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

                   STATE OF TENNESSEE v. LISA ANN AVERY

                   Direct Appeal from the Circuit Court for Carroll County
                         No. 20CR-1451    C. Creed McGinley, Judge



                      No. W2000-01741-CCA-R3-CD - Filed July 16, 2001


The Defendant was indicted by the Carroll County Grand Jury for one count of introduction of drugs
into a penal institution. The Defendant moved for pretrial diversion, but the request was denied by
the District Attorney General. The Defendant filed a petition for writ of certiorari with the trial court
to review the denial. The trial court denied the petition, finding that the District Attorney General
did not abuse his discretion in denying the Defendant’s request for pretrial diversion. The Defendant
then pled guilty to one count of introduction of drugs into a penal institution and requested judicial
diversion. The trial court denied judicial diversion and sentenced the Defendant as a Range I,
standard offender to four years incarceration in the Tennessee Department of Correction, suspended
after sixty days confinement. The Defendant now appeals, arguing that the trial court erred in
denying her pretrial diversion, judicial diversion or full probation. Finding no error, we affirm the
judgment of the trial court.

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

ROBERT W. WEDEMEYER , J., delivered the opinion of the court, in which JOE G. RILEY, J., joined.
JOHN EVERETT WILLIAMS, J., not participating.

Benjamin S. Dempsey, Huntingdon, Tennessee, for the Appellant, Lisa Ann Avery.

Paul G. Summers, Attorney General and Reporter, Kim R. Helper, Assistant Attorney General, G.
Robert Radford, District Attorney General, and Eleanor Cahill, Assistant District Attorney General,
for the Appellee, State of Tennessee.

                                              OPINION

       The Defendant, Lisa Ann Avery, was indicted by the Carroll County Grand Jury for one
count of introduction of drugs into a penal institution, a Class C felony. See Tenn. Code Ann. § 39-
16-201(b). The Defendant moved for pretrial diversion, but the request was denied by the District
Attorney General. The Defendant filed a petition for writ of certiorari with the trial court to review
the denial. The trial court denied the petition, finding that the District Attorney General did not
abuse his discretion in denying the Defendant’s request for pretrial diversion. The Defendant pled
guilty to one count of introduction of drugs into a penal institution and requested judicial diversion.
The trial court denied judicial diversion and sentenced the Defendant as a Range I, standard offender
to four years incarceration in the Tennessee Department of Correction, suspended after sixty days
confinement. The Defendant now appeals, arguing that the trial court erred in denying her pretrial
diversion, judicial diversion or full probation.

                                              I. FACTS

         In August 1999, the eighteen-year-old Defendant was arrested for delivering 2.7 grams of
marijuana to an inmate in the Carroll County Jail. The drugs were sewn into the waistband of a pair
of blue jeans. At the sentencing hearing, the Defendant testified that the man that she was dating was
in jail and asked her to bring him some clothes. The Defendant testified that on the day of the
offense, she got a phone call from a man who told her to meet him in the park to pick up a pair of
jeans to take to the Defendant’s boyfriend. The Defendant testified that she checked the jeans, but
did not find any drugs. The Defendant’s sixteen-year-old sister rode to the jail with the Defendant
and took the jeans into the jail. When asked why she sent her sister into the jail with the jeans, the
Defendant responded “I didn’t have my shoes on. . . . I had hurt my foot. And she was a passenger
and she said she would take them in.”

        The Defendant testified that she lives at home with her parents. The Defendant testified that
she has a high school diploma and is licensed as a certified nursing assistant. However, due to her
arrest and conviction, the Defendant has been unable to continue working at the nursing home where
she was formerly employed. The Defendant testified that she had been working at Joe’s Barbeque
to make some extra money.

         The Defendant’s mother, Shirley Avery, also testified at the sentencing hearing. Avery
testified that the Defendant was traveling with the wrong crowd when she committed the offense,
but that she has since stopped associating with that crowd. Avery testified that if the Defendant were
granted diversion or probation, she and her husband would help supervise the Defendant’s activities.

       The Defendant introduced a pretrial diversion report which showed that she had no prior
criminal record. Although the State did not introduce any enhancement factors, the trial court
accepted as evidence a letter from the Assistant Attorney General to defense counsel which
contained information supporting an enhanced sentence. According to the State, the only
information it received from the Defendant in support of the request for pretrial diversion was the
application for certification of eligibility for diversion.

                                          II. ANALYSIS
                                        A. Pretrial Diversion

         The Defendant argues that the District Attorney General abused his discretion in denying her
pretrial diversion. Pretrial diversion allows the district attorney general to suspend prosecution for


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a period of up to two years against a defendant who meets certain statutory requirements. See Tenn.
Code Ann. § 40-15-105(a)(1)(A). In order to qualify for pretrial diversion, the defendant must not
have previously been granted diversion under this statute; must not have a prior misdemeanor
conviction for which a sentence of confinement was served or a prior felony conviction within a five-
year period after completing the sentence or probationary period for such prior conviction; and must
not be seeking diversion for a Class A or B felony, a sexual offense, driving under the influence, or
vehicular assault. Id. § 40-15-105(a)(1)(B)(i)(a)-(c). Such eligibility does not presumptively entitle
a defendant to pretrial diversion, but rather places such a decision within the discretion of the district
attorney so long as the defendant is statutorily qualified. State v. Curry, 988 S.W.2d 153, 157 (Tenn.
1999).

        It is the defendant's duty to demonstrate suitability for pretrial diversion. State v. Herron, 767
S.W.2d 151, 156 (Tenn. 1989); State v. Winsett, 882 S.W.2d 806, 809-10 (Tenn. Crim. App. 1993).
However, this requirement does not relieve the prosecutor of his or her duty to consider and
articulate all the relevant factors. Curry, 988 S.W.2d at 157. The district attorney is required to
consider all relevant factors when determining whether or not to grant pretrial diversion. State v.
Carr, 861 S.W.2d 850, 855 (Tenn. Crim. App. 1993). The Tennessee Supreme Court has outlined
the criteria that should be considered by the prosecutor in granting or denying pretrial diversion:
        When deciding whether to enter into a memorandum of understanding under the
        pretrial diversion statute a prosecutor should focus on the defendant's amenability to
        correction. Any factors which tend to accurately reflect whether a particular
        defendant will or will not become a repeat offender should be considered. Such
        factors must, of course, be clearly articulable and stated in the record in order that
        meaningful appellate review may be had. Among the factors to be considered in
        addition to the circumstances of the offense are the defendant's criminal record, social
        history, the physical and mental condition of a defendant where appropriate, and the
        likelihood that pretrial diversion will serve the ends of justice and the best interest
        of both the public and the defendant.
State v. Hammersley, 650 S.W.2d 352, 355 (Tenn. 1983); see also Curry, 988 S.W.2d at 157.

        Where pretrial diversion is denied by the district attorney, the factors and evidence
considered in making the decision, along with the weight accorded to each factor, must be clearly
set forth in writing. State v. Pinkham, 955 S.W.2d 956, 960 (Tenn. 1997); Winsett, 882 S.W.2d at
810. The district attorney general must do more than abstractly state that he or she has considered
each of the factors. Herron, 767 S.W.2d at 156. Rather, the factors must be "clearly articulable and
stated in the record." Hammersley, 650 S.W.2d at 355. Failure to consider and articulate all of the
relevant factors constitutes an abuse of discretion. See Curry, 988 S.W.2d at 157-58.

        A defendant who has been denied pretrial diversion by the district attorney has the right to
petition for a writ of certiorari to the trial court for an abuse of prosecutorial discretion. Tenn. Code
Ann. § 40-15-105(b)(3). Although presumptively correct, a trial court may overrule a district
attorney's denial of pretrial diversion where there has been an abuse of discretion. State v. Watkins,
607 S.W.2d 486, 488 (Tenn. Crim. App 1980). However, the trial judge cannot simply substitute


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his or her own judgment for that of the district attorney. Id. To show prosecutorial abuse of
discretion, the record must lack any substantial evidence to support the denial of pretrial diversion.
Curry, 988 S.W.2d at 158.

        The legislature has vested the authority to prosecute a case or divert it with the prosecutor
rather than the court. See Tenn. Code Ann. § 40-15-105; Carr, 861 S.W.2d at 858. In reviewing the
prosecutor’s denial of diversion, the trial court must look at all the relevant factors to determine
whether the prosecutor considered them, and if he or she did not, to determine whether pretrial
diversion is appropriate. Herron, 767 S.W.2d at 156; Carr, 861 S.W.2d at 858. In reviewing whether
the prosecutor has abused his or her discretion regarding diversion, the trial court must undertake
the same process required of the prosecutor in considering and weighing the relevant factors.
Herron, 767 S.W.2d at 156.

        In this case, the trial court properly found that the State did not abuse its discretion by
denying the Defendant pretrial diversion. The State denied diversion based on the serious nature of
the offense and the Defendant’s involving her younger sister in the offense. The State noted that the
Defendant did not have a prior criminal record, but found that the nature and circumstances of the
offense outweighed that factor. The State also considered the deterrent effect of denying the
Defendant’s request for pretrial diversion, stating that the “introduction of drugs or contraband in
to the Carroll County Jail is a very serious problem and is one that the jail personnel are constantly
on alert to prevent.” Although this may be a close case, we conclude that the record does not show
an absence of any substantial evidence to support the State’s refusal to grant pretrial diversion. See
Curry, 988 S.W.2d at 158.

                                        B. Judicial Diversion

        The Defendant argues that the trial court erred in declining to impose a sentence pursuant to
Tennessee Code Annotated § 40-35-313, commonly referred to as judicial diversion. According to
this statute, the trial court may in 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 pleads guilty or is found
guilty of a misdemeanor or a Class C, D or E felony; who has not previously been convicted of
felony or a Class A misdemeanor; and who is not seeking deferral for a sexual offense or a Class A
or Class B felony. Id. § 40-35-313(a)(1)(B)(I)(a)-(c); State v. Parker, 932 S.W.2d 945, 958 (Tenn.
Crim. App. 1996).

        When a defendant contends that the trial court committed error in refusing to grant judicial
diversion, this Court must determine whether the trial court abused its discretion in failing to
sentence pursuant to the statute. 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


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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. As this Court said in Anderson,
                [w]e 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 T.C.A. § 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.
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
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 343-344; 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.

         A trial court should consider the same factors in judicial diversion that it does in pretrial
diversion. Cutshaw, 967 S.W.2d at 344. In addition, this Court should apply “the same level of
review as that which is applicable to a review of a district attorney general’s action in denying pre-
trial diversion.” State v. George, 830 S.W.2d 79, 80 (Tenn. Crim. App. 1992). In denying judicial
diversion, the trial court considered the same evidence and factors utilized by the District Attorney
General in denying pretrial diversion. After considering the evidence, the trial court concluded that
the Defendant was “not a suitable candidate for judicial diversion, either.” Thus, we conclude, as
we did regarding pretrial diversion, that the record does not show an absence of any substantial
evidence to support the trial court’s refusal to grant judicial diversion.

                                             C. Probation

       The Defendant argues that the trial court erred in denying her full probation. When a
criminal defendant challenges the length, range, or manner of service of a sentence, the reviewing
court must conduct a de novo review of the sentence with a presumption that the determinations
made by the trial court are correct. Tenn. Code Ann. § 40-35-401(d). This presumption, however,
“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). In the event that the record fails to show such consideration, the review of the
sentence is purely de novo. State v. Shelton, 854 S.W.2d 116, 123 (Tenn. Crim. App. 1992).

       In making its sentencing determination, the trial court, at the conclusion of the sentencing
hearing, determines the range of sentence and then determines the specific sentence and the propriety


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of sentencing alternatives by considering (1) the evidence, if any, received at the trial and the
sentencing hearing, (2) the presentence report, (3) the principles of sentencing and arguments as to
sentencing alternatives, (4) the nature and characteristics of the criminal conduct involved, (5)
evidence and information offered by the parties on the enhancement and mitigating factors, (6) any
statements the defendant wishes to make in the defendant's behalf about sentencing, and (7) the
potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-210(a), (b), -103(5); State v.
Williams, 920 S.W.2d 247, 258 (Tenn. Crim. App. 1995).

        The presumptive sentence to be imposed by the trial court for a Class B, C, D or E felony is
the minimum within the applicable range unless there are enhancement or mitigating factors present.
Tenn. Code Ann. § 40-35-210(c). If there are enhancement or mitigating factors, the court must start
at the presumptive sentence, enhance the sentence as appropriate for the enhancement factors, and
then reduce the sentence in the range as appropriate for the mitigating factors. Id. § 40-35-210(e).
The weight to be given each factor is left to the discretion of the trial judge. State v. Shelton, 854
S.W.2d 116, 123 (Tenn. Crim. App. 1992). However, the sentence must be adequately supported
by the record and comply with the purposes and principles of the 1989 Sentencing Reform Act.
State v. Moss, 727 S.W.2d 229, 237 (Tenn. 1986).

        When imposing a sentence, the trial court must make specific findings of fact on the record
supporting the sentence. Tenn. Code Ann. § 40-35-209(c). The record should also include any
enhancement or mitigating factors applied by the trial court. Id. § 40-35-210(f). Thus, if the trial
court wishes to enhance a sentence, the court must state its reasons on the record. The purpose of
recording the court’s reasoning is to guarantee the preparation of a proper record for appellate
review. State v. Ervin, 939 S.W.2d 581, 584 (Tenn. Crim. App. 1996). Because the record in this
case indicates that the trial court adequately considered the enhancement and mitigating factors as
well as the underlying facts, our review is de novo with a presumption of correctness.

        If our review reflects that the trial court followed the statutory sentencing procedure, that the
court imposed a lawful sentence after having given due consideration and proper weight to the
factors and principles set out under the sentencing law, and that the trial court’s findings of fact are
adequately supported by the record, then we may not modify the sentence "even if we would have
preferred a different result." State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991). The
defendant bears the burden of showing the impropriety of the sentence imposed. Ashby, 823 S.W.2d
at 169.

         With certain exceptions, a defendant is eligible for probation if the sentence actually imposed
is eight years or less. Tenn. Code Ann. § 40-35-303(a). “Although probation ‘must be automatically
considered as a sentencing option for eligible defendants, the defendant is not automatically entitled
to probation as a matter of law.’” State v. Davis, 940 S.W.2d 558, 559 (Tenn. 1997) (citing Tenn.
Code Ann. § 40-35-303(b) sentencing comm’n cmts). In determining whether to grant or deny
probation, the trial court may consider the circumstances of the offense; the defendant’s criminal
record, background and social history; the defendant’s physical and mental health; the deterrent
effect on other criminal activity; and the likelihood that probation is in the best interests of both the


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public and the defendant. State v. Parker, 932 S.W.2d 945, 958 (Tenn. Crim. App. 1996). The
Defendant has the burden of establishing suitability for probation. Tenn. Code Ann. § 40-35-303(b);
Ashby, 823 S.W.2d at 169. An especially mitigated or standard offender convicted of a Class C,
D or E felony who does not fit within certain parameters1 is presumed to be a favorable candidate
for alternative sentencing options in the absence of evidence to the contrary. Tenn. Code Ann. § 40-
35-102(6).

        However, we further note that even if a defendant is presumed to be a favorable candidate
for alternative sentencing under Tennessee Code Annotated § 40-35-102(6), the statutory
presumption of an alternative sentence may be overcome if
                (A) [c]onfinement is necessary to protect society by restraining a defendant
        who has a long history of criminal conduct;
                (B) [c]onfinement is necessary to avoid depreciating the seriousness of the
        offense or confinement is particularly suited to provide an effective deterrent to
        others likely to commit similar offenses; or
                (C) [m]easures less restrictive than confinement have frequently or recently
        been applied unsuccessfully to the defendant . . . .
Id. § 40-35-103(1)(A)-(C).

        First, the Defendant argues that she should have been sentenced as an especially mitigated
offender. A trial court may find a defendant to be an especially mitigated offender, if “(1) [t]he
defendant has no prior felony convictions; and (2) [t]he court finds mitigating, but no enhancement
factors.” Id. § 40-35-109(a)(1)-(2). In this case, the trial court found that one enhancement factor
applied: The Defendant was the leader in the commission of an offense involving two or more
criminal actors. Id. § 40-35-114(2). Thus, the Defendant was not eligible to be sentenced as an
especially mitigated offender.

        The Defendant argues that she should have received full probation. However, the trial court
found that the nature of the offense warranted some incarceration. This Court has held that probation
may be denied based solely on the circumstances of the offense when they outweigh all other factors
favoring probation. State v. Fletcher, 805 S.W.2d 785, 788-89 (Tenn. Crim. App. 1991). In this
case, the trial court noted that the Defendant used her younger sister to deliver drugs into the Carroll
County Jail.

       The trial court also considered the need for deterrence in sentencing the Defendant, stating,
“I’ve noticed particularly within this county that it is a situation with increasing regularity.” Our
supreme court has held that a trial court’s decision to incarcerate a defendant based on a need for
deterrence will be presumed correct so long as any reasonable person looking at the entire record
could conclude that (1) a need to deter similar crimes is present in the particular community,


         1
            Tennessee Code Annotated § 40-35-102(5) states that “[c]onvicted felons committing the most severe offenses,
possessing criminal histories evincing a clear disregard for the laws and m orals of society, and evincing failure of past
efforts at rehab ilitation shall be give n first priority regar ding sentenc ing involving inc arceration . . . .”

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jurisdiction, or in the state as a whole, and (2) incarceration of the defendant may rationally serve
as a deterrent to others similarly situated and likely to commit similar crimes. State v. Hooper, 29
S.W.3d 1, 9 (Tenn. 2000). Hooper further provides factors to be considered by trial courts in
deciding whether a need for deterrence is present and whether incarceration is “particularly suited”
to achieve that goal. These factors include:
        (1) [w]hether other incidents of the charged offense are increasingly present in the
        community, jurisdiction, or in the state as a whole, (2) [w]hether the defendant’s
        crime was the result of intentional, knowing or reckless conduct or was otherwise
        motivated by a desire to profit or gain from the criminal behavior, (3) [w]hether the
        defendant’s crime and conviction have received substantial publicity beyond that
        normally expected in the typical case, (4) [w]hether the defendant was a member of
        a criminal enterprise, or substantially encouraged or assisted others in achieving a
        criminal objective, and (5) [w]hether the defendant has previously engaged in
        criminal conduct of the same type as the offense in question, irrespective of whether
        such conduct resulted in previous arrests or convictions.
Id. at 9-12. We conclude that the trial court properly considered deterrence in sentencing the
Defendant.

       Accordingly, the judgment of the trial court is AFFIRMED.



                                                      ___________________________________
                                                      ROBERT W. WEDEMEYER, JUDGE




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