        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                                  April 10, 2012 Session

                   STATE OF TENNESSEE V. JOSEPH WELLS

                   Appeal from the Criminal Court of Shelby County
                       No. W10-00934     Paula Skahan, Judge


                 No. W2011-01431-CCA-R3-CD - Filed June 25, 2012




Joseph Wells (“the Defendant”) pled guilty to one count of possession of one-half ounce or
more of marijuana with intent to sell, a Class E felony. After a hearing, the trial court denied
judicial diversion and ordered the Defendant to serve thirty days of periodic confinement
followed by two years of probation. The Defendant has appealed, claiming that the trial
court erred in denying judicial diversion, erred in denying full probation, and erred in relying
on hearsay statements in imposing sentence. After a thorough review of the record, we
conclude that the trial court committed no reversible error. Therefore, we affirm the
judgment of the trial court.

                    Tenn. R. App. P. 3 Appeal as of Right; Judgment
                             of the Criminal Court Affirmed

J EFFREY S. B IVINS, J., delivered the opinion of the Court, in which J OHN E VERETT W ILLIAMS
and C AMILLE R. M CM ULLEN, JJ., joined.

Joseph A. McClusky, Lorna S. McClusky, Massey McClusky (on appeal), and Arch Boyd
(at trial), Memphis, Tennessee, for the appellant, Joseph Wells.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Senior Counsel;
Amy P. Weirich, District Attorney General; and Glen Baity, Assistant District Attorney
General; for the appellee, State of Tennessee.
                                         OPINION

                          Factual and Procedural Background

        The Defendant was charged with one count of possessing one-half ounce or more of
marijuana with the intent to sell. The Defendant pled guilty to this charge and stipulated to
the following factual basis for his plea:

       [O]n September 2nd, 2010, about 9:30 officers from the Sheriff’s Department
       Organized Crime Unit executed a search warrant for an address on Lookout
       Street here in Shelby County. Detectives saw Mr. Wells leave his residence,
       enter his 2002 Ford Crown Victoria and drive westbound on Lookout. They
       stopped him a short distance from his residence. The detective advised Mr.
       Wells that a search warrant had been issued for his residence. And Wells told
       the officers that he knew what it was about. That he had a small personal –
       small amount of personal marijuana growing at his house. He was returned to
       the Lookout address for execution of a search warrant.

              During the search warrant of Wells’ residence officers located in the
       attached garage the following items: Eighteen mature marijuana plants and a
       hydroponic grow operation. Thirty-eight clone marijuana plants on a starter
       rack.

               They located a greenhouse in the backyard. There were nineteen
       mature marijuana plants, sixteen immature marijuana plants. They located in
       the kitchen twenty – forty-five point four grams of harvested marijuana in the
       kitchen cabinet.

              ...

              Mr. Wells signed a waiver of rights and agreed to give a statement.
       During the recorded statement he told the officers he had been growing
       marijuana since he was 17 years of age. Wells further stated that the current
       marijuana that was growing in his garage and greenhouse is at least, must be
       a typo, eight years old. Wells stated that he grows marijuana for his personal
       use and gives small amounts to friends. He also stated that on September 1st
       of 2010 he delivered a small amount of marijuana to a friend of his using the
       2002 Ford Crown Victoria as the conveyance vehicle.

      The Defendant testified that, following his arrest, he resigned his position with Shelby
County where he had been employed in the human resources department. He was actively

                                             -2-
seeking other employment but had not yet been successful. His prior employment included
work for a family business in Jacksonville and work in the Memphis City Schools human
resources department. He has a college degree and credits toward a graduate degree in
business administration. He has no prior criminal record. He began counseling after his
arrest through an agency provided by his prior employment. He was forty-three years old.

        The Defendant described his marijuana operation as that of an “advanced hobbyist.”
He began growing marijuana in his home in 1997 and emphasized that he grew his marijuana
for his personal use and claimed that he never sold it. He occasionally gave small amounts
to friends, including a friend who was ill and in pain. He described his garden as follows:

       I was proud of my work [growing marijuana plants] because I was an
       advanced hobbyist. These [plants] were my babies and I loved them. I cared
       for them greatly not having a wife or child.

              When I left work I came home took care of my dog, took care of my
       home and played with my plants. And so I did not mind showing someone else
       exactly what I was doing . . . .

The Defendant acknowledged that his marijuana operation was wrong and illegal. He
asserted that he would “never . . . do this again.”

        The Defendant testified that he began smoking marijuana in high school and stated,
initially, that he quit smoking on the day he was arrested. Yet, he later admitted that he had
smoked marijuana about six weeks prior to the plea hearing (held on May 16, 2011). 1 He
also acknowledged that he continued to socialize with friends who smoked marijuana and
thought he would fail a drug test because of second-hand smoke. The Defendant stressed
that he never smoked marijuana during work hours and did not go to work under the
influence.

        The trial court admitted into evidence a letter from the Defendant’s counselor on
letterhead labeled “Concern Employee Assistant [sic] Program” and dated September 16,
2010, eight months earlier. The letter states that the Defendant “is currently participating in
counseling” and that “[a] thorough assessment has been completed and [the Defendant] is
in compliance with treatment recommendations.” The Defendant stated that he continued
to see his counselor about twice a month, but he did not present a more recent letter.



       1
         We note that the presentence report reflects that the Defendant reported that “he last smoked
marijuana on 01-07-2011.”

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       Paul Boyd testified that the Defendant reported to him while Boyd was the
“administrator for HR for Shelby County Government.” Boyd described the Defendant as
“a very good employee. Did what was expected of him. And did very good work.” He
never appeared high to Boyd’s knowledge.

      In response to the Defendant’s request for judicial diversion, the trial court ruled as
follows:

              But the problems I’m having I don’t dispute that [the Defendant] is a
       nice person. I’m not disputing that at all. I’m not disputing that he has a good
       work history. Okay. And appears to have been a good employee over the jobs
       that he has held. The problem that I have with [the Defendant] is that he
       comes in here and he minimizes what he has done. And he says I accept
       responsibility, you know, with one breath and then he says I was an advance[d]
       hobbyist. I don’t have children, I would come home. I have animals and I
       have this advanced hobby and that’s my marijuana plants. And smoking
       marijuana and I would have friends over and I would give some to friends
       including friends that were ill, that didn’t have insurance and were in so much
       pain. Like he’s just the good [S]amaritan. That he would give it out and
       proudly show anybody that would come over to his house what he was doing.
       Because he’s so proud of it. Because he’s an advanced hobbyist.

              And then further what I have a problem with is he comes in and the
       exhibits that you introduce are a letter from Concern EAP about the counseling
       that he is supposedly participating in right now. And first of all the letter is
       dated September 16, 2010. And it says: A thorough assessment has been
       completed and [the Defendant] is in compliance with treatment
       recommendations. And I ask him if he has a more updated, is he still attending
       and he said, well, yes, I don’t have a letter stating that but I could get you one.

               And he says . . . [the] last time he smoked marijuana was September
       2nd, the date that he was arrested. And upon further questioning, well, he
       couldn’t pass a drug screen because he’s been at poker games with his buddies
       and due to secondhand smoke it’s gotten into [his] system. And when I said,
       no, that’s not the way that works, he wouldn’t test positive, then he said, well,
       um, due to the stress of this, you know, maybe six weeks ago I smoked some
       marijuana. It wouldn’t stay in your system for six weeks. I could give you a
       drug test today and actually I think we’re going to go ahead and do that. We’ll
       get pretrial down here to give him a drug test. The longest marijuana would
       stay in your system unless you’ve been smoking continually since – well, since
       you have been 15 would be thirty days. It might be a little bit longer if you’ve

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been smoking, you know, constantly. But if you smoked occasionally the
longest it could possibly stay in your system would be thirty days according to
the experts down in the drug court who I believe more than I believe you.

        You’ve continued to smoke marijuana. You have continued to hang out
with your friends who smoke marijuana. You think that you’re more deserving
of this because you do have a good background. And to me having been the
human resources advisor to public officials in Shelby County you should have
been setting an example, a good example rather than a horrible example of
behavior. And that to me you were in a position of trust which you abused by
this behavior. And that makes it more aggravated to me than mitigated, I’m
sorry.

        Looking at the factors [to] consider granting or denying diversion, your
amenability to correction, I think that you can stay out of trouble as far as
anything other than smoking marijuana. And I personally don’t see you
stopping that behavior. The circumstances of the events, this is not your
typical possession with intent to distribute marijuana. This is really a very
elaborate setup in your home which had gone on for at least eight years. Some
of the plants in there by your own admission to the police were eight years old.
You were not only smoking it yourself but you were sharing it with friends.
Your criminal record is spotless. Your social history appears to be good other
than hanging out with other pot smokers, marijuana smokers, pot is the word
you – is the term you used. Status of your physical and mental health.
Physical health according to you is good. Mental health, I don’t, I don’t see
that being very good if you’re so dependant on marijuana since the age of 15,
you’re now 43. I don’t think that’s as good as you think it is.

        The deterrence value to accused as well as others. I don’t think you
understand how serious this is and I don’t think we need to be sending a
message to county workers that if they get involved in something as foolish as
this that they can go on a diversion program.

       And whether judicial diversion will serve the interest of the public as
well as the accused. Had you gone into a rehabilitation program and really
turned everything around that would make a difference to me. But it just
doesn’t seem to have caught on with you and I do not think judicial diversion
will serve the interest of the public or you at this point. Weighing everything
diversion is denied.



                                      -5-
After the trial judge denied diversion, she stated the following:

       Now the question is how much jail time and whether probation is appropriate.
       And what the appropriate length of sentence should be in this case. I certainly
       will allow you to be heard on that. And I think that some type of split
       confinement is appropriate. I think maybe some weekend time. Certainly
       ordering drug treatment is appropriate in this case.

(Emphasis added). The trial court also asked the Defendant if his counseling program
required drug tests. When the Defendant answered “no,” the trial court remarked, “That’s
been the problem, then.”

      The trial court then called a recess during which the Defendant took a drug test.
According to the trial court, the Defendant tested positive for marijuana.

        After denying diversion and getting the results from the Defendant’s drug test, the trial
court sentenced the Defendant as a Range I standard offender to two years, to be served by
thirty days of periodic confinement coupled with two years of probation. In conjunction with
imposing sentence, the trial court stated the following:

       [W]ell, not surprisingly he did test positive for marijuana. And I understand
       [the Defendant’s] been in here talking about I’m making a big deal, making it
       sound so bad about what he did and he really didn’t do anything wrong. He
       just doesn’t get it. He really doesn’t get what he did and how bad it was. And
       you know, what I can just easily do is just say go into custody for a year or
       two, you know. And then maybe sitting in looking at some cell doors at the
       workhouse for a year or two will let you think about how bad this is. Because
       I don’t understand how you don’t get it. I really don’t. That you don’t
       understand that this is serious.

              And if you think people in here are not going to tell me what you’re
       talking about during the break, you’re wrong. It is horrible. You had a very
       high position in county government and you were out there manufacturing
       marijuana, growing pot plants like a common criminal. That’s exactly what
       you were doing. So how you think you’re better than anybody else in here
       with a case, you’re not. You’re worse because you had all the advantages most
       of them never had.

The Defendant responded, “I can respect it. Yes, ma’am.”



                                               -6-
       The Defendant now appeals, arguing that the trial court should have granted judicial
diversion or full probation and should not have relied on “hearsay” statements made during
the recess in imposing sentence.

                                            Analysis

                                       Judicial Diversion

        Judicial diversion is a form of “legislative largess whereby a defendant adjudicated
guilty may, upon successful completion of a diversion program, receive an expungement
from all ‘official records’ any recordation relating to ‘arrest, indictment or information, trial,
finding of guilty, and dismissal and discharge’ pursuant to the diversion statute.” State v.
Schindler, 986 S.W.2d 209, 211 (Tenn. 1999) (citing Tenn. Code Ann. § 40-35-313(b)). The
Defendant is eligible for judicial diversion because he pled guilty to a Class E felony, has not
previously been convicted of a felony or Class A misdemeanor, and is not seeking deferral
for a sexual offense. See Tenn. Code Ann. § 40-35-313(a)(1)(B)(I) (2010). Nevertheless,
the Defendant is not entitled to a presumption that he is a favorable candidate for judicial
diversion. See State v. Anderson, 857 S.W.2d 571, 573 (Tenn. Crim. App. 1992).

       We will reverse a trial court’s denial of judicial diversion only for an abuse of
discretion. See State v. Turco, 108 S.W.3d 244, 246 n.5 (Tenn. 2003) (citing State v.
Hammersley, 650 S.W.2d 352, 356 (Tenn. 1983)). Upon review of a denial of judicial
diversion, we will accord the trial court the benefit of its discretion if “any substantial
evidence to support the refusal exists in the record.” Anderson, 857 S.W.2d at 572 (quoting
Hammersley, 650 S.W.2d at 356) (internal quotation marks omitted).

       A trial court must consider several factors in determining whether to grant 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) special and general deterrence value; and (7) whether judicial
diversion will serve the ends of justice. State v. Electroplating, Inc., 990 S.W.2d 211, 229
(Tenn. Crim. App. 1998). When the trial court fails to consider all of these factors, we
consider them de novo to determine whether the trial court abused its discretion in denying
judicial diversion. State v. Jonathan B. Dunn, No. M2005-01268-CCA-R3-CD, 2006 WL
1627335, at *9 (Tenn. Crim. App. June 12, 2006).

       In this case, the trial court considered and made findings as to each of the required
factors in support of its decision to deny judicial diversion. Specifically, the trial court found
that the Defendant was not amenable to correction because he had not stopped smoking
marijuana, he had not entered a rehabilitation program that required frequent drug testing,
and he continued to socialize with his marijuana-smoking friends. The circumstances of the

                                               -7-
offense included an “elaborate setup” in the Defendant’s home that had “gone on for at least
eight years.” Additionally, the Defendant was sharing his crop with others. The trial court
described the Defendant’s criminal record as “spotless,” but we note that the Defendant had
been engaging in his illegal activity for years. The trial court described the Defendant’s
social history as “good other than hanging out with other . . . marijuana smokers” and
accepted the Defendant’s description of his physical health as “good.” The trial court
expressed concern about the Defendant’s mental health because of his long-term marijuana
habit. As to deterrence, the trial court stressed the seriousness of the Defendant’s crime, the
court’s perception that he did not understand its seriousness, and the danger of sending a
message to other government employees that diversion is available “if they get involved in
something as foolish as this.” The trial court concluded that judicial diversion would not
serve either the public’s interest or the Defendant’s. The trial court also noted that, had the
Defendant “gone into a rehabilitation program and really turned everything around,” its
analysis might have been different.

        The Defendant argues that the trial court “placed an undue weight on [his] former
status as a county employee” and “took issue” with the Defendant’s failure to have enrolled
in a drug rehabilitation program. The Defendant contends that the trial court placed too
much emphasis on the circumstances of the offense and the need for deterrence.

        We disagree. In our view, the trial court placed a great deal of weight on the
Defendant’s demonstrated lack of amenability to correction. He had not entered a drug
rehabilitation program. The letter from his counselor was eight months old. He smoked
marijuana after his arrest. He continued to socialize with persons who engaged in illegal
marijuana smoking. He told the court that he could not pass a drug test that day, a statement
later proved true. The court found that the Defendant did not take his crime seriously. All
of these considerations support the trial court’s scepticism about the Defendant’s amenability
to correction.

       We also agree with the trial court that the circumstances of the offense are very
serious. The Defendant maintained for many years a sophisticated marijuana cultivation
operation. He thereby supplied himself and his friends with the illegal substance. He took
pride in his illegal activities.

        We also agree with the trial court that the Defendant’s mental health is questionable,
given his long-term marijuana usage, his failure to enter drug rehabilitation, and his apparent
inability to stop smoking even after his arrest. Certainly, these concerns also indicate a
potential failure of specific deterrence if the Defendant was placed on judicial diversion. All
of these concerns also indicate that neither the public nor the Defendant would be served by
placing the Defendant on judicial diversion.


                                              -8-
       In sum, the record contains ample evidence to support the trial court’s decision to
deny judicial diversion. Discerning no abuse of discretion, we affirm the trial court’s ruling
on this issue.

                                                Sentence

        The Defendant is a standard, Range I offender. See Tenn. Code Ann. § 40-35-105(a),
(b) (2010). The Range I sentence for a Class E felony is one to two years. Id. § 40-35-
112(a)(5) (2010). The trial court sentenced the Defendant to the maximum two year
sentence, with thirty days to be served in the workhouse and two years on probation. The
trial court ordered that the Defendant serve his thirty days on weekends.

        The Defendant complains that the trial court “relied on facts not found in the record
in denying . . . full probation,” referring to the trial court’s comments about statements the
Defendant allegedly made during a recess in the proceedings. The Defendant additionally
avers in his brief that the trial court also relied on these statements in denying diversion. The
Defendant is incorrect. The trial court had denied diversion prior to the recess during which
the alleged remarks were made. The Defendant raises no issue with respect to the length of
his sentence.

        Generally, convicted defendants sentenced to ten years or less are eligible for
probation. Tenn. Code Ann. § 40-35-303(a) (2010). Moreover, “[a] defendant who does not
fall within the parameters of subdivision (5),2 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[.]” Id. § 40-35-
102(6) (footnote added). However, “[a] court shall consider, but is not bound by, [this]
advisory sentencing guideline.” Id. § 40-35-102(6)(D). It is the defendant’s burden to
establish his or her suitability for full probation. See State v. Carter, 254 S.W.3d 335, 347
(Tenn. 2008) (citing Tenn. Code Ann. § 40-35-303(b)); State v. Mounger, 7 S.W.3d 70, 78
(Tenn. Crim. App. 1999). “This burden includes demonstrating 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)) (internal quotation marks omitted).


       2
           Subdivision (5) of Tennessee Code Annotated section 40-35-102 (2010) provides:

                In recognition that state prison capacities and the funds to build and maintain them
       are limited, convicted felons committing the most severe offenses, possessing criminal
       histories evincing a clear disregard for the laws and morals of society and evincing failure
       of past efforts at rehabilitation shall be given first priority regarding sentencing involving
       incarceration[.]

                                                    -9-
        Factors relevant to a trial court’s decision about whether to place a defendant on
probation include the severity of the offense, a criminal history that “evinc[es] a clear
disregard for the laws and morals of society,” and the success or failure of past efforts at
rehabilitation. Tenn. Code Ann. § 40-35-102(5) (2010); see also Carter, 254 S.W.3d at 347.
Additional factors for the trial court’s consideration include whether confinement is
necessary to protect society from a defendant with a long history of criminal conduct,
whether confinement is necessary “to avoid depreciating the seriousness of the offense” or
is “particularly suited to provide an effective deterrence to others likely to commit similar
offenses,” and whether “[m]easures less restrictive than confinement have frequently or
recently been applied unsuccessfully to the defendant.” Tenn. Code Ann. § 40-35-103(1)
(2010); see also Carter, 354 S.W.3d at 347. This Court has recognized that “[t]he guidelines
applicable in determining whether to impose probation are the same factors applicable in
determining whether to impose judicial diversion.” State v. Jeremy Brandon Scott, No.
M2010-01632-CCA-R3-CD, 2011 WL 5043318, at *11 (Tenn. Crim. App. Oct. 24, 2011)
(citing State v. Bingham, 910 S.W.2d 448, 456 (Tenn. Crim. App. 1995)).

       We review a trial court’s denial of full probation de novo with a presumption of
correctness. Tenn. Code Ann. § 40-35-401(d) (2010); see also Carter, 354 S.W.3d at 344.
However, the presumption of correctness “‘is conditioned upon the affirmative showing in
the record that the trial court considered the sentencing principles and all relevant facts and
circumstances.’” Carter, 354 S.W.3d at 344-45 (quoting State v. Ashby, 823 S.W.2d 166,
169 (Tenn. 1991)). In the event the trial court fails to place on the record its determinations
in accordance with the Sentencing Act, the presumption fails and our review is simply de
novo. See id. at 345.

       In this case, the trial court did not award full probation, but required the Defendant
to serve thirty days on weekends followed by two years of probation. The trial court’s
reasons for ordering this sentence of probation coupled with periodic confinement, see Tenn.
Code Ann. § 40-35-307(a) (2010), included the Defendant’s having failed a drug test that day
and the trial court’s finding that the Defendant did not take his crime seriously.

        We acknowledge that, in imposing this sentence, the trial court also referred to
remarks the Defendant allegedly made during the recess. The trial court erred in its reference
to these remarks. These remarks clearly were not appropriately made a part of the record in
this matter. Moreover, the trial court’s approach foreclosed any opportunity for the
Defendant to cross-examine the witness(es) allegedly reporting these remarks and deprived
him of the opportunity to testify about the alleged remarks himself. If the trial court found
it necessary to possibly consider these statements, the proper procedure would have been for
the trial court to place the witness(es) to the Defendant’s remarks under oath and have the
alleged remarks placed on the record. The Defendant also should have been given an
opportunity to cross examine the witness(es) and to testify regarding his alleged remarks.

                                             -10-
       Nevertheless, our careful review of the entire record demonstrates the overwhelming
amount of admissible proof supporting the trial court’s denial of full probation. We also note
particularly that the trial court indicated its inclination to order periodic confinement prior
to the recess during which the Defendant allegedly made the remarks. As a result, we
conclude that the trial court’s error was harmless on this issue.

        Additionally, as set forth above, most of the factors relevant to judicial diversion
weighed against the Defendant. Those same factors weigh against the grant of full probation.
Moreover, the Defendant’s long-term devotion to both growing and smoking marijuana
evinces “a clear disregard for the laws and morals of society.” Tenn. Code Ann. § 40-35-
102(5). The Defendant also continued to engage in his illegal consumption of marijuana
after his arrest, demonstrating his questionable rehabilitative potential, his failure to take his
illegal conduct seriously, and the need for specific deterrence. We emphasize particularly
that the Defendant failed a drug test on the day of his plea and sentencing hearing. In sum,
based upon the totality of the properly admitted evidence, we hold that the trial court
committed no reversible error in ordering the Defendant to serve thirty days in periodic
confinement coupled with two years of probation.

                                          Conclusion

       For the foregoing reasons, we affirm the trial court’s judgment.




                                             _________________________________
                                             JEFFREY S. BIVINS, JUDGE




                                              -11-
