           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                            AT JACKSON
                                       October 6, 2009 Session

                         STATE OF TENNESSEE v. CORY WILLIS

                Direct Appeal from the Circuit Court for Lauderdale County
                         No. 8415    Joseph H. Walker, III, Judge


                  No. W2008-02720-CCA-R3-CD - Filed September 15, 2010


The Defendant-Appellant, Cory Willis, pled guilty in the Circuit Court of Lauderdale County
to unlawful photographing in violation of privacy, a Class A misdemeanor. At the
sentencing hearing, the trial court denied Willis’s request for judicial diversion and sentenced
Willis to eleven months and twenty-nine days supervised probation. Willis claims on appeal
that the trial court erred in denying his request for judicial diversion. Upon review, we
reverse the judgment of the trial court and remand this matter for a resentencing hearing
consistent with this opinion.

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

C AMILLE R. M CM ULLEN, J., delivered the opinion of the court, in which A LAN E. G LENN and
D. K ELLY T HOMAS, J R., JJ., joined.

Barbara A. Deere, Dyersburg, Tennessee, for the Defendant-Appellant, Cory Willis.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney
General; D. Michael Dunavant, District Attorney General; and Julie K. Pillow, Assistant
District Attorney General, for the Appellee, State of Tennessee.

                                           OPINION
       Willis was arrested for unlawful photographing in violation of privacy. The affidavit
of complaint alleged that Willis photographed the victim, H.J.,1 at a tanning salon. Willis
pled guilty to the offense as charged in the Circuit Court of Lauderdale County. The specific
facts supporting the charge were set forth by the State at the guilty plea hearing:



       1
           It is the policy of this court to omit the full name of minor victims.
               Had this matter gone to trial, the State would have shown on December
       17th of ’07 that Mr. Willis was at the Tangles and Tans here in Ripley, that a
       juvenile white female had come to the police department and reported that
       while she was tanning . . . Mr. Willis . . . was in the booth next to her and that
       he came–reached over the top of an eight[-]foot wall with a cell phone and was
       taking pictures of her while she was unclothed, in the process of getting in and
       out of the tanning bed. That the subject, Mr. Willis, was confronted by the
       employees of the tanning business as well as the juvenile herself and stated
       that he was merely trying to get a signal to send a text message. He was
       identified both by the juvenile and by the employee and his name was signed
       in on the registry as far as being in the booth next to the juvenile.

The trial court determined that Willis was competent, accepted his best interest plea, and
deferred its diversion decision to a later date.

       An Investigation Report was prepared by the Board of Probation and Parole. Willis
was interviewed by an investigating officer at the Lauderdale County Justice Center and
continued to protest his innocence. He claimed he raised his cellular phone at the tanning
booth to get a better signal and that no pictures were on his phone when it was confiscated.
Willis explained that he requested judicial diversion so that he could continue receiving
medical treatment and visit his two stepsons in Minnesota.

        The Investigation Report detailed that Willis did not have a criminal record other than
minor traffic violations and referred to a Tennessee Bureau of Investigation document which
stated that Willis was an eligible candidate for diversion. The report further stated that Willis
claimed he did not use illegal drugs and drank alcoholic beverages on occasion. Willis was
divorced and lived with his brother. He entered the military in 2002, was honorably
discharged in 2008, and was classified as a disabled veteran. Willis was considered one
hundred percent disabled and received disability benefits from the Social Security
Administration.

      A victim impact statement was attached to the report. The victim described her
personal reaction to the incident as follows:

       I felt dirty afterwards knowing that Mr. Willis saw me naked. I am more
       suspicious of people now. It was really hard for me to go back to the tanning
       place because I always feel like someone is watching me. I also feel weird in
       dressing rooms and even public restrooms now. I was only 16 when this
       happened and I never knew people could be so nasty.



                                               -2-
The victim attached a document to the victim impact statement with additional comments:

       I am really scared that Mr. Willis was actually stalking me at the time of the
       incident because he was almost always at the tanning place when I was. I
       usually tanned right after school and that’s when I would see him, but the day
       of the incident I went to tan about an hour and a half earlier than usual and he
       was there again. The tanning records proved that he was there at the same
       time I was most of the time. It just seems like too much of a coincidence that
       he was there at the same time even when I went earlier than usual.

       Mr. Willis got so angry when I confronted him that day at the tanning place.
       It still frightens me when I think about it. I was really scared that he might
       hurt me. Even now I’m constantly afraid of what might happen if I were to run
       into him.

       I think that Mr. Willis should get the maximum sentence for this crime. I
       know that he was either taking pictures or videos of me naked because I could
       see the images moving on the front of his cell phone. If he had not deleted
       them, he could have probably been charged with child pornography and that
       would make him a sex offender–which in my opinion is what he really is. I
       also think that he should not get judicial diversion. I don’t think that his record
       should be expunged because people like him continue to do things like this,
       and when he does something like this again to someone else the police will
       have no record of this to see that there is a pattern to his actions. I just want
       him to realize that he can’t do something like this to me or anyone else and just
       get away with it. He should have some type of real punishment.

       Sentencing Hearing. At the start of the hearing, the State told the trial court that the
victim was present, but did not wish to testify. The State asked the trial court to review the
victim impact statement.

       Defense counsel asserted that Willis was deserving of judicial diversion. Counsel
informed the trial court that she had extensive medical records for Willis. Willis was injured
during active military duty in Iraq. Defense counsel told the trial court that she had a letter
from a doctor stating that Willis was “not in control of his post-traumatic stress disorder.”
Defense counsel said Willis would not testify at the sentencing hearing upon the direction
of “medical professionals.”




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       Willis’s mother, Teresa Willis (“Teresa”), was the only witness to testify. She said
that her son was injured during combat in February of 2005 and described the medical
treatment Willis received since returning home:

              He has had two surgeries, one on each shoulder. He has had physical
       therapy on both shoulders. Well, he’s had occupational, physical, and he’s in
       a new form of therapy that I don’t really understand what it is. He’s been
       through all kinds of x-rays, MRIs, CAT scans for brain trauma that he has.
       And they’re fixing to start working on his hip now because they will only work
       on one thing at a time.

Teresa said Willis had been to at least three hundred doctor’s appointments since 2005. The
doctors suggested that Willis go to a tanning booth because it helps relax muscles. Teresa
said Willis “would try to go every day if possible, sometimes twice.”

       Teresa testified that Willis was on medication. She said Willis went through periods
of depression and anger. She was questioned about Willis’s current condition, and she
responded, “He has good days and bad days, more good than bad.” Teresa said Willis’s
family provided a support group for him. She did not recall Willis ever being in trouble with
the law. Teresa believed Willis would comply with a court order prohibiting contact with
the victim. She testified that he no longer went to tanning booths.

       Willis’s medical records were introduced as an exhibit to the hearing. The trial court
asked the defense if Willis suffered from any mental injuries other than post-traumatic stress
disorder. Defense counsel responded:

              Yes, sir, there’s mental counseling. Part of the post-traumatic stress
       right now I believe with him is dealing with his injuries and what’s happened
       to him. And, Your Honor, he does have a brain injury that’s documented in
       those records.

The trial court then issued its ruling, denying Willis’s request for judicial diversion. Willis
was sentenced to eleven months and twenty-nine days in county jail; however, this sentence
was suspended to supervised probation. Willis filed a timely notice of appeal.

                                         ANALYSIS

        Willis claims the trial court erred in denying his request for judicial diversion. First,
he argues that the State violated its agreement not to oppose judicial diversion by asking the
trial court to consider the victim impact statement. Second, Willis claims the trial court did

                                               -4-
not consider all of the relevant factors or explain on the record how it weighed these factors.
Lastly, he argues that the trial court improperly weighed the relevant factors. The State does
not address Willis’s first claim about its agreement not to oppose judicial diversion. In
responding to the latter claims, the State contends that the trial court weighed the appropriate
factors and properly denied judicial diversion.

        Tennessee Code Annotated section 40-35-313 outlines the requirements for judicial
diversion. After a qualified defendant is either found guilty or pleads guilty, a trial court has
the discretion to defer further proceedings and place that defendant on probation without
entering a judgment of guilt. T.C.A. § 40-35-313(a)(1)(A) (2007). A qualified defendant
is defined as a defendant who pleads guilty to or is found guilty of a misdemeanor or a Class
C, D, or E felony; is not seeking diversion for a sexual offense or a Class A or Class B
felony; and does not have a prior conviction for a felony or a Class A misdemeanor. Id. §
40-35-313(a)(1)(B)(i) (2007). Upon the qualified defendant completing a period of
probation, the trial court is required to dismiss the proceedings against him. Id. § 40-35-
313(a)(2) (2006). The qualified defendant may then request that the trial court expunge the
records from the criminal proceedings. Id. § 40-35-313(b) (2007).

       Whether to grant or deny a request for judicial diversion lies within the trial court’s
sound discretion. State v. Harris, 953 S.W.2d 701, 705 (Tenn. Crim. App. 1996) (citation
omitted). Accordingly, the trial court’s decision regarding diversion will not be disturbed on
appeal absent an abuse of discretion. State v. Electroplating, Inc., 990 S.W.2d 211, 229
(Tenn. Crim. App. 1998) (citing State v. Hammersley, 650 S.W.2d 352, 356 (Tenn. 1983)).
This court will conclude that the trial court did not abuse its discretion if the record contains
“‘any substantial evidence to support the refusal.’” State v. Anderson, 857 S.W.2d 571, 572
(Tenn. Crim. App. 1992) (quoting Hammersley, 650 S.W.2d at 356).

        The trial court must consider the following factors in deciding whether a qualified
defendant should be granted judicial diversion: (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 interests of the public
as well as the defendant. Electroplating, Inc., 990 S.W.2d at 229 (citing State v. Parker, 932
S.W.2d 945, 958 (Tenn. Crim. App. 1996); State v. Bonestel, 871 S.W.2d 163, 168 (Tenn.
Crim. App. 1993) (citation omitted), overruled on other grounds by State v. Hooper, 29
S.W.3d 1, 9-10 (Tenn. 2000)). The trial court may consider the following additional factors:
“[the defendant’s] attitude, behavior since arrest, prior record, home environment, current
drug usage, emotional stability, past employment, general reputation, marital stability, family
responsibility and attitude of law enforcement.” State v. Washington, 866 S.W.2d 950, 951
(Tenn. 1993) (citations and internal quotation omitted). The trial court must weigh all of the

                                               -5-
factors in determining whether to grant judicial diversion. Electroplating, Inc., 990 S.W.2d
at 229 (citing Bonestel, 871 S.W.2d at 168). Finally, “a trial court should not deny judicial
diversion without explaining both the specific reasons supporting the denial and why those
factors applicable to the denial of diversion outweigh other factors for consideration.” State
v. Cutshaw, 967 S.W.2d 332, 344 (Tenn. Crim. App. 1997) (citing Bonestel, 871 S.W.2d at
168).

       Willis’s first argument is that the State violated its agreement not to oppose judicial
diversion. He asserts that while the case was before the General Sessions court, the State
“refused diversion . . . but agreed not to oppose judicial diversion at the Circuit Court level.”
Willis argues that the State violated this agreement at the sentencing hearing by asking the
trial court to consider the victim impact statement, which advocated against judicial
diversion.

       Willis’s claim is problematic because the record contains no evidence that the State
agreed not to oppose judicial diversion. The record includes several documents from the
general sessions court; however, they do not mention any such agreement. The State did
inform the trial court during the guilty plea hearing that Willis requested judicial diversion;
however, the State simply asked the trial court to defer its sentencing decision until after the
necessary reports were prepared. Because the record contains no proof regarding the
existence of an agreement, we conclude that Willis is not entitled to relief on this issue.

       Next, Willis argues that the trial court failed to consider all of the relevant factors in
denying judicial diversion. He also contends that the trial court failed to state on the record
how it weighed the relevant factors. The State asserts that the trial court did discuss and
weigh the various factors. In denying judicial diversion, the trial court stated:

             The Court recalls the stipulated statement of facts at the entry of the
       plea. I’ve reviewed the presentence report, the victim impact statement,
       considered the principles of sentencing.

               The Court doesn’t feel like this really is a good case for diversion due
       to the nature of the case. I don’t believe there’s a good explanation for his
       conduct from the matters that have been presented, post-traumatic stress
       disorder or the physical injuries, for what he was doing, especially telling–and
       I agree with the assessment of the victim in the matter, that he could have been
       charged I believe with yet more serious offenses perhaps due to his actions
       with a minor.




                                               -6-
        In viewing these findings, it is unclear whether the trial court considered the seven
factors outlined by this court in Electroplating, Inc., 990 S.W.2d at 229. Because Willis was
an eligible candidate for judicial diversion, the trial court had a duty to explain on the record
how it weighed the seven factors in reaching its decision. In Electroplating, Inc., this court
stated:

        [T]he 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.

Id.; see also Cutshaw, 967 S.W.2d at 344 (“[A] trial court should not deny judicial diversion
without explaining both the specific reasons supporting the denial and why those factors
applicable to the denial of diversion outweigh other factors for consideration.”). Here, the
trial court considered the circumstances of the offense and Willis’s physical and mental
health. It also appeared to factor the interests of the public by acknowledging that Willis
could have been charged with a more serious offense. The trial court did not, however,
reference the four remaining factors. It failed to mention Willis’s amenability to correction,
his criminal record, his social history,2 or the deterrence value to Willis and others. Most
importantly, there is no explanation for how the factors favoring the denial of diversion
outweighed the factors favoring diversion.

       Because the record shows that the trial court failed to consider all of the factors
appropriate for judicial diversion and failed to weigh all of these factors in determining
whether to grant diversion, we are unable to determine whether the trial court abused its
discretion. Accordingly, we are compelled to reverse the judgment of the trial court and
remand the case for a sentencing hearing in order for the trial court to explain adequately on
the record why the appellant was denied judicial diversion and why the factors relied upon
outweigh the others. See State v. Lewis, 978 S.W.2d 558, 567 (Tenn. Crim. App. 1997)
(concluding that “[b]ecause the trial court failed to consider all of the factors appropriate to
the grant or denial of judicial diversion, and because its statement of the reasons for denial
is vague and conclusory, we find the record inadequate to allow appropriate appellate
review.”).

                                           CONCLUSION


        2
         The trial court did acknowledge that Willis was receiving counseling when it subsequently
discussed the terms of his probation. Based on this acknowledgment alone, we cannot conclude that the trial
court considered Willis’s social history in denying judicial diversion.

                                                   -7-
       Upon review, we reverse the trial court’s judgment regarding sentencing and remand
the case for a resentencing hearing on all issues regarding the length and manner of sentence,
including Willis’s application for judicial diversion.




                                                   ______________________________
                                                   CAMILLE R. McMULLEN, JUDGE




                                             -8-
