                                                                                         04/05/2018
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                           Assigned on Briefs June 6, 2017

                 STATE OF TENNESSEE v. LEROY COLLINS

                 Appeal from the Criminal Court for Shelby County
                   No. 14-04492       Glenn Ivy Wright, Judge
                     ___________________________________

                           No. W2016-01685-CCA-R3-CD
                       ___________________________________


Defendant, Leroy Collins, pled guilty to three counts of reckless aggravated assault, a
Class D felony, and one count of Class C felony reckless endangerment, all committed
during one criminal episode. The offenses involved Defendant shooting three people and
shooting into a house occupied by two other people. Pursuant to a negotiated plea
agreement with the State, the sentence for each conviction of reckless aggravated assault
is the minimum sentence of two years, and the sentence for the reckless endangerment
conviction is the minimum sentence of three years. The State further agreed that the
sentences would be served concurrently with each other, for an effective sentence of three
years for four felony convictions committed with a handgun involving three victims
being shot. However, the State opposed Defendant’s request for judicial diversion or
probation for the effective three-year sentence. At the sentencing hearing, the trial court
denied both requests for alternative sentencing and ordered Defendant to serve the entire
sentence by incarceration. Defendant appeals from the trial court’s ruling. After review,
we affirm the judgments of the trial court.

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

THOMAS T. WOODALL, P.J., delivered the opinion of the court, in which NORMA MCGEE
OGLE and ROBERT W. WEDEMEYER, JJ., joined.

Joseph S. Ozment, Memphis, Tennessee, for the appellant, Leroy Collins.

Herbert H. Slatery III, Attorney General and Reporter; Courtney N. Orr, Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Lora Fowler,
Assistant District Attorney General, for the appellee, State of Tennessee.
                                        OPINION

       Background

       Defendant was originally indicted in a four-count indictment for three counts of
Class C felony aggravated assault and one count of Class C felony reckless
endangerment. Approximately two years after the indictment was returned, he pled
guilty to the charges detailed above pursuant to a negotiated plea agreement with the
State.

       In order to support a factual basis for the guilty pleas, the State announced the
following at the guilty plea hearing.

                Had this matter gone to trial, the State’s proof would have been
        that on October 14th, 2012, the Defendant, Leroy Collins, was involved
        in a fight inside the Third World Club, located at 709 Whitney. That’s
        here in Shelby County, Tennessee

               The fight was taken outside. [Defendant] started shooting at a
        subject by the name of Lolo. He fired five or six times and struck the
        following people: Marissa Shaw, in the right leg; Juanterica Rollin was
        shot in the right thigh; and Maria Shaw was shot in the left hand.

               This house was located at 2995 - - a house located at 2995 Sunrise
        was also struck by gunfire by [Defendant], and the house was occupied
        by Isaiah Harris and Kelly Ruppin.

                Witness Java Williams gave a typed statement and identified the
        Defendant in a six-person photospread as the person who was shooting
        in the parking lot of 709 Whitney.

               The events did happen in Shelby County, Tennessee.

       Through counsel, Defendant stipulated to the factual basis for the guilty pleas.

       Sentencing Hearing

       On appeal Defendant asserts that the trial court should have granted him judicial
diversion or in the alternative ordered that the three-year sentence be served on probation.
Defendant was the only witness who testified at the sentencing hearing. The pre-sentence
report is included in the record.
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       Defendant’s testimony and the information in the pre-sentence report pertinent to
the issues raised on appeal show the following: Defendant was 18 years old at the time
of the crimes, and he was a member of the “Kitchen Crip” gang. As of the time of the
sentencing hearing, Defendant’s only work experience was self-employment, mowing
yards. He did not detail his income from this work, and he did not provide how many
yards he regularly mowed. Defendant testified that he had sought employment at various
places after the incident but could not get a job because of the pending felony charges.

       Defendant dropped out of school in August 2011 when he was 17 years old. His
highest grade completed was the eighth grade and he had never received a GED.
Defendant stated that he had lived twenty-two years in the same house with his
grandmother and mother.

       Defendant testified that he did not own a gun at the time of the sentencing hearing,
and he had not even been around a gun since the incident. Defendant had no criminal
charges as a juvenile, and his only other criminal charges as an adult had been charges
related to violations of the driver licensing laws.

       Defendant testified that he wanted the court to grant him judicial diversion so that
he “will be able to have a better chance.” He acknowledged understanding that if he was
given probation or judicial diversion, he could not continue to drive without a valid
license.

        When explaining his version of what occurred in the incident, Defendant testified
that he only shot his handgun in self-defense and that he actually did not shoot the three
victims who were struck. Although at the guilty plea hearing Defendant stipulated to the
facts announced by the State, he claimed he was not guilty of the reckless aggravated
assault charges to which he had pled guilty. Defendant told the trial court that he pled
guilty just to get the pending charges behind him. Defendant testified that he could stay
out of trouble if allowed to serve his sentence without incarceration. Defendant testified
twice that he deserved judicial diversion because he was not the person who shot the
victims involved in the reckless aggravated assault convictions.

      Although a statement given by Defendant to police was not made an exhibit, it is
apparent from the cross-examination of Defendant by the State, and additional questions
from the trial court, that some of Defendant’s testimony was contrary to his prior
statement to police.

      The trial court announced its sentencing decision immediately following
arguments made by defense counsel and the State. Specifically referring to Defendant’s
                                           -3-
testimony, the trial court said “a lot of it wasn’t truthful.” The trial court noted that
Defendant’s background was good and that he had not been in trouble in the four years
between the incident and the sentencing hearing. The trial court concluded that having a
handgun in a pocket and pulling it out to shoot at “the slightest, slightest trouble” was
totally unacceptable in society.

      The trial court, in balancing the interests of society against the interests of
Defendant, stated:

        When you consider the total case, the presentence report, his history,
        educational background, social history, criminal history, lack of it,
        employment history, the facts and circumstances of the case, his
        testimony, which a lot of it wasn’t truthful, when you balance the
        interests of society in this case, society’s interests exceed or outweigh his
        interests. This shooting is out of hand.

        Concluding its analysis, the trial court stated that when a person shoots multiple
people and says “I’m sorry,” that “isn’t good enough . . . I don’t think.” The trial court
then ruled, “Application for diversion is denied. Application for probation is denied at
this time.”

       Analysis

       In his brief, Defendant asks this court to reverse the judgment of the trial court and
remand the cases to the trial court to place Defendant on judicial diversion or
alternatively probation. The State argues that the judgments should be affirmed. We
agree with the State.

        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 same standard of
review applies to a trial court’s decision to grant or deny probation or any other
alternative sentence, as well as the denial of judicial diversion. Caudle, 388 S.W.3d at
278-79; State v. King, 432 S.W.3d 316, 325 (Tenn. 2014). This court will uphold the trial
court’s sentencing decision “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. Moreover, under those
circumstances, we may not disturb the sentence even if we had preferred a different
result. See State v. Carter, 254 S.W.3d 335, 346 (Tenn. 2008). The party appealing the

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sentence has the burden of demonstrating its impropriety. T.C.A. § 40-35-401, Sent’g
Comm’n Cmts.; see also State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).

        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 (quoting Schindler, 986 at 211).

       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.”

                                             -5-
King, 432 S.W.3d at 326 (quoting State v. Parker, 932 S.W.2d 945, 958 (Tenn. Crim.
App. 1996)). “[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.

        The brief analysis by the trial court in this case fails to sufficiently comply with
the requirements for consideration of judicial diversion. In its relatively brief ruling, the
trial court did not weigh all the applicable factors. However, even upon our de novo
review, we conclude that the trial court’s decision to not grant judicial diversion should
be affirmed.

       The most determinative, controlling factor justifying affirmance of the denial of
judicial diversion is the finding by the trial court of Defendant’s lack of credibility,
including Defendant’s insisting under oath that he had not committed three offenses to
which he had pled guilty. Defendant’s blatant lack of candor strongly indicates that he is
not worthy of the largess of judicial diversion. State v. Dowdy, 994 S.W.2d 301, 306
(Tenn. Crim. App. 1994).

      As to probation, the trial court’s announced reasons for reaching its decision,
though meager, are barely sufficient for review by this court under the Bise and Caudle
opinions, an abuse of discretion standard with a presumption of reasonableness.

                                            -6-
       A defendant is eligible for probation if the sentence imposed is ten years or less.
T.C.A. § 40-35-303(a). Although “probation shall be automatically considered by the
court as a sentencing alternative for eligible defendants,” the defendant bears the burden
of “establishing suitability” for probation. T.C.A. § 40-35-303(b). “This burden includes
demonstrating that probation will ‘subserve the ends of justice and the best interest of
both the public and the defendant.’” State v. Carter, 254 S.W.3d 335, 347 (Tenn. 2008)
(quoting State v. Housewright, 982 S.W.2d 354, 357 (Tenn. Crim. App. 1997)). A
defendant who is sentenced as an especially mitigated or standard offender and who has
committed a Class C, D, or E felony should be “considered as a favorable candidate for
alternative sentencing options” if certain conditions are met. T.C.A. § 40-35-102(5),
(6)(A). The guidelines regarding favorable candidates are advisory. T.C.A. § 40-35-
102(6)(D).

      In determining whether incarceration is an appropriate sentence, the trial court
should consider whether:

        (A) Confinement is necessary to protect society by restraining a
        defendant who has a long history of criminal conduct;

        (B) Confinement is necessary to avoid depreciating the seriousness of
        the offense or confinement is particularly suited to provide an effective
        deterrence to others likely to commit similar offenses; or

        (C) Measures less restrictive than confinement have frequently or
        recently been applied unsuccessfully to the defendant.

T.C.A. § 40-35-103(1). “The sentence imposed should be the least severe measure
necessary to achieve the purposes for which the sentence is imposed,” and “[t]he
potential or lack of potential for the rehabilitation or treatment of the defendant should be
considered in determining the sentence alternative or length of a term to be imposed.” Id.
§ 40-35-103(4), (5).

       Again, Defendant’s lack of credibility weighs strongly against granting probation.
Additionally, three innocent bystanders were shot in the incident. There were two other
innocent bystanders inside a house into which Defendant also fired a gun. Defendant
committed four shooting offenses with a handgun he obtained from another person and
concealed prior to the shooting. We agree with the trial court that the interests of society
heavily outweigh the interests of Defendant. Accordingly, we affirm the trial court’s
denial of probation.

       Defendant is not entitled to relief in this appeal.
                                             -7-
                                 CONCLUSION

For the foregoing reasons we affirm the judgments of the trial court.


                            ____________________________________________
                            THOMAS T. WOODALL, PRESIDING JUDGE




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