                                                                                        12/18/2017
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                             September 20, 2017 Session

           STATE OF TENNESSEE v. MICHAEL NELSON HURT

               Appeal from the Criminal Court for Hamblen County
           No. 15-CR-476, 15-CR-477, 15-CR-478, 15-CR-479, 16-CR-073
                             Alex E. Pearson, Judge
                    ___________________________________

                           No. E2016-02507-CCA-R3-CD
                       ___________________________________


Defendant, Michael Nelson Hurt, pled guilty to official misconduct and theft of property
valued over $1000 and accepted an out-of-range sentence of six years’ probation.
Defendant applied to the trial court for judicial diversion, which the trial court denied.
On appeal, Defendant argues that the trial court erred in failing to consider all of the
common law factors in determining Defendant’s suitability for diversion, resulting in a
sentence that is disproportionately punitive. Upon our review of the record, we affirm the
judgments of the trial court but remand the case for the entry of judgment forms on each
charge that was disposed of by way of the plea agreement.

 Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed
                                  and Remanded

TIMOTHY L. EASTER, J., delivered the opinion of the court, in which ROBERT W.
WEDEMEYER, J., joined. NORMA MCGEE OGLE, J., concurring in results only.

Troy L. Bowlin II, Morristown, Tennessee, for the appellant, Michael Nelson Hurt.

Herbert H. Slatery III, Attorney General and Reporter; Courtney N. Orr, Assistant
Attorney General; Dan E. Armstrong, District Attorney General; and Richie Collins,
Assistant District Attorney General, for the appellee, State of Tennessee.


                                       OPINION

                          Factual and Procedural Background
       The Hamblen County Grand Jury issued a presentment charging Defendant with
one count of official misconduct in case number 15-CR-476 and one count of theft of
property valued over $1000 but less than $10,000 in case number 15-CR-478.1
Defendant pled guilty as charged in those two cases in exchange for a negotiated out-of-
range sentence of six years on each count to be served concurrently and restitution in the
amount of $4829.50.2 The parties agreed that Defendant would serve his sentence on
probation and that he could seek judicial diversion at the trial court’s discretion.

       On November 18, 2016, the trial court held a hearing to accept Defendant’s guilty
plea and to determine the issue of judicial diversion. In lieu of a formal presentation of
the facts, Defendant agreed that the State could submit a written statement of the
evidence. While that written statement is not included in the record on appeal, the State
provided the following summary of the facts during the trial court’s consideration of
judicial diversion:

               Judge, as the Court is aware, [Defendant] was an employee of the
        Morristown Police Department for many years. He was actually a detective
        sergeant. As part of his duties, judge, he was in charge of the impound lots.
        Specifically, as it relates to this case, he was in charge of vehicles that had
        been subjected to civil seizures.

                ....

               And for those vehicles whose owners had negotiated their return
        with the Department of Safety, he would collect those monies from those
        individuals and return those vehicles to their respective owners and then
        deposit that money into the City of Morristown’s treasury, into their
        account.

               Had this case gone to trial, the [S]tate would have put on proof that
        there were three instances involving automobiles. One count involved the

        1
          It appears that Defendant was also charged in case number 15-CR-477 with theft of property
valued under $500; in case number 15-CR-479 with theft of property valued over $1000; and in case
number 16-CR-073 with four counts of official misconduct, one count of theft of property valued over
$500, and one count of theft of property valued under $500. However, these indictments are not in the
record on appeal.
        2
          While the parties specifically mentioned during the plea hearing that the charges in case
numbers 15-CR-477, 15-CR-479, and 16-CR-073 would be dismissed, there are no judgment forms in the
record for these cases. On remand, the trial court should enter judgment forms reflecting the disposition
of each count of each indictment that was disposed of by way of this plea agreement. See State v.
Davidson, 509 S.W.3d 156, 217 (Tenn. 2016) (requiring a trial court to prepare a uniform judgment
document for each count of the indictment).
                                                   -2-
negotiated return was [sic] five thousand. That was paid to [Defendant].
One thousand of that was deposited. Four thousand was not. There was
four thousand dollars found in the glove box of his city[-]issued vehicle,
four thousand in cash.

      The other -- There was another instance that involved the specified
amount was five thousand dollars. [Defendant] -- The [S]tate would allege
probably -- Well, there’s no doubt that he exceeded his authority. He
renegotiated that down to thirty-five hundred dollars -- No, I apologize.
That was fifteen hundred dollars. He actually renegotiated that to fifteen
hundred, which he was paid that, so that was thirty-five hundred dollars less
than what the Department of Safety and the vehicle owner had agreed to.

           ....

       That fifteen hundred dollars was not deposited. There was fifteen
hundred dollars found in his [city-issued] vehicle that was in addition to the
four thousand dollars.

           ....

       There was another incident that if we had gone to trial, the [S]tate
would have put on proof that he had collected five hundred dollars for
another seizure. That the [S]tate would have -- Or the [S]tate would have
put on proof that was paid to him. The [S]tate would have also called the
bookkeeper or a representative from the city’s treasury department. That
person would have testified and shown that none of these amounts were
ever deposited.

       There were also concerning the last two indictments,3 judge, there
were -- I hate to call it scrap iron but there were two central heat and air
units that [Defendant] took from the impound lot and sold them at
Morristown Iron and Metals.

           ....

       For two central heat and air units and one burned out automobile,
that totaled eight hundred and twenty-nine dollars and fifty cents. And,
again, the [S]tate would have called the representative from the city from
the treasury department. That money was never deposited into the city’s

3
    It is not clear from the record which two indictments the State is referring to here.
                                               -3-
        account. The state would have shown proof that [Defendant] did in fact
        receive monies, receive two checks from Morristown Iron and Metals in his
        name.4

        Neither the State nor Defendant presented any witnesses, though the trial court
questioned Defendant under oath. When the trial court asked Defendant what he was
planning to do with the money found in his glove box, Defendant explained that he “got
in a quandary” when a girl could not pay the $5000 she had negotiated with the
Department of Safety to regain possession of her vehicle. The girl’s father called
Defendant, and Defendant agreed to accept the reduced amount of $1500 out of
“sympathy.” Defendant admitted that he did not have the authority to renegotiate the
amount set by the Department of Safety. Another person had paid $4000 to regain
possession of his vehicle in addition to a $1000 storage fee because “the vehicle had been
sitting there for well past the order for him to pick it up.” While Defendant deposited the
$1000 storage fee, he had not deposited either the $4000 or the $1500 because he was
trying to figure out a way to reconcile the paperwork for the transactions so that he would
not get in trouble for accepting the reduced amount for the girl’s vehicle. Defendant
admitted that he did not need the money that was found in the glove box. As to the scrap
metal, Defendant stated that the items had been at the impound lot for years and that he
hauled it off because the lot was running out of space. Defendant admitted that it was not
his property and that he did not deposit the money in the city’s treasury. Instead, he spent
the money on “[n]othing in particular.”

        Defendant submitted an Application for Certification of Eligibility for Diversion
and several letters from members of the community attesting to his character, both of
which were entered into evidence. The trial court also entered into evidence what it
referred to as a presentence report, though the document contained in the record is only a
single-page “Criminal History Report.” The trial court found that Defendant had never
been previously granted diversion and did not have a prior disqualifying conviction. In
fact, the only charges reflected on the Criminal History Report were those currently
pending before the trial court.

       Through defense counsel, Defendant argued that he had served the community
well for fifteen years but that he had made a “bad choice” for which he had accepted
responsibility, agreeing to go “above and beyond” the maximum sentence. Defendant
noted that the restitution amount would be paid that day out of the money he had posted
for his bond in addition to the $5500 that had been recovered from the glove box of his

        4
         The State made an oral motion at the beginning of the hearing, with which Defendant agreed, to
amend the offense date of case number 15-CR-478, theft of property valued over $1000, to encompass the
period between April 9, 2014, and January 15, 2015. It is not clear from the record whether this
amendment was intended to include all the acts of theft described in the statement of facts under a single
indictment or whether some of these acts were the bases of the indictments that were dismissed.
                                                  -4-
city-issued vehicle. Defendant had resigned from the Morristown Police Department and
no longer had “any hopes of a career in law enforcement.” Defendant had obtained a
limited real estate license, which could be revoked upon a felony conviction.

        After taking a short recess to consider the case, the trial court ruled from the bench
that it would accept the agreed-upon, out-of-range sentence of six years’ probation,
stating that “if it wasn’t for the fact that you’re pleading outside the range, I’d just reject
your plea agreement altogether” because “you can’t be trusted with a position of public
trust such as the police department . . . and just get probation.” However, the trial court
denied the request for judicial diversion, stating that “under the Parker factors, and this is
more for the record because I have to build a record, I’m supposed to consider certain
factors to determine whether or not you’re eligible for a judicial diversion.” The trial
court considered the fact that Defendant’s criminal conduct directly involved his duties as
a law enforcement officer. The trial court did not believe that granting diversion in such
a case would be an effective deterrent for Defendant or others. The trial court found that
Defendant had a “positive social history” but weighed that against the fact that Defendant
“mess[ed] up” his career and violated his obligations as a public servant. The trial court
found the fact that Defendant did not need the money to pay for some kind of debt—that
“[i]t was just quick cash”—weighed against diversion. The trial court found that
Defendant’s lack of any prior criminal history weighed in his favor. The trial court was
“troubl[ed]” by the fact that Defendant held onto the money while he tried to cover up the
fact that he renegotiated a lesser amount rather than simply turn in the money and admit
to his error in judgment. The trial court concluded that based on Defendant’s positive
social history, lengthy career in law enforcement, and his agreement to plead outside the
range, “six years of probation will serve as a sufficient deterrent to you and others not to
commit this crime again” but that judicial diversion was not “appropriate under the
Parker factors.”

        Defendant now appeals the denial of judicial diversion, arguing that the trial court
erred in only considering “certain factors” under State v. Parker, 932 S.W.2d 945, 958
(Tenn. Crim. App. 1996), that there was no substantial evidence in the record to support
the trial court’s decision, and that the denial of judicial diversion was “disproportionately
punitive.”

                                           Analysis

       When a defendant challenges the length, range, or manner of service of a sentence,
this Court reviews the trial court’s sentencing decision under an abuse of discretion
standard with a presumption of reasonableness. State v. Caudle, 388 S.W.3d 273, 278-79
(Tenn. 2012); State v. Bise, 380 S.W.3d 682, 708 (Tenn. 2012). This presumption applies
to “within-range sentencing decisions that reflect a proper application of the purposes and
principles of the Sentencing Act.” Bise, 380 S.W.3d at 707. This same standard of
                                             -5-
review applies to the trial court’s decision to grant or deny judicial diversion. State v.
King, 432 S.W.3d 316, 325 (Tenn. 2014).

        Judicial diversion is a form of probation that affords certain qualified defendants
the opportunity to avoid a permanent criminal record. See T.C.A. § 40-35-313(a)(1)(A).
If a defendant qualifies for judicial diversion, a trial court may defer proceedings without
entering a judgment of guilt, placing the defendant on probation without categorizing the
defendant as a convicted felon. Id. Upon successful completion of the probationary
period, the trial court will dismiss the charges and the defendant may seek expungement
of the record, which “restore[s] the person, in the contemplation of the law, to the status
the person occupied before such arrest or indictment or information.” King, 432 S.W.3d
at 323 (quoting State v. Schindler, 986 S.W.2d 209, 211 (Tenn. 1999)); see T.C.A. § 40-
35-313(a)(2), (b). However, if the defendant violates the terms of his or her probation,
“the court may enter an adjudication of guilt and proceed as otherwise provided.” T.C.A.
§ 40-35-313(a)(2). “Judicial diversion is a form of ‘legislative largess’ available to
qualified defendants who have entered a guilty or nolo contendere plea or have been
found guilty of an offense without the entry of a judgment of guilt.” King, 432 S.W.3d at
323.

       A defendant is eligible for judicial diversion if he or she is found guilty or pleads
guilty or nolo contendere to a Class C, D, or E felony; has not been previously convicted
of a felony or Class A misdemeanor; has not been previously granted judicial or pretrial
diversion; and is not seeking deferral for a sexual offense or for an offense committed by
an elected or appointed official “in the person’s official capacity or involv[ing] the duties
of the person’s office.” See T.C.A. § 40-35-313(a)(1)(B)(i). “Eligibility under the statute
does not, however, constitute entitlement to judicial diversion; instead, the decision of
whether to grant or deny judicial diversion is entrusted to the discretion of the trial court.”
King, 432 S.W.3d at 323; see also State v. Dycus, 456 S.W.3d 918, 929 (Tenn. 2015)
(“There is no presumption that a defendant is a favorable candidate for judicial
diversion.”).

       In determining whether a defendant is a favorable candidate for diversion, the trial
court must consider several common law factors:

       “(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 accused’s physical and mental health, and (f) the deterrence value to
       the accused as well as others. The trial court should also consider whether
       judicial diversion will serve the ends of justice—the interests of the public
       as well as the accused.”


                                             -6-
King, 432 S.W.3d at 326 (quoting Parker, 932 S.W.2d at 958). “[T]he trial court must
weigh the factors against each other and place an explanation of its ruling on the record.”
Id. at 323 (citing State v. Electroplating, Inc., 990 S.W.2d 211, 229 (Tenn. Crim. App.
1999)). Our supreme court has explained:

       [W]hen the trial court considers the Parker and Electroplating factors,
       specifically identifies the relevant factors, and places on the record its
       reasons for granting or denying judicial diversion, the appellate court must
       apply a presumption of reasonableness and uphold the grant or denial so
       long as there is any substantial evidence to support the trial court’s
       decision. Although the trial court is not required to recite all of the Parker
       and Electroplating factors when justifying its decision on the record in
       order to obtain the presumption of reasonableness, the record should reflect
       that the trial court considered the Parker and Electroplating factors in
       rendering its decision and that it identified the specific factors applicable to
       the case before it. Thereafter, the trial court may proceed to solely address
       the relevant factors.

Id. at 327. A trial court is not required to use specific “magic words” in its consideration
of the relevant factors. Id. at 327 n.8. However, failure to consider the common law
factors results in a loss of the presumption of reasonableness, and this Court will either
conduct a de novo review or remand the case to the trial court for reconsideration. Id. at
327-28.

      Defendant argues that the trial court failed to make specific findings with regard to
each of the Parker factors. Defendant quotes the following language from State v.
Hamilton:

       [W]here, as here, a trial court specifically limits its discussion to certain
       factors and omits any analysis of the remaining factors, including the
       defendant’s criminal record, social history, and present condition; the
       deterrent effect on other criminal activity; and whether pretrial diversion
       would serve the ends of justice and the best interests of both the public and
       the defendant, the trial court has not satisfied its review obligations.

498 S.W.3d 7, 17 (Tenn. 2016). However, Hamilton specifically addressed a trial court’s
review of a prosecutor’s decision to deny pretrial diversion under a writ of certiorari, not
a trial court’s consideration of judicial diversion. Id. at 16-17. While many of the
similarities between pretrial and judicial diversion have allowed courts to “draw[] heavily
from the case law governing pretrial diversion to analyze cases involving judicial
diversion,” State v. Cutshaw, 967 S.W.2d 332, 343 (Tenn. Crim. App. 1997), the
Tennessee Supreme Court has not applied the deferential Bise standard of review to
                                             -7-
pretrial diversion, see generally State v. Stephens, 497 S.W.3d 408 (Tenn. 2016). As
clearly stated in King, “the trial court is not required to recite all of the Parker and
Electroplating factors when justifying its decision on the record in order to obtain the
presumption of reasonableness” so long as the record reflects that the trial court
considered the factors and identified those relevant to the case before it. 432 S.W.3d at
327; see also Dycus, 456 S.W.3d at 930.

        The record in this case reflects that the trial court considered the appropriate
Parker factors. The trial court discussed at length the circumstances of the offense,
especially the fact that the offense directly involved Defendant’s duties as a law
enforcement officer,5 that Defendant violated the public trust placed in him to handle
money owed to the city, and that Defendant did not have a specific need for the money,
such as a debt or a sick child, that might mitigate the offense. The trial court found that
these circumstances weighed against granting judicial diversion. The trial court also
considered deterrence to both Defendant and the public, finding that granting diversion in
this situation would not “send the right message.” The trial court considered Defendant’s
lack of any criminal record and his positive social history, finding that both of these
factors weighed in his favor. While the trial court did not specifically mention the words
“amenability to correction,” the trial court did state that it appreciated Defendant’s
candidness with regard to the scrap metal and that it was accepting the plea agreement
because Defendant had agreed to a sentence outside of his range. These statements
indicate that the trial court did consider Defendant’s amenability to correction and found
that Defendant’s acceptance of responsibility weighed at least somewhat in his favor.
The trial court did not address Defendant’s physical and mental health; however,
Defendant presented no evidence to indicate that this factor would have been relevant to
the trial court’s decision one way or the other.

        Because the trial court considered the Parker factors, identified those that were
relevant to this case, and placed its reasoning on the record, its decision to deny judicial
diversion is entitled to a presumption of reasonableness. Based on the limited record
before this Court, there is substantial evidence to support the trial court’s findings. The
trial court did not abuse its discretion in denying judicial diversion. See State v. Jason
Erik Redden, No. E2016-00998-CCA-R3-CD, 2017 WL 1019511, at *12 (Tenn. Crim.
App. Mar. 15, 2017) (finding no abuse of discretion when trial court denied diversion to
police chief charged with official misconduct for mishandling vehicles and money), no
perm. app. filed.




       5
         There is no evidence in the record that Defendant’s position with the Morristown Police
Department was an elected or appointed position such that he would be ineligible for diversion under
Tennessee Code Annotated section 40-35-313(a)(1)(B)(i)(b).
                                               -8-
       Finally, Defendant argues that the trial court’s denial of judicial diversion is
“disproportionately punitive” in that a felony conviction will result in Defendant losing
his rights to vote and to possess a firearm and may result in the loss of his limited real
estate license. However, Defendant has cited no authority for the proposition that a
denial of judicial diversion may be overturned on the ground that the resulting conviction
is “disproportionately punitive,” thereby waiving that argument. See Tenn. R. Ct. Crim.
App. 10(b). Regardless, Defendant agreed to the six-year probationary sentence in the
event the trial court denied diversion; he cannot now complain about the outcome of his
plea simply because his gamble on the trial court’s discretion did not pay off. Likewise,
Defendant’s complaint that the trial court “did not even conduct an evidentiary hearing
on any issues it discussed” is a nonstarter given the fact that Defendant did not request a
separate sentencing hearing nor made any attempt to introduce additional witnesses or
testimony that would have been relevant to the issue of judicial diversion. See Tenn. R.
App. P. 36(a) (stating that this Court will not grant relief “to a party responsible for an
error or who failed to take whatever action was reasonably available to prevent or nullify
the harmful effect of an error”). Moreover, Defendant has again failed to cite any
authority that the “hearing on the petition in open court in which the parties presented
arguments” about which he now complains was legally inadequate for the trial court to
consider Defendant’s suitability for judicial diversion. See Tenn. R. Ct. Crim. App.
10(b). Defendant is not entitled to relief.

                                       Conclusion

      Based on the foregoing, we affirm the judgments of the trial court. However, we
remand the case for the entry of judgment forms on each charge that was disposed of by
way of this plea agreement.


                                         ____________________________________
                                         TIMOTHY L. EASTER, JUDGE




                                           -9-
