        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                                 January 29, 2013 Session

         STATE OF TENNESSEE v. BRYS ANDREW HENSLEY

                   Appeal from the Criminal Court of Knox County
                      No. 95138 Mary Beth Leibowitz, Judge


                  No. E2012-00812-CCA-R3-CD - Filed March 4, 2013


Brys Andrew Hensley (“the Defendant”) pleaded guilty to one count of reckless aggravated
assault and was placed on judicial diversion with a probationary period of two years. The
State subsequently alleged that the Defendant had violated the terms of his probation, and,
after a hearing, the trial court revoked the Defendant’s judicial diversion, entered a judgment
of conviction, and sentenced the Defendant. After a second hearing, the trial court denied
the Defendant’s motion to reconsider its previous ruling, and this appeal followed. We hold
that, in revoking the Defendant’s diversion and probation, the trial court failed to exercise
its statutory discretion and thereby committed reversible error. Accordingly, we reverse the
trial court’s judgment and remand this matter for further proceedings consistent with this
opinion.

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

J EFFREY S. B IVINS, J., delivered the opinion of the Court, in which A LAN E. G LENN and
R OGER A. P AGE, JJ., joined.

John E. Eldridge, Knoxville, Tennessee, for the appellant, Brys Andrew Hensley.

Robert E. Cooper, Jr., Attorney General & Reporter; John H. Bledsoe, Senior Counsel;
Randall E. Nichols, District Attorney General; and Jeff Blevins, Assistant District Attorney
General, for the appellee, State of Tennessee.
                                              OPINION

                              Factual and Procedural Background

       By information filed July 21, 2010, the Defendant was charged with reckless
aggravated assault causing bodily injury to the victim while using a deadly weapon. On the
same date, the Defendant pleaded guilty to the charged offense, a Class D felony.1 By
written order entered September 8, 2010, the trial court placed the Defendant on judicial
diversion with a probationary period of two years.

       Approximately one year later, the Defendant again was charged with aggravated
assault, and he pleaded guilty to the lesser offense of assault in October 2011. The State then
sought to have the Defendant’s judicial diversion revoked. After a hearing, a transcript of
which is not included in the appellate record,2 the trial court revoked the Defendant’s judicial
diversion and entered a judgment of conviction. The trial court sentenced the Defendant to
two years in the Tennessee Department of Correction, suspended to probation. The trial
court entered the judgment order on February 2, 2012.

       On February 21, 2012, the Defendant filed a “motion to reconsider revocation of
judicial diversion.” The trial court held a hearing on this motion on March 27, 2012. A
transcript of this hearing is included in the appellate record. The trial court made clear its
understanding that, under this Court’s reported decision of State v. Johnson, 15 S.W.3d 515
(Tenn. Crim. App. 1999), once it determined that the Defendant had violated the terms of his
judicial diversion, it had no choice but to revoke diversion, enter a judgment of conviction,
and impose sentence. Accordingly, the trial court denied the Defendant’s motion. On April
19, 2012, the Defendant filed a notice of appeal from the trial court’s decision to revoke his
judicial diversion.

                                               Analysis

                                   Timeliness of Notice of Appeal

       Initially, the State asks us to dismiss this appeal as untimely because the Defendant’s
notice of appeal was not filed until more than thirty days after the trial court entered the


       1
           See Tenn. Code Ann. § 39-13-102(a)(2), (e)(1) (2010).
       2
         During the oral argument of this case, this Court requested defense counsel to supplement the
record with a transcript of the original revocation hearing. Although defense counsel has failed to
supplement the record as requested, we have determined that the record is nonetheless adequate for our
review of the issue presented on its merits.

                                                   -2-
judgment of conviction. See Tenn. R. App. P. 4(a). As correctly pointed out by the State,
a motion for reconsideration does not toll the time for filing a timely notice of appeal. See
State v. Rockwell, 280 S.W.3d 212, 214 (Tenn. Crim. App. 2007).

       Nevertheless, this Court may waive the filing requirement “in the interest of justice.”
Tenn. R. App. P. 4(a). The Defendant requests that we do so because of an “apparent
conflict” between this Court’s decision in Johnson and the relevant statute, Tennessee Code
Annotated section 40-35-313(a)(2) . We have determined that clarification of our decision
in Johnson would serve the interest of justice. Therefore, we waive the Defendant’s
procedural default in failing to file timely his notice of appeal. We will address the merits
of the Defendant’s issue.

                               Violation of Judicial Diversion

       Our criminal code provides that, when certain qualified defendants plead guilty to
certain enumerated offenses, the trial court “may defer further proceedings . . . and place the
defendant on probation upon such reasonable conditions as it may require without entering
a judgment of guilty . . . .” Tenn. Code Ann. § 40-35-313(a) (2010). Our courts refer to this
form of “legislative largess” as “judicial diversion.” State v. Schindler, 986 S.W.2d 209, 211
(Tenn. 1999). A defendant placed on judicial diversion who completes his or her term of
probation successfully may “receive an expungement from all ‘official records’ any
recordation relating to ‘arrest, indictment or information, trial, finding of guilty, and
dismissal and discharge’ pursuant to the diversion statute.” Id. (quoting Tenn. Code Ann.
§ 40-35-313(b)). Thus,

       [t]he effect of discharge and dismissal under the diversion statute “is to restore
       the person, in the contemplation of the law, to the status the person occupied
       before such arrest or indictment or information.” When general inquiries are
       made by prospective employers in non-related civil matters or in other matters
       not precluded by statute, a criminal defendant granted expungement pursuant
       to the diversion statute may deny or refuse to acknowledge being arrested,
       tried, or convicted.

Id. (quoting Tenn. Code Ann. § 40-35-313(b)). Obviously, for a defendant granted judicial
diversion, it is in his best interest to remain on judicial diversion until he successfully
completes his period of probation.

      If a defendant placed on judicial diversion violates the terms of his probation,
however, the State may seek revocation. See Alder v. State, 108 S.W.3d 263, 266 (Tenn.
Crim. App. 2002). In addressing the State’s allegations, “the trial court should follow the


                                              -3-
same procedures as those used for ordinary probation revocations.” Id. If the trial court
determines that the defendant violated the terms of his judicial diversion, “the court may
enter an adjudication of guilt and proceed as otherwise provided.” Tenn. Code Ann. § 40-35-
313(a)(2) (emphasis added).

        The General Assembly’s use of the permissive term “may” indicates that a trial court
retains the discretion to leave the defendant on judicial diversion, even after it finds that the
defendant violated the terms of his diversionary probation. Cf. State v. Hunter, 1 S.W.3d
643, 648 (Tenn. 1999) (holding that, “at the conclusion of a probation revocation hearing,
a trial court can: (1) order incarceration; (2) cause execution of the judgment as it was
originally entered; or (3) extend the remaining probationary period for a period not to exceed
two years”).

        We review a trial court’s decision to revoke judicial diversion for an abuse of
discretion. Johnson, 15 S.W.3d at 517-18; State v. Doyle W. Pugh, No. E2000-02488-CCA-
R3-CD, 2001 WL 920227, at *2 (Tenn. Crim. App. Aug. 15, 2001). “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).

                                       State v. Johnson

        In Johnson, the defendant pleaded guilty to simple possession of marijuana and was
placed on judicial diversion with a probationary period of eleven months, twenty-nine days.
A few months later, the defendant tested positive for drugs and “was cited into court on a
probation violation.” Johnson, 15 S.W.3d at 517. At the subsequent hearing, the defendant
admitted to having used marijuana frequently during his probation. The trial court found that
the defendant had violated the terms of his probation and revoked judicial diversion. The
trial court then sentenced the defendant, and the defendant appealed from his sentence.

        In addressing the defendant’s appeal, this Court noted specifically that, when a trial
court finds that a defendant placed on judicial diversion has violated the terms of his
probation, “the court may then enter an adjudication of guilt and proceed to sentencing.” Id.
(citing Tenn. Code Ann. § 40-35-313(a)(2)) (emphasis added). This Court then determined
that the record supported the trial court’s decision to revoke diversion and proceeded to




                                               -4-
address the propriety of the sentence imposed. Id. at 518. This Court concluded that there
was no substantive error in the sentence imposed on the defendant.3 Id.

        Although this Court’s holding resolved the issue raised on appeal, the panel then
decided to “take this opportunity to clarify the procedure to be utilized in cases involving the
revocation of judicial diversion” because “[t]here [did] not appear to be a consistent pattern
across the state relating to this procedure.” Id. The procedure this Court suggested, clearly
in dicta, consisted of the following:

               1. Upon placing a defendant on judicial diversion, the trial court shall
        enter an order reflecting the grant of judicial diversion, the length and
        conditions of probation, and that further proceedings are deferred. See Tenn.
        Code Ann. § 40-35-313(a)(1)(A). This shall be by order and not by the entry
        of the customary judgment of conviction form. A standard probation order
        may also be entered. Jail time may not be imposed as a condition of probation
        under the judicial diversion statute.

               2. If there is an alleged violation of probation, the matter shall proceed
        under the ordinary procedure for revocation of probation. See Tenn. Code
        Ann. § 40-35-311(a).

               3. If the trial court determines by a preponderance of the evidence that
        the defendant has violated probation, the trial court may find a violation of
        probation. See Tenn. Code Ann. § 40-35-311(e).

               4. Upon finding a violation of probation, the trial court shall proceed
        to sentence the defendant for the original offense. See Tenn. Code Ann. § 40-
        35-313(a)(2). Sentencing shall proceed pursuant to the standard provisions of
        the Sentencing Act. See Tenn. Code Ann. § 40-35-101 et seq.

               5. The trial court shall then enter a standard judgment of conviction
        form reflecting the sentence. Either under the special conditions portion of the
        judgment form or by separate order, there should also be a notation that the




       3
          Although this Court determined that the trial court committed no substantive error in imposing
sentence, the trial court entered an order instead of a judgment of conviction. This Court remanded the
matter “for entry of a proper judgment of conviction.” Johnson, 15 S.W.3d at 519.

                                                  -5-
       judgment is being entered pursuant to the judicial diversion statute based upon
       a violation of probation.

Id. at 518-19 (emphases deleted, emphasis added). It is the “shall” contained in the first
sentence of numbered paragraph 4 that is at issue in this case.

        Read in context, we hold that it is clear that this Court used the word “shall” based
upon the implicit assumption that the trial court already has exercised its discretion and
determined that it is appropriate to revoke the defendant’s judicial diversion. Indeed, that
sequence of two distinct events is what occurred in the case before it. Moreover, this Court
later reiterated in other judicial diversion cases that, if a defendant violates the terms and
conditions of his diversionary probation, “the trial court may enter an adjudication of guilt
and proceed to sentence the defendant.” Alder, 108 S.W.3d at 266 (emphasis added); see
also State v. Ronnie Daniel, No. M2001-01217-CCA-R3-CD, 2002 WL 1402176, at *2
(Tenn. Crim. App. July 1, 2002) (Riley, J.) (“Upon finding a violation of probation by a
defendant on judicial diversion, the trial court may revoke judicial diversion.”) (emphasis
added). In Ronnie Daniel, this Court acknowledged that, after a trial court determines to
revoke diversion, then the trial court “should . . . proceed to sentence the defendant pursuant
to the standard provisions of the Sentencing Act.” Ronnie Daniel, 2002 WL 1402176, at *2
(citing Johnson, 15 S.W.3d at 519).

        As recognized by our supreme court, a trial court’s determination of the proper
consequence of a probation violation embodies a distinct exercise of discretion. See Hunter,
1 S.W.3d at 646. Thus, properly construed, Johnson’s numbered paragraph 4 actually
advises the following: “Upon finding a violation of probation, and then determining that
judicial diversion should be revoked, the trial court shall proceed to sentence the defendant
for the original offense.”

        Construed literally, however, as the trial court apparently did in this case, the dictum
contained in paragraph 4 of Johnson could be construed as contrary to the express language
of the relevant statute. As set forth above, the judicial diversion statute grants the trial court
the discretion to revoke diversion upon its finding of a probation violation. See Tenn. Code
Ann. § 40-35-313(a)(2). The statute does not mandate that, upon finding a violation, the trial
court must revoke diversion. We hold that it is error to construe Johnson in a fashion that
is contrary to this statute, and we further hold that numbered paragraph 4 of Johnson should
be construed as set forth above.




                                               -6-
                                         Application

       In this case, the trial court found that the Defendant had violated the terms of his
diversionary probation. Misconstruing Johnson and, consequently, failing to exercise its
statutory discretion, the trial court then determined that its finding of a probation violation
required it to revoke the Defendant’s judicial diversion. In so concluding, the trial court
committed an error of law. As set forth above, by statute, and by proper interpretation of
Johnson, the trial court retained the discretion to leave the Defendant on judicial diversion
probation even after its determination that the Defendant had violated the terms of his
probation. By applying an incorrect legal standard, and consequently failing to exercise its
statutory discretion, the trial court committed reversible error. See Banks, 271 S.W.3d at
116.

        Accordingly, we reverse the judgment of the trial court and remand this matter to the
trial court to determine whether, in its sound discretion, the Defendant’s judicial diversion
should be revoked and for such other proceedings as may be appropriate.

                                         Conclusion

      For the foregoing reasons, this matter is remanded to the trial court for a determination
of whether the Defendant’s judicial diversion should be revoked and for any further
necessary proceedings consistent with this opinion.




                                                    _________________________________
                                                    JEFFREY S. BIVINS, JUDGE




                                              -7-
