                                                                                                      06/25/2018
            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT NASHVILLE
                             Assigned on Briefs March 21, 2018

      STATE OF TENNESSEE v. MATHEW DOUGLAS RICHARDSON

                   Appeal from the Criminal Court for Putnam County
              No. 2017-CR-290, 2016-CR-1111        Gary McKenzie, Judge
                        ___________________________________

                              No. M2017-01647-CCA-R3-CD
                          ___________________________________

The Defendant, Matthew Douglas Richardson,1 entered a guilty plea in the Putnam
County Criminal Court to two counts of aggravated statutory rape. See T.C.A. § 39-13-
506. The trial court imposed two-year sentences for each count, to be served
consecutively under supervised probation. On appeal, the Defendant argues that the trial
court erred in denying his request for judicial diversion. Upon our review, we affirm the
judgments of the trial court.

 Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed

CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which THOMAS T.
WOODALL, P.J., and NORMA MCGEE OGLE, J., joined.

Brett A. Knight (on appeal) and Shawn C. Fry (at trial and on appeal), Cookeville,
Tennessee, for the Defendant, Matthew Richardson.

Herbert H. Slatery III, Attorney General and Reporter; Ronald L. Coleman, Assistant
Attorney General; Bryant C. Dunaway, District Attorney General; and Brett Gunn,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                             OPINION

       Between September and October 2016, the Defendant, age 28, met the victim, age
17, through her high school internship program and began a sexual relationship with her.
In December 2016, he was indicted for aggravated statutory rape, and on March 3, 2017,
while out on bond, he was indicted on a second count of aggravated statutory rape
involving the same victim, for which his bond was revoked. On March 27, 2017, the

        1
          The Defendant’s name is spelled “Matthew” in the indictment and throughout the majority of
documents in the record on appeal; however, his name is spelled “Mathew” in the case caption, the notice
of appeal, and his own brief.
Defendant entered an open guilty plea to the court for both counts of aggravated statutory
rape with no agreement as to sentencing.2

       Sentencing Hearing. At the July 10, 2017 sentencing hearing, the State entered
the Defendant’s presentence report and psychosexual evaluation. A collection of letters
of recommendation on behalf of the Defendant and proof of the Defendant’s military
service was also admitted into evidence. Significantly, the victim sent a letter of
recommendation in support of the Defendant receiving judicial diversion. Bridget
Cornwell, a probation officer with the Tennessee Department of Correction, testified that
she prepared the Defendant’s presentence report and confirmed that the Defendant
cooperated with law enforcement and did not have a criminal history. The Defendant
provided her with the letters of recommendation and proof of his military service as part
of the presentence investigation.

       The victim testified that she turned eighteen in June 2017, approximately one
month prior to the sentencing hearing. She had participated in an internship program
through her high school that allowed her to shadow medical professionals in the health
care field. She began participating in “[r]ide alongs with paramedics” in August 2016
when she met the Defendant, an emergency medical technician. The Defendant knew she
was in high school and under the age of 18, and the victim knew the Defendant was 28
years old at the time. The victim began meeting the Defendant outside of the program
and engaged in a sexual relationship in late September 2016. After the Defendant was
arrested in December 2016, the victim “showed up” at the Defendant’s house on March
3, 2017, let herself inside while he was asleep in bed, and they engaged in “sexual
penetration.” Despite court orders for the Defendant to refrain from contact with the
victim, the victim attempted to contact and pursue a relationship with him.

       On cross-examination, the victim confirmed that she had not had contact with the
Defendant since his bond was revoked on March 27, 2017. She identified the letter of
recommendation she wrote to the court asking for leniency for the Defendant. She
confirmed that she specifically wanted the court to remove the restraining order against
him so that she and the Defendant may have contact with each other. The victim’s
parents were at the hearing and intimated that they were “behind the [S]tate[.]”

       After hearing the proof and arguments from counsel, the trial court addressed
several factors before determining whether to grant the Defendant’s request for diversion.

       2
          The Defendant did not provide this court with transcripts from the guilty plea hearing or any
other hearing for the preliminary motions referenced in the technical record.


                                                 -2-
The trial court found: (1) the Defendant’s amenability to correction weighed favorably
due to his military background and absence of a criminal history, but noted that it took
issue with the fact that the Defendant re-offended while on bond; (2) the circumstances of
the offense weighed unfavorably because the victim was a minor at the time of the
offense, “she look[ed] up to” the Defendant, and he “took advantage of that[;]” (3) the
Defendant’s criminal record weighed favorably because he had no prior convictions; (4)
the Defendant’s social history did not weigh against him due to steady employment and
military service; (5) the status of the Defendant’s physical and mental health did not
weigh against him; (6) the deterrence value to the Defendant as well as to others weighed
unfavorably due to the need to protect minors (e.g., in the internship program the victim
participated in) and due to the Defendant’s disregard for the law when he re-offended
while out on bond; (7) whether judicial diversion would serve the interest of the public
and the Defendant weighed both favorably and unfavorably, but seemed to weigh more
unfavorably towards the Defendant in order to serve the interests of society. The court
also referred to State v. Bonestel, 871 S.W.2d 163 (Tenn. Crim. App. 1993), and stated
that it would consider additional factors, including the Defendant’s behavior since the
arrest. The court said that due to the Defendant’s re-offense of the same crime after his
initial arrest, “it cause[d] difficulty in any plea for mercy” and weighed heavily against
him.

       After weighing all of the different factors, the trial court concluded that there was
more that weighed against the Defendant than for him, denied the request for judicial
diversion, and ordered the Defendant to be placed on the sex offender registry. The trial
court imposed two-year sentences for each charge, to be served consecutively under
supervised probation, and entered its judgments on July 20, 2017. It is from these
judgments that the Defendant now timely appeals.

                                       ANALYSIS

       The sole issue presented for our review is whether the trial court erred in denying
the Defendant’s request for judicial diversion. The Defendant argues that the trial court
miscalculated the factors weighing for and against judicial diversion and considered facts
not in evidence. The State responds that the trial court adequately weighed all of the
Electroplating, Inc. and Parker factors and properly exercised its discretion in denying
judicial diversion. Upon review, we agree with the State.

       In State v. King, 432 S.W.3d 316, 324–25 (Tenn. 2014), the Tennessee Supreme
Court held that the abuse of discretion standard of review accompanied by a presumption
of reasonableness, which was delineated in Bise and its progeny, applied to appellate
review of a trial court’s decision to grant or deny judicial diversion. However, the court
made clear that the application of the Bise standard of review does not abrogate the
                                           -3-
common law factors for judicial diversion set out in State v. Parker, 932 S.W.2d 945, 958
(Tenn. Crim. App. 1996), and State v. Electroplating, Inc., 990 S.W.2d 211, 229 (Tenn.
Crim. App. 1998).

        Tennessee Code Annotated section 40-35-313 outlines the requirements for
judicial diversion. A qualified defendant is defined as a defendant who pleads guilty to
or is found guilty of a misdemeanor or a Class C, D, or E felony; is not seeking diversion
for a sexual offense as defined in the statute or a Class A or Class B felony; and does not
have a prior conviction for a felony or a Class A misdemeanor. T.C.A. § 40-35-
313(a)(1)(B)(i). After a qualified defendant either pleads guilty or is found guilty, a trial
court has the discretion to defer further proceedings and place that defendant on
probation without entering a judgment of guilt. T.C.A. § 40-35-313(a)(1)(A). Upon the
qualified defendant completing a period of probation, the trial court is required to dismiss
the proceedings against him. T.C.A. § 40-35-313(a)(2). The qualified defendant may
then request that the trial court expunge the records from the criminal proceedings.
T.C.A. § 40-35-313(b).

        Judicial diversion is not a sentencing alternative for convicted defendants. T.C.A.
§ 40-35-104(c). The trial court must consider the following factors in deciding whether a
qualified defendant should be granted judicial diversion: (1) the defendant’s amenability
to correction; (2) the circumstances of the offense; (3) the defendant’s criminal record;
(4) the defendant’s social history; (5) the defendant’s physical and mental health; (6) the
deterrence value to the defendant and others; and (7) whether judicial diversion will serve
the interests of the public as well as the defendant. Electroplating, Inc., 990 S.W.2d at
229 (citing Parker, 932 S.W.2d at 958; Bonestel, 871 S.W.2d at 168). The trial court may
consider the following additional factors: “‘[the defendant’s] attitude, behavior since
arrest, prior record, home environment, current drug usage, emotional stability, past
employment, general reputation, marital stability, family responsibility and attitude of
law enforcement.’” State v. Washington, 866 S.W.2d 950, 951 (Tenn. 1993) (quoting
State v. Markham, 755 S.W.2d 850, 852–53 (Tenn. Crim. App. 1988) (citations
omitted)). The trial court must weigh all of the factors in determining whether to grant
judicial diversion. Electroplating, Inc., 990 S.W.2d at 229 (citing Bonestel, 871 S.W.2d
at 168). Finally, “a trial court should not deny judicial diversion without explaining both
the specific reasons supporting the denial and why those factors applicable to the denial
of diversion outweigh other factors for consideration.” State v. Cutshaw, 967 S.W.2d
332, 344 (Tenn. Crim. App. 1997) (citing Bonestel, 871 S.W.2d at 168).

       Turning to the case sub judice, the Defendant argues that the trial court
miscalculated the weight of the factors discussed in denying his request for judicial
diversion. Specifically, the Defendant asserts that the trial court found four of the seven
factors weighed in his favor with a fifth that weighed both for and against him.
                                            -4-
Furthermore, the Defendant argues that the trial court used facts not in evidence—the
alleged “rift” between the victim and her parents—in making its determination to deny
judicial diversion. The State responds that the trial court properly considered and
weighed the necessary factors in its determination to deny judicial diversion, emphasizing
the deterrence value and the fact that the Defendant re-offended while out on bond. The
State also asserts that the trial court focused only on the appropriate factors, and not
outside evidence, when making its ruling.

        In denying judicial diversion, the trial court acknowledged that the Defendant had
no prior convictions and that there was nothing that weighed against him in his social
history or his mental and physical health. However, the court was concerned because the
Defendant committed the same offense after he had been indicted and weighed his post-
arrest behavior heavily against him. The trial court also considered the circumstances of
the offense and indicated that the Defendant effectively took advantage of the minor
victim and that the deterrence value to such behavior weighed heavily against him. The
trial court expressed its difficulty in determining whether judicial diversion would serve
the best interests of the public and of the Defendant, ultimately deciding that the totality
of the circumstances were such that judicial diversion would be denied.

       Our review of the record demonstrates that the trial court explicitly analyzed each
of the Electroplating, Inc. and Parker factors on the record during its ruling. The trial
court considered and weighed the required factors, identified those most relevant to the
case, and placed on the record its reasons for denying diversion. Thus, the trial court’s
decision is presumed reasonable. Although the Defendant asserts that the trial court
relied on facts not in evidence, the record accurately reflects that no outside factors
impacted the trial court’s determination. Several factors weighed in favor of judicial
diversion, including his social history, absence of a criminal record, and good physical
and mental health; however, the trial court was concerned with the circumstances of the
offenses and the Defendant’s amenability to correction. Despite knowing his conduct
was illegal and that he was under active prosecution, the Defendant continued to pursue
the same activity that caused him to be arrested. The circumstances of these offenses and
the Defendant’s disregard for the law after being arrested weighed heavily against
judicial diversion. See State v. Randy Shawn Moore, No. E2014-01790-CCA-R3-CD,
2015 WL 4314107, at *4 (Tenn. Crim. App. July 15, 2015) (affirming the denial of
judicial diversion where the defendant committed a second offense against the same
victim while on bond for the first offense); State v. Parson, 437 S.W.3d 457, 496 (Tenn.
Crim. App. 2011) (affirming the denial of judicial diversion where the defendant’s
amenability to correction and the circumstances of the offense weighed heavily against
judicial diversion despite the satisfactory remaining factors) (citing State v. Jonathan B.
Dunn, No. M2005-01268-CCA-R3-CD, 2006 WL 1627335, at *9 (Tenn. Crim. App.
June 12, 2006) (affirming the denial of judicial diversion where, even though factors (3),
                                           -5-
(4), and (5) weighed in the defendant’s favor, the circumstances of the offense were
“particularly troublesome”)); State v. Brian Carl Lev, No. E2004-01208-CCA-R3-CD,
2005 WL 1703186, at *3 (Tenn. Crim. App. Mar. 22, 2005) (“The denial of judicial
diversion may be based solely on the nature and circumstances of the offense, so long as
all the other relevant factors have been considered, and this factor outweighs others that
might favorably reflect on the [defendant]’s eligibility.”) (citing State v. Curry, 988
S.W.2d 153, 158 (Tenn. 1999)). The trial court determined, and we agree, that these
factors outweighed the other factors considered by the court. Accordingly, we conclude
that the trial court did not abuse its discretion in denying the Defendant judicial diversion.
He is not entitled to relief.

                                      CONCLUSION

        Based on the foregoing reasoning and analysis, we affirm the judgments of the
trial court.


                                              ____________________________________
                                              CAMILLE R. MCMULLEN, JUDGE




                                            -6-
