        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                         Assigned on Briefs November 18, 2014

             STATE OF TENNESSEE v. JUSTIN WILLIAM VOTO

                   Appeal from the Criminal Court for Knox County
                         No. 89776    Bob R. McGee, Judge




               No. E2013-02652-CCA-R3-CD - Filed November 24, 2014


In 2008, the Defendant, Justin William Voto, pleaded guilty to kidnapping and was granted
judicial diversion for a period of ten years. In 2013, the Defendant’s supervising officer filed
a warrant to revoke his judicial diversion based upon new charges. At subsequent hearings,
the trial court revoked the Defendant’s judicial diversion, entered a judgment of conviction,
and sentenced him to ten years of supervised probation. The Defendant filed a notice of
appeal. While the appeal was pending, the Defendant’s probation officer filed a warrant to
revoke his probation based upon the Defendant’s failure to follow probation requirements,
and the trial court revoked the Defendant’s probation sentence and ordered him to serve his
sentence in confinement. In this consolidated appeal, the Defendant asserts that the trial
court erred when it revoked his judicial diversion and his probation sentence. The Defendant
also asserts that the trial court’s imposition of a ten-year sentence was improper because the
proper range in this case is three to six years. After a thorough review of the record and
applicable law, we affirm the trial court’s judgment revoking the Defendant’s judicial
diversion, vacate the ten-year sentence imposed, and remand for a sentencing hearing.

 Tenn. R. App. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed in
                     part and Reversed in part; Remanded

R OBERT W. W EDEMEYER, J., delivered the opinion of the Court, in which J OHN E VERETT
W ILLIAMS and T IMOTHY L. E ASTER, JJ., joined.

Stephen Ross Johnson, Knoxville, Tennessee, for the appellant, Justin William Voto.

Herbert H. Slatery, III, Attorney General and Reporter; Benjamin A. Ball, Senior Counsel;
Randall Nichols, District Attorney General; and Philip H. Morton, Assistant District Attorney
General, for the appellee, State of Tennessee.
                                         OPINION
                                  I. Background and Facts

        On August 8, 2008, pursuant to a plea agreement, the Defendant agreed to plead guilty
to kidnapping, a Class C felony, outside the range, as a Range II offender with the trial court
to determine his sentence. The State agreed “not to oppose probation and judicial diversion
if [the Defendant] complete[d] [a] course of treatment recommended [by a mental health
facility].” On November 6, 2008, the trial court granted the Defendant’s request for judicial
diversion and placed him on judicial diversion for a period of ten years.

        On January 8, 2013, the Defendant’s supervising officer filed an affidavit alleging that
the Defendant had violated condition (14) of his judicial diversion by incurring criminal
charges for assault, public intoxication, and aggravated assault. On March 1, 2013, the
Defendant admitted to a violation of the terms of his judicial diversion and requested that the
trial court “reinstate” his judicial diversion; the Defendant waived his right to a hearing on
the matter. The trial court subsequently scheduled a sentencing hearing, which was held on
April 12, 2013.

        At the hearing, the following evidence was presented: Megan Glenn testified that she
had dated the Defendant “a couple of years back” for about a year or a year and a half. She
stated that, during the time she was dating the Defendant, he told her he was “on probation”
for “cutting somebody’s lips off and slitting somebody’s eyelids,” but Ms. Glenn did not
know if that had actually occurred. Ms. Glenn stated that, during the time they dated, the
Defendant exhibited “violent behavior” when they were “playing.” She recalled that he
choked her, and she told him to stop when it was not “funny anymore,” and she “blacked
out.” Ms. Glenn said she was crying when she asked the Defendant why he did not stop
choking her when she could not breathe.

        Ms. Glenn recalled that the Defendant would say things that “threw [her] off” such
as talking about hurting his mother “in a moment of anger[.]” Ms. Glenn also stated that the
Defendant threatened her family, and threatened the family of a woman named “Dana.” Ms.
Glenn explained that the Defendant was charged with assault on Dana Shell and her father,
and the Defendant subsequently told Ms. Glenn that he would “blow up their house” and
made other “crazy off-the-wall statements,” which she did not perceive to be jokes.

        Ms. Glenn stated that she was present when the assaults on Ms. Shell and her father
occurred, which lead to the Defendant’s judicial diversion revocation. Ms. Glenn stated that
she, the Defendant, and Ms. Shell were driving in Ms. Glenn’s car, with the Defendant in the
passenger seat and Ms. Shell in the backseat. Ms. Glenn stated that the Defendant and Ms.
Shell got into an argument in the car, and he turned around and “choked [Ms. Shell] in the

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back of [Ms. Glenn’s] car[,]” “cutting off her airway.” Ms. Glenn stated that she pulled her
car over to the side of the road, opened the back door, and pulled Ms. Shell out of the car.
She told Ms. Shell to run home because they were relatively close to Ms. Shell’s house. Ms.
Glenn testified that Ms. Shell’s father approached the car, and the Defendant got out of the
car and pushed him down to the ground. Ms. Glenn stated that the Defendant had been
drinking vodka that night, but she did not know if he was intoxicated.

       On cross-examination, Ms. Glenn agreed that she had been drinking the night of the
assault on Ms. Shell and her father, as had Ms. Shell. She agreed that she saw Ms. Shell’s
father was “com[ing] toward” the Defendant and then saw the Defendant push him to the
ground. Ms. Glenn stated that she was aware that the Defendant was on Adderall medication
for Attention Deficit Disorder.

          Dana Shell testified that she was a friend of Ms. Glenn’s. She testified that on the
night of November 18, 2011, she and Ms. Glenn picked up the Defendant. He sat in the front
passenger seat, and Ms. Shell sat in the backseat. Ms. Shell recalled that she and the
Defendant started arguing, and “it just kept escalating.” The Defendant “snapped” and
started yelling at Ms. Shell, asking her if she wanted him to hit her. Ms. Shell recalled
“that’s when he turned around and held me up against the back seat and was choking me and
- the point where I couldn’t breathe, I couldn’t scream for help or get [Ms. Glenn] to help me
. . ., and finally [Ms. Glenn] realized what was happening and she opened the back of the car
and had to pull me out.” Ms. Shell stated she had red marks on her face and neck from the
Defendant choking her. A photograph of her injuries was admitted as evidence into the
record.

        Ms. Shell testified that, after the Defendant choked her, she went to her house, and her
father came outside. Ms. Shell said that her mother had called the police at this point. Ms.
Shell said her father was looking for the Defendant. When he approached him, the
Defendant pushed him, and he tripped on the curb and fell down on the ground. Ms. Shell
stated that the police arrived and placed the Defendant under arrest. She recalled that the
Defendant had been drinking, and she stated that he was later charged with public
intoxication.

        On cross-examination, Ms. Shell agreed that she had also been drinking that night.
She stated that Ms. Glenn and the Defendant were not dating at the time, but “she missed
him[]” and “still wanted to see him[.]” Ms. Shell stated that she and the Defendant argued
over whether she would leave Ms. Glenn and the Defendant alone. She denied hitting or
kicking the Defendant. Ms. Shell stated that her mention of the Defendant hitting Ms. Glenn
made him snap. He turned around toward the back seat of the car and said, “do you want me
to hit you[?]” and then proceeded to reach into the back seat and choke Ms. Shell.

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      Ms. Shell said she ran inside her house and told her mother and father what had
happened. That is when her mother called the police and her father went outside.

        Further exhibits admitted into evidence were judgment forms showing that the
Defendant had pleaded guilty to the public intoxication and assault charges that arose from
the incident between him and Ms. Shell and her father. Also admitted was a presentence
report, medical records from the Defendant’s stay at Ridgeview Institute, monthly reporting
forms provided by the Defendant’s judicial diversion supervisor, numerous letters written in
support of the Defendant, his school records, a college acceptance letter, and a letter from
a psychologist.

        At the conclusion of the hearing, the trial court took the matter under advisement. A
subsequent hearing was held on August 1, 2013, during which the trial court considered the
Defendant’s request to remain on judicial diversion. The trial court denied the Defendant’s
request, stating that it had considered his “weak amenability to correction” and particularly
the fact that the Defendant was originally placed on judicial diversion for assaulting a woman
and then violated the conditions of judicial diversion by committing a second assault on
another woman. The trial court stated that judicial diversion had been “tried” and did not
work for the Defendant. The trial court noted that the Defendant had mental health problems
that he was addressing while on judicial diversion but stated that judicial diversion “wasn’t
sufficient” to help him address those problems. The trial court further noted that it had
considered the deterrence value of the Defendant remaining on judicial diversion and
whether the same would serve the interest of the public as well as the Defendant. Because
the Defendant had committed “dangerous offenses,” the trial court found that it would not
be in the public’s best interest for him to remain on judicial diversion.

       As to the sentence the trial court would impose, it made the following statement:

               We’ve had a series of hearings about what sentence can be imposed in
       this situation. There are cases that indicate that the original plea does not
       survive the revocation of the [judicial] diversion. There are cases that go in
       the other direction.

              ....

              There is some authority for what I’m about to do, and I know there’s
       some authority contrary to it, . . . . The Court is going to hold that the original
       [plea] agreement can survive the revocation, and that one of the options the
       Court has is to sentence the [D]efendant in accordance with the original [plea]
       agreement, which the Court did accept at the time. So the Court will at this

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       point . . . resentence the [D]efendant on this kidnapping charge, case 89776,
       to ten years in the custody of the Tennessee Department of Correction. . . .

The trial court ordered that the Defendant’s ten-year sentence would be served on
“enhanced” supervised probation. A judgment of conviction was entered on October 31,
2013. On November 27, 2013, the Defendant filed a notice of appeal.

       While his original appeal was pending, the Defendant’s probation officer filed an
affidavit alleging that the Defendant had violated the terms of his probation, specifically that
the Defendant had “absconded from supervision” and failed to comply with further probation
requirements. On March 14, 2014, the trial court revoked the Defendant’s probation and
ordered him to serve the remainder of his ten-year sentence in incarceration in accordance
with the October 31, 2013 judgment. The Defendant filed a timely notice of appeal on
March 18, 2014. This Court consolidated the Defendant’s November 27, 2013 and March
18, 2014 appeals.

                                         II. Analysis

        The Defendant argues on appeal that: (1) the trial court abused its discretion when it
revoked the Defendant’s judicial diversion and then denied his request for reinstatement to
judicial diversion because the Defendant’s violation “occurred after [the Defendant’s] family
physician prescribed attention deficit medication that exacerbated [the Defendant’s] untreated
bipolar disorder;” (2) the trial court erred when it failed to sentence the Defendant to the
minimum three-year sentence for a Range I offender convicted of a Class C felony; and (3)
the trial court abused its discretion when it revoked the Defendant’s supervised probation
sentence and ordered him to serve the remainder of his sentence in incarceration “because
of non-criminal violations due to mental illness before [the Defendant] had the opportunity
to obtain treatment and medication.” The Defendant states that should this Court affirm the
trial court’s revocation of his judicial diversion, we should modify the Defendant’s sentence.

       The State responds that the trial court properly revoked the Defendant’s judicial
diversion because “substantial evidence” established that the Defendant violated the
conditions of his judicial diversion. The State concedes, however, that the trial court erred
when it imposed the probationary sentence pursuant to the guilty plea agreement without
considering the principles and purposes of sentencing in a sentencing hearing. The State
asserts that this Court should remand this case to the trial court for a proper sentencing
hearing.

                            A. Revocation of Judicial Diversion



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        In Tennessee, if a defendant has been granted judicial diversion, and violates the terms
of the diversionary probation, then the trial court should follow the same procedures as those
used for ordinary probation revocations. Alder v. State, 108 S.W.3d 263, 266 (Tenn. Crim.
App. 2002). Those procedures include issuing a probation revocation warrant and
conducting a hearing, where the trial court will determine by a preponderance of the evidence
whether the defendant in fact violated the probationary terms. Id.; T.C.A. § 40-35-311
(2014). This Court summarized the procedural posture and standard of review entailed in
a judicial diversion revocation as follows:

              Obviously, for a defendant granted judicial diversion, it is in his best
       interest to remain on judicial diversion until he successfully completes his
       period of probation.

              If a defendant placed on judicial diversion violates the terms of his
       probation, however, the State may seek revocation. See Alder v. State, 108
       S.W.3d 263, 266 (Tenn. Crim. App. 2002). In addressing the State’s
       allegations, “the trial court should follow the same procedures as those used
       for ordinary probation revocations.” Id. If the trial court determines [by a
       preponderance of the evidence] that the defendant violated the terms of his
       judicial diversion, “the court may enter an adjudication of guilt and proceed as
       otherwise provided.” Tenn. Code Ann. § 40-35-313(a)(2) (emphasis added).

               The General Assembly’s use of the permissive term “may” indicates
       that a trial court retains the discretion to leave the defendant on judicial
       diversion, even after it finds that the defendant violated the terms of his
       diversionary probation. Cf. State v. Hunter, 1 S.W.3d 643, 648 (Tenn. 1999)
       (holding that, “at the conclusion of a probation revocation hearing, a trial court
       can: (1) order incarceration; (2) cause execution of the judgment as it was
       originally entered; or (3) extend the remaining probationary period for a period
       not to exceed two years”).

              We review a trial court’s decision to revoke judicial diversion for an
       abuse of discretion. Johnson, 15 S.W.3d at 517-18; State v. Doyle W. Pugh,
       No. E2000-02488-CCA-R3-CD, 2001 WL 920227, at *2 (Tenn. Crim. App.
       Aug. 15, 2001). “Reviewing courts will find an abuse of discretion only when
       the trial court applied incorrect legal standards, reached an illogical
       conclusion, based its decision on a clearly erroneous assessment of the
       evidence, or employed reasoning that causes an injustice to the complaining
       party.” State v. Banks, 271 S.W.3d 90, 116 (Tenn. 2008).



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State v. Brys Andrew Hensley, No. E2012-00812-CCA-R3-CD, 2013 WL 793579, at *2-3
(Tenn. Crim. App., at Knoxville, March 4, 2013) no perm. app. filed.

        The State notes that the Defendant stipulated to a violation of his judicial diversion.
Our review of the record indicates that the Defendant did “submit to the violation” at the
March 1, 2013 hearing. In a subsequent hearing, a witnesses testified that, while the
Defendant was on judicial diversion, he got into an argument with a woman inside a moving
vehicle. He turned around from the front passenger seat and proceeded to strangle the
woman, pinning her up against the back seat. She testified that she struggled to breathe while
his hands were around her neck and physical evidence of her injuries was presented to the
trial court. Following the incident, the woman’s father confronted the Defendant, and the
Defendant responded by pushing him to the ground. The victim and the Defendant’s
girlfriend testified that he had been drinking. As a result, the Defendant was arrested and
charged with public intoxication, assault, and aggravated assault, and he later pleaded guilty
to two counts of simple assault and public intoxication.

       In considering whether to revoke the Defendant’s judicial diversion, the trial court
stated that it took into account the Defendant’s “weak amenability to correction,” and it
found that judicial diversion “did not work” for the Defendant. The trial court noted that it
considered the deterrence value of allowing the Defendant to remain on judicial diversion
and the interest of the public. The evidence that the Defendant committed assault against two
people while on judicial diversion for kidnapping supports the trial court’s decision to revoke
the Defendant’s judicial diversion. Based upon this evidence, we conclude that the trial court
did not abuse its discretion when it revoked the Defendant’s judicial diversion. We turn now
to address the issue of sentencing.

                                   B. Probation Sentence

       The Defendant contends that the trial court erred when it sentenced him to a ten-year
sentence and ordered that he serve his sentence on supervised probation. The Defendant
argues that his original plea agreement was “defunct” because by law it did not “survive
termination of [judicial] diversion[.]” The State agrees, and contends that we should remand
this matter to the trial court for a proper sentencing hearing.

       The trial court in this case, following its revocation of the Defendant’s judicial
diversion, held a hearing during which it held that “the original plea agreement can survive
the revocation” and sentenced the Defendant “in accordance with the original agreement[.]”
This Court held in 2005 that “to allow the State and the defendant to enter into a sentencing
agreement prior to termination of diversion contradicts the purpose of the diversion statute,
which is deferral of the sentence until a future date.” State v. Judkins, 185 S.W.3d 422, 425

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(Tenn. Crim. App. 2005). The Court in Judkins specifically concluded that, “our Sentencing
Act never contemplated that a contingency type of plea agreement would be attached to the
diversion, which would usurp the sentencing authority of the trial judge following a
termination of diversion.” Id. Thus, the Judkins Court remanded the case to the trial court
for a sentencing hearing and for the trial court’s determination of the appropriate sentence
in light of the purposes and principles of the Sentencing Act.

       Our review of the record reveals that the trial court impermissibly relied upon the plea
agreement in a manner inconsistent with the purposes of the Sentencing Act. Accordingly,
we conclude that the trial court erred when it ordered the Defendant to serve the sentence
contemplated by the initial plea agreement rather than proceeding through the sentencing
process following the revocation of the Defendant’s judicial diversion. As such, we remand
this case to the trial court for a sentencing hearing, at which the Defendant should be
sentenced for kidnapping, a Class C felony, within the appropriate range.

      Our holding that the trial court did not properly sentence the Defendant pretermits our
consideration of the additional issues regarding the Defendant’s sentence.

                                       III. Conclusion

        After a thorough review of the record and relevant authorities, we conclude that the
trial court did not abuse its discretion when it revoked the Defendant’s judicial diversion and
we affirm the trial court’s judgment in that regard. We vacate the ten-year sentence imposed
by the trial court and remand the case to the trial court for a sentencing hearing to determine
an appropriate sentence. Upon remand, the Defendant is to be sentenced for kidnapping, a
Class C felony, within the appropriate range.


                                                    _________________________________
                                                      ROBERT W. WEDEMEYER, JUDGE




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