         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                          Assigned on Briefs November 6, 2007

                 STATE OF TENNESSEE v. TIMOTHY FRAZIER

                  Direct Appeal from the Circuit Court for Madison County
                             No. 07-101    Donald Allen, Judge


                  No. W2007-00692-CCA-R3-CD - Filed December 20, 2007


The defendant, Timothy Frazier, pled guilty to one count of theft of property more than $1,000 but
less than $10,000, a Class D felony. The trial court denied the defendant’s request for judicial
diversion and ordered him to serve a two-year, suspended sentence on supervised probation. On
appeal, the defendant argues that the trial court’s denial of judicial diversion should be reversed.
Upon review of the record and the parties’ briefs, we reverse the judgment of the trial court and
remand this case for reconsideration.

    Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed and
                                        Remanded

J.C. MCLIN , J., delivered the opinion of the court, in which THOMAS T. WOODALL and J. CURWOOD
WITT , JR., JJ., joined.

Gregory D. Gookin, Assistant Public Defender, Jackson, Tennessee, for the appellant, Timothy
Frazier.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General;
James G. Woodall, District Attorney General; and Alfred Lynn Earls and Shaun Alan Brown,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                            OPINION

                                       I. BACKGROUND

        This case relates to the defendant’s theft of an automobile with a value over $1,000. The
defendant pled guilty. At the plea acceptance hearing, the state recounted the following incidents
of incriminating proof as follows:

       [O]n October the 1st of the year 2006, the defendant did knowingly exercise control
       over property of a 1999 Oldsmobile vehicle belonging to April Rushton without the
       effective consent of the owner with intent to deprive the owner of that property; the
       value of that property being valued at $1,500. The victim reported the vehicle stolen.
       Law enforcement did stop the vehicle. It was being driven by Mr. Timothy Frazier
       and a co-defendant. Mr. Frazier did give a statement in this matter basically
       admitting that they were walking down the street and saw the vehicle. They had
       actually been in the company of Ms. Rushton earlier, had the key and decided they
       would just take it and took it and were stopped in the vehicle.

        The defendant testified that he turned eighteen years old on September 22, 2006. He stated
that he was a full-time student and also worked part-time at McDonald’s and was planning to
graduate high school in May, 2007. The defendant also admitted that he had two adjudications as
a juvenile, one for theft over $500 and one for theft for more than $1,000 but less than $10,000.

         Upon conclusion of the hearing, the trial court accepted the defendant’s guilty plea but denied
the defendant’s request for judicial diversion. The court found that his decision to plead guilty was
freely, voluntarily, intelligently and knowingly made and that the defendant made his decision with
the advice of an attorney. The court sentenced him to two years as a Range I standard offender,
suspended the defendant’s sentence, and placed him on supervised probation. The court found that
denial of judicial diversion was appropriate because he had two prior adjudications a juvenile. The
court ordered that his probation be supervised by the Community Corrections program, that he
complete 100 hours of community service work, submit to random alcohol and drug assessments,
and complete DNA testing. In addition, the defendant was ordered to pay restitution to the victim.
The court also required that the defendant maintain full-time employment or complete his degree as
a full-time student.

                                           II. ANALYSIS

        The defendant argues that the trial court erred when it denied judicial diversion because it
failed to properly weigh all the factors courts must consider in reviewing a petition for judicial
diversion.

        When there is a challenge to the length, range, or manner of service of a sentence, it is the
duty of this Court to conduct a de novo review of the record with a presumption that the
determinations made by the trial court are correct. Tenn. Code Ann. § 40-35-401(d). This
presumption is conditioned upon the affirmative showing in the record that the trial court considered
the sentencing principles and all relevant facts and circumstances. State v. Ashby, 823 S.W.2d 166,
169 (Tenn. 1991). The burden of showing that the sentence is improper is upon the defendant. Id.
In the event the record fails to demonstrate the required consideration by the trial court, review of
the sentence is purely de novo. Id. If appellate review reflects that the trial court properly
considered all relevant factors and its findings of fact are adequately supported by the record, this
Court must affirm the sentence “even if we would have preferred a different result.” State v.
Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).




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         A defendant is eligible for judicial diversion when he or she is found guilty, or pleads guilty
to a Class C, D, or E felony, has not previously been convicted of a felony or a Class A
misdemeanor, and is not seeking deferral for certain sexual offenses. See Tenn. Code Ann. §
40-35-313(a)(1)(B). Pertinent to this case, adjudications of delinquency in juvenile court do not
automatically disqualify a defendant seeking judicial diversion. Under the judicial diversion statute,
the trial court may, in its discretion, defer further proceedings and place a qualified defendant on
probation without entering a judgment of guilty. Tenn. Code Ann. § 40-35-313(a)(1)(A). A
defendant who is eligible for judicial diversion, however, is not entitled to such as a matter of right.
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 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). Therefore, the trial court’s denial of judicial diversion is subject to
reversal on appeal only if the court abused its discretion. See State v. Robinson, 139 S.W.3d 661,
665 (Tenn. Crim. App. 2004). An abuse of discretion occurs when the trial court’s denial of judicial
diversion is unsupported by any substantial evidence. See State v. Parker, 932 S.W.2d 945, 958
(Tenn. Crim. App. 1996).

        “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, in determining whether to grant or deny judicial diversion, the trial court must
consider: (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, (f) the deterrence value to the accused as well as others, and (g) whether judicial diversion
will serve the interests of the public as well as the accused. Parker, 932 S.W.2d at 958; Bonestel,
871 S.W.2d at 168. Additional factors which may be considered include the defendant’s “attitude,
his behavior since his arrest, his home environment, current drug usage, emotional stability, past
employment, general reputation, family responsibilities, and the attitude of law enforcement.” State
v. Lewis, 978 S.W.2d 558, 566 (Tenn. Crim. App. 1997). Moreover, the record must reflect that the
court has weighed all of the factors in reaching its determination. State v. Electroplating, Inc., 990
S.W.2d 211, 229 (Tenn. Crim. App. 1998). That is, 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. See id.

        Upon review of the record, it is apparent that the trial court focused on the defendant’s
juvenile record, which included two adjudications, one for theft of property over $1,000 but less than
$10,000, and one for theft of property over $500. Although the trial court decided that the
defendant’s juvenile offenses outweighed any evidence in favor of judicial diversion, it failed to
address the relevant criteria set forth by this court in both Cutshaw and Parker when denying judicial
diversion. Given that the trial court failed to address many of the factors it was required to consider,
and failed to explain why the factors supporting the denial of diversion outweighed the factors
supporting diversion, we are compelled to reverse the judgment of the trial court and remand the case



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in order for the trial court to explain adequately on the record why the defendant was denied judicial
diversion and why the factors relied upon outweigh the others.

                                          CONCLUSION

       Based upon the foregoing authorities and reasoning, we reverse the judgment of the trial court
and remand the matter to the trial court for further proceedings consistent with this opinion.




                                                      ___________________________________
                                                      J.C. McLIN, JUDGE




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