         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                                      May 2, 2006 Session

                     STATE OF TENNESSEE v. ANDRE SMITH

                  Direct Appeal from the Criminal Court for Shelby County
                          No. 05-01206    Joseph B. Dailey, Judge



                    No. W2005-02232-CCA-R3-CD - Filed August 23, 2006



The defendant, Andre Smith, appeals the trial court’s denial of judicial diversion. The defendant
pled guilty to theft over $1000, a Class D felony. Following a hearing, the trial court denied the
defendant’s request for judicial diversion and ordered the defendant to serve his sentence on
supervised probation. After careful review, we affirm the trial court’s denial of judicial diversion.

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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which THOMAS T. WOODALL and
J.C. MCLIN , JJ., joined.

Claiborne H. Ferguson (on appeal), and Kamilah Turner (at trial), Memphis, Tennessee, for the
appellant, Andre Smith.

Paul G. Summers, Attorney General and Reporter; Rachel E. Willis, Assistant Attorney General,
William L. Gibbons, District Attorney General; and Nicole Germain, Assistant District Attorney
General, for the appellee, State of Tennessee.


                                             OPINION

                                   Facts and Procedural History

        In this case, the defendant was the only witness to testify at the sentencing hearing. He said
that this was his first arrest and his first time in the criminal system. He testified that inventory
shortages occurred while he was store manager at a wireless retail store, Teletouch Communications,
in Shelby County, Tennessee. He said that he believed the merchandise was stolen by other
employees but rather than notify his superiors of the theft, he manipulated the computer records to
account for the inventory. He did not report the merchandise as stolen until it was discovered by his
superiors in a store audit. He then provided a written statement as to his version of events. He said
that he used his employee number and store manager password to show the merchandise in
customers’ accounts without their knowledge.

        During his testimony, the defendant was interrupted by the court. The court took the position
that the defendant’s version of events did not make any sense and accused the defendant of being
untruthful. The court stated, “that just doesn’t make any sense at all what he says. It just doesn’t
have any ring of truth to it at all.” The court also said that “he’s conceding only that which he had
to concede and not admitting what really happened.”

       The defendant resumed his testimony by saying that he wished he had investigated the thefts
instead of simply covering them up. He also said that he did not know how to acquire all the
inventory reports or he would have been able to detect the shortages sooner. He claimed that he
never had physical control over the missing items and that his only involvement was electronically
accounting for the merchandise. Finally, he said that it was his desire to enter into a diversion
program.

        The court then examined the defendant by voir dire. The defendant testified that there were
as many as seven employees at the store. He said that the thefts occurred from November 2002 to
January 2003, and that the stolen merchandise was valued in excess of $8100. He said he was unable
to determine who was responsible for the theft. He claimed that now he would report the shortages
to the parent company. Finally, he testified that he is currently employed by a different wireless
company and that he did disclose his history to them prior to being hired.

       The defendant offered no other proof and argued in favor of judicial diversion. The
defendant argued that he was a proper candidate for diversion because he had no prior convictions.
He acknowledged that he made wrong decisions related to this matter and claimed that he confessed
to what he had done wrong.

       The presentence report reflects that the defendant is a thirty-seven-year-old, married, high
school graduate. He has no other criminal record and has no problems with drugs or alcohol. He
works as an area manager for a wireless company and lives with his wife and children.

         The trial court found that the defendant was “generally a good candidate for probation.” It
cited that he is employed, has an education, supports his family, and has no prior record. However,
it expressed concern with putting the defendant on diversion for two reasons: 1) the offense was
protracted over a three-month period of time and involved theft from an employer; and 2) the extent
of the defendant’s involvement and his candor with the court were questionable. The court found
that the defendant was candid to a point because he was “caught red-handed,” but it took issue with
the defendant’s denial of benefitting from the thefts and blaming some “phantom employee.” The
court sentenced the defendant to two years on supervised probation and ordered him to pay
restitution in the amount of $8411.68 within one year. The court found the defendant was a good
candidate for probation and sentenced him accordingly.



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                                               Analysis

        On appeal, the defendant contends that the trial court abused its discretion in refusing to grant
judicial diversion. Judicial diversion is a “legislative largess” where a defendant, upon being found
guilty or pleading guilty, may complete a diversion program and receive expungement of records and
dismissal of the charges. State v. Schindler, 986 S.W.2d 209, 211 (Tenn. 1999). When a defendant
contends that the trial court committed error in refusing to impose a sentence pursuant to Tennessee
Code Annotated section 40-35-313, commonly referred to as “judicial diversion,” this court must
determine whether the trial court abused its discretion in failing to sentence pursuant to the statute.
State v. Robinson, 139 S.W.3d 661, 665 (Tenn. Crim. App. 2004). Judicial diversion is similar to
pretrial diversion; however, judicial diversion follows a determination of guilt, and the decision to
grant judicial diversion rests with the trial court rather than the prosecutor. State v. Anderson, 857
S.W.2d 571, 572 (Tenn. Crim. App. 1992). When a defendant challenges the trial court’s denial of
judicial diversion, we may not revisit the issue if the record contains any substantial evidence
supporting the trial court’s decision. State v. Cutshaw, 967 S.W.2d 332, 344 (Tenn. Crim. App.
1997); State v. Parker, 932 S.W.2d 945, 958 (Tenn. Crim. App. 1996). As this court said in
Anderson:
        We conclude that judicial diversion is similar in purpose to pretrial diversion and is
        to be imposed within the discretion of the trial court subject only to the same
        constraints applicable to prosecutors in applying pretrial diversion under T.C.A. § 40-
        15-105. Therefore, upon review, if “any substantial evidence to support the refusal”
        exists in the record, we will give the trial court the benefit of its discretion. Only an
        abuse of that discretion will allow us to overturn the trial court.
857 S.W.2d at 572 (citation omitted).

         That the defendant meets the prerequisites does not entitle him to judicial diversion. This
decision is left to the sound discretion of the trial court. T.C.A. § 40-35-313. The criteria considered
in determining whether an eligible accused should be granted judicial diversion include: (a) the
defendant’s amenability to correction; (b) the circumstances of the offense; (c) the defendant’s
criminal record; (d) the defendant’s social history; (e) the defendant’s physical and mental health;
and (f) the deterrence value to the defendant and others. Cutshaw, 967 S.W.2d at 343-44; Parker,
932 S.W.2d at 958. An additional consideration is whether judicial diversion will serve the ends of
justice, i.e., the interests of the public as well as the defendant. Cutshaw, 967 S.W.2d at 344; Parker,
932 S.W.2d at 958.

        There is no dispute that the defendant meets the statutory prerequisites for judicial diversion
as he pled guilty to a Class D felony and had no prior convictions. T.C.A. § 40-35-313(a)(1)(B)(I).
However, meeting the prerequisites does not entitle the defendant to judicial diversion. It is clear
from the record that the trial court did consider the criteria set forth by this court in both Cutshaw
and Parker to determine whether the defendant should be granted judicial diversion. The court made
findings on the record that the defendant had no prior criminal record, works and supports his family,
and has an education. However, the court had concerns about the defendant and was justified in
denying judicial diversion.


                                                  -3-
        In consideration of the issue of diversion, this court has recognized that the trial court may
consider that the circumstances surrounding the offense indicate that it was not impulsively
committed. See Anderson, 857 S.W.2d at 573; State v. Helms, 720 S.W.2d 474, 476 (Tenn. Crim.
App. 1986); State v. Lovvorn, 691 S.W.2d 574, 577 (Tenn. Crim. App. 1985). We also recognize
that the fact that the offense reflects a planned crime does not always justify the denial of diversion.
See State v. Herron, 767 S.W.2d 151 (Tenn. 1989); State v. Markham, 755 S.W.2d 850 (Tenn. Crim.
App. 1988).

        Here, as in Anderson, it is apparent that the trial court did not rely solely upon the fact that
the offense was planned. While the trial court determined that the crime was not impulsively
committed because it was protracted over three months and resulted in the loss of $8411.68 in
merchandise through the defendant’s manipulation of the business records of his employer, they also
found that the defendant was untruthful with regard to his involvement in the crime.

        The defendant’s lack of candor serves as an additional ground to deny judicial diversion.
This court has previously held that credibility bears on the rehabilitative prospects of a defendant and
may serve as the basis for denying diversion. Anderson, 857 S.W.2d at 574. In Anderson, this court
concluded that there was no abuse of discretion in denying judicial diversion when the trial court:
1) did not consider the defendant sincere in accepting responsibility for the offense committed, and
2) was concerned with the defendant’s attempt to divert blame to another. Here, the defendant only
accepts responsibility for manipulating the computer records. He maintains that he never exercised
physical control of the merchandise or derived any benefit from its disappearance. He also attempts
to divert blame to the other employees of the store for the missing merchandise. The record reflects
that the trial court did not consider the defendant sincere in the explanation of his responsibility for
the offense and was duly concerned with the defendant’s attempt to divert blame to other “phantom
employee[s].” These circumstances are relevant to assessing the degree of rehabilitation potential
shown by the defendant. The trial court is in the best position to view the defendant’s attitude and
demeanor, and we are not in a position to view the defendant differently on the record before us. The
trial court did not abuse its discretion in denying diversion. The judgment is affirmed.

                                             Conclusion

       For the foregoing reasons, the judgment of the trial court is affirmed.




                                                        ___________________________________
                                                        JOHN EVERETT WILLIAMS, JUDGE




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