baggie with what appeared to be
methamphetamine and a glass pipe. He later weighed the substance, and it was three
grams.

        After hearing the evidence, the trial court confirmed with the parties the length of
the sentences and that it was to determine the manner of service of the sentence. The
Defendant’s attorney argued in favor of probation and mentioned the Defendant’s
eligibility for judicial diversion within this context. She stated, “I think with him being
eligible for diversion, he’s a good candidate for probation.” At the conclusion of her
argument, she stated:

              So we would ask the court to consider the fact that he’s eligible for
       diversion and I don’t believe the state has presented a reason that he
       shouldn’t be given that opportunity, Your Honor. So we would ask for
       eight years of probation and judicial diversion.

       The trial court first stated the factors it was considering:

              The evidence received during the sentencing hearing; pre-sentence
       report; princip[le]s of sentencing and arguments as to sentencing
                                             -4-
      alternatives which have been laid out for the court by the attorneys. I’m
      going to take into consideration the nature and characteristics of the
      criminal conduct involved and statistical information provided by the
      Administrative Office of the Courts as to sentencing practices for similar
      offenses in Tennessee. The [D]efendant has made no statement in his
      behalf and the court has no statement for it to consider.


The trial court then made the following findings as to sentencing:

              The court is looking at mitigating and enhancement factors, but only
      as to the circumstances of the crimes and the history of the [D]efendant in
      determining whether or not he is an appropriate candidate for a probated
      sentence. The court does not know that it has a request for judicial
      diversion. It may have one made to it today, but it is going to deny judicial
      diversion. At one time eight year sentences were to be served. A sentence
      of eight, now it’s ten, and I recognize that it’s two fours that are running
      consecutively, but an eight year sentence is a real indication of serious
      offenses when we get to that point. The [D]efendant has had many charges,
      but no convictions except for traffic offenses.

             It is important for the court to consider that during his intake or his
      pre-sentence report, when he is speaking with Ms. Harbin, the court
      understands that he’s not under oath, but he is making his best effort to be
      forthright. He has shown a lack of candor and a lack of honesty with her
      when he says that he last used methamphetamine in 2017. The court finds
      that he’s using methamphetamine, has it in his vehicle at the time that the
      officer stops him in March of 2018. The court considers that as something
      which helps the court in making its decision whether or not there should be
      probation, honesty of the [D]efendant.

             The other consideration that the court makes is that he is positive for
      marijuana and oxycodone at the time that he’s doing the pre-sentence
      report. It indicates to the court that he knows he’s going to be sentenced.
      He knows that he has to do a drug screen. If he does not know that, he’s
      the only defendant that’s ever gone to the Department of Correction and not
      understood that he’s going to have a drug screen. So the drug screen comes
      back positive for marijuana, which he has been using since 2000. Eighteen
      years of marijuana use, maybe that’s [why] he has misunderstandings. But
      that misunderstanding and that use of oxycodone is something that the

                                           -5-
      court considers also as to whether or not he will be an appropriate candidate
      while on probation.

             The Strong R is an indicator to the court of how well the [D]efendant
      will do while on probation. It helps this court to understand what is the
      possibility of him reoffending. A moderate is not a, it’s not a mild or a
      strong indicator, but I’ve seen some that are not moderate and they are very
      appropriate I think for probation for the most part. I think these factors that
      the court is putting forth as it’s making its decision is what the moderate
      Strong R is and a moderate Strong R is something that indicates to the court
      that there is more than [a] small chance that he’s likely to offend again. I
      think he’s likely to offend again because he is still using controlled
      substances for which he has not a pre[s]cription and which are still illegal
      in Tennessee and he’s lying to the probation officer.

              So knowing all of that the court finds that he has a previous history
      of criminal convictions or criminal behavior. Those convictions are only
      traffic offenses, but his behavior is and it’s even previous to his plea in this
      case. The court understands that the [D]efendant has the burden of
      establishing his suitability for full probation, even if he is entitled to a
      statutory presumption of alternative sentencing. No criminal defendant is
      automatically entitled to probation as a matter of law and the court has to
      consider whether or not probation would serve the ends of justice and the
      best interest of both the public and the [D]efendant. In this case we have
      three victims. We have a bit of a crime spree where the [D]efendant is
      breaking into storage buildings. He is taking property undetected until
      finally it is detected, pawning, selling over quite a period of time. And the
      court takes that all into consideration in ordering that the eight year
      sentence is to be served in confinement, the Department of Correction
      determining when he is to be released.

It is from this judgment that the Defendant appeals.

                                       II. Analysis

        On appeal, the Defendant asserts that the trial court erred when it denied him
judicial diversion and when it denied a probation sentence. The State responds that the
trial court properly denied judicial diversion and alternative sentencing.

      The standard of review for questions related to probation or any other alternative
sentence is “‘an abuse of discretion standard of review, granting a presumption of
                                           -6-
reasonableness to within-range sentencing decisions that reflect a proper application of
the purposes and principles of our Sentencing Act.’” State v. Caudle, 388 S.W.3d 273,
278-79 (Tenn. 2012) (citing State v. Bise, 380 S.W.3d 682, 707 (Tenn. 2012). A trial
court’s decision regarding probation will only be invalidated if the 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). Under an abuse of
discretion standard, an appellate court may not substitute its judgment for that of the trial
court. Id. at 475. The application of the purposes and principles of sentencing involves a
consideration of “[t]he potential or lack of potential for the rehabilitation or treatment of
the defendant . . . in determining the sentence alternative or length of a term to be
imposed.” T.C.A. § 40-35-103(5).

                                  A. Judicial Diversion

       “Judicial diversion,” provided for in Tennessee Code Annotated section 40-35-
313(a), is the trial court’s deferring proceedings in a criminal case. See T.C.A. § 40-35-
313(a)(1)(A)(2014). Although judicial diversion is not a sentence, pursuant to such
diversion, the trial court places the defendant on probation “without entering a judgment
of guilty.” Id. To be eligible or “qualified” for judicial diversion, the defendant must
plead guilty to, or be found guilty of, 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. T.C.A. § 40-35-313(a)(1)(B)(i)(b),(c). Diversion
requires the consent of the qualified defendant. T.C.A. § 40-35-313(a)(1)(A). “[A]
‘qualified’ defendant is not necessarily entitled to diversion. Whether to grant judicial
diversion is left to the discretionary authority of the trial courts.” State v. King, 432
S.W.3d 316, 326 (Tenn. 2014). Following a determination that the defendant is eligible
for judicial diversion, the trial court must consider

       (a) the accused’s amenability to correction, (b) the circumstances of the
       offense, (c) the accused’s criminal record, (d) the accused’s social history,
       (e) the accused’s physical and mental health, and (f) the deterrence value to
       the accused as well as others. The trial court should also consider whether
       judicial diversion will serve the ends of justice - the interests of the public
       as well as the accused.

Id. (quoting State v. Parker, 932 S.W.2d 945, 958 (Tenn. Crim. App. 1996)). “Further,
the trial court must weigh the factors against each other and place an explanation of its
ruling on the record.” King, 432 S.W.3d at 326 (citing State v. Electroplating, Inc., 990
S.W.2d 211, 229 (Tenn. Crim. App. 1998)).



                                            -7-
        Although judicial diversion is not a sentence, our supreme court determined that
the standard of review first expressed in State v. Bise, applies to “appellate review for a
trial court’s sentencing decision to either grant or deny judicial diversion.” King, 432
S.W.3d at 325. Importantly, however, the court emphasized that the adoption of the Bise
standard of review “did not abrogate the requirements set forth in Parker and
Electroplating, which are essential considerations for judicial diversion.” King, 432
S.W.3d at 326.

        The trial court need not provide a recitation of all the applicable “factors when
justifying its decision on the record in order to obtain the presumption of
reasonableness,” but “the record should reflect that the trial court considered the Parker
and Electroplating factors in rendering its decision and that it identified the specific
factors applicable to the case before it.” King, 432 S.W.3d at 327. When the trial court
considers each of the factors enumerated in Parker and weighs them against each other,
placing its findings in the record, as required by Electroplating, Inc., we “apply a
presumption of reasonableness,” per Bise, and will “uphold the grant or denial so long as
there is any substantial evidence to support the trial court’s decision.” Id. When “the
trial court fails to consider and weigh the applicable common law factors, the
presumption of reasonableness does not apply and the abuse of discretion standard . . . is
not appropriate.” Id. Instead, “the appellate courts may either conduct a de novo review
or, if more appropriate under the circumstances, remand the issue for reconsideration.
“The determination as to whether the appellate court should conduct a de novo review or
remand for reconsideration is within the discretion of the reviewing court.” Id. at 328.

        The State agrees that the trial court did not specifically list the required factors but
contends that the trial court did consider the relevant factors in light of the somewhat
unclear request for judicial diversion. We agree with the State that the Defendant’s
request for judicial diversion was somewhat ambiguous; however, the trial court clearly
understood the request and rather cursorily denied it, failing to expressly address all of
the relevant factors. In denying the Defendant’s request, the trial court stated, “The court
does not know that it has a request for judicial diversion. It may have one made to it
today, but it is going to deny judicial diversion.” This statement by the trial court does
not “reflect that the trial court considered the Parker and Electroplating factors in
rendering its decision and that it identified the specific factors applicable to the case
before it.” King, 432 S.W.3d at 327.

       “‘Where a trial court fails to consider all of the appropriate factors and its
statement of the reasons for denial is vague and conclusory, this court will remand the
matter for the trial court’s consideration.’” State v. Nicole Starcher, No. E2011-02078-
CCA-R3-CD, 2012 WL 3133811, at *3 (Tenn. Crim. App., at Knoxville, Aug. 2, 2012)
(quoting State v. Albert Fitzgerald Turner, No. W2004-01853-CCA-R3-CD, 2005 WL
                                             -8-
1812287, *4 (Tenn. Crim. App., at Jackson, Aug. 1, 2005)). As this court recently held,
“This remedy is particularly appropriate in cases where the record before this court does
not contain all of the relevant information. Here the record does not contain the judicial
diversion application or the certificate of eligibility.” Id. (citations omitted). The
technical record on appeal does not include Defendant’s application for judicial diversion
or the certificate of eligibility issued by the Tennessee Bureau of Investigation. See
T.C.A. § 40-35-313(a)(3)(A) (2014) (no order for judicial diversion may be entered
without “a certificate from the Tennessee Bureau of Investigation stating that the
defendant does not have a prior felony or Class A misdemeanor conviction”).
       Accordingly, we reverse and vacate the trial court’s judgment and remand this
matter for a hearing to properly consider Defendant’s application for judicial diversion.
On remand, the trial court should place on the record its analysis of all of the required
factors, its weighing thereof, and the reasons underlying its decision.

                                       B. Probation

       The Defendant asserts that the trial court improperly imposed a sentence of
confinement. He argues that his lack of criminal history makes him a good candidate for
an alternative sentence. The State responds that the evidence supports the trial court’s
imposition of a sentence of confinement. Because we have reversed and remanded this
case for resentencing due to the trial court’s failure to make appropriate findings
regarding judicial diversion, we need not address this argument.

                                      III. Conclusion

        After a thorough review of the record and applicable authorities, we conclude that
the trial court failed to consider and weigh the applicable factors for determining the issue
of judicial diversion. We therefore reverse the judgments of the trial court and remand
for a new sentencing hearing.


                                              ____________________________________
                                                   ROBERT W. WEDEMEYER, JUDGE




                                            -9-
