         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                             Assigned on Briefs August 9, 2005

       STATE OF TENNESSEE v. ANTOWAN ANTONIO WILLIAMS

                  Appeal from the Criminal Court for Montgomery County
                          No. 40400536   Michael R. Jones, Judge



                  No. M2004-03072-CCA-R3-CD - Filed September 23, 2005


The defendant, Antowan Antonio Williams, pleaded guilty to attempted aggravated robbery. After
conducting a sentencing hearing, the trial court ordered the defendant to serve a 2.7 year probationary
sentence as a mitigated offender but denied the defendant’s request for judicial diversion. The
defendant now brings the instant appeal challenging the trial court’s denial of judicial diversion.
After a thorough review of the record and applicable law, we affirm the judgment of the trial court.

              Tenn. R. App. P. 3; Judgment of the Criminal Court is Affirmed.

JAMES CURWOOD WITT , JR., J., delivered the opinion of the court, in which DAVID G. HAYES and
JERRY L. SMITH , JJ., joined.

Jeffry S. Grimes, Clarksville, Tennessee, for the Appellant, Antowan Antonio Williams.

Paul G. Summers, Attorney General & Reporter; Blind Akrawi, Assistant Attorney General; John
Wesley Carney, Jr., District Attorney General; and Lance A. Baker, Assistant District Attorney
General, for the Appellee, State of Tennessee.

                                             OPINION

                The defendant entered an open guilty plea to the instant offense with the sentencing
determination to be left to the discretion of the trial court. The trial court subsequently conducted
a sentencing hearing to determine an appropriate sentence. During the hearing, the court asked the
parties to recount the facts underlying the defendant’s conviction. The prosecutor recounted that the
defendant and his co-defendant, who were acquainted with the victim, held the victim at gunpoint
and demanded money from him after he stepped outside of his apartment. The victim resisted their
efforts and contacted the police immediately after the incident. As a result, the police were able to
locate the defendant and co-defendant within the victim’s apartment complex minutes after the
incident.1

                 The defendant requested that he receive the minimum sentence within his applicable
sentencing range, that the court further reduce his sentence because he had pleaded guilty to this
offense, or that the court grant judicial diversion in his case. In support of his request, the defendant
asserted that he had no prior criminal record. The state agreed that the defendant should receive the
minimum sentence; however, the state opposed the defendant’s request for judicial diversion on the
basis that the defendant was being sentenced for a violent offense that involved the use of a handgun
and because the robbery took place in a residential area.

                At the conclusion of the hearing, the court sentenced the defendant to serve a
probationary sentence of 2.7 years as a mitigated offender. On appeal, the defendant challenges the
trial court’s denial of his request for judicial diversion.

                “Judicial diversion” is a reference to Code section 40-35-313(a)’s provision for a trial
court’s deferring proceedings in a criminal case. See Tenn. Code Ann. § 40-35-313(a)(1)(A) (2003).
The result of such a deferral is that the trial court places the defendant on probation “without entering
a judgment of guilty.” Id. To be eligible or “qualified” for judicial diversion, the defendant must
plead guilty to, or be found guilty of, an offense that is not “a sexual offense or a Class A or Class
B felony,” and the defendant must not have previously been convicted of a felony or a Class A
misdemeanor. Id. § 40-35-313(a)(1)(B)(i). Diversion requires the consent of the qualified
defendant. Id. § 40-35-313(a)(1)(A).

                Eligibility, however, does not automatically translate into entitlement to judicial
diversion. See 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). The statute states that a trial court “may”
grant judicial diversion in appropriate cases. Tenn. Code Ann. § 40-35- 313(a)(1)(A) (2003) (court
“may defer further proceedings”). Thus, whether an accused should be granted judicial diversion
is a question entrusted to the sound discretion of the trial court. Bonestel, 871 S.W.2d at 168.

                “Tennessee courts have recognized the similarities between judicial diversion and
pretrial diversion and, thus, have drawn 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). Accordingly, the relevant factors related to pretrial diversion also apply in the judicial
diversion context. They are:

         [T]he 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


         1
            Defense counsel and the defendant, who were present during the state’s recitation of these facts, did not object
to the state’s characterization of the facts underlying the instant offense.

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        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.

Id. at 343-44; see State v. Washington, 866 S.W.2d 950, 951 (Tenn. 1993). Moreover, the record
must reflect that the court has weighed all of the factors in reaching its determination. Bonestel, 871
S.W.2d at 168. 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.

                On appeal, this court must determine whether the trial court abused its discretion in
failing to sentence pursuant to the statute. Cutshaw, 967 S.W.2d at 344; Bonestel, 871 S.W.2d at
168. Accordingly, when a defendant challenges the denial of judicial diversion, we may not revisit
the issue if the record contains any substantial evidence supporting the trial court’s decision.
Cutshaw, 967 S.W.2d at 344; Bonestel, 871 S.W.2d at 168.

                The defendant argues that he is a proper candidate for judicial diversion because he
has no prior criminal record, is married with two children, and is in good mental and physical health.
He asserts that granting judicial diversion would allow him to serve his debt to society while
remaining on probation but allow him to escape the stigma of classification as a convicted felon.
The state counters that there is substantial evidence to support the trial court’s denial of judicial
diversion.

                 The trial court denied the defendant’s request for judicial diversion after finding that
the victim’s resistance to the defendant’s robbery efforts was the sole reason that the defendant was
charged with the inchoate offense of attempted aggravated robbery, rather than the completed offense
of aggravated robbery, which carries a minimum eight-year sentence. The court also determined
that the defendant’s use of a handgun weighed against a grant of judicial diversion. In sum, although
the trial court found that there were many factors weighing in favor of judicial diversion, such as the
defendant’s lack of a criminal record and good social history, the court ultimately concluded that the
circumstances of his offense outweighed any factors favoring diversion. The trial court acted within
its discretion when making this determination and properly outlined its reasoning in the record. See
Cutshaw, 967 S.W.2d at 344; Bonestel, 871 S.W.2d at 168. Moreover, we hold that there is
substantial evidence in the record to support the court’s finding that the victim’s efforts alone
prevented the defendant from committing an aggravated robbery and that a handgun was used during
the commission of this offense. See Bonestel, 871 S.W.2d at 168.

                Finding no error in the record, we affirm the judgment of the lower court.


                                                        ___________________________________
                                                        JAMES CURWOOD WITT, JR., JUDGE


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