            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT JACKSON

                         SEPTEMBER 1998 SESSION
                                                      FILED
                                                      December 2, 1998

                                                      Cecil Crowson, Jr.
                                                      Appellate C ourt Clerk
STATE OF TENNESSEE,               )
                                  )   C.C.A. No. 02C01-9711-CR-00454
            Appellee,             )
                                  )   Shelby County
V.                                )
                                  )   Honorable Carolyn Wade Blackett,
ANGELA FOX,                       )   Judge
                                  )
            Appellant.            )   (Sentencing)



FOR THE APPELLANT:                    FOR THE APPELLEE:

Joseph S. Ozment                      John Knox Walkup
Attorney at Law                       Attorney General & Reporter
369 North Main Street
Memphis, TN 38103                     Marvin E. Clements, Jr.
                                      Assistant Attorney General
Mark Saripkin                         425 Fifth Avenue North
Attorney at Law                       Nashville, TN 37243-0493
296 Washington Ave.
Memphis, TN 38103                     William L. Gibbons
       (at trial)                     District Attorney General

                                      Paul Goodman
                                      Assistant District Attorney General
                                      201 Poplar Avenue, Suite 301
                                      Memphis, TN 38103




OPINION FILED:____________________



AFFIRMED


PAUL G. SUMMERS,
Judge
                                      OPINION



              The defendant pled guilty to criminal attempt -- possession of a

controlled substance with intent to sell, a Class D felony. At her guilty plea hearing

the trial court denied her request for judicial diversion. Instead, the court sentenced

her as a standard Range I offender to two years in the workhouse, all suspended

except for six weekends to be served at the Shelby County Correctional Center. In

this appeal, the defendant contends that the trial court erred in denying judicial

diversion. Upon our review of the record, we affirm the trial court's judgment.



              Judicial diversion is available to persons not previously convicted of a

felony or Class A misdemeanor and who plead to or are found guilty of a Class C, D

or E felony (or a misdemeanor punishable by imprisonment). See T.C.A. § 40-35-

313(a)(1)(A). Whether to grant judicial diversion rests within the sound discretion of

the trial court, and our review is limited to determining whether the trial court abused

that discretion. See State v. Anderson, 857 S.W.2d 571, 572 (Tenn. Crim. App.

1992). So long as “ <any substantial evidence to support the refusal' ” to grant

diversion appears in the record, we will defer to the trial court's decision. Id. (quoting

State v. Hammersley, 650 S.W.2d 352, 356 (Tenn. 1983)). The defendant has the

burden of establishing that the trial court erred in denying diversion. See State v.

Bonestel, 871 S.W.2d 163, 167 (Tenn. Crim. App. 1993).



              In considering whether to grant judicial diversion, the trial court must

consider (1) the defendant's amenability to correction, (2) the circumstances of the

offense, (3) the defendant's criminal record, (4) his or her social history, (5) the status

of the defendant's physical and mental health, (6) the deterrence value to the



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defendant and others, and (7) whether judicial diversion will serve the interests of the

public as well as the defendant's. See Bonestel, 871 S.W.2d at 168. Generally, a

negative finding on one of these factors will support a denial. See State v. Matthew

Scott Albertson, No. 01C01-9607-CC-00288 (Tenn. Crim. App. filed July 31, 1997, at

Nashville). However, neither the circumstances of the case nor deterrence may be

given controlling weight unless their significance is so overwhelming as to outweigh all

the other factors. See id.



              In this case the only evidence submitted in support of the defendant's

request for judicial diversion was the presentence report and some brief testimony by

the defendant demonstrating that she had cooperated with the police in providing the

name of her supplier. The presentence report revealed that the defendant was

twenty-five years old, that she was currently employed and had been for several

years, that she had family support, that she was in good mental and physical health,

and that she had completed some college. While she has no record of prior criminal

convictions, the report includes a 1991 charge for simple assault which was “nollied,”

a 1990 charge for theft under $500 and a 1988 charge for shoplifting, both of which

were “adjusted nonjudicially.” The report further reveals that the defendant has used

drugs since she was sixteen years old. With respect to the instant offense, the proof

which was stipulated to at the hearing was that the defendant had been involved in

the delivery of two quarter-ounce bags of methamphetamine.



              In denying diversion the trial court acknowledged that the defendant had

no prior convictions. The court continued:

              But I do think that the drug problem in this community is so
              severe that you . . . need to understand that this is one of
              the things you just should not do.
              ....


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                 But the Court also questions whether or not this was
                 actually the first time that you had committed an illegal act
                 of transporting or dealing or selling drugs.

                 And the basic reason that the judicial diversion is being
                 denied is because I think it should be a deterrent to other
                 people who are dealing in drugs.

                 And because of the severity of the crime. You don't know
                 who those drugs are going to end up as far as who ends
                 up using them. There are a number of young people out
                 there that are using drugs.

                 And I really don't want to see . . . you in here again. And I
                 feel like by placing you on probation and giving you an
                 opportunity to try to give back to the community some of
                 this community service, that maybe it will assure you that
                 when you do a crime that you do have to pay for it.

Clearly the court was concerned primarily with the circumstances of the offense as

well as both special and general deterrence. The court was also concerned, however,

with the defendant's extensive history of drug use and, apparently, with her other

instances of criminal behavior. This focus on the defendant's prior criminal activity,

although it did not result in convictions, is evidenced by the court's stated doubt that

this was the defendant's first experience in “transporting or dealing or selling drugs.”



                 The defendant argues that she is young, steadily employed, in excellent

health, does not drink alcohol, has attended some college, and enjoys a stable home

environment. She also stresses that her cooperation with the police and admission of

guilt are “strong indicator[s] of amenability to rehabilitation.” In her brief she also

states that “she shows no current drug” use, although the presentence report does not

indicate when (or if) she quit using drugs.1



       1
         The presen tence report m erely states that she rec eived treatm ent for drugs from March 1990 to
June 1990. The instant offense was committed after this period.

                                                     -4-
              In spite of these several neutral to positive factors, we must affirm the

trial court. The defendant's lengthy history of prior drug use, the severity of the crime

and the need for specific and general deterrence support the denial of judicial

diversion in this case. As pointed out by the state in its brief, many of the positive

factors to which the defendant points also existed during her period of drug use and at

the time she committed this offense. Her amenability to correction is therefore

suspect.



              No abuse of discretion having been demonstrated, the trial court's

judgment is affirmed.




                                            -5-
                                      ______________________________
                                      PAUL G. SUMMERS, Judge


CONCUR:




_____________________________
DAVID H. WELLES, Judge




_____________________________
JOE G. RILEY, Judge




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