         IN THE CRIMINAL COURT OF APPEALS OF TENNESSEE

                               AT JACKSON

                          MARCH 1997 SESSION



STATE OF TENNESSEE,                )
                                   )
            Appellee,              )   C.C.A. No. 02C01-9603-CR-00092
                                   )
vs.                                )   Shelby County
                                   )
GILBERTO R. CANTU,                 )   Honorable W. Fred Axley, Judge
and JOHN P. SCOTT,                 )
                                   )   (Schedule IV)
            Appellants,            )
                                   )



FOR THE APPELLANTS:                     FOR THE APPELLEE:

MARVIN E. BALLIN                        JOHN KNOX WALKUP
Attorney At Law                         Attorney General & Reporter
200 Jefferson Avenue, Suite 1250
Memphis, TN 38103                       JANIS L. TURNER
                                        Counsel for the State
                                        Criminal Justice Division
                                        450 James Robertson Parkway
                                        Nashville, TN 37243-0493

                                        JOHN W. PIEROTTI
                                        District Attorney General

                                        ALANDA HORNE
                                        Assistant District Attorney General
                                        Shelby County District Attorney
                                          General’s Office
                                        201 Poplar Avenue, Third Floor
                                        Memphis, TN 38103



OPINION FILED: _____________

AFFIRMED and REMANDED - JOHN P. SCOTT
AFFIRMED, AS MODIFIED and REMANDED - GILBERTO R. CANTU


CURWOOD WITT, JUDGE
                                     OPINION

              The appellants, Gilberto R. Cantu and John P. Scott, appeal the

Shelby County Criminal Court's denial of judicial diversion and imposition of a split,

partially suspended sentence. The appellants both pleaded guilty to possession of

a controlled substance 1 and requested judicial diversion, which was denied. The

court below imposed identical sentences on the appellants of 14 months

confinement, with all but 42 days suspended, and 2 years of probation and payment

of fines. On review, we affirm both convictions, but we modify the sentence and the

manner of service of the sentence of Gilberto R. Cantu, and we remand the case

in order for the trial court to specify the conviction offenses with respect to each

appellant.



              On January 27, 1995, John P. Scott, a 23-year-old resident of San

Antonio, Texas, and Gilberto R. Cantu, a 20-year-old resident of San Antonio, were

stopped for traffic violations while traveling on I-240 in Memphis. The vehicle in

which the appellants were traveling was driven by the appellant Scott, and the

appellant Cantu was the sole passenger. The officer who made the stop apparently

noticed a strong smell of marijuana coming from the vehicle and requested

permission to search. Appellant Scott informed the officer he had marijuana in the

car and consented to the search. While making the consensual search, the officer

located four and one-half pounds of marijuana inside luggage in the trunk of the car

and a small bag of marijuana under the passenger seat. Appellant Cantu told the

officer he had been smoking marijuana and placed the small bag under the seat

when he became nervous. Thereafter, the appellants were both indicted for

possession of a controlled substance with intent to sell and possession of a

1

       As we discuss below, the record does not reflect whether the appellants
pleaded guilty to possession of a controlled substance with intent to sell or
possession of a controlled substance with intend to deliver. Both appellants
were indicted on both charges.

                                          2
controlled substance with intent to deliver, both in violation of Tennessee Code

Annotated section 39-17-417, Class E felonies.



              The appellants thereafter entered into an agreement with the District

Attorney General whereby they would each plead guilty to one of the indicted

offenses. Although the record is not entirely clear, it appears the agreement called

for sentencing to be left to the discretion of the trial court, with the state

recommending one year's probation and a fine.



              At the sentencing hearing, the appellant Scott testified that when he

was apprehended, he was transporting marijuana from Texas to Virginia. He

testified on direct examination he met someone in San Antonio who "offered me an

opportunity to make some money delivering the drugs involved." During cross

examination, however, he said he knew the Virginia dealer from working with him

at Sam's Club when he was living in Northern Virginia, and he essentially arranged

the transaction based on his knowledge of the quantity needed by the Virginia

dealer, which he purchased from a San Antonio dealer from whom he previously

made small purchases for personal use. The money for the transactions was

fronted by the Virginia dealer. Scott testified that he was not a drug dealer and had

not engaged in any transactions other than purchases for personal use and this one

large purchase for resale. He told the court he had entered into this particular deal

because he needed money to pay bills and college expenses.



              On cross-examination, Scott was unable to give the last name of the

drug dealer in San Antonio from whom he purchased the marijuana. At this point,

the court became very incensed and ordered a recess. Prior to taking the recess,

the court made several statements, including, "I'm probably not going to give

[diversion] to [Scott] anyway" and "I want to he[ar] it, or [diversion] ain't [sic] going

                                           3
to happen." He also told counsel, "[Y]ou know where he's going, and he's going

today." After the recess, Scott resumed his testimony and insisted he did not know

the San Antonio dealer's last name, although he testified he took San Antonio

narcotics officers to the dealer's apartment and workplace, provided them with

information about the deal and gave them this dealer's telephone and beeper

numbers. However, he testified, he declined a proposal that he participate in an

undercover purchase of 50 pounds of marijuana from the dealer out of fear for his

safety. Scott did not elaborate, and this court has no indication of the basis for this

appellant's concern for his safety.



              At the time of the offenses, Scott was employed, along with his co-

appellant Cantu, at Sam's Club in San Antonio. Scott testified he was fired from

Sam's Club as a result of the instant offenses. As a result of the offenses, he

moved from San Antonio into his mother's home in Woodbridge, Virginia, where he

enrolled at Northern Virginia Community College. He testified he had incurred

financial losses as a result of his crime, and he and his family had been

embarrassed by his actions. Moreover, he avowed that if the court gave him the

chance he would not commit any crimes in the future.



              Scott admitted a prior misdemeanor trespassing arrest in Virginia, and

testified he had no other criminal record.2 He admitted, however, to marijuana

purchases and usage.



              The appellant Cantu testified that he met his co-appellant on the job

at Sam's Club. Cantu used marijuana with Scott prior to the offenses in question.

Cantu recalled that the drug transaction had been discussed when Scott came to

2

     The record is devoid of any proof of a conviction, although Scott admitted
committing the offense.

                                          4
Cantu's apartment and told Cantu and his roommate about it. Cantu's roommate

initially agreed to accompany Scott to deliver the marijuana to Virginia; however, the

roommate changed his mind at the last minute and Cantu agreed to go on the

delivery in his place. Cantu was to receive approximately $800 for his assistance

in the delivery. Cantu testified he knew neither the Virginia dealer nor the San

Antonio dealer.



              Cantu testified that his goal was to become an electrical engineer. He

was pursuing his education and continuing to work at Sam's Club at the time of the

hearing.   As part of the presentence report, letters discussing Cantu's good

character and past accomplishments were submitted from former teachers, a priest

and family friends.



              Cantu testified that he and his family had been embarrassed by his

actions. His parents, both of whom are teachers, had been ridiculed as a result of

the offenses. He testified he knew what he had done was wrong and that he would

not violate the law again.



              The trial court accepted the guilty pleas of both appellants on one

count of the indictment. The record does not specify whether the appellants

pleaded and were adjudged guilty to possession of a controlled substance with

intent to sell or possession of a controlled substance with intent to deliver, although

both are Class E felonies. The court then denied judicial diversion to both Scott and

Cantu based on "the enormity of the offense" and "the nature and circumstances

of the offense in that they consorted with another or others to transport a large

quantity to-wit 4.5 pounds of marijuana interstate." The court denied imposition of

a Community Corrections sentence, stating simply, "It does not satisfy the Court's

requirements." The court then imposed a sentence of 14 months, with all but 42

                                          5
days suspended, two years of probation beginning upon the appellants' release

from confinement, and fines. The sentence is identical in all respects as to both

appellants.



                                            I

              In their first issue, the appellants challenge the trial court's denial of

judicial diversion. The Sentencing Reform Act of 1989 provides in pertinent part:

       If any person who has not previously been convicted of a felony or a
       Class A misdemeanor is found guilty or pleads guilty to a
       misdemeanor which is punishable by imprisonment or a Class C, D
       or E felony, the court may, without entering a judgment of guilty and
       with the consent of such person, defer further proceedings and place
       the person on probation upon such reasonable conditions as it may
       require and for a period of time not less than the period of the
       maximum sentence for the misdemeanor with which he is charged, or
       not more than the period of the maximum sentence of the felony with
       which he is charged, on condition that the defendant pay, in addition
       to the payment of not less than ten dollars ($10.00) nor more than
       thirty-five dollars ($35.00) per month, as determined by the court [as
       part payment of the expenses of supervision of the defendant]. . . .

Tenn. Code Ann. § 40-35-313(a)(1) (Supp. 1996). The procedure under this

provision is commonly referred to as judicial diversion. It is substantially similar to

pretrial diversion; however, judicial diversion follows a guilty plea and the decision

to grant diversion rests with the court, not the prosecutor. State v. Anderson, 857

S.W.2d 571, 572 (Tenn. Crim. App. 1992).



              The lower court's denial of judicial diversion is subject to appellate

reversal only if that court abused its discretion. State v. Hammersley, 650 S.W.2d

352, 356 (Tenn. 1983).       When an appellant challenges the denial of judicial

diversion, we are constrained not to revisit the issue if the record contains any

substantial evidence supporting the trial court's decision. Hammersley, 650 S.W.2d

at 356; accord, State v. Carr, 861 S.W.2d 850, 856 (Tenn. Crim. App. 1993) (where

the evidence is capable of justifying differing results, this court allows the prosecutor

his or her discretion on a decision of whether to allow pretrial diversion).

                                           6
              In determining whether to grant judicial diversion, the trial court must

consider

       (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, (f)
       the deterrence value to the accused as well as others, and (g)
       whether diversion will serve the public's and the accused's interests
       in the ends of justice.

State v. Bonestel, 871 S.W.2d 163, 168 (Tenn. Crim. App. 1993) (citation omitted).

Moreover, the record must reflect that the court has weighed all of the factors in

reaching its determination. Bonestel, 871 S.W.2d at 168 (citations omitted). 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. Bonestel, 871 S.W.2d at

168.



              In the case sub judice, the trial court simply stated its reasons for

denying judicial diversion. It articulated its reliance on "the enormity of the offense"

and "the nature and circumstances of the offense." In other words, under the

Bonestel analysis, the court based its determination on but one of the seven factors

to be considered -- the circumstances of the offense. Moreover, the court did not

explain whether it had considered any of the other factors, and if so, why they were

not applicable. Under the dictate of Bonestel, the trial court's analysis does not

adequately appear of record. The question remains, however, whether the trial

court reached the correct result notwithstanding its failure to explain its analysis on

the record. See State v. Talmadge G. Wilbanks, No. 02C01-9601-CR-00003 (Tenn.

Crim. App., Jackson, Nov. 19, 1996) (trial court's denial of diversion affirmed despite

court's failure to explain its considerations and analysis on the record).



              With respect to the appellant Scott, we cannot conclude that the court


                                           7
abused its discretion in denying judicial diversion. The record reflects Scott was

untruthful, or at least lacked candor, with the trial court in that he gave conflicting

accounts as to whether he was recruited by someone in Texas to transport drugs

to Virginia or whether he arranged the transaction himself. We believe Scott's lack

of candor with the trial court is illustrative of his amenability to correction. See State

v. Paul Emile Oliver, No. 03C01-9510-CC-00322 (Tenn. Crim. App., Knoxville, July

15, 1996) (denial of pretrial diversion upheld based upon appellant's inconsistent

statements to the trial court about his involvement in drug sales prior to

apprehension); State v. Nease, 713 S.W.2d 90 (Tenn. Crim. App. 1986) (defendant

who was untruthful with trial court appropriately denied diversion). Second, by all

accounts, the circumstances of the offense are that Scott orchestrated the

transportation of or at least agreed to transport a large quantity of marijuana across

several states. The record strongly supports a conclusion that Scott planned this

endeavor. As between himself and Cantu, Scott was clearly the more culpable

offender. This "circumstances of the offense" factor was relied on by the trial court

in its denial of judicial diversion. Third, Scott has a history of criminal activity --

trespassing and marijuana purchases and use. These factors all militate against

judicial diversion.



               Upon consideration of all of the facts and circumstances and with our

narrow scope of review in mind, we conclude that the trial court did not abuse its

discretion in denying judicial diversion to the appellant Scott.        In our view, the

negative factors that we have noted above outweigh this appellant's moderately

positive social history, good health and the essentially neutral considerations of

deterrence and the ends of justice. Accordingly, we find there is evidence of record

to support the lower court's denial of judicial diversion to John P. Scott.



               Next, with respect to the appellant Gilberto R. Cantu, the record

                                            8
reflects he is a young man who appears to be amenable to correction. Several

members of his community, including his priest and two former teachers, wrote to

the court attesting to his good character and past peer leadership. He readily

admitted his involvement and expressed his remorse at breaking the law and

causing shame to his family. Unlike his co-appellant, there was no indication he

was untruthful with the court about the nature and extent of his involvement in the

conviction offense.     He testified he is enrolled in college and has steady

employment. Second, the circumstances of the offense were that the appellant

became involved at the last minute when his roommate decided not to accompany

Scott on the trip to Virginia. Contrary to the finding of the trial court that Cantu and

Scott "consorted with another or others to transport a large quantity . . . of

marijuana" to another state, there is no evidence of record that Cantu was involved

in arranging the transaction or even knew the drug dealers between whom the

marijuana was being transported. Next, we note that Cantu has no criminal record,

although he admitted smoking marijuana. Moreover, the appellant Cantu's social

history is extremely positive with the exception of his marijuana use. Both of his

parents are teachers, and the appellant himself was a student leader in high school,

serving as a member of the student council and as a drum major for the band.

According to information in the presentence report, it appears Cantu moved into his

parents' home following the offense. With respect to Cantu's physical and mental

health, the presentence report reflects no concerns. Next, we see no evidence that

this appellant would be any more deterred from future criminal conduct if judicial

diversion is denied than if it was granted. Finally, the ends of justice ostensibly

would be served by giving a second chance to this young man who made a mistake

uncharacteristic of his past accomplishments, particularly given his comparatively

less culpable role in this crime. In this vein, we believe Cantu has generally

demonstrated the ability to meet the ordinary obligations of society as well as the

ability and incentive to follow the law in the future. See Nease, 713 S.W.2d at 92.

                                           9
               This court has said that the presence of only one of the factors is

sufficient to support a denial of judicial diversion. State v. Thomas Dailey, No.

02C01-CR-00008 (Tenn. Crim. App., Jackson, Aug. 21, 1991) (relying on State v.

Baron, 659 S.W.2d 811 (Tenn. Crim. App. 1983) (applying this rule in the context

of a denial of probation)). However, the supreme court has said that two of the

factors,    the circumstances of the case and deterrence, may not be given

"controlling weight unless they are 'of such overwhelming significance that they

[necessarily] outweigh all other factors.'" State v. Washington, 866 S.W.2d 950,

951 (Tenn. 1993) (pretrial diversion case) (emphasis in original) (quoting State v.

Markham, 755 S.W.2d 850, 853 (Tenn. Crim. App. 1988)). The trial court made no

finding on the record that the factor it relied on, the circumstances of the offense,

was of overwhelming significance, but of course this finding is implicit in the court’s

decision.



               Under Washington, appellant Cantu presents an “‘especially

compelling’” case for judicial diversion, Washington, 866 S.W.2d at 951; however,

we notice that his role in the crime was not compelled by exigent circumstances and

is not explained by impaired judgment. Moreover, he did not act inadvertently, nor

even gratuitously.    He was, by his own admission, motivated by lucre.             He

calculated to make a profit by illegally trafficking in a significant amount of drugs.

Such a motive is inimical, we believe, to one’s candidacy for judicial diversion

because it entails a consideration of serving the public’s interest in the ends of

justice. See Washington, 866 S.W.2d at 951; Bonestel, 871 S.W.2d at 168. In this

regard we find that, given the pecuniary nature of the enterprise, a mere reversal

of economic fortune may not be an adequate penal response, or at least the trial

judge could have reasonably found that this consideration sufficiently weighed

against the factors favoring diversion. While we view it as a close case, we hold

that the denial of judicial diversion for appellant Cantu is not an abuse of discretion.

                                          10
                                         II

             The remaining issue challenges the propriety of the sentences

imposed on the appellants.



             In determining whether the trial court has properly sentenced an

individual, this court engages in a de novo review of the record with a presumption

the trial court's determinations were correct. Tenn. Code Ann. § 40-35-401(d)

(1990). This presumption is "conditioned upon the affirmative showing in the record

that the trial court considered the sentencing principles and all relevant facts and

circumstances.” State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). In conducting

our de novo review, we must consider the evidence at sentencing, the presentence

report, the sentencing principles, the arguments of counsel, the statements of the

defendant, the nature and characteristics of the offense, any mitigating and

enhancement factors, and the defendant’s amenability to rehabilitation. Tenn. Code

Ann. § 40-35-210(b) (1990); Ashby, 823 S.W.2d at 168. On appeal, the appellant

has the burden of showing the sentence imposed is improper. Tenn. Code Ann. §

40-35-401(d), Sentencing Comm'n Comments (1990); Ashby, 823 S.W.2d at 169.



             The record in this case fails to demonstrate that the trial court gave

appropriate consideration to the principles of sentencing as well as the relevant

facts and circumstances. Although the trial judge relied on "the enormity of the

offense" and the "nature and circumstances of the offense" in denying judicial

diversion, there are no statements whatsoever which confirm that the trial judge

considered any of the relevant factors in determining an appropriate sentence.

Thus, we conduct our de novo review without the presumption that the trial court

properly sentenced the appellant.



             In this case, the appellants, as Class E felons, are presumed to be

                                        11
favorable candidates for alternative sentencing under the 1989 Sentencing Act.

See Tenn. Code Ann. § 40-35-102(6) (1990).



              In conducting our de novo review, we have reviewed the enhancement

and mitigating factors, neither of which were analyzed by the trial court. Likewise,

neither party has argued for the application of these factors in their briefs. Looking

first to the enhancement factors, we find that the appellant Scott was a leader in the

commission of the offense and that he had a history of criminal convictions or

criminal behavior.3 See Tenn. Code Ann. § 40-35-114(1), (2) (Supp. 1996). The

record reflects no enhancement factors relative to Cantu, except for the prior

criminal behavior of using marijuana.

              Considering next the mitigating factors, we find that Scott assisted the

authorities in uncovering offenses committed by other persons, and he assisted the

authorities in locating or recovering any person involved in the crime. See Tenn.

Code Ann. § 40-35-113(1),(9),(10) (1990). We afford the latter two factors less

weight because they are essentially duplicative of each other on the facts of this

case.   In the preceding section of this opinion we described the personal

background of Cantu, and we consider the background factors of both appellants

as mitigating circumstances. Tenn. Code Ann. § 40-35-113(13) (1990).



              We point out that the presumptive sentence for a Class E felony is the

minimum in the range, which in the case before us (Range I), is one year. Tenn.

Code Ann. § 40-35-210(c) (Supp. 1996); Tenn. Code Ann. § 40-35-111(b)(5)

(1990); Tenn. Code Ann. § 40-35-112(a)(5) (1990).



3

       This appellant admitted trespassing on a golf course in 1991 and
purchasing and using marijuana on multiple occasions prior to his offense.
While there was no evidence presented of prior convictions, the record shows a
history of criminal behavior.

                                         12
              Upon consideration of these factors, as well as the presentence

report, the arguments advanced by counsel, the testimony of the appellant and the

nature and characteristics of this particular offense, we conclude that the length of

the sentence imposed on Scott is justified and should not be disturbed. In the

absence of enhancement factors that outweigh mitigating factors in Cantu’s case,

we modify his sentence of fourteen months and establish it at the minimum within

the range, one year.



              In suspending all but forty-two (42) days of the sentence that was

imposed, the trial court has accorded alternative sentencing, in the form of split

confinement, to the appellants. Of course, split confinement involves probation,4

but our de novo review of the use of the ordered confinement entails our

consideration of Tennessee Code Annotated section 40-35-103(1). This subsection

lists grounds that may be used to support an order of confinement. None of the

stated grounds applies in the case now before us except the ground set forth in the

first clause of section 103(1)(B), that “confinement is necessary to avoid

depreciating the seriousness of the offense[.]” Tenn. Code Ann. § 40-35-103(1)(B)

(1990). The trial court essentially declared the need to avoid depreciating the

seriousness of the offense when, with reference to the diversion request, he alluded

to the “enormity of the offense” and the “nature and circumstances of the offense

in that [the appellants] consorted with another or others to transport a large quantity

to-wit 4.5 pounds of marijuana interstate.” On review, we find that the ordering of

some confinement is commensurate with the need to avoid depreciating the

seriousness of this offense.




4

      We note that the appellants are neither residents nor domiciliaries of
Tennessee, and thus, we have not considered Community Corrections as a
sentencing option.

                                          13
               It does not follow, however, in considering the record as a whole, that

the periods of confinement should be identical for both appellants. As we have

indicated in section I that deals with judicial diversion, supra, there is a discernible

difference in the culpability of the two appellants. Appellant Cantu is less culpable

for the reasons we have noted. While we have ruled that this difference does not

compel us to find that the trial judge abused his discretion in denying diversion to

Cantu, we do find that the distinction between these two offenders should be

recognized in the provision for probation. Therefore, for these reasons and in the

exercise of our responsibilities in reviewing this matter de novo, we hold that

Cantu’s sentence shall be suspended upon the service of twenty-one (21) days.

With this modification and the modification of the length of Cantu’s sentence, the

sentences, manner of service, and fines of the appellants shall remain as they were

established by the trial court.



                                           III

               The final issue is one which this court has raised ex mero motu. Our

review of the record reveals that nowhere therein is the precise convicting offense

for either appellant conclusively established.         The indictment charges both

appellants with possession of a controlled substance with intent to sell and

possession of a controlled substance with intent to deliver. It is beyond cavil that

the two are separate offenses. See Tenn. Code Ann. § 39-17-417, Sentencing

Comm'n Comments (Supp. 1996). The plea documents signed by both appellants

are not illustrative. Appellant Scott's plea document shows simply "Charge(s) UPCS

w/I marijuana" and Appellant Cantu's reads "Charges UPCS w/I S&D."                   The

judgments are identical as to both appellants, reflecting that they were convicted of

"unlawful poss. of a cont. subst. w/ intent." The transcript reflects that the trial judge

accepted the guilty pleas of the appellants and found them guilty of "possession of

a controlled substance with the intent to sell or deliver." (emphasis added) It is

                                           14
apparent that the appellants pleaded guilty to only one of the two counts; however,

the record does not reflect to which of the two counts the appellants entered their

pleas. This information is essential, and this case is remanded for entry by the trial

court. Tenn. R. Crim. P. 36.



              In summary, the denial of judicial diversion in both cases is affirmed.

With respect to Gilberto R. Cantu, we modify the trial court's sentence and establish

the sentence at one year, to be suspended upon the service of twenty-one (21)

days, together with the probationary period and fines as ordered by the trial court.

With respect to John P. Scott, we affirm the sentence imposed below. Finally, we

remand this case to the trial court for entry in the record of the convicting offenses

as to both appellants and of the modification of appellant Cantu’s sentence and

manner of service of sentence.



                                          ____________________________
                                          CURWOOD W ITT, Judge




______________________________
JOSEPH B. JONES, Presiding Judge



______________________________
GARY R. WADE, Judge




                                         15
