         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                  AT JACKSON

                         JANUARY 1998 SESSION
                                                      FILED
                                                      February 12, 1998

                                                     Cecil Crowson, Jr.
STATE OF TENNESSEE,                   )               Appellate C ourt Clerk
                                      )    NO. 02C01-9612-CR-00454
      Appellee,                       )
                                      )    SHELBY COUNTY
VS.                                   )
                                      )    HON. JOHN P. COLTON,
KEVIN R. HYMAN and                    )    JUDGE
KAREN D. RUSSELL,                     )
                                      )    (Aggravated Assault)
      Appellants.                     )



FOR BOTH APPELLANTS ON                     FOR THE APPELLEE:
APPEAL:
                                           JOHN KNOX WALKUP
BENJAMIN F. HEAD                           Attorney General and Reporter
147 Jefferson, Suite 408
Memphis, Tennessee 38103-2234              DEBORAH A. TULLIS
                                           Assistant Attorney General
FOR APPELLANT HYMAN                        Cordell Hull Bldg. - 2nd Floor
IN TRIAL COURT:                            425 Fifth Avenue North
                                           Nashville, TN 37243-0493
MARVIN E. BALLIN
200 Jefferson Avenue, Ste. 1250            WILLIAM L. GIBBONS
Memphis, TN 38103-2328                     District Attorney General

FOR APPELLANT RUSSELL                      J. ROBERT CARTER, JR.,
IN TRIAL COURT:                            LORRAINE CRAIG
                                           Asst. District Attorneys General
WALTER L. BAILEY, JR.                      201 Poplar Avenue, Suite 301
200 Jefferson Avenue, Ste. 800             Memphis, Tennessee 38103
Memphis, TN 38103-2328




OPINION FILED:



AFFIRMED



JOE G. RILEY,
JUDGE
                                       OPINION



       This is an appeal from the denial of judicial diversion and total probation.

Appellants, Kevin R. Hyman and Karen D. Russell, each pled guilty to one count of

Class D reckless aggravated assault. The court required thirty (30) days continuous

incarceration with an additional thirty (30) days to be served on weekends; a total

of two (2) years probation, six (6) months of which was to be intensive probation;

one year of house arrest; 200 hours of community service; a letter of apology to the

victim; and curfew for the entire two (2) years of probation.

       Finding no error, we affirm the judgment of the trial court.



                            PROCEDURAL HISTORY



       The appellants were each indicted for attempted aggravated robbery. They

entered a guilty plea to reckless aggravated assault, a Class D felony, and agreed

to a two-year sentence with the issue of judicial diversion and alternative sentencing

to be determined by the trial court.

       The indictment was based on the following facts. Appellant Russell and the

victim, Katie McSorley, were co-workers at a pizza restaurant in Memphis. The

victim went to the bank at 3:00 a.m. one morning to make the night deposit. The

appellants followed in a car borrowed from a friend of appellant Hyman. As the

victim was making the deposit, she saw appellant Hyman in a ski mask and

camouflage jacket come around the corner, and then he bolted. As she left the

bank she saw a car pulling out of the parking lot going the wrong way, and she

followed it. She came upon the car stopped on a freeway ramp and was able to get

the license plate number. She saw appellant Hyman roll down the window and

display a gun. She testified that she was terrified.

       Appellants gave written statements to the police admitting their intention to

rob McSorley, but at sentencing maintained that they were only attempting to teach

McSorley a lesson about going to the bank alone. Appellants also testified at their



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sentencing hearing that they gave the incriminating statements as a result of

coercion by police officers. The trial court found this testimony by the appellants

less than believable.

       The appellants chose to plead guilty to Class D reckless aggravated assault

rather than challenge the state’s proof and proceed to trial. Following a lengthy

sentencing hearing, the trial court took the matter under advisement and

pronounced sentence two (2) months later. The appellants were assessed thirty

(30) days of continuous incarceration, thirty (30) days on weekends and the balance

of the two-year sentence on probation.



                        DENIAL OF JUDICIAL DIVERSION



       Appellants first contend the trial court erred in denying judicial diversion. This

Court has recently addressed judicial diversion in State v. Parker, 932 S.W.2d 945,

958 (Tenn. Crim. App. 1996):

              The criteria that the trial court must consider in deciding
       whether a qualified accused should be granted judicial diversion
       include: (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, and (f) the deterrence value to the accused as well as others.
       The trial court should also consider whether judicial diversion will
       serve the ends of justice - the interests of the public as well as the
       accused.


       Parker also interprets Tenn. Code Ann. § 40-35-313, the judicial diversion

statute, as not entitling the accused to the same favorable presumption created by

Tenn. Code Ann. § 40-35-102(6). Id. at 958. Rather, this decision rests within the

sound discretion of the trial court. “[T]his Court will not interfere with the refusal of

the trial court to grant judicial diversion if there is ‘any substantial evidence to

support the refusal’ contained in the record.” Id. (citations omitted).

       In this case the trial judge considered the relevant factors, emphasizing the

seriousness of the circumstances of the offense and the apparent untruthfulness

of the appellants. The trial court concluded the ends of justice and the best




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interests of the appellants dictated the denial of judicial diversion. Clearly, there is

substantial evidence to support the denial. Accordingly, this issue is without merit.



                          DENIAL OF FULL PROBATION



         We now consider whether the trial court erred in denying complete probation

of the sentences. In deciding whether to grant or deny probation, a trial court

should consider the circumstances of the offense, the defendant’s criminal record,

the defendant’s social and present condition, the need for deterrence, and the best

interests of the defendant and the public. State v. Grear, 568 S.W.2d 285, 286

(Tenn. 1978); State v. Boyd, 925 S.W.2d 237, 244 (Tenn. Crim. App. 1995); State

v. Black, 924 S.W.2d 912, 917 (Tenn. Crim. App. 1995). A defendant’s lack of

credibility is also an appropriate consideration and reflects on a defendant’s

potential for rehabilitation. State v. Byrd, 861 S.W.2d 377, 380 (Tenn. Crim. App.

1993).

         There is no mathematical equation to be utilized in determining sentencing

alternatives. Not only should the sentence fit the offense, but it should fit the

offender as well. State v. Boggs, 932 S.W.2d 467, 477 (Tenn. Crim. App. 1996).

Indeed, individualized punishment is the essence of alternative sentencing. State

v. Dowdy, 894 S.W.2d 301, 305 (Tenn. Crim. App. 1994). In summary, sentencing

must be determined on a case-by-case basis, tailoring each sentence to that

particular defendant based upon the facts of that case and the circumstances of

that defendant. State v. Moss, 727 S.W.2d 229, 235 (Tenn. 1986).

         Although a defendant may be presumed to be a favorable candidate for

alternative sentencing, the defendant has the burden of establishing suitability for

total probation. State v. Boggs, 932 S.W.2d at 477. The trial court obviously

concluded the defendants failed to meet this burden. Our review of the trial court’s

findings and sentences is de novo with a presumption of correctness. Tenn. Code

Ann. § 40-35-401(d). W e find no error in the denial of total probation, nor do we

find any error in the length or manner of confinement. This issue is without merit.


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                                CONCLUSION



     For the foregoing reasons, we affirm the judgment of the trial court.




                                              JOE G. RILEY, JUDGE




CONCUR:




JOE B. JONES, PRESIDING JUDGE




PAUL G. SUMMERS, JUDGE




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