                                                                                          02/24/2020
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                              December 10, 2019 Session

                STATE OF TENNESSEE v. NIKKI BODIE PATE

                Appeal from the Circuit Court for Sequatchie County
                  No. 2017-CR-129         Justin C. Angel, Judge



                            No. M2018-02266-CCA-R3-CD



The Defendant, Nikki Bodie Pate, pleaded guilty to two counts of custodial interference.
Following a sentencing hearing, the trial court granted the Defendant’s request for judicial
diversion and placed the Defendant on probation for eighteen months. On appeal, the
State contends that the trial court erred when it granted the Defendant judicial diversion.
After a thorough review of the record and applicable law, we reverse the trial court’s
judgment and remand for further proceedings consistent with this opinion.

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

ROBERT W. WEDEMEYER, J., delivered the opinion of the Court, in which ROBERT L.
HOLLOWAY, JR. and TIMOTHY L. EASTER, JJ., joined.

B. Jeffery Harmon, District Public Defender; Vanessa D. King, Assistant District Public
Defender, Jasper, Tennessee, for the Appellee, Nikki Bodie Pate.

Herbert H. Slatery III, Attorney General and Reporter; Andrew C. Coulam, Assistant
Attorney General; James Michael Taylor, District Attorney General; and Steven H. Strain,
Assistant District Attorney General, for the Appellant, State of Tennessee.

                                        OPINION

                                I. Background and Facts

       In 2017, the Defendant was indicted by a Sequatchie County grand jury for two
counts of custodial interference, a Class E felony. In 2018, the Defendant pleaded guilty
to the charges with the Defendant’s request for judicial diversion to be determined at a
sentencing hearing.

             The State recited the following facts as the basis for the acceptance of the
       Defendant’s guilty plea:

              If this came to trial, the State would be calling Mr. Stephen Bodie.
       He would testify that he was previously married to the Defendant, they have
       two children, [X.B.] and [M.B.]. They are both under the age of 18, at all
       times relevant to these proceedings.

               That in 2017, Mr. Bodie began steps to obtain custody of the children.
       That various papers were filed in circuit court. That [the Defendant] had
       actual knowledge of these proceedings. On April the 18th, 2017, the Court .
       . . granted Mr. Bodie custody. Part of the elements the Court recited was
       that [the Defendant] had improperly removed the children from Tennessee.
       Once the custody order was obtained, Mr. Bodie made attempts to find the
       Defendant and his children. Initial thought was that she had gone to North
       Carolina, however, she was later apprehended in the State of Colorado, with
       the minor children. This was the latter part of last year. She was taken into
       custody by the Colorado authorities. She waived extradition and was
       transported back to Tennessee. The children were with her at the time. Mr.
       Bodie now has physical custody of the children and they are back here.

        At a sentencing hearing to determine the issue of judicial diversion, the Defendant
testified that she was married and living in Colorado at the time of the hearing and had
resided there for approximately six months. The Defendant stated that she worked in a
nursing home, where she had been employed for two months; previously she worked in a
fast food restaurant.

        The Defendant testified that she would comply with any requirements imposed by
the trial court. She stated that she had not spoken with her children in a year, after raising
them for thirteen years. She stated that the absence of contact with her children had been
“very hard.” The Defendant stated that she only wanted what was best for her children
and asked that she be permitted to have contact with them.

       On cross-examination, the Defendant agreed that she had not had contact with her
children since her arrest in Colorado. The Defendant had taken the children to Colorado,
where they lived with her for a year before she was arrested. She agreed that Mr. Bodie
was the children’s father and stated that he had regular contact with the children while they
were in Colorado. She agreed that she had not provided Mr. Bodie with her location and
that she had given Mr. Bodie a letter notifying him that she and the children would be

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relocating to North Carolina. She did not provide a letter informing him of the move to
Colorado because Mr. Bodie was threatening to take her children away from her. The
Defendant stated that she was fearful for her children.

       The trial court questioned the Defendant about whether she had any feelings of
remorse for removing the minor children to another state; she stated that she did not have
remorse and felt that she had done what was necessary. She denied that Mr. Bodie had
ever threatened or abused her or their minor children. She agreed that a custody order was
in place.

       At the close of the hearing, the trial court stated:

               The Court has reviewed the factors as to whether or not to grant or
       deny the request for diversion. The Court does find that, based upon the
       certification from the Tennessee Bureau of Investigation, that [the
       Defendant] does qualify for diversion.

              This is one of these cases where . . . in my heart, I will absolutely
       disagree with the law. I will disagree with the actions the Defendant took.
       ....

               And I think that, under the classifications, under the factors in this
       case and everything considered, this is the lowest level of felony that our
       state has, that I do think the main factor that applies that really had me
       leaning in this case about whether or not to grant [diversion] is the deterrent
       [factor] and the best interest of society. We cannot have parents just taking
       their kids away, three or four states away from other parents for a year or so
       at a time. That is not what we need in our society.

              ....

               You have no remorse for what you did. Again, I do not like what you
       did. If I had my druthers, I would render a much different sentence today,
       but I think the law of the State of Tennessee and the case law actually favors
       granting you diversion in this case and that’s what I’m going to do.

       The trial court entered an “Order of Deferral (Judicial Diversion)” granting judicial
diversion and placing Defendant on probation for eighteen months. It is from this
judgment that the State now appeals.

                                         II. Analysis

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       The State argues on appeal that the trial court erred when it granted the
Defendant’s application for judicial diversion pursuant to Tennessee Code Annotated
section 40-35-313. The State contends that the trial court neither considered or weighed
the common-law factors, found in State v. Electroplating, Inc., 990 S.W.2d 211 (Tenn.
Crim. App. 1998); State v. Parker, 932 S.W.2d 945 (Tenn. Crim. App. 1996), nor did it
articulate the reasoning behind its judgment. Thus, the State contends that our standard
of review is de novo without any deference to the trial court’s decision. The State
further argues that the record weighs against the granting of judicial diversion. The
Defendant contends that the trial court clearly engaged in the process of evaluating the
Defendant’s request in light of the required factors. The Defendant states that if this
court is to conclude that the trial court erred, the case should be remanded for the trial
court to clarify its reasoning.

       When a defendant is eligible for judicial diversion, a trial court has the discretion to
defer proceedings against the defendant without entering a judgment of guilt. T.C.A. §
40-35-313(a)(1)(A) (2019). The statute states that a trial court may grant judicial
diversion in appropriate cases. Id. Following a grant of judicial diversion, the defendant
is on probation but is not considered a convicted felon. Id. To be eligible for judicial
diversion, a defendant must be a “qualified defendant” as defined in relevant part by the
Tennessee Code section governing judicial diversion:

       (B)(i) As used in this subsection (a), “qualified defendant” means a
       defendant who

              (a) Is found guilty of or pleads guilty or nolo contendere to the
              offense for which deferral of further proceedings is sought;

              ....

              (c) Is not seeking deferral of further proceedings for a sexual
              offense, . . . or a Class A or Class B felony;

              (d) Has not previously been convicted of a felony or a Class A
              misdemeanor for which a sentence of confinement is served;
              and

              (e) Has not previously been granted judicial diversion under
              this chapter or pretrial diversion.

T.C.A. § 40-35-313(a)(1)(B)(i). Eligibility does not automatically entitle the defendant to

                                              4
judicial diversion. State v. Bonestel, 871 S.W.2d 163, 168 (Tenn. Crim. App. 1993),
overruled on other grounds by State v. Hooper, 29 S.W.3d 1, 9 (Tenn. 2000).

       Once a defendant is deemed eligible for judicial diversion, the trial court must
consider several factors when deciding whether to grant judicial diversion. Due to the
similarities between pre-trial diversion, which is administered by the district attorney
general, and judicial diversion, courts draw heavily from pre-trial diversion law and
examine the same factors:

      [A court] should consider the defendant’s criminal record, social history,
      mental and physical condition, attitude, behavior since arrest, emotional
      stability, current drug usage, past employment, home environment, marital
      stability, family responsibility, general reputation and amenability to
      correction, as well as the circumstances of the offense, the deterrent effect of
      punishment upon other criminal activity, and the likelihood that [judicial]
      diversion will serve the ends of justice and best interests of both the public
      and the defendant.

State v. Cutshaw, 967 S.W.2d 332, 344 (Tenn. Crim. App. 1997).

       When the trial court “specifically identifies the relevant factors and places on the
record its reasons for granting or denying judicial diversion,” this Court will “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.” State v. King, 432 S.W.3d 316,
327 (Tenn. 2014). Our Supreme Court has stated:

      Although the trial court is not required to recite all of the Parker [932 S.W.2d
      945 (Tenn. Crim. App. 1996)] and Electroplating [990 S.W.2d 211 (Tenn.
      Crim. App. 1998)] 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. Failure to consider the common law factors results in loss of the presumption of
reasonableness, and this Court is required to conduct a de novo review or remand to the
trial court for reconsideration. Id.

      The record in this case does not indicate that the trial court considered the Parker
and Electroplating factors or identified those specifically applicable to this case. Given

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that the trial court did not address these factors, and did not explain why the factors
supporting the granting of diversion outweighed the factors supporting the denial of
diversion, we are compelled to reverse the judgment of the trial court and remand the case
for the trial court to explain adequately on the record the specific factors it considered and
its weighing process of these factors in addressing the request for judicial diversion. We
reiterate that the trial court is not required to recite its consideration of each factor relevant
generally to judicial diversion but only those it found relevant to this case. See King, 432
S.W.3d at 327.

                                        III. Conclusion

       After a thorough review of the record and relevant authorities, we reverse the trial
court’s judgment and remand the case for further proceedings consistent with this opinion.


                                                     _________________________________
                                                       ROBERT W. WEDEMEYER, JUDGE




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