            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                 AT JACKSON

                           OCTOBER 1999 SESSION             FILED
                                                           December 17, 1999

STATE OF TENNESSEE,              )                      Cecil Crowson, Jr.
                                 )                     Appellate Court Clerk
                                     C.C.A. No. W1999-01757-CCA-R3-CD
      Appellee,                  )
                                 )   Shelby County
v.                               )
                                 )   Honorable Carolyn Wade Blackett, Judge
CLAY F. DEAN,                    )
                                 )   (Denial of Judicial Diversion)
      Appellant.                 )




FOR THE APPELLANT:                   FOR THE APPELLEE:

ROBERT M. BRANNON, JR.               PAUL G. SUMMERS
296 Washington Avenue, Suite 3       Attorney General & Reporter
Memphis, TN 38103
                                     R. STEPHEN JOBE
                                     Assistant Attorney General
                                     425 Fifth Avenue North
                                     Nashville, TN 37243-0493

                                     WILLIAM L. GIBBONS
                                     District Attorney General

                                     JANET L. SHIPMAN
                                     Assistant District Attorney General
                                     201 Poplar Avenue, Suite 301
                                     Memphis, TN 38103-1947




OPINION FILED: __________________________________________

REMANDED

ALAN E. GLENN, JUDGE
                                       OPINION

          The defendant, Clay F. Dean, was indicted by the Shelby County Grand Jury for the

offenses of driving under the influence of an intoxicant and reckless driving. He entered
a guilty plea in the Shelby County Criminal Court to reckless driving and was sentenced

to thirty days confinement. The sentence was suspended except for the time the

defendant had served, with the defendant to then be placed on probation for five months
and twenty-nine days. He then asked that the trial court place him on diversion, the trial

court denying this request after a hearing. The defendant filed a timely appeal of this

denial.     Based upon our review of the matter, we remand it to the trial court for
supplementation of the record.



                                            FACTS

          On May 19, 1998, the defendant was indicted by the Shelby County Grand Jury in

a two-count indictment for driving under the influence of an intoxicant and reckless driving.

He submitted to the trial court, on October 16, 1998, his petition for waiver of trial by jury

and request for acceptance of plea of guilty. According to that petition, the defendant was

entering a plea of guilty to reckless driving, in violation of Tenn. Code Ann. § 55-10-205,

and receiving as punishment confinement for thirty days, with twenty-nine days suspended
and credit for one day in jail. Additionally, according to the petition, the matter was reset
for November 17, 1998, for a hearing on the defendant’s request for diversion. Also on

October 16, 1998, the defendant executed, and his counsel filed with the court, a
negotiated plea agreement, which stated that the defendant was entering a plea of guilty
to reckless driving, for which he was receiving as punishment confinement for thirty days,

with twenty-nine days suspended and credit for one day served. Additionally, a $500 fine
was imposed.


          A presentence report was submitted to the trial court by the Justice Network. The
conclusion of that report is as follows:

                The above named defendant appears eligible for a suspended
                sentence or diversion. No record of any prior convictions for
                felonies or Class A misdemeanors exists. It is recommended
                that the defendant attends and completes Alcohol Safety
                School.



          According to the Justice Network report, the defendant had received his high school

diploma in 1996 and was attending the University of Memphis. He had been employed

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from January 1996, until August 1996, at Tiger Cleaners in Memphis. From 1996 until the

time of the report, he had been employed at U.S. Male, also in Memphis.



       On November 17, 1998, a hearing was held on the defendant’s request that he be

put into the diversion program. At this hearing, the defendant, who was the only witness,

testified that, subsequent to the reckless driving charge for which he was then seeking
diversion, he had entered a guilty plea in Division 12 of the Shelby County General

Sessions Court to reckless driving. As explanation for this later offense, the defendant

stated that he “was immature and didn’t fully understand the consequences” of what he
had done. He testified that his plans for the future were to continue with his job, pay the

court costs and fines, and continue attending college. The defendant was employed as

a warehouse worker at U.S. Male, and his duties required that he make deliveries to his
employer’s four locations in the City of Memphis. Apparently, there was no accident

involved in either of the reckless driving incidents. However, no additional information

regarding the facts of either matter was presented, other than the fact the defendant
submitted to a field sobriety test but refused an intoximeter test following one of the arrests.

The State of Tennessee opposed the defendant’s request for judicial diversion.



       Following this proof, the trial court took the matter under advisement until November

23, 1998, at which time the court imposed upon the defendant the previously agreed upon
sentence, but denied, without additional explanation, his request for judicial diversion. The

defendant timely appealed that denial.



                                         ANALYSIS

       It is within the sound discretion of the trial court as to whether a defendant should

be placed on judicial diversion. State v. Harris, 953 S.W.2d 701, 705 (Tenn. Crim. App.

1996). In reviewing a refusal to grant judicial diversion, the appellate court must uphold

the decision of the trial court if “any substantial evidence [exists in the record] to support

the refusal.” State v. Hammersley, 650 S.W.2d 352, 356 (Tenn. 1983). The trial court

must consider a number of factors in determining whether to grant judicial diversion:
              (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 status of 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.

State v. Lewis, 978 S.W.2d 558, 566 (Tenn. Crim. App. 1997), perm. app. denied (Tenn.


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1998) (citing State v. Bonestel, 871 S.W.2d 163, 168 (Tenn. Crim. App. 1993)).



       It does not appear that all of these matters were considered and, as did the court
in Lewis, we do not find the record to be sufficiently complete to “allow appropriate

appellate review.” Lewis, 978 S.W.2d at 567. Accordingly, we remand the matter to the

trial court to reconsider the defendant’s request for judicial diversion.



                                       _____________________________________
                                       ALAN E. GLENN, JUDGE


CONCUR:




__________________________________
JOHN H. PEAY, JUDGE




__________________________________
NORMA McGEE OGLE, JUDGE




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