             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                              AT NASHVILLE
                                   Assigned on Briefs April 25, 2012

                STATE OF TENNESSEE v. JESSICA EVETTE WARD

                        Appeal from the Criminal Court for Davidson County
                              No. 2009-D-3092 Seth Norman, Judge



                       No. M2011-00178-CCA-R3-CD - Filed August 16, 2012


Appellant, Jessica Evette Ward, was indicted by the Davidson County Grand Jury for
aggravated assault and attempt to commit second degree murder. After a jury trial, Appellant
was convicted of the lesser included offenses of reckless aggravated assault and
misdemeanor reckless endangerment. At a sentencing hearing, the trial court merged the
convictions and sentenced Appellant to serve three years in the county workhouse. Appellant
did not file a motion for new trial.1 Appellant seeks review of the trial court’s denial of
judicial diversion. After reviewing the record before this Court, we conclude that the trial
court erred in failing to state on the record its reasons for denying judicial diversion; thus,
we reverse the judgment of the trial court and remand for further proceedings.


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

J ERRY L. S MITH, J., delivered the opinion of the court, in which R OBERT W. W EDEMEYER and
D. K ELLY T HOMAS, J R., JJ., Joined.

Paul Julius Walwyn, Madison, Tennessee, for the appellant, Jessica Evette Ward.

Robert E. Cooper, Jr., Attorney General and Reporter, Rachel E. Willis, Assistant Attorney
General; Victor S. Johnson, District Attorney General, and J. W. Hupp, Assistant District
Attorney General, for the appellant, State of Tennessee.




         1
          Ordinarily, the failure of a defendant to file a motion for new trial waives issues on appeal. Sentencing and
sufficiency issues, however, need not be raised in a motion for new trial as a prerequisite for review of these issues on
appeal. See State v. Boxley, 76 S.W .3d 381, 389-90 (Tenn. Crim. App. 2001).
                                          OPINION

                                     Factual Background

        The transcript of the jury trial does not appear in the record on appeal, however, a case
summary is set forth in the presentence report that sheds light on the circumstances giving
rise to the indictment. From the case summary, we have gleaned that James Leeper, the
victim, was working security at the Social Security Office on Nolensville Pike in Nashville
when Appellant was at the building and began acting disorderly. Appellant was asked to
leave. At first, she refused to leave the area, but she eventually complied, getting in to her
2000 Chevrolet Monte Carlo with her infant child. Appellant backed out of a parking space
in a reckless manner and nearly hit another vehicle before moving forward out of the space.

       At that time, Appellant deliberately steered her vehicle, toward the victim and struck
the victim with her vehicle. Appellant left the scene without stopping.

        Appellant called the police later on that day to explain her participation in the
situation. There was no damage visible on Appellant’s vehicle but the vehicle matched the
description given by the victim.

       After the jury heard the evidence, Appellant was convicted of the lesser included
offenses of reckless aggravated assault and misdemeanor reckless endangerment. At the
sentencing hearing, Appellant expressed her regret about the situation. She apologized to the
victim and claimed that she had not intentionally hurt him. She explained that she was angry
and out of control. At the time of the hearing, Appellant had re-enrolled in college and was
taking classes in social work at Tennessee State University. Appellant also held a job as a
part-time child care provider. Appellant informed the court that she would comply with any
necessary terms of probation. On cross-examination, Appellant admitted that she had prior
convictions for reckless driving.

       At the conclusion of the hearing, the trial court determined:

       It is the judgment of the court that this lady be sentenced to the workhouse for
       a period of three years as a Range I standard offender at 30 percent. I am
       going to require her to serve it in community corrections. There will be no 40-
       35-313 in this case, and she will be enjoined from going around the Social



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       Security office that the General mentioned. All right. That is the judgment of
       the court.

       Appellant filed a timely notice of appeal, challenging the trial court’s denial of judicial
diversion.

                                            Analysis

       On appeal, Appellant complains that the trial court erred in refusing to grant judicial
diversion because the criteria of Tennessee Code Annotated section 40-35-313 weigh heavily
in favor of the grant of diversion. The State, on the other hand, argues that “because the trial
court failed to consider all the factors appropriate to the grant or denial of judicial diversion,
the record is inadequate to allow appropriate appellate review.” The State submits that the
matter should be remanded to the trial court for the placement of appropriate findings on the
record.

         The Criminal Sentencing Reform Act of 1989 states that, after accepting a guilty plea,
a trial court may do the following:

       [D]efer further proceedings against a qualified defendant and place such
       defendant on probation upon such reasonable conditions as it may require
       without entering a judgment of guilty and with the consent of the qualified
       defendant. Such deferral shall be for a period of time not less than the period
       of the maximum sentence for the misdemeanor with which the person is
       charged, or not more than the period of the maximum sentence of the felony
       with which the person is charged.

T.C.A. § 40-35-313(a)(1)(A). Judicial diversion is substantially similar to pretrial diversion;
however, the decision to grant diversion rests with the trial court, not the prosecutor. State
v. Anderson, 857 S.W.2d 571, 572 (Tenn. Crim. App. 1992). The decision of whether to
place a criminal defendant on judicial diversion is within the sound discretion of the trial
court and that decision will not be reversed on appeal if there is any substantial record
evidence to support it. State v. Bonestel, 871 S.W.2d 163, 168 (Tenn. Crim. App. 1993),
overruled on other grounds by State v. Hooper, 29 S.W.3d 1, 9 (Tenn. 2000).

        Before determining whether to grant or deny judicial diversion, a trial court must
consider the following factors: “(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 status of the accused’s physical and mental health, and (f) the deterrence value
to the accused as well as others.” Id. at 168. Additionally, the trial court should consider the

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accused’s attitude, behavior since arrest, emotional stability, current drug use, past
employment, home environment, marital stability, family responsibility, general reputation,
and the likelihood that judicial diversion will serve the ends of justice and best interests of
both the public and the accused. See State v. Cutshaw, 967 S.W.2d 332, 343-44 (Tenn. Crim.
App. 1997). In addition, this Court has stated the following:

       Moreover, the record must reflect that the court has weighed all of the factors
       in reaching its determination. The court must explain on the record why the
       defendant does not qualify under its analysis, and if the court has based its
       determination on only some of the factors, it must explain why these factors
       outweigh the others.

State v. Electroplating, Inc., 990 S.W.2d 211, 229 (Tenn. Crim. App. 1998) (citation
omitted).

      We review a trial court’s decision on whether or not to grant judicial diversion under
an abuse of discretion standard. See Cutshaw, 967 S.W.2d at 344. Where the trial court
follows the required procedure for determining whether or not to grant judicial diversion, we
must affirm the trial court’s ruling if any substantial evidence exists to support it. See id.

       In this case, however, the trial judge did not explain his reasoning in denying judicial
diversion. In short, the trial court failed to make the requisite findings necessary to support
a denial of judicial diversion.

       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 reconsideration. See, e.g., State v. Lewis, 978 S.W.2d 558, 567 (Tenn. Crim. App.
1997); see also Cutshaw, 967 S.W.2d at 344 (holding that where the trial court failed to
consider the defendant’s personal history and denied diversion because of the nature of the
crime, remand for a new sentencing hearing would be necessary if conviction were not
reversed on other grounds). Accordingly, we remand this matter to the trial court for a
comprehensive review of Appellant’s request for diversion and a full and complete
consideration of all of the factors required to be considered before a grant or denial of
judicial diversion is made. The trial court should place on the record its analysis of all the
relevant factors and the reasons underlying its decision.

      The trial court’s order denying judicial diversion is reversed, and this matter is
remanded for further proceedings consistent with this opinion.




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                                Conclusion

For the foregoing reasons, the judgment of the trial court is reversed and remanded.




                                   ___________________________________
                                   JERRY L. SMITH, JUDGE




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