         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                                    April 10, 2001 Session

             STATE OF TENNESSEE v. THOMAS LEON LEWIS, II

                 Direct Appeal from the Criminal Court for Madison County
                          No. 99-201; 202   Roger A. Page, Judge



                      No. W2000-01740-CCA-R3-CD - Filed May 9, 2001


Pursuant to a negotiated plea agreement, the defendant pled guilty to contributing to the delinquency
of a minor, a Class A misdemeanor, and unlawful use of an altered vehicle registration plate, a Class
E felony. He received concurrent sentences of eleven months, twenty-nine days and two years,
respectively, to be served on probation. The defendant appeals the trial court's denial of his request
for judicial diversion. Upon our review of the record, we affirm the judgment of the trial court.

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

JOE G. RILEY, J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS and ROBERT
W. WEDEMEYER , JJ., joined.

Daniel J. Taylor, Jackson, Tennessee, for the appellant, Thomas Leon Lewis, II.

Paul G. Summers, Attorney General and Reporter; Mark E. Davidson, Assistant Attorney General;
James G. (Jerry) Woodall, District Attorney General; and James W. Thompson, Assistant District
Attorney General, for the appellee, State of Tennessee.


                                             OPINION

        The defendant was indicted in case 99-200 for statutory rape; in case 99-201 for one count
of official misconduct and one count of unlawful use of an altered registration plate; and in case 99-
202 for one count of official misconduct, one count of furnishing alcohol to a person under twenty-
one years of age, one count of contributing to the delinquency of a minor, and one count of criminal
responsibility for possession of marijuana by another. Pursuant to a negotiated agreement, the
defendant pled guilty to the unlawful use of an altered registration plate and contributing to the
delinquency of a minor. The other charges were dismissed. The defendant received an effective
sentence of two years probation. The trial court was to determine whether the defendant should be
granted judicial diversion. A sentencing hearing was held, and the trial court found that judicial
diversion was not appropriate. The defendant now challenges the trial court's denial of judicial
diversion. Specifically, the defendant contends the trial court erred in basing its decision to deny
judicial diversion solely upon the fact that the defendant was a law enforcement officer at the time
of the commission of the offenses.


                         ABSENCE OF GUILTY PLEA TRANSCRIPT

        The record before this court does not contain a transcript of the guilty plea. In order to
conduct an effective appellate review of sentencing, a transcript of the guilty plea hearing is
necessary. State v. Keen, 996 S.W.2d 842, 844 (Tenn. Crim. App. 1999). The transcript of the
guilty plea is usually necessary in order for this court to ascertain the facts and circumstances
surrounding the offense. Indeed, the guilty plea hearing is the equivalent of a trial. Id. at 843. In
the absence of a transcript of a guilty plea, this court must generally conclude that the sentence
imposed by the trial court was correct. Id. at 844.

        We further note that neither the defendant nor any other person testified at the sentencing
hearing. The pre-sentence report contains incriminating allegations of facts beyond the charges to
which the defendant pled. The defendant gave no statement in the pre-sentence report. Although
the trial court stated it did not rely upon the dismissed charges, we are still without the factual
circumstances surrounding the two charges to which the defendant pled. Defense counsel’s version
of the circumstances stated during argument does not suffice.

       We are, therefore, handicapped in providing effective appellate review. We have elected to
review this matter, but we do so in light of the record before us.


                         EVIDENCE PRESENTED AT THE HEARING

        The trial court conducted a hearing to determine whether the defendant should be granted
judicial diversion. The state argued that the defendant should be denied judicial diversion. The state
claimed that since the defendant was a Tennessee Highway Patrolman, his convictions demonstrated
an abuse of public trust. Furthermore, the state argued that granting diversion would depreciate the
wrongfulness of the defendant's acts, especially in light of the fact that at least one of the defendant's
convictions involved minors and the use of alcohol.

        The defense proof consisted totally of documentary evidence. This evidence reflected that
the defendant was married with two children; was a graduate of the Tennessee Highway Patrol
Academy; had no prior convictions; and had received numerous letters of commendation. The
defendant also presented evidence that he was a member of the Air National Guard, served in
Operation Desert Storm, and was classified as a disabled veteran; had completed his Bachelor of
Science degree during the time that his case was pending in the trial court; and currently owned his
own carpet cleaning business. Additionally, the defendant presented the court with various letters
attesting to his good character and standing in the community.


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        Defense counsel argued that, with regard to the charge of unlawful use of an altered
registration plate, the defendant did have a proper license plate but gave his renewal stickers to a
person who then placed them on another vehicle's license plate. With regard to the contributing to
the delinquency of a minor charge, defense counsel claimed that defendant did not furnish any illegal
substances to the minors, but admitted that defendant did nothing to discourage the illegal conduct.
Finally, defense counsel argued that the defendant was not acting in his official capacity as a law
enforcement officer during the commission of either offense.


                                   TRIAL COURT'S FINDINGS

       The trial court stated that it reviewed all of the evidence presented by both the state and the
defendant and was not considering the dismissed charges. The trial court specifically considered:

        (1)   the attitude and behavior of the accused since arrest;
        (2)   the accused’s amenability to correction;
        (3)   the circumstances of the offense;
        (4)   the accused’s criminal history;
        (5)   the accused’s social history;
        (6)   the accused’s physical and mental health;
        (7)   the deterrence value to the accused as well as to others; and
        (8)   whether judicial diversion would serve the ends of justice, considering the interests of
              the public as well as the accused.

See State v. Parker, 932 S.W.2d 945, 958 (Tenn. Crim. App. 1996). The trial court found that most
of these factors were favorable to the defendant. However, the trial court concluded that it must
determine whether judicial diversion would "serve the ends of justice" in the instant case.

       With regard to the defendant's status, the trial court found that it "has some interest . . . in
making sure that individuals who are in the public trust do not abuse that trust." Ultimately, the trial
court held that, ". . . in this case, considering everything, I cannot find that the ends of justice will
be served by placing Mr. Lewis on judicial diversion."


                                      JUDICIAL DIVERSION

        When a defendant contends that the trial court committed error in refusing to impose a
sentence pursuant to Tenn. Code Ann. § 40-35-313, commonly referred to as “judicial diversion,”
this Court must determine whether the trial court abused its discretion in failing to sentence pursuant
to the statute. State v. Cutshaw, 967 S.W.2d 332, 344 (Tenn. Crim. App. 1997); State v. Bonestel,
871 S.W.2d 163, 167 (Tenn. Crim. App. 1993). Judicial diversion is similar to pretrial diversion;
however, judicial diversion follows a determination of guilt, and the decision to grant judicial
diversion rests with the trial court, not the prosecutor. State v. Anderson, 857 S.W.2d 571, 572


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(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; Parker, 932 S.W.2d at 958.

        The criteria that must be considered in determining whether an eligible accused should be
granted judicial diversion include: (a) the defendant’s amenability to correction; (b) the
circumstances of the offense; (c) the defendant’s criminal record; (d) the defendant’s social history;
(e) the defendant’s physical and mental health; and (f) 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.


                                              ANALYSIS

         Firstly, we do not feel we can effectively review the circumstances of the offenses due to the
absence of the guilty plea transcript. See Keen, 996 S.W.2d at 844. The circumstances of the
offenses are indeed important in determining whether the defendant should be granted judicial
diversion. See Cutshaw, 967 S.W.2d at 344; Parker, 932 S.W.2d at 958. We, therefore, presume
the trial court was correct. Keen, 996 S.W.2d at 844.

        Secondly, we reject the defendant's contention that he has been unduly penalized simply
because he was a law enforcement officer. A defendant's status as a law enforcement officer need
not be ignored by a sentencing court in deciding whether or not to grant the largess of judicial
diversion. On the other hand, a law enforcement officer should not automatically be excluded from
consideration from judicial diversion simply because of his or her employment status, especially for
an off-duty, non-job related offense. One's employment status is simply one factor, among many,
to consider in making the judicial diversion determination. The issue before this court is not whether
defendant is a suitable candidate for alternative sentencing. He is a good candidate for and has been
granted an alternative sentence in the form of full probation. The sole question before this court is
whether there is any substantial evidence to support the denial of judicial diversion. Anderson, 857
S.W.2d at 572. We conclude, after considering the entire record in light of the findings of the trial
court, that there is.

        The defendant relies upon our opinion in State v. James M. Williams, No. 02C01-9710-CR-
00388, 1999 WL 2848 (Tenn. Crim. App. filed January 5, 1999, at Jackson), perm. to app. denied
(Tenn. 1999), and argues that defendant's status as a law enforcement officer should not be used as
the basis for denying judicial diversion for offenses unrelated to his employment. However, in
Williams we upheld the denial of judicial diversion while granting probation. While a defendant
may be presumed to be a favorable candidate for alternative sentencing, no such presumption exists
with regard to judicial diversion. Thus, in Williams we concluded that, even though diversion would
have been appropriate, we should defer to the decision of the trial court to deny judicial diversion,
absent a clear abuse of discretion.


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        The trial court determined that granting judicial diversion would seriously depreciate the
seriousness of the defendant's conduct. Examining the evidence before it, the trial court ultimately
concluded that the ends of justice would be ill served by granting judicial diversion in the instant
case. Like the court in Williams, we find that although the trial judge would have acted within his
discretionary authority had he granted judicial diversion, we can not say that he abused his
discretionary authority by denying it.

       Thus, we affirm the judgment of the trial court.




                                                      ___________________________________
                                                      JOE G. RILEY, JUDGE




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