        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                            Assigned on Briefs May 7, 2013

                 STATE OF TENNESSEE v. KENNETH GAINES

                    Appeal from the Criminal Court for Shelby County
                          No. 09-07075    Lee V. Coffee, Judge



                   No. W2012-00333-CCA-R3-CD - Filed May 24, 2013


Appellant, Kenneth Gaines, was indicted by the Shelby County Grand Jury in September of
2009 with two counts of aggravated assault and one count of reckless endangerment.
Appellant pled guilty to all three charges. Pursuant to an agreement with the State, Appellant
was placed on judicial diversion for three years under the supervision of the department of
probation. The State filed a petition for revocation of Appellant’s probation in March of
2011 after Appellant was charged with rape, failed to report the arrest, failed to pay court
costs, and failed to pay probation fees. After a jury trial on the rape charge, Appellant was
convicted of the lesser included offense of assault. The trial court approved the jury verdict,
terminated Appellant’s judicial diversion, and set both matters for a sentencing hearing. At
the sentencing hearing, the trial court sentenced Appellant to six years for each aggravated
assault conviction and two years for the reckless endangerment conviction. The trial court
ordered the sentences to run concurrently with each other but consecutively to the six-month
sentence Appellant received for the assault conviction, for a total effective sentence of six
years and six months. Appellant filed a timely notice of appeal. On appeal, he challenges
the termination of judicial diversion without a formal hearing and insists that the trial court
imposed an excessive sentence. After a review of the record, we conclude that Appellant’s
rights to due process were not violated when the trial court made the determination that
Appellant violated the terms of his judicial diversion contemporaneously with his trial on
subsequent charges. Further, the trial court did not abuse its discretion in sentencing
Appellant to an effective sentence of six years and six months. Accordingly, the judgments
of the trial court are affirmed.


 Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Trial Court are Affirmed.

J ERRY L. S MITH, J., delivered the opinion of the court, in which N ORMA M CG EE O GLE and
A LAN E. G LENN, JJ., joined.
Phyllis Aluko, Assistant Public Defender, Memphis, Tennessee, for the appellant, Kenneth
Gaines.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Assistant Attorney
General; Amy P. Weirich, District Attorney General; and Terre Fratesi, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                              OPINION

                                        Factual Background

       Appellant was indicted in November of 2009 by the Shelby County Grand Jury with
two counts of aggravated assault and one count of reckless endangerment with a deadly
weapon. In March of 2010, Appellant waived his right to a jury trial in exchange for a guilty
plea. As part of the agreement, Appellant was placed on judicial diversion for three years
under the supervision of the department of probation.

       At the guilty plea hearing, the State noted that, had the case gone to trial, the proof
would have shown that on July 23, 2009, Appellant assaulted [victims one and two]1 with the
use of a deadly weapon. Additionally, the proof would have established that Appellant
“unlawfully and recklessly by the use of a deadly weapon engaged in conduct which placed
[victims three and four] in imminent danger of death or serious bodily injury.” During the
guilty plea hearing, the trial court thoroughly discussed the conditions of judicial diversion
with Appellant. Appellant indicated his understanding and willingness to participate.

       On March 23, 2011, the State filed a petition for revocation of Appellant’s probation
after he was charged with rape on February 17, 2011. In the petition, the State alleged that
Appellant failed to report his arrest, failed to obey the laws of the United States, failed to pay
court costs, and failed to pay probation fees.

       The rape charge proceeded to trial. At the conclusion of the jury trial, Appellant was
convicted of the lesser included offense of assault. During the pendency of the trial, the trial
court informed Appellant that it would “carry the petition to terminate your Diversion along
with your trial setting.” At the conclusion of the trial, the trial court approved the jury’s
verdict and found “by a preponderance of the evidence that [Appellant] violated . . .
Diversion”, noting that Appellant was “in places [he] was ordered not to go” and was “using


       1
        This Court has chosen not to use the names of the victims of the aggravated assaults or reckless
endangerment out of an abundance of caution so as to avoid unnecessary identification of victims that may
or may not be minors.

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and ingesting alcohol to the extent that [he] bothered others,” “us[ing] alcohol to an excess
and going to places that sold alcohol” all of which were violations of the conditions of
diversion. The trial court stated that it would set the matters for a sentencing hearing at
which it would decide the punishment for the assault conviction “and the offenses you were
placed on Diversion for.”

        At the sentencing hearing, the trial court determined that Appellant had given
inconsistent information to the Court, specifically in his presentence reports, and was
“untruthful.” Further, the trial court commented that there was nothing “more troubling than
having a person on Diversion for shooting at a woman and four and a half months later he’s
out in the community, having gone out in the community every weekend drinking to an
excess and hanging out where he was ordered not to . . . .” The trial court determined that
Appellant was eligible for alternative sentencing but that confinement was necessary because
measures less restrictive had recently been applied to Appellant as Appellant was on
diversion when he committed the assault. As a result, the trial court sentenced Appellant to
six years for each aggravated assault conviction and two years for the reckless endangerment
conviction. The trial court ordered the sentences to run concurrently with each other but
consecutively to the six-month sentence Appellant received for the assault conviction, for a
total effective sentence of six years and six months.

      On appeal, Appellant argues that the trial court improperly denied diversion without
a formal hearing and that the trial court imposed an excessive sentence.

                                  Revocation of Diversion

       Appellant claims that the trial court improperly revoked diversion without a formal
hearing. Specifically, Appellant contends that the trial court’s procedure violated due
process. The State disagrees.

         The Criminal Sentencing Reform Act of 1989 states that, after accepting a guilty plea,
a trial court may do the following:

       [D]efer further proceedings against a qualified defendant and place such
       defendant on probation upon such reasonable conditions as it may require
       without entering a judgment of guilty and with the consent of the qualified
       defendant. Such deferral shall be for a period of time not less than the period
       of the maximum sentence for the misdemeanor with which the person is
       charged, or not more than the period of the maximum sentence of the felony
       with which the person is charged.



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T.C.A. § 40-35-313(a)(1)(A). Judicial diversion is substantially similar to pretrial diversion;
however, the decision to grant diversion rests with the trial court, not the prosecutor. State
v. Anderson, 857 S.W.2d 571, 572 (Tenn. Crim. App. 1992). The decision of whether to
place a criminal defendant on judicial diversion is within the sound discretion of the trial
court and that decision will not be reversed on appeal if there is any substantial record
evidence to support it. 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).

       When a defendant has been placed on judicial diversion pursuant to section 40-35-
313(a)(1)(A) and is accused of violating the conditions of his release, trial courts should
review the claim using the same standards and procedures as an ordinary probation
revocation. Alder v. State, 108 S.W.3d 263, 266 (Tenn. Crim. App. 2002). A trial court may
revoke a defendant’s probation upon finding by a preponderance of the evidence that the
defendant has violated the probation’s conditions. T.C.A. § 40-35-311; State v. Shaffer, 45
S.W.3d 553(Tenn. 2001). A probation revocation will be upheld on appeal unless there has
been an abuse of discretion, which only occurs if the record contains “no substantial evidence
to support the conclusion of the trial court that a violation of the conditions of probation has
occurred.” Shaffer, 45 S.W.3d at 553.

         A defendant at a probation revocation proceeding is not entitled to the full array of
procedural protections associated with a criminal trial. See Black v. Romano, 471 U.S. 606,
613 (1985); Gagnon v. Scarpelli, 411 U.S. 778, 786-790 (1973). However, such defendant
is entitled to the “minimum requirements of due process,” including: (1) written notice of the
claimed violation(s) of probation; (2) disclosure to the probationer of evidence against him;
(3) the opportunity to be heard in person and to present witnesses and documentary evidence;
(4) the right to confront and cross-examine adverse witnesses (unless good cause is shown
for not allowing confrontation); (5) a neutral and detached hearing body, members of which
need not be judicial officers or lawyers; and (6) a written statement by the factfinder
regarding the evidence relied upon and the reasons for revoking probation. Id. at 786;
Morrissey v. Brewer, 408 U.S. 471, 489 (1972).

        Appellant complains that the trial court did not conduct a “formal termination of
diversion hearing” but instead, after the jury trial on the rape charge, “summarily found that
the evidence at trial established that [Appellant] had violated the terms of his diversion on
the current case.” Further, Appellant complains that the trial court utilized facts that were
elicited during the trial on the rape charge to form the basis for the revocation. To the
contrary, the record reflects that the trial court stated the following:

       You were also on [d]iversion for this case, and I told you at the time I would
       carry the petition to terminate your [d]iversion along with your trial setting and

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       the court, having heard the proof in this case and your testimony; the Court
       does find by a preponderance of the evidence that you have violated your
       [d]iversion.

Counsel for Appellant did not object to this procedure or insist on a separate hearing. Prior
to trial on the rape charge, Appellant was notified of the pending diversion revocation
charges when the State filed a violation of diversion warrant. We do note with some concern
that the record does not reflect whether the trial court informed Appellant prior to the start
of the trial that the determination on the diversion revocation would be made during the trial.
Appellant chose to testify at the trial on the rape charge, during which he admitted that he
was arrested after he was placed on judicial diversion, was drinking alcohol, was in an
establishment that served alcohol, and committed at least an assault on the victim. Further,
at the sentencing hearing, the trial court again reminded Appellant that the revocation of
diversion was at issue. The trial court even asked Appellant if he wished to present any
witnesses or argument at the sentencing hearing. Counsel for Appellant declined. The trial
court stated the reasons for the denial of diversion on the record. The transcript can satisfy
the due process requirement of a “written statement” where it shows both the grounds for the
revocation and the reasons for the court’s findings. State v. Leiderman, 86 S.W.3d 584, 590-
91 (Tenn. Crim. App. 2002). We conclude that the record herein is sufficient to satisfy due
process requirements and supports the revocation of judicial diversion. Appellant is not
entitled to relief.

                                         Sentencing

       Appellant also complains that the trial court issued an excessive sentence based on
three enhancement factors. The State disagrees.

       Appellate review of sentencing is for abuse of discretion. We must apply “a
presumption of reasonableness to within-range sentencing decisions that reflect a proper
application of the purposes and principles of our Sentencing Act.” See State v. Bise, 380
S.W.3d 682, at 707 (Tenn. 2012). Further, when a defendant violates a condition of
probation, the trial court may enter an adjudication of guilt and proceed to sentence the
defendant for the original offense, pursuant to the provisions of the Sentencing Act. State
v. Johnson, 15 S.W.3d 515 (Tenn. Crim. App. 1999).

        In making its sentencing determination, the trial court, at the conclusion of the
sentencing hearing, first determines the range of sentence and then determines the specific
sentence and the appropriate combination of sentencing alternatives by considering: (1) the
evidence, if any, received at the trial and the sentencing hearing; (2) the presentence report;
(3) the principles of sentencing and arguments as to sentencing alternatives; (4) the nature

                                              -5-
and characteristics of the criminal conduct involved; (5) evidence and information offered
by the parties on the enhancement and mitigating factors; (6) any statistical information
provided by the administrative office of the courts regarding sentences for similar offenses;
(7) any statements the defendant wishes to make in the defendant’s behalf about sentencing;
and (8) the potential for rehabilitation or treatment. T.C.A. §§ 40-35-210(a), (b), -103(5);
State v. Williams, 920 S.W.2d 247, 258 (Tenn. Crim. App. 1995).

        The trial court is still required to place on the record its reasons for imposing the
specific sentence, including the identification of the mitigating and enhancement factors
found, the specific facts supporting each enhancement factor found, and the method by which
the mitigating and enhancement factors have been evaluated and balanced in determining the
sentence. See Bise, 380 S.W.3d at 705 n. 41; State v. Samuels, 44 S.W.3d 489, 492 (Tenn.
2001). Thus, under Bise, “[a] sentence should be upheld so long as it is within the
appropriate range and the record demonstrates that the sentence is otherwise in compliance
with the purposes and principles listed by statute.” Bise, 380 S.W.3d at 709-10. In fact “a
trial court’s misapplication of an enhancement or mitigating factor does not invalidate the
sentence imposed unless the trial court wholly departed from the 1989 Act, as amended in
2005.” Id. at 706.

        In the case herein, the trial court sentenced Appellant to six years for each aggravated
assault conviction and two years for the reckless endangerment conviction. The sentences
were ordered to be served concurrently. The trial court considered the enhancement factors
that Appellant had a previous history of criminal convictions or criminal behavior; that
before sentencing he failed to comply with the conditions of a sentence involving release into
the community; and that he had no hesitation about committing a crime when the risk to
human life was high. See T.C.A. § 40-35-114(1), (8), (10). The trial court also considered
in mitigation that Appellant was in resource classes in school and was of below average
intelligence. While we agree with Appellant that the trial court arguably misapplied
enhancement factors, i.e. utilizing the revocation of diversion to enhance the sentence for
which Appellant was on diversion in the first place; utilizing the assault charge that occurred
after the sentences for which Appellant was on diversion in enhancement; and enhancing
based on risk to human life when that is an element of the offense for which Appellant was
being sentenced, the sentence received by Appellant is within the proper range and does not
“wholly” depart from the Sentencing Act. Bise, 380 S.W.3d at 706. Consequently, the trial
court did not abuse its discretion and Appellant is not entitled to relief.




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                                 Conclusion

For the foregoing reasons, the judgments of the trial court are affirmed.




                                   ___________________________________
                                   JERRY L. SMITH, JUDGE




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