        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                                 August 17, 2011 Session

           STATE OF TENNESSEE v. JEREMY BRANDON SCOTT

                   Appeal from the Criminal Court for Davidson County
                        No. 2009-B-2017    Monte Watkins, Judge


                  No. M2010-01632-CCA-R3-CD - Filed October 24, 2011


The Defendant, Jeremy Brandon Scott, pled guilty to aggravated assault, a Class C felony.
See T.C.A. § 39-13-102 (2006) (amended 2009, 2010, 2011). Although he was sentenced
as a Range I, standard offender to three years and six months with six months’ confinement,
a conflict exists regarding the length of probation. On appeal, the Defendant contends that
the trial court erred by denying his request for judicial diversion and his request for three
years’ probation. We affirm the denial of judicial diversion and the imposition of six
months’ confinement. We vacate the judgment of the trial court and remand the case to the
Davidson County Criminal Court for clarification of the length of probation and entry of a
corrected judgment.

  Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Vacated;
                                  Case Remanded

J OSEPH M. T IPTON, P.J., delivered the opinion of the Court, in which J ERRY L. S MITH, J., and
D ONALD P. H ARRIS, S R. J., joined.

Glenn Funk, Nashville, Tennessee, for the appellant, Jeremy Brandon Scott.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Senior Counsel;
Victor S. Johnson, III, District Attorney General; and Deborah Housel, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                          OPINION

       According to the State’s recitation of the facts at the guilty plea hearing:

              [O]n August 10, 2008, at approximately 56 minutes after
              midnight, patrol officers responded to a call at Silverado’s Night
              Club at 1204 Murfreesboro Road . . . in Davidson County.
When [the police] arrived at the location, they were told that the
victim, Michael Stack, was struck numerous times in the head
and in the face causing unconsciousness. The victim was
transported to Vanderbilt Hospital for treatment for trauma to
the head. Witnesses that were there spoke with the police . . . .
Christopher M. Banks [stated] that he knew the suspect [and]
had seen him before. [Mr. Banks] was standing behind the
victim when the Defendant walked up and hit the victim in the
back of the head.       The victim immediately fell back
unconscious, and then the Defendant . . . got on top of the victim
and punched him about six times while he was unconscious on
the floor. It was Mr. Banks that pulled [the Defendant] off the
victim and [Mr. Banks] identified the Defendant from a
photographic line up.


[Mr. Banks’s girlfriend at the time], Ashley Blevins, . . . was
also present and . . . told the police that the Defendant had hit
the victim five or six times in the back of the head.

Richard Easman would testify that he was actually behind the
bar when he saw the Defendant punch the victim in the back of
the head. He would testify that the victim’s eyes rolled back in
his head, he fell straight back and was unconscious on the floor.
He would then testify that the suspect got on top of the victim
while he was on the floor, unconscious and hit him numerous
times.

...

[The victim’s treating physician at Vanderbilt Hospital,] Dr.
Oren Arenson . . . would also testify that had the victim not
received treatment for an additional thirty minutes . . . he would
not have survived. . . . The victim had forty nine staples to the
back of the head. He had cranial bleeding and . . . [was] at the
hospital for an additional seventeen days after this event. He
also sustained numerous learning problems.

...



                               -2-
              Detective Greg Jennings did interview the Defendant, and the
              Defendant told [the] Detective . . . that he walked to the bar to
              get a drink for himself and some friends. He said that he
              reached between the victim and someone else to motion for the
              bartender and that the victim pushed his arm away.
              [A]ccording to the Defendant, he asked the victim what the
              problem was. The victim turned around and that he thought that
              he was going to assault him. So he admitted to the police that
              he punched the victim, and he also admitted that he hit the
              victim numerous times while the victim was on the ground.

       The record shows that the trial court asked the Defendant if the facts presented by the
State were true and that he answered, “Yes, sir.” The Defendant pled guilty to aggravated
assault on the understanding that his sentence, as well as the manner of service or if he would
receive judicial diversion, would be determined by the trial court at the sentencing hearing.

       On July 18, 2010, a sentencing hearing was held. The presentence report was received
as an exhibit and Bryan Stack, the victim, read a self-prepared victim impact statement:

              It’s a strange moment, the moment doctors, nurses and social
              workers, who up until that moment had no business in my life,
              [my] parents . . . were standing beside each other and looking at
              me as I lay in bed. As I attempted to release the side rail that
              inhibited me from getting out of bed, they both rushed over in
              unison and helped . . . me off the bed and led me to the
              bathroom. At that moment, I was certain that this was going to
              be more than an unstoppable dream, that if I did stay in a dream,
              that I would simply wake up from and rebel. I quickly knew
              that this was not the case as goose bumps shot up my spine
              when my bare feet hit the cold spot on the baby blue tiles in the
              bathroom. I coursed my hands over what seemed like an endless
              chain of staples wrapping around the lefthand side of my skull.
              I tilted my head as I leaned in for a closer inspection and felt a
              tug from a tube that was around the back of my head firmly
              taped to my shoulder to allow for easy drainage and excess
              blood. The anxiety and uncertainty and fear that grew every
              second as I looked into the mirror confirmed that this [was] no
              dream and the devastated image that confronted me was, in fact,
              accurate. After assessing my head for twenty or so minutes, I
              went back to bed and asked my parents why I was here and what


                                              -3-
happened. They informed me that I had been the victim of a
violent crime and that I was in a rehabilitation hospital, that I
needed to get some rest.

I went to bed not knowing what happened and what tomorrow
and the following days would have in store for me. I would
have to adhere to a rigorous daily schedule for the following
seventeen days. I found myself part of a team . . . the team at
Vanderbilt’s Stallworth Rehabilitation Hospital. Breakfast at
6:45 a.m., speech therapy at 8:00, upper extremity therapy at
9:30 a.m., physical therapy again at 11:00 a.m., lunch at 11:30,
occupational therapy at 12:30, physical therapy again at 3:15,
and dinner at 4:45 in the cafeteria. I learned quickly that
enormous odds existed and that only an unflinching
determination would determine my hope for restoring my
previous life which was so nearly lost.

On the fifteenth day, the staples were removed from my head.
Shortly thereafter, Dr. Oran Aaronson walked in and introduced
himself as the man who performed the craniotomy in order to
stop the hemorrhage that I had suffered. As I performed the
battery of tasks during the neurological examination, I took a
moment and asked him how serious was my injury when I
arrived at the emergency room. He bluntly stated, your injuries
are textbook example of what I would expect to see from a
baseball bat slamming against someone’s head. You were
twenty, thirty minutes away from certain death. It was, in fact,
a massive hemorrhage. We were able to quickly access the
situation and perform surgery immediately to relieve the blood
that was slowly crushing your brain.

For the first time in my life, I found myself lacking emotion.
This is the most devastating thing that anybody had ever told
me. I could not cry. It was as if I had lost the ability to do so
altogether.

Two days later, I was discharged from the hospital and classes
were starting back at school. My fall schedule had been deleted
because I was unable to confirm my schedule . . . . The summer
class final exam that was scheduled the following Monday after


                               -4-
the assault, I never got to sit and take and thus I never received
credit for the class. I’ll wait until September to be cleared by a
neurosurgeon to drive a car again and attend school. I had to
wait until the following spring to attend classes. This gave me
time to visit doctors and schedule follow-up surgeries.

The Dentist will have to file several chipped teeth and affix one
ceramic crown. Plastic surgeons would have to perform a
rhinoplasty to restore breathing through my nose and an
autoplasty to repair a tear on my right ear.

After the surgeries, I returned to school, lacking the ambition
that coursed through my veins the previous summer. I found out
quickly that I could not handle the course load I had previously
taken and found myself having to devote every moment to study
the material by reading every chapter three to four times,
whereas, before, I could understand the material after reading it
just once. I reluctantly admitted to myself, friends and family
that there was a problem. For the first time, I realized why the
rehabilitation doctors told me that I was . . . in denial.

I do not look injured because my brain . . . damage was not
visible to the naked eye. Problems of memory, planning and
organization were still - were and still to this day I feel in subtle
ways. I was forced to register at Disabled Student Services due
to these deficits. . . . I should have graduated in December of
2009. I had planned to sit and pass all four parts of the CPA
exam by the following spring and begin graduate school in the
fall. . . . Despite the amounts of anger that Jeremy Scott has
created in me, I will graduate from MTSU fall [2010] by
studying the most challenging of business majors with a
Bachelor of Business Administration degree in accounting. The
ordeal that Jeremy Scott inflicted upon me in 2008 can never be
purged and never forgiven.

I had never seen Jeremy Scott until November 6, 2008, when I
arrived . . . in General Sessions Court. The smirk on his face
showed no remorse and demonstrated that he was absolutely
content that he nearly killed me. To this day, I do not know why
I was targeted and why this happened to me. I’ve stayed up


                                 -5-
              countless nights trying to figure out why all this happened. I
              remember walking to my car and I realized I never closed my
              tab. I walked back in, stood at the bar, waited for the bartender.
              And I awoke at the hospital. Acting upon reliable information
              and evidence, investigators explained to me that I was struck in
              the back of the head and slid to the floor and proceeded to have
              my head beat in before a bystander pulled Mr. Scott off me.
              Guilt-ridden by the shame of this crime, he fled the scene. His
              crime lacked chivalry, reasoning. It was a very cowardly act.

              As I approach my twenty-seventh birthday this month, I have to
              come to the conclusion that justice in life can be forever elusive.
              I think sometimes I may never quite find it, but since August 10,
              2008, my search for it has been compulsive. It’s been
              postponed, its been rescheduled, but today it has to be faced,
              right here on the spot. The search for it is clearly what drives
              this endeavor taking place before us.

              I now appeal to you to sentence Jeremy Scott to the maximum
              prison time allowed by law and that there be no chance of
              probation or conditions allowing his cunning and cruel criminal
              act to be purged from the record. You are looking and listening
              to someone who has survived Jeremy Scott’s callous disregard
              for human life. I’m hopeful that you’ll protect society from him.

       The victim testified that he had just turned twenty-five on the night of the assault. He
was handed three photographs and identified each as photographs taken at Stallworth
Rehabilitation Center. The trial court received the photographs as an exhibit after defense
counsel noted the photographs were taken post-operation. The victim identified a fourth
photograph showing the four titanium plates inserted on the left side of his skull. He said the
four permanent titanium plates kept his skull intact and were secured with sixteen titanium
screws. The picture of the victim’s skull was received as an exhibit.

       The victim testified that he remained in the hospital for seventeen days. He said he
received additional time for exams at Middle Tennessee State University. He stated that he
registered for fifteen hours of course work for the spring semester following the assault but
realized that fifteen hours was too much. He said that before he was attacked, he was able
to complete eighteen hours of course work each semester. He said that after the assault, he
became more alert of his surroundings and always looked to see who was around him. He



                                              -6-
said he became cynical, lost his ability to show emotion, and could not cry due to the brain
damage.

       On cross-examination, the victim testified that the assault occurred at a bar called
Silverados and that he had been there for over an hour before the assault. He did not
remember the fight, but remembered he consumed six to eight alcoholic drinks over the
course of the day. He did not know his blood alcohol content when he arrived at the hospital.
He said he had never seen the Defendant before the night of the assault.

        On redirect examination, the victim testified that on August 10, 2008, he and a
roommate played a round of golf that morning, went back to his roommate’s house, watched
television, went to Cancun restaurant, and went to the Titans’ preseason game. He said that
after the game, they went to Big River downtown and that after they left, he received a
telephone call from friends asking him to come to Silverados. He said he did not drink at the
golf course that morning and had one sixteen ounce beer at the football game. He said he
drank two beers at Big River and drank one beer and two mixed drinks at Silverados. On
recross-examination, Mr. Stack testified that he was about 6'2" tall and weighed about 164
pounds in 2008.

        James H. Stack, the victim’s father, testified that on the morning of August 10, 2008,
he received a voicemail message from someone at Vanderbilt hospital stating that his son
was “seriously” injured and that he needed to get to the hospital as soon as possible. He said
that after he heard the message, he panicked and that he and his oldest son went to the
hospital. He said that when he was able to visit his son in the trauma center, he noticed the
beds were numbered. He said his son was in bed number one, which meant his son had the
most severe head trauma in the center. He stated that he was not an emotional man but that
when he saw his son, the bandages on his son’s head, his purple son’s eyes and swollen lips,
he “broke down” because he thought his son was going to die. He said visitation was
restricted in the trauma center and he was not able to sit with his son as much as he wanted.
He said that although the hospital staff told him that his son was young, strong, and his vital
signs were improving, he still felt his son was not going to survive.

        Mr. Stack testified that after his son was moved to a private room, he met Dr. Oran
Aaronson. Dr. Aaronson told him that his son had a serious injury and that if his son had
been delayed by thirty minutes in getting to the hospital, he probably would not have
survived. Mr. Stack said that on the third day, his son’s bandages were removed and he saw
fifty-four staples and a drainage tube in his son’s head. He said that he, the doctor, and a
nurse had to remove the drainage tube together due to the intensity of his son’s pain. He
said he had to hold his body on top of his son’s body to keep him from fighting due to the
pain. He said his son was moved to Stallworth Rehabilitation Center on the fourth day and


                                              -7-
stayed there for fourteen days. He was released from the rehabilitation center on the
conditions that he not drive and that someone stay with him around the clock.

        Mr. Stack testified that after his son was cleared by the doctors to drive, he could tell
things were not the same because his son’s organizational skills were different. His son had
to relearn simple tasks such as buttoning a shirt and brushing his teeth. He stated that the
type of brain trauma his son suffered required a long time to heal. He said his son could not
play golf or team sports because the possibility of being struck in the head was too high. He
was present when Dr. Aaronson told his son the extent of his injuries and compared the
injuries to being hit in the head with a baseball bat. He said the doctor indicated that there
was permanent brain damage. Mr. Stack stated that he thought the Defendant should receive
the maximum sentence allowed by law. The victim’s medical records were received as an
exhibit.

       The Defendant testified that he was charged with driving on a revoked license and
reckless driving before the assault. He said that the driving on a revoked license charge was
dismissed and that he received a ninety-day suspended sentence for reckless driving. He said
he had not been charged with any additional criminal offenses other than the aggravated
assault at issue.

       The Defendant testified that he owned his own plumbing business that employed one
additional person. The Defendant learned his craft from his grandfather and worked for him
before he started his own business. He said he graduated from White House High School but
did not go to college.

       The Defendant testified that he arrived at Silverados at midnight on August 10, 2008,
with his girlfriend and her cousin. He said he was not upset about anything, had not been in
any fights, and nothing bad happened that day. He stated after he arrived at Silverados, he
walked to the bar to order drinks from the bartender, stood beside the victim at the bar, and
motioned for the bartender. He said the victim grabbed his arm and “slung” him away from
the bar. The Defendant asked the victim why he grabbed him, and the victim responded that
the Defendant should not put his arm on the bar anymore. The Defendant said he did not
understand, tried to ignore the victim, and continued to motion for the bartender. The
Defendant stated that the victim grabbed him a second time, pushed him away from the bar,
and acted like he was going to hit him. The Defendant said that the victim’s fists were
clinched and that the victim asked if the Defendant “had [his] boys ready.” The Defendant
said that he thought the victim was going to hit him and that when the victim stepped toward
him, he punched the victim in the face.




                                               -8-
        The Defendant testified that he was 5'8" tall and weighed about 150 pounds at the time
of the assault. He agreed the victim was taller and weighed more than he did. The
Defendant admitted that he punched the victim first and that the victim fell to the ground.
The Defendant said he stepped over the victim and hit him two or three more times. The
victim never struck the Defendant. He said that although he did not think it was wrong to
hit the victim first, he thought it was wrong to hit the victim after the victim fell to the
ground. He said that he wished he had not hit the victim while the victimwas on the ground
and that for that reason, he pled guilty to aggravated assault. The Defendant said that after
he realized the victim was not getting up, he stepped away. He said security asked him what
happened and told him to leave. He stated that security did not escort him out of the building
and that he walked out the front door. He said he left because security asked him to leave.

        The Defendant testified that the police contacted his girlfriend and that she told him
the police wanted to talk to him. He contacted the police and gave a statement admitting he
punched the victim. The Defendant said that he was scared and that he never laughed about
the situation to anyone.

        On cross-examination, the Defendant admitted that he waited one day before he
contacted the police. He agreed he told the police that he went to the bar when he arrived at
Silverados and that the victim was attempting to pay his bar tab. After he reviewed the police
report, the Defendant agreed with the State that he told the police that the victim “pushed”
his arm once rather than “slung” his arm twice. The Defendant said that he did not remember
the exact words he used when he gave his statement but that he was not changing his version
of the events. He said that he told the police the victim moved toward him but that he did
not know if he told the police exactly what the victim did. He said he told the police the
victim “pushed me away from the bar” and threatened to beat him up.

        The Defendant agreed that the State announced at the guilty plea hearing that several
witnesses would have testified at a trial that “the first punch was thrown to the back of the
head.” The Defendant did not recall that the State also announced that witnesses would have
testified that after he hit the victim in the back of the head, the victim’s eyes rolled back in
his head and that the victim fell to the ground. The Defendant said he was wrong to have hit
the victim after the victim fell to the ground. He recalled that there were several witnesses
who would have testified that after he hit the victim, the victim became unconscious and fell
to the ground. The Defendant agreed that it was physically impossible to hit someone who
was on the ground without bending over at his 5'8" height. He agreed the State announced
during the guilty plea hearing that there were witnesses who would have testified that he
punched the victim five or six times on the ground, that the victim did not regain
consciousness, and that a witness pulled him off the victim. When asked if the entire



                                              -9-
incident was due to the victim’s pushing his arm, the Defendant said it was because the
victim pushed his arm and made threatening statements.

       On redirect examination, the Defendant testified that he was not aware of any
witnesses who would have testified that they were certain the victim was unconscious at the
time he fell to the floor. He said he was not aware that the victim was unconscious after he
threw the first punch.

       Roger House testified that he had known the Defendant for five years. He said he met
the Defendant when the Defendant worked on a plumbing problem at his home. He said the
Defendant joined his race car team. Mr. House stated that he never had any problems with
the Defendant and that the Defendant was helpful, did whatever was needed, and worked on
cars during the week at his home and at local race tracks. He said he never saw the
Defendant be violent, get angry, or fight. He thought the Defendant had good character and
did not think the Defendant deserved the maximum sentence. He also did not believe the
Defendant deserved to go to jail. On cross-examination, Mr. House defined a fight as an
event where two people hit each other and agreed that a fight is not an event where only one
person hits another.

       George Bartlett, a forty-three year employee for the City of Belle Meade, testified that
he had known the Defendant since the Defendant was a young child. He said he met the
Defendant through the Defendant’s grandfather, who also worked for the City of Belle
Meade. He said that as a young boy, the Defendant came to work with his grandfather. He
said he knew the Defendant well and never saw the Defendant be violent, attack anyone, “go
off on someone for no reason,” or yell at anyone. He never knew the Defendant to get into
trouble and did not think the Defendant would get into trouble again. Mr. Bartlett did not
think the Defendant deserved a sentence that included jail time.

        On cross-examination, Mr. Bartlett testified that he had four children and that all four
were legally allowed to drink alcohol and that they had gone to bars. When asked if one of
his children had been attacked like the victim in this case, Mr. Bartlett said that his children
should not be at a bar drinking with someone who is out of control. He stated common sense
should tell a person how far to go.

        Kenneth Midgett, a lawn and landscape business owner, testified that he met the
Defendant when the Defendant was ten years old. The Defendant played youth football for
him. He said the Defendant had good character and was not a “menace to society.” He said
that the Defendant was not violent on the football field and that he tried to get the Defendant
to be more aggressive as a football player. He never saw the Defendant be violent off the
football field. He did not think the Defendant deserved a sentence that involved jail time.


                                              -10-
       On cross-examination, Mr. Midgett testified that he never went to a bar or drank with
the Defendant. He agreed he did not know how the Defendant acted when he was under the
influence of alcohol.

       Mark Poe, a general contractor, testified that he met the Defendant through his
plumbing business and had known the Defendant for twelve years. He said he and the
Defendant went to dinner a couple of times after work. He never saw the Defendant get
angry or upset at work or knew the Defendant to have violent outbursts. He stated that the
Defendant had great character and that the judge should not sentence him to jail.

        On cross-examination, Mr. Poe testified that he had never gone to a bar with the
Defendant and that he did not know how the Defendant behaved when under the influence
of alcohol. He agreed he did not know what the Defendant did after work. When asked
about the injuries the Defendant inflicted on the victim, he stated that when “anybody goes
in a bar late at night, you walk in the door, you know what’s going to happen . . . .
[E]verybody in there takes a risk.” He did not think the risk was acceptable but was just a
part of the environment. He said he told his children that if they decided to go to a bar after
midnight, there was a risk of getting into a fight. When asked if he agreed that a fight
consisted of two people, Mr. Poe said he saw a couple of fights where one person threw a
single punch, hit the other person, and the fight was over, but he conceded a fight was when
both people attempt to hit the other. On redirect examination, Mr. Poe testified that he told
his sons that it was better to defend themselves first rather than be hit first.

       Alexis Saeaung testified that she had been the Defendant’s girlfriend for six or seven
months at the time of the incident. She said the Defendant was neither drunk, impaired, nor
in a bad mood that night. She never knew the Defendant to be a violent man in general or
to be violent in bars. She did not see the fight occur.

       On cross-examination, Ms. Saeaung testified that the owners of Silverados knew her
and knew that the Defendant was with her the night of the assault. She said the owners had
her telephone number but not the Defendant’s telephone number. She said the police
contacted her and left a message for her to return their telephone call. She contacted the
police and told them the story the Defendant told her. She said she did not see the fight and
never told the police she saw the Defendant punch the victim while the victim was on the
ground.

       The trial court’s findings of fact state the following:

              One of the major concerns that I have with respect to bars . . . is
              we now have to deal with people taking guns into bars. And


                                             -11-
              what if someone had a gun that particular night, I don’t know
              what would have happened. The fact of the matter is that this
              victim almost died and the court has to strongly consider that
              single fact.

              The Court will look to whether [there] are mitigating or
              enhancement factors. And with respect to any mitigating
              factors, the court believes that there may have been some
              provocation and will grant that. With respect to enhancement
              factors, the court looks at enhancement factor number six, that
              the personal injury inflicted upon the victim was particularly
              great. And enhancement factor number ten, that the Defendant
              had no hesitation about committing an offense that could have
              caused serious bodily injury or death.

              Considering those - and, obviously, the Defendant is a Range I
              offender - the court believes that the enhancement factors do
              outweigh the mitigating factors; therefore, the length of sentence
              will be three and [one-]half years. The court further believes
              that because the victim in this case almost died, 40-35-313 is
              just not appropriate in this particular case. And the Court
              further believes that under 40-35-103, that confinement is
              necessary to avoid depreciating the seriousness of the offense
              and to provide an effective deterrence to others who may
              commit similar offenses. As such, the court believes that a
              sentence of six months with jail credit is appropriate, three and
              [one-]half years of probation, upon completion of that sentence,
              with the standard conditions. And that will be the judgment of
              the court.

                                              I

       The Defendant first contends that the trial court erred by denying his request for
judicial diversion pursuant to Tennessee Code Annotated section 40-35-313. The State
contends that the trial court correctly denied judicial diversion based on the circumstances
of the offense. We agree with the State.

      A trial court may grant a defendant’s request for judicial diversion and “defer further
proceedings against a qualified defendant and place the defendant on probation upon such
reasonable conditions as it may require without entering a judgment of guilty.” T.C.A. § 40-


                                             -12-
35-313(a)(1)(A). A Defendant is eligible for judicial diversion if he or she is found guilty
of or pleads guilty or nolo contendere to a Class C, D, or E felony or a lesser crime, has not
previously been convicted of a felony or a Class A misdemeanor, and is not seeking deferral
for a sexual offense. Id. § 40-35-313(a)(1)(B)(i). The Defendant pled guilty to aggravated
assault, a Class C felony, and had not been previously convicted of a Felony or Class A
misdemeanor. The Defendant was eligible for judicial diversion.

       Judicial diversion allows the trial court to defer further proceedings without entering
a judgment of guilt and to place the defendant on probation under reasonable conditions.
T.C.A. § 40-35-313(a)(1)(A). When the probationary period expires, if the defendant has
completed probation successfully, the trial court will dismiss the proceedings against the
defendant with no adjudication of guilt. See T.C.A. § 40-35-313(a)(2). The defendant may
then apply to have all records of the proceedings expunged from the official records. See
T.C.A. § 40-35-313(b). A person granted judicial diversion is not convicted of an offense
because a judgment of guilt is never entered. See T.C.A. § 40-35-313(a)(1)(A).

        The decision to grant judicial diversion lies within the sound discretion of the trial
court, and this court will not disturb that decision on appeal absent an abuse of discretion.
State v. Electroplating, Inc., 990 S.W.2d 211, 229 (Tenn. Crim. App. 1998); see State v.
Harris, 953 S.W.2d 701, 705 (Tenn. Crim. App. 1996) (citing State v. Bonestel, 871 S.W.2d
163, 168 (Tenn. Crim. App. 1993)). This court will give the trial court the benefit of its
discretion if “‘any substantial evidence to support the refusal’ exists in the record.” State v.
Anderson, 857 S.W.2d 571, 572 (Tenn. Crim. App. 1992) (quoting State v. Hammersley, 650
S.W.2d 353, 356 (Tenn. 1983)). “The same guidelines are applicable in diversion cases as
are applicable in probation cases, but they are more stringently applied to those seeking
diversion.” State v. Bingham, 910 S.W.2d 448, 456 (Tenn. Crim. App. 1995), overruled on
other grounds by State v. Hooper, 29 S.W.3d 1, 9 (Tenn. 2000).

        In determining whether to grant judicial diversion, the trial court must consider (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 ends of justice. Electroplating, 990 S.W.2d at 229; State v.
Parker, 932 S.W.2d 945, 958 (Tenn. Crim. App. 1996). In addition, “the record must reflect
that the court has weighed all of the factors in reaching its determination.” Electroplating,
990 S.W.2d at 229. If the trial court refused to grant judicial diversion, it should state in the
record “the specific reasons for its determinations.” Parker, 932 S.W.2d at 958-59.

      Although the record shows that the trial court found some provocation, the court also
found that the injury inflicted upon the victim was great and that the Defendant had no


                                              -13-
hesitation about committing an offense that could have caused serious bodily injury or death.
The court also found that confinement was necessary to avoid depreciating the seriousness
of the offense and to provide an effective deterrence to others who may commit similar
offenses. Based on these factors, the trial court believed six months’ incarceration was
appropriate. The trial court stated that because the victim almost died, judicial diversion was
not appropriate. Although the record shows there is evidence to support the trial court’s
decision, the trial court failed to address each of the considerations detailed in Electroplating.
The trial court focused on the circumstances of the offense and the deterrence value, but no
mention is made in the findings of fact of the Defendant’s amenability to correction, the
Defendant’s social history, the Defendant’s physical and mental health, or whether judicial
diversion would serve the ends of justice. However, “[t]he same guidelines are applicable
in diversion cases as are applicable in probation cases, but they are more stringently applied
to those seeking diversion.” Bingham, 910 S.W.2d at 456. As we believe there was a sound
basis for the denial of full probation, which is discussed below, we conclude the trial court’s
procedural failures constitute harmless error. See State v. Arhonda Rice,W2000-03004-
CCA-R3-CD, Shelby County (Tenn. Crim. App. Oct. 16, 2001); see Bingham, 910 S.W.2d
at 456 (a defendant who was not suitable for full probation was also not entitled to judicial
diversion); see also State v. Keaton M. Guy, E2007-01827-CCA-R3-CD, Anderson County
(Tenn. Crim. App. Dec. 8, 2008) (holding trial court did not abuse its discretion in denying
judicial diversion because there was a sound basis for the denial of full probation).

                                               II

       The Defendant also contends that the trial court committed error by denying his
request for three years’ probation. The State contends that the trial court imposed a sentence
in accordance with the appropriate statutes. We agree with the State.

        Appellate review of sentencing is de novo on the record with a presumption that the
trial court’s determinations are correct. T.C.A. §§ 40-35-401(d), -402(d) (2010). As the
Sentencing Commission Comments to these sections note, the burden is now on the
appealing party to show that the sentencing is improper. This means that if the trial court
followed the statutory sentencing procedure, made findings of fact that are adequately
supported in the record, and gave due consideration and proper weight to the factors and
principles that are relevant to sentencing under the 1989 Sentencing Act, we may not disturb
the sentence even if a different result were preferred. State v. Fletcher, 805 S.W.2d 785, 789
(Tenn. Crim. App. 1991). The guidelines applicable in determining whether to impose
probation are the same factors applicable in determining whether to impose judicial
diversion. Bingham, 910 S.W.2d at 456. The trial court must consider (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)


                                              -14-
the deterrence value to the defendant and others; and (7) whether judicial diversion will serve
the ends of justice. State v. Goode, 956 S.W.2d 521, 527 (Tenn. Crim. App. 1997).

        However, “‘the presumption of correctness which accompanies the trial court’s action
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. Carter, 254 S.W.3d
335, 344-45 (Tenn. 2008) (quoting State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991)). In
this respect, for the purpose of meaningful appellate review, the trial court must place on the
record its reasons for arriving at the final sentencing decision, identify the mitigating and
enhancement factors found, state the specific facts supporting each enhancement factor
found, and articulate how the mitigating and enhancement factors have been evaluated and
balanced in determining the sentence. State v. Jones, 883 S.W.2d 597, 599 (Tenn. 1994); see
T.C.A. § 40-35-210(e) (2010).

        Also, in conducting a de novo review, we must consider (1) any evidence received at
the trial and sentencing hearing, (2) the presentence report, (3) the principles of sentencing
and arguments as to sentencing alternatives, (4) the nature and characteristics of the criminal
conduct, (5) any mitigating or statutory enhancement factors, (6) statistical information
provided by the administrative office of the courts as to sentencing practices for similar
offenses in Tennessee, (7) any statement that the defendant made on his own behalf, and (8)
the potential for rehabilitation or treatment. T.C.A. §§ 40-35-102, -103, -210; see Ashby,
823 S.W.2d at 168; State v. Moss, 727 S.W.2d 229, 236 (Tenn. 1986).

        Pursuant to the Criminal Sentencing Reform Act’s 2005 revisions, a defendant is
eligible for probation if the sentence imposed is ten years or less but is no longer entitled to
a presumption that he or she is a favorable candidate for probation. See T.C.A. § 40-35-
303(a) (2006); Carter, 254 S.W.3d at 347. A defendant has “the burden of establishing
suitability for probation.” Id.; see T.C.A. § 40-35-303(b). In order for a defendant to meet
this burden, he or she must show that “probation will ‘subserve the ends of justice and the
best interest of both the public and the defendant.’” Carter, 254 S.W.3d at 347 (quoting State
v. Housewright, 982 S.W.2d 354, 357 (Tenn. Crim. App. 1997)). A defendant’s sentence “is
based on ‘the nature of the offense and the totality of the circumstances in which it was
committed, including the defendant’s background.’” State. v Trotter, 201 S.W.3d 651, 653
(Tenn. 2006) (quoting Ashby, 823 S.W.2d at 168 (citations omitted)). Under the Criminal
Sentencing Reform Act of 1989, trial courts are given guidelines to aid their sentencing
decisions. The Act’s relevant portions related to alternative sentencing include the
following:

              (5) In recognition that state prison capacities and the funds to
              build and maintain them are limited, convicted felons


                                              -15-
              committing the most severe offenses, possessing criminal
              histories evincing a clear disregard for the laws and morals of
              society, and evincing a failure of past efforts at rehabilitation
              shall be given first priority regarding sentencing involving
              incarceration;

              (6)(A) A defendant who does not fall within the parameters of
              subdivision (5), and who is an especially mitigated or standard
              offender convicted of a Class C, D, or E felony, should be
              considered as a favorable candidate for alternative sentencing
              options in the absence of evidence to the contrary; and

              ...

              (6)(D) A court shall consider, but is not bound by, this advisory
              sentencing guideline.

T.C.A. § 40-35-102(5)-(6) (2010). When determining if incarceration is appropriate, a trial
court should consider if:

              (A) Confinement is necessary to protect society by restraining a
              defendant who has a long history of criminal conduct;

              (B) Confinement is necessary to avoid depreciating the
              seriousness of the offense or confinement is particularly suited
              to provide an effective deterrence to others likely to commit
              similar offenses; or

              (C) Measures less restrictive than confinement have frequently
              or recently been applied unsuccessfully to the defendant[.]

T.C.A. § 40-35-103(1)(2010); see also State v. Hooper, 29 S.W.3d 1, 5 (Tenn. 2000). This
court has held when a trial court denies alternative sentencing and imposes incarceration on
the basis of the seriousness of the offense, “‘circumstances of the offense as committed must
be especially violent, horrifying, shocking, reprehensible, offensive or otherwise of an
excessive or exaggerated degree,’ and the nature of the offense must outweigh all factors
favoring a sentence other than confinement.” Grissom, 956 S.W.2d at 520 (citing State v.
Bingham, 910 S.W.2d 448, 454 (Tenn. Crim. App. 1995) (quoting State v. Hartley, 818
S.W.2d 370, 374-75 (Tenn. Crim. App. 1991))); see State v. Trotter, 201 S.W.3d 651 (Tenn.
2006).


                                            -16-
         In determining that six months’ confinement was appropriate, the record shows that
the trial court “strongly considered” that the victim almost died from the injuries the
Defendant inflicted. Although the court found that there may have been some provocation,
it also found that the personal injury inflicted upon the victim was particularly great and that
the Defendant had no hesitation about committing an offense that could have caused serious
bodily injury or death. The trial court found that these enhancement factors outweighed the
possible provocation. Based on these findings, the trial court determined that confinement
was necessary under Tennessee Code Annotated section 40-35-103 to avoid depreciating the
seriousness of the offense and to provide an effective deterrence to others who may commit
similar offenses.

        We note that the Defendant does not have a long history of criminal conduct, having
only a conviction for reckless driving for which he received a ninety-day suspended sentence.
See T.C.A. § 40-35-103(1)(A) (2010). We also note that because the Defendant does not
have a lengthy criminal history, less restrictive measures than confinement have not been
applied unsuccessfully to the Defendant. See T.C.A. § 40-35-103(1)(C). Although the
record shows that there is evidence to support the trial court’s decision to deny full probation,
the trial court failed to address each of the considerations detailed in Goode and
Electroplating. The trial court focused on the circumstances of the offense and the deterrence
value, but made no mention in the findings of fact of the Defendant’s amenability to
correction, the Defendant’s social history, the Defendant’s physical and mental health, or
whether probation would serve the interests of justice. The record shows, however, that the
nature of the Defendant’s offense outweighs factors in favor of full probation and supports
the trial court’s finding that six months’ confinement was appropriate.

        The Defendant punched the victim in the back of the head, and the victim fell to the
floor unconscious. The Defendant continued to strike the victim in the head while the victim
was on the floor. The victim’s injuries required placing multiple titanium plates and screws
in his skull and approximately fifty staples in his head. His doctors believed the victim
would have died had he been delayed in getting to the hospital. The victim suffered brain
injuries and had to relearn basic skills such as buttoning a shirt and brushing his teeth. He
suffered loss to his emotional capabilities and experienced a change in his organization skills.
The victim was also delayed in obtaining his college degree. Although the Defendant
presented numerous character witnesses to the trial court, we believe the trial court did not
err in finding that the circumstances of the offense were “especially violent, horrifying,
shocking, reprehensible, offensive or otherwise of an excessive or exaggerated degree,” and
outweighed all factors favoring full probation. See Grissom, 956 S.W.2d at 520 (citations
omitted); State v. Davis, 940 S.W.2d 558, 559-561 (Tenn. 1997) (upholding the denial of
probation for vandalism committed in retaliation for crossing a picket line and resulting in
only $1200 of damages). As in the trial court’s decision to deny judicial diversion, we


                                              -17-
believe there was a sound basis for the denial of full probation and conclude the trial court’s
procedural failures constitute harmless error. The Defendant has not met his burden and is
not entitled to relief.

       We must note, though, that a conflict exists regarding the length of probation. The
judgment first reflects a sentence of three years, six months. In the Alternative Sentence
section, the judgment reflects probation for three years, six months “after serving 6 months.”
The Special Conditions section of the judgment provides for “six months to serve and then
the remaining time on probation.” The transcript reflects that the trial court stated the length
of sentence was three years, six months, but added, “As such, the Court believes that a
sentence of six months with jail credit is appropriate, three and [one-]half years of probation,
upon completion of that sentence, with the conditions.” The sentence is three years, six
months. The question, though, is whether the Defendant is required to serve six months
followed by probation for three years or for three years, six months. The case needs to be
remanded for clarification and entry of a corrected judgment.

        In consideration of the foregoing and the record as a whole, the denial of judicial
diversion and confinement for six months are affirmed but the judgment of the trial court is
vacated and the case is remanded to the Davidson County Criminal Court for clarification
of the length of probation and entry of a corrected judgment.




                                                ____________________________________
                                                JOSEPH M. TIPTON, PRESIDING JUDGE




                                              -18-
