         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                           Assigned on Briefs December 2, 2003

                 STATE OF TENNESSEE v. TRAVIS ANDERSON

                  Direct Appeal from the Criminal Court for Shelby County
                   Nos. W03-00001, W03-00004      Bernie Weinman, Judge



                  No. W2003-00674-CCA-R3-CD - Filed December 30, 2003


The Defendant, Travis Anderson, pled guilty to two counts of aggravated burglary, with an agreed
sentence of three years on each count to be served concurrently. Pursuant to the plea agreement, the
trial court was to determine whether the Defendant merited for alternative sentencing. Following
a sentencing hearing, the trial court denied the Defendant’s application for judicial diversion,
suspended his sentence for three years, and placed the Defendant on probation for three years. On
appeal, the Defendant contends that the trial court erred in refusing to grant his application for
judicial diversion. Finding no error, we affirm the trial court’s judgments.

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

ROBERT W. WEDEMEYER , J., delivered the opinion of the court, in which JAMES CURWOOD WITT,
JR., and ALAN E. GLENN, JJ., joined.

W. Mark Ward, Assistant Shelby County Public Defender, for the appellant, Travis Anderson.

Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Jennifer L.
Bledsoe, Assistant Attorney General; William L. Gibbons, District Attorney General, and Mike
Davis, Assistant District Attorney General, for the appellee, State of Tennessee.

                                              Opinion
                                              I. Facts

        The Defendant, Travis Anderson, pled guilty to two counts of aggravated burglary, a Class
C felony, with an agreed sentence of three years on each count to be served concurrently. Pursuant
to the plea agreement, the Shelby County Criminal Court held a sentencing hearing to determine
whether the Defendant qualified for either probation or judicial diversion. Following the sentencing
hearing, the trial court denied the Defendant’s application for judicial diversion, but found that the
Defendant qualified for probation. Accordingly, the trial court suspended his sentence for three years
and placed the Defendant on probation for three years. The Defendant now appeals.
        At the guilty plea proceeding held on January 23, 2003, the State presented the following
facts regarding the Defendant’s involvement in two burglaries that occurred in November of 2002,
and the Defendant stipulated to these facts. On November 12, 2002, the home of Phillip Stegall,
located in Memphis, was burglarized, and the intruders stole ten firearms, including five high-
powered rifles. Detectives with the Memphis Police Department discovered fingerprints at the crime
scene that matched the Defendant’s fingerprints. On November 14, 2002, the home of Wayne
Newsom, also located in Memphis, was burglarized by intruders who kicked in the rear door and
stole a small safe. A witness observed the incident and called the police. Police initially arrested
four suspects, and the investigation revealed that the Defendant was also involved in this burglary.
Police officers arrested the Defendant on November 15, 2002, and brought him to the police station,
where he gave a written statement admitting to his involvement in the burglary of Stegall’s house.
About a week after this confession, the Defendant, while still in custody, admitted to participating
in the burglary of Newsom’s house.

        The following evidence was presented at the sentencing hearing held on February 14, 2003.
The Defendant testified that he was eighteen years old and lived with his mother in Memphis. He
stated that he attended Julia B. Hooks High School until he was arrested for burglary in November
of 2002. The Defendant reported that, before he quit school, he was in the eleventh grade and
participated in wrestling. He explained that he participated in the burglaries because he “hung
around” the wrong people on those days. The Defendant stated that he burglarized those homes “just
to do something, have fun.” He reported that he burglarized the homes with four of his classmates
at school and that he was not thinking when he participated in the crimes. He explained that, while
he did not steal anything from the houses, his accomplices stole some items and he expected to
receive some money from the pawned items. The Defendant testified that he and his accomplices
were arrested before they could sell the items. He stated that if he received probation he would not
associate with those former classmates anymore because “I know they [are] the wrong people to hang
around with.” The Defendant explained that he spent three months in jail because his mother refused
to make bond. He testified that, if the court placed him on probation, “I plan to go to college. I got
scholarships to go to college. If I finish–I still got a chance to graduate. If I go back to high school
and graduate, I still got scholarships [for] wrestling.” He stated that he could comply with the
requirements of probation.

           On cross-examination, the Defendant stated that he did not know either Stegall or Newsom
when he burglarized their houses. He explained that Stegall and Newsom were probably mad
because he “broke into” their homes and stated, “I don’t want [any]body to break into my house.”
The Defendant stated that he should not be sent to jail because “[i]f I got another chance, I can make
it . . . right.” He explained that he would “[w]ork and pay them what they still say they’re missing.
. . .”

        The trial judge then asked the Defendant to explain why he burglarized the two houses, and
the Defendant stated, “We were just sitting down at my house, and they were saying like I know this
dude that’s got this . . . got this . . . so let’s go over there. So we just went over there.” He explained
that he and his accomplices took a “little white safe” from Stegall’s house and “one little gun” from


                                                   -2-
Newsom’s house. The Defendant stated that one of his accomplices kept the gun at his house
because the Defendant could not bring any guns into his home. When asked how he was “going to
make it right” with Stegall and Newsom, the Defendant replied, “Just pay them back for the damage
that’s been done.” The Defendant explained that he burglarized the homes because he thought that
he was going to get something for nothing. He stated that he wanted to sell the “little gun” for at
least $45.00, but the police arrested him before he could sell it. The Defendant admitted that, if
someone bought the gun, that person might shoot someone else with the gun.

        Luvenia Anderson Willard, the Defendant’s mother, testified that the Defendant lived with
her and was attending Julia B. Hooks High School when he was arrested. She stated that, since
being in jail, the Defendant was remorseful for burglarizing the homes. Willard testified that she
believed that the Defendant could obey the law. She explained, “I asked him why he could be so
stupid and hang around people that do things like that? Why he was so stupid to do the same thing
they [were] doing?” She stated that the Defendant’s accomplices in the burglaries were teenagers
from her neighborhood. The trial judge then asked Willard what changes she had seen in the
Defendant, and she replied, “He told me that he wanted a job, and would I get him a job . . . if he
g[ot] out? And I told him I would get him a job where I work. . . .”

       Following this proof, the trial court made the following ruling:

               [Defendant], it is a horrible, horrible crime to break into somebody’s house,
       invade their castle, invade their place to live–And what was your reason? Well I
       wanted to have fun, I think, is the first time. And, then, as we got around to talk
       about it, well I wanted to get some money for nothing. There is no way to make
       these people whole again. You can pay for the door, you can pay for the property that
       was taken, but you can’t make them–psychologically, you can’t straighten them out
       ever.

                And you didn’t do it just once. From what we know, we know that you did
       it at least twice. . . . Spreading these guns out on the streets, trying to sell them to
       criminals. Honest people are not going to buy them. And how frightening all that
       is. Absolutely frightening that is.

               [I]f you messed up your ability to get that wrestling scholarship, you messed
       it up. You know, it’s just not a minor little thing that you got involved in, these two
       burglaries into somebody’s house.

The trial court then denied the Defendant’s application for judicial diversion, suspended his sentence
for three years, placed him on probation for three years, and fined him $500.00. The trial court gave
the following requirements for probation: “You must finish school; you must be employed; 10:00
p.m. curfew; . . . random drug screens; and moral recognition therapy.”

                                            II. Analysis


                                                 -3-
        The Defendant argues that the trial court abused its discretion in declining to impose a
sentence pursuant to Tennessee Code Annotated § 40-35-313 (1997 & Supp. 2002), commonly
referred to as “judicial diversion.” According to this statute, the trial court may, at its discretion,
following a determination of guilt, defer further proceedings and place a qualified defendant on
probation without entering a judgment of guilt. Tenn. Code Ann. § 40-35-313(a)(1)(A). A qualified
defendant is one who:


        (a) Is found guilty of or pleads guilty or nolo contendere to the offense for which
        deferral of further proceedings is sought;
        (b) Is not seeking deferral of further proceedings for a sexual offense or a Class A or
        Class B felony; and
        (c) Has not previously been convicted of a felony or a Class A misdemeanor.


Tenn. Code Ann. § 40-35-313(a)(1)(B)(i)(a), (b), (c).


        When a defendant contends that the trial court committed error in refusing to grant judicial
diversion, we must determine whether the trial court abused its discretion by denying the defendant’s
request for judicial diversion. State v. Electroplating, Inc., 990 S.W.2d 211, 229 (Tenn. Crim. App.
1998); State v. Cutshaw, 967 S.W.2d 332, 344 (Tenn. Crim. App. 1997). Judicial diversion is
similar to pretrial diversion; however, judicial diversion follows a determination of guilt, and the
decision to grant judicial diversion is initiated by the trial court, not the prosecutor. State v.
Anderson, 857 S.W.2d 571, 572 (Tenn. Crim. App. 1992). When a defendant challenges the trial
court’s 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; State v. Parker, 932
S.W.2d 945, 958 (Tenn. Crim. App. 1996). As this Court stated in Anderson:


        We conclude that judicial diversion is similar in purpose to pretrial diversion and is
        to be imposed within the discretion of the trial court subject only to the same
        constraints applicable to prosecutors in applying pretrial diversion under Tennessee
        Code Annotated § 40-15-105. Therefore, upon review, if “any substantial evidence
        to support the refusal” exists in the record, we will give the trial court the benefit of
        its discretion. Only an abuse of that discretion will allow us to overturn the trial
        court.


Anderson, 857 S.W.2d at 572 (citation omitted).


       The criteria that the trial court must consider in determining whether a qualified defendant
should be granted judicial diversion include the following: (1) the defendant’s amenability to


                                                  -4-
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; and (6) the deterrence
value to the defendant and others. Cutshaw, 967 S.W.2d at 343-44; Parker, 932 S.W.2d at 958. An
additional consideration is whether judicial diversion will serve the ends of justice, i.e., the interests
of the public as well as the defendant. Cutshaw, 967 S.W.2d at 344; Parker, 932 S.W.2d at 958;
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). 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 (citing State
v. Herron, 767 S.W.2d 151, 156 (Tenn. 1989)). 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.


         In the case under submission, there is no dispute that the Defendant qualifies for
consideration for judicial diversion under Tennessee Code Annotated section 40-35-313 because he
pled guilty to two counts of aggravated burglary, a Class C felony, and had not been previously
convicted of a felony or a Class A misdemeanor. The Defendant complains that trial court abused
its discretion by denying the Defendant’s application for judicial diversion because the “trial judge
did not indicate that he considered all the appropriate factors or why the factors he did consider
outweighed all others.”


         In determining whether it should grant the Defendant’s application for judicial diversion,
the trial court did not explicitly articulate its consideration of the factors set forth in Cutshaw, 967
S.W.2d at 343-44. However, the record reflects that the trial court placed great emphasis on the
serious nature of the offenses and the circumstances surrounding the offenses. The trial court stated
that the Defendant’s acts of burglarizing two houses and stealing items from the houses were
“horrible” crimes. It further stated that the fact that the Defendant and his accomplices stole guns
during one of the burglaries was “[a]bsolutely frightening” because they had planned “to sell them
to criminals.” The trial court also noted that the Defendant’s motivation in participating in the two
burglaries was to “have fun” and “get some money for nothing.” It stated that “[t]here is no way to
make these [victims] whole again . . . . psychologically, you can’t straighten them out ever.” These
comments indicate that the trial court denied judicial diversion because of the troublesome nature
of the burglaries in this case and a pattern of criminal behavior by the Defendant. The Defendant
illegally entered the victims’ houses along with his accomplices and stole firearms that he and his
accomplices planned to sell on the street. Also, the Defendant committed aggravated burglary two
times, which shows a disturbing pattern of criminal behavior. Moreover, the trial court’s findings
indicate that it believed that the denial of judicial diversion would serve the ends of justice, i.e., the
interests of the public as well as the Defendant. After thoroughly reviewing the guilty plea
proceeding and the sentencing hearing, we conclude that substantial evidence supports the trial
court’s decision. Accordingly, we hold that the trial court did not abuse its discretion in denying
judicial diversion.




                                                   -5-
                                          III. Conclusion


        In accordance with the foregoing authorities and reasoning, we conclude that the trial court
did not abuse its discretion in denying the Defendant’s application for judicial diversion. Therefore,
we AFFIRM the trial court’s judgments.




                                                       ___________________________________
                                                       ROBERT W. WEDEMEYER, JUDGE




                                                 -6-
