        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                                August 18, 2010 Session

               STATE OF TENNESSEE v. JOSEPH W. DENTON

                   Appeal from the Circuit Court for Putnam County
                       No. 08-0777     David Patterson, Judge




                No. M2009-02546-CCA-R3-CD - Filed October 19, 2010


The Defendant, Joseph W. Denton, pleaded guilty to one count of forgery and one count of
impersonation of a licensed professional, both Class E felonies. Under the terms of the plea
agreement, he received concurrent terms of two years as a Range I, standard offender to be
served on probation. After a sentencing hearing, the trial court denied the Defendant’s
request for judicial diversion. He challenges that ruling on appeal. After a review of the
record, we affirm the judgments of the Putnam County Circuit Court.

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

D AVID H. W ELLES, J., delivered the opinion of the Court, in which N ORMA M CG EE O GLE and
R OBERT W. W EDEMEYER, JJ., joined.

Jason R. Grubb, Beaver, West Virginia, for the appellant, Joseph W. Denton.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney
General; William E. Gibson, District Attorney General; and Anthony Craighead, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                         OPINION

                                   Factual Background
       A Putnam County grand jury returned a five-count indictment against the Defendant,
charging him with one count of forgery, a Class E felony, three counts of impersonating a
licensed professional, a Class E felony, and one count of theft of property valued at $1,000
or more but less than $10,000, a Class D felony. See Tenn. Code Ann. §§ 39-14-103, -14-
105, -14-114, -16-302. Thereafter, the Defendant filed an application for pre-trial diversion.
The district attorney general denied the application, and the Defendant sought review in the
trial court. The trial court found that the district attorney general had not abused his
discretion.

       Subsequently, on November 4, 2009, the Defendant entered a guilty plea to one count
of forgery and one count of impersonation of a licensed professional. At the guilty plea
hearing the State provided a factual basis for the plea. The prosecutor recited the events as
follows:

       [A]s to the forgery count, proof would be that during October 2007 [the
       Defendant] went into the business of Mr. Arnold Lefkovitz, who is an attorney
       in Putnam County. The [S]tate would offer proof that he would present
       himself as an attorney at that time, presenting a card from the Board of
       Professional Responsibility of the Tennessee Supreme Court with his signature
       on it, . . . Bar No. [ ]. Subsequent investigation revealed that that is a bar
       number belonging to Mr. Patrick Denton, who is a practicing attorney in East
       Tennessee. . . .

              ....

              . . . As to count two, . . . the proof would be that on April 30th, [the
       Defendant] appeared in Putnam County General Sessions Court and
       represented himself as an attorney for Mr. Bobby Dowell and entered a plea
       of guilty on a domestic assault case and indeed signed the plea form as his
       attorney of record.

       Pursuant to the terms of the plea agreement, the Defendant, a Range I, standard
offender, received a sentence of two years at 30% for each offense, which sentences were to
be served concurrently with one another and on probation. Only the availability of judicial
diversion was submitted to the trial court for determination.

        A hearing was held immediately following the Defendant’s guilty plea. Barbara
Allen, a probation officer for the State of Tennessee, testified that she prepared a presentence
report in the Defendant’s case; the report was prepared for pre-trial diversion purposes. Ms.
Allen discovered that the then thirty-three-year-old Defendant did not have a prior criminal
record other than an arrest for failing to appear on the instant offenses and an arrest for
violation of an order of protection. Ms. Allen did not know the disposition of these charges.
As part of Ms. Allen’s investigation, the Defendant was administered a drug test, and no
drugs were detected in his system.




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       The Defendant reported that he was in excellent physical and mental health. In 2005,
he graduated with a bachelor of arts degree from the University of Tennessee. The
Defendant stated that he was employed in computer support for the University of Tennessee
from July 2005 until August 2007. According to the Defendant, he resigned that job to move
to Cookeville to be with his wife, who was caring for her terminally ill mother. At the time
Ms. Allen prepared the report, the Defendant was not employed.

       Ms. Allen also took statements from the two attorneys who hired the Defendant (Mr.
Lefkovitz and Mr. Will Roberson) after he claimed to be a licensed attorney, from Rebecca
Jared, a “client” represented by the Defendant, and from the attorney whose bar number the
Defendant utilized (Mr. Patrick Denton). Mr. Lefkovitz cited the damage done to his
practice and his reputation. Mr. Roberson told of his disappointment in the Defendant for
his misrepresentations. Ms. Jared relayed the emotional impact caused by the Defendant’s
representation of her in a case involving her children. All expressed opposition to the
Defendant being granted pre-trial diversion.

       Following the introduction of the presentence report, the State called Tennessee
Bureau of Investigation (TBI) Agent Dan Friel to testify about his investigation of the case.
Agent Friel spoke with Arnold Lefkovitz, who supplied him with a copy of an attorney bar
card signed by the Defendant and a copy of a business card used by the Defendant,
representing himself as an attorney. The bar card reflected a bar number of [ ], which was
later determined to belong to a Mr. Patrick Denton, a prosecutor in East Tennessee. Mr.
Patrick Denton had no knowledge of the Defendant or his activities.

       Agent Friel also looked through the records of the Putnam County General Sessions
Court and found a petition for acceptance of a guilty plea to domestic assault in the case of
State versus Bobby Wayne Dowell. The Defendant had signed the document as the attorney
of record. The Defendant acknowledged to Agent Friel that he acted as the attorney for Mr.
Dowell in entering the guilty plea. When the Defendant was representing another “client”
in Wilson County, the clerk asked the Defendant for his bar card, and the Defendant provided
the forged card. The clerk looked up the number and, after discovering the bar number did
not belong to the Defendant, contacted the district attorney’s office.

       At the conclusion of the hearing, the trial court denied the Defendant’s request for
judicial diversion. He now appeals.




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                                             Analysis
        The Defendant argues that the trial court erred by denying judicial diversion. 1
Specifically, he argues that the trial court: (1) placed “disproportionate weight . . . on a single
factor”—the circumstances of the offense, impersonation of a lawyer rather than some other
professional; and (2) improperly relied on a “non-factor”—the Defendant’s lack of remorse,
in its decision to deny judicial diversion. He also states that the trial court did not properly
explain why the negative factors outweighed the positive factors.

        “Judicial diversion is a 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). The effect of discharge and dismissal under the
diversion statute “is to restore the person . . . to the status the person occupied before such
arrest or indictment or information.” Id. (citing Tenn. Code Ann. § 40-35-313(b) (1997)).

        A criminal defendant is eligible for judicial diversion only if he has been convicted
of a misdemeanor or a class C, D, or E felony, and he must not have been previously
convicted of a felony or a Class A misdemeanor. Tenn. Code Ann. § 40-35-313(a)(1)(A).
However, eligibility under the diversion statute does not ensure the grant of diversion.
Indeed, the decision of whether to place a defendant on judicial diversion is within the sound
discretion of the trial court. State v. Harris, 953 S.W.2d 701, 705 (Tenn. Crim. App. 1996).
Thus, upon review by an appellate court, if “any substantial evidence [exists in the record]
to support the refusal,” the decision of the trial court will be upheld and this court will not
revisit the issue. State v. Hammersley, 650 S.W.2d 352, 356 (Tenn. 1983).

        In making the determination of whether to grant judicial diversion, the trial court must
consider the following 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 status of the accused’s physical and mental health; and (f) the deterrence
value to the accused as well as others. State v. Lewis, 978 S.W.2d 558, 566 (Tenn. Crim.
App. 1997) (citing State v. Bonestel, 871 S.W.2d 163, 168 (Tenn. Crim. App. 1993)). The
trial court should also consider whether judicial diversion will serve the ends of justice—the

        1
           In his appellate brief, the Defendant also challenged the denial of pre-trial diversion. However,
at oral argument in this matter, defense counsel conceded that the issue had not been properly reserved for
our review. See generally State v. Kyra Robinson, No. M2009-00694-CCA-R3-CD, 2010 WL 1221403, at
*4-5 (Tenn. Crim. App, Nashville, Mar. 30, 2010) (holding that a defendant, who forgoes an interlocutory
appeal of the district attorney general’s decision denying pre-trial diversion and who, thereafter, pleads
guilty, has no appeal of pre-trial diversion under Tennessee Rule of Criminal Procedure 3(b), and this Court
lacks jurisdiction to entertain this issue).

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interests of the public as well as the accused. Id. Additional factors which may be
considered include a defendant’s attitude, behavior since his arrest, home environment,
current drug usage, emotional stability, past employment, general reputation, family
responsibilities, and the attitude of law enforcement. Id. (citing State v. Washington, 866
S.W.2d 950, 951 (Tenn. 1993)).

       At the outset of its sentencing ruling, the trial court stated that it would look to the
following factors in making its determination as to whether to grant judicial diversion:

               Number one is the [D]efendant’s amenability to correction. That is
       whether the [D]efendant is likely to cooperate and whether he’s going to be
       able to be controlled or influenced by those who are possibly supervising him
       and doing other things and whether he’s likely to re-offend.

                 Second one is the circumstances of the offense.

                 The third one is the [D]efendant’s record.

                 The [D]efendant’s social history is number four.

                 Number five is his mental and physical health.

                 Number six is the deterrence value to the [D]efendant as well as to
       others.

              And the seventh is whether the granting of judicial diversion will serve
       the interest of justice. That is whether the interest of the public and the
       [D]efendant will be served by the granting of judicial diversion.

        The trial court then elaborated on these factors. First, considering the circumstances
of the offense, the trial court noted that impersonating an attorney was more serious than
impersonating other licensed professionals, such as beauticians, “due to the trust that is
placed in an attorney.” The specific facts of this offense which were relevant to the trial
court in its analysis were that the Defendant actually went to court to represent “clients,” he
took fees from those individuals, he made business cards describing himself as an attorney,
he forged a bar card, and he involved himself in the practice of two licensed attorneys. Also
important to the trial court was that many other people in the community may have been
represented by the Defendant and were still not aware that the Defendant was not an




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attorney.2 The court further elaborated that “this was not a one time event,” that the
Defendant “was earning a living as an attorney,” that “this was a long con that would have
continued if [the Defendant] was not found out,” and that the Defendant “engaged in a
pattern of wrongdoing.”

        The trial court then stated positive factors in the Defendant’s favor: the Defendant
passed a drug test, he had received a good education and was in the process of improving his
education, and he was in good health. While the trial court was not certain if the Defendant
was employed at the time of the hearing, the court did not weigh that against him and went
so far as to state, “I believe that he’s very capable of gaining employment and I think that he
is very capable of doing a number of things that could account for making differences in a
community toward the good.” The trial court stated that it considered all of these positive
factors in favor of the Defendant.

        The trial court then discussed the Defendant’s amenability to correction and the
likelihood of whether the Defendant would re-offend. The court considered that the
Defendant forged a bar card, printed business cards, and appeared in court as a lawyer. The
trial court also noted the impact to the victims: (1) the “fraud” perpetrated upon Attorney
Lefkovitz and how the Defendant placed Mr. Lefkovitz’s law practice in jeopardy; (2)
Patrick Denton, whose personal information was used in the perpetration of a fraud upon the
court and others in the community; and (3) the Defendant’s “clients” who faced potential
legal problems due to the Defendant’s actions. The trial court again remarked about the
duration of the offense and the fact that the Defendant “began a continued involvement in
illegality, that he had a pattern of wrongdoing.” The trial court observed, “[T]his is a long
term con, C-O-N, against a community, against an institution, against a law partner, against
the number of people that put their trust into him.”

        The trial court then stated that one of the “most important” factors was the
Defendant’s lack of remorse. The court cited to the statement the Defendant made as part
of his application for pre-trial diversion:

        I practiced law without a license. However, I was hired to be a clerk and the
        job escalated into something more than I wanted. I created a bar card. I gave
        a . . . statement . . . to TBI Agent Dan Friel. Overall, I am a good citizen and
        do not harm or bother anyone. I believe this is frivolous and a waste of



        2
          The district attorney’s letter denying pre-trial diversion indicates that the case had received some
publicity and, following that publicity, the district attorney’s office became aware of other instances when
the Defendant went into court and represented citizens.

                                                     -6-
       taxpayer money. However, I admit it and will not be around the legal field in
       the future.

The trial court explained that the Defendant’s statement to Agent Friel was different than
what defense counsel had represented during the hearing, relaying that the Defendant wished
to be a part of the legal field as a career. Most concerning to the trial court was the
Defendant’s statement that “this is frivolous and a waste of taxpayer money.” The trial court
then read from Rebecca Jared’s victim impact statement:

       [I]t has really bothered me that a lot of my time has been wasted in court by
       someone who claimed to be a lawyer and promised to help me. This case
       involves my children, which makes matters worse. He had access to a lot of
       my personal information, including my Social Security Numbers of me and my
       children. This had caused nothing but additional stress and heartache that was
       not needed. I needed a lawyer to help and he pretended to be someone he was
       not.

The court then ruled that, although the Defendant would be benefitted, the granting of
judicial diversion would not serve the interests of justice or the public. That concluded the
trial court’s ruling.

       The Defendant complains that the trial court placed “disproportionate weight” on the
circumstances of the offense, improperly considered the Defendant’s “lack of remorse,” and
did not properly weigh all relevant factors. Here, the trial court denied diversion on the bases
of the circumstances of the offense and the Defendant’s amenableness to correction,
including his “lack of remorse.” The trial court did not abuse its discretion in reaching that
conclusion. Although the trial court did not specifically discuss all of the diversion factors
or explicitly state the weight it was applying to each factor, its findings implicitly show the
weight it applied and evince a knowledge of the factors it was to consider. Substantial
evidence exists to support the refusal.

        The trial court discussed the factors it was applying to the Defendant at length. As
for the circumstances of the offense, the trial court found several factors to be relevant: the
impersonation of an attorney rather than some other licensed professional; representing
“clients” in court; the duration of the offense; earing a living as an attorney; taking fees from
clients; making business cards; forging a bar card; and involving himself in the practice of
two licensed attorneys. Regarding his amenability to correction, the trial court reviewed the
materials presented with the presentence report, concluding that the Defendant did not take
any responsibility for his actions, noting that the Defendant called the case “frivolous and a
waste of taxpayer money.” The trial judge obviously believed that the Defendant’s lack of

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remorse militated against his potential for rehabilitation. The trial court’s findings regarding
the Defendant’s behavior and lack of remorse relate to his amenability to correction. See
State v. Kristi Dance Oakes, No. E2006-01795-CCA-R3-CD, 2007 WL 2792934, at *9
(Tenn. Crim. App., Knoxville, Sept. 27, 2007) (citing State v. Edward Arnold Rivera, No.
W2001-00857-CCA-R9-CD, 2002 WL 1482655, at *3 (Tenn. Crim. App., Jackson, Feb. 4,
2002) (“Lack of remorse is an appropriate factor for a trial court to consider in deciding
whether to grant judicial diversion.”)). These factors are sufficient to support the trial court’s
denial of judicial diversion.

                                         Conclusion
       We conclude that the trial court did not abuse its discretion in denying the Defendant’s
request for judicial diversion. The judgment of the Putnam County Circuit Court is affirmed.




                                                     _________________________________
                                                     DAVID H. WELLES, JUDGE




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