        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                         Assigned On Briefs November 1, 2011

                  STATE OF TENNESSEE v. DANA HUBBARD

                    Appeal from the Criminal Court for Shelby County
                          No. 09-06922   Paula Skahan, Judge



                   No. W2011-00470-CCA-R3-CD - Filed July 20, 2012


The Defendant, Dana Hubbard, pled guilty to theft of property valued over $1000, a Class
D felony. See T.C.A. §§ 39-14-103, 39-14-105 (2010). He was sentenced as a Range I,
standard offender to two years’ probation. On appeal, the Defendant contends that the trial
court erred by denying his request for judicial diversion. We affirm the judgment of the trial
court.

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

J ERRY L. S MITH, J., delivered the opinion of the court, in which JOSEPH M. T IPTON, P.J., and
A LAN E. G LENN, J., joined.

Stephen C. Bush, District Public Defender; Phyllis Aluko (on appeal) and Jennifer Johnson
(at the plea & sentencing hearings), Assistant District Public Defenders, Memphis,
Tennessee, for the appellant, Dana Hubbard.

Robert E. Cooper, Jr., Attorney General and Reporter; Nicholas W. Spangler, Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Lora Fowler and Bryan
Davis, Assistant District Attorneys General, for the appellee, State of Tennessee.

                                         OPINION

       According to the State’s recitation of the facts at the guilty plea hearing:


              [O]n or about June the 9th of 2009 a 1991 blue Ford Escort was
              located at Fuller Park Auto on Frizby by uniform patrol after
              management called the police. The vehicle . . . was sold to them
              by a witness. Named witness got the vehicle from the
              defendant. . . . The defendant . . . took the vehicle from a ditch
              at Chula Holme and Knight Arnold on June the 8th of 2009
              around 7:00 p.m.

              The vehicle was taken to the defendant’s address at 936 Prescott
              and stripped of parts by the defendant. The defendant later
              admitted taking the vehicle and giving it to the witness . . . to
              sale [sic] to the scrap yard. The defendant . . . was charged with
              theft of property with a value over $1,000. . . . The auto was
              valued at approximately $2,000. This did occur here in Shelby
              County.


        On January 25, 2011, a sentencing hearing was held. The presentence report was
received as an exhibit. The Defendant testified that his car broke down shortly before the
instant offense. He said that he tried to find parts to repair his car but that the salvage yards
did not have the needed parts. He said that his brother told him about a car “near some
businesses.” He said he went to the businesses and asked about the car because he wanted
to buy it for the parts. He said that a man in one of the businesses told him that the key was
in the glove box and that he could have the car if he could get it out of the ditch. He said that
the man said the car had been in the ditch for “many years.” His brother also told him that
the car had been in the ditch for a long period of time.

        The Defendant testified that after he got the car home and examined it, he learned that
the part he needed was missing. He said he removed “a few odds and ends” and gave the car
to his neighbor. He said his neighbor accumulated cars, stripped the valuable parts, and sold
the parts. He said his neighbor wanted to give him a portion of the proceeds he received
from selling the car and asked the Defendant to sign a bill of sale stating that he gave the car
to the neighbor. He signed the bill of sale and placed his thumb print on the document. The
neighbor told the Defendant that the car was identified as stolen when he tried to sell the car
at Pull-a-Part in Memphis. The Defendant admitted that he took property that did not belong
to him and that he did not follow up on the car after he took it.

       The Defendant testified that with respect to his military record, the court martial in the
presentence report stemmed from his ex-wife’s conduct while he was deployed overseas.
The record shows that the Defendant pled guilty to stealing a fellow marine’s checkbook and
writing checks from that account. He served three months of a six month sentence and was
discharged from the Marines for bad conduct. He said that when he returned from his
deployment, his wife had taken their children and all their belongings. He said that his wife
was guilty of the theft but that she did not admit it. He said that because he was the marine,

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he was responsible for her conduct. He learned his ex-wife had an affair and said he believed
her conduct was an attempt to have him discharged from the military.

       The Defendant testified that he worked as a forklift operator at New Breed Disney.
He said that he was married with five children, that only one child lived with him, and that
he paid child support to the other children. He stated that he requested judicial diversion
because he feared having the theft conviction on his record would prevent him from
providing for his family. He admitted that he took the car and said that he did not intend to
harm anyone. He stated that he would comply with the conditions of his probation if the trial
court placed him on judicial diversion.

       On cross-examination, the Defendant testified that had he not pled guilty to the theft
charges in the court martial, he would have been sentenced to five years’ confinement. He
believed his ex-wife and the marine whose checkbook was stolen “were in cahoots” and
having an affair.

        The Defendant testified that he went to several junk yards in Memphis to find the part
he needed for his car but that none of the junk yards had the part. He said he did not order
the part because it was more expensive than his car was worth. He stated that he intended
to pay the owner of the car but that the man told him he could have the car if he could get it
out of the ditch. When confronted with his police statement, which excluded anything about
a man who told the Defendant the key was in the glove box and could have the car if he
could get it out of the ditch, the Defendant stated that the officer asked specific questions and
that he answered them. He agreed, though, he told the police that he and his brother saw a
the blue Ford Escort in a ditch, that he removed the car from the ditch, and that he took the
car to his home. He agreed this was the “whole story.”

        Upon examination by the trial court, the Defendant denied telling the probation officer
that he received an honorable discharge from the military. He said he had worked as a
forklift driver for one to one and one-half years. The court, though, confronted the
Defendant with his courtroom statement that he was unemployed and could not afford an
attorney from thirteen months earlier. The Defendant said he had worked as a forklift
operator for one year. The court said, “You’ve got a funny way with the truth, real funny
with the truth.” The court stated that it did not believe the Defendant’s story about the
military. The Defendant said that he understood that it was “quite a story” but that it was
true.

       The trial court discredited the Defendant and found that the Defendant had a “real
problem with the truth.” The court did not believe the Defendant’s statement that he went
to every business and asked about the car. The court did not believe a businessman told the

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Defendant that he could keep the car if he could get it out of the ditch or where to find the
key. The court “sincerely doubted” that the car had been in the ditch for years.

        The trial court refused to place the Defendant on judicial diversion. The Court found
that the Defendant’s lack of credibility made it difficult for the court to believe that he would
be rehabilitated on judicial diversion. The court noted that the Defendant’s prior court
martial and the circumstances of the theft in this case were “not egregious.” The court said
the Defendant’s social history and mental and physical condition were “okay.” The court
found that the deterrence value to the Defendant and to others was not “especially strong in
this case.” The court also found that judicial diversion would not serve the public interest
because the Defendant was not “candid with the court about a number of things.” The court
found the Defendant was convicted of a crime while in the military but discredited the
Defendant’s story that his ex-wife was responsible for the charges. The court noted that the
court martial centered around theft and acts of dishonesty. The court sentenced the
Defendant as a Range I, standard offender to two years’ probation. This appeal followed.

       On appeal, the Defendant contends that the trial court erred by denying his request for
judicial diversion. He argues that the court improperly denied judicial diversion on the
ground that the Defendant was not credible. The State contends that the trial court did not
abuse its discretion by denying the Defendant’s request for judicial diversion. We agree with
the State.

        A trial court may grant a defendant’s request for judicial diversion and “defer further
proceedings against a qualified defendant and place the defendant on probation upon such
reasonable conditions as it may require without entering a judgment of guilty.” T.C.A. § 40-
35-313(a)(1)(A). A Defendant is eligible for judicial diversion if he or she is found guilty
of or pleads guilty or nolo contendere to a Class C, D, or E felony or a lesser crime, has not
previously been convicted of a felony or a Class A misdemeanor, and is not seeking deferral
for a sexual offense. Id. § 40-35-313(a)(1)(B)(i). The Defendant pled guilty to theft of
property valued over $1000, a Class D felony, and had not been previously convicted of a
felony or Class A misdemeanor. The Defendant was eligible for judicial diversion.

       Judicial diversion allows the trial court to defer further proceedings without entering
a judgment of guilt and to place the defendant on probation under reasonable conditions.
T.C.A. § 40-35-313(a)(1)(A). When the probationary period expires, if the defendant has
completed probation successfully, the trial court will dismiss the proceedings against the
defendant with no adjudication of guilt. See T.C.A. § 40-35-313(a)(2). The defendant may
then apply to have all records of the proceedings expunged from the official records. See
T.C.A. § 40-35-313(b). A person granted judicial diversion is not convicted of an offense
because a judgment of guilt is never entered. See T.C.A. § 40-35-313(a)(1)(A).

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        The decision to grant judicial diversion lies within the sound discretion of the trial
court, and this court will not disturb that decision on appeal absent an abuse of discretion.
State v. Electroplating, Inc., 990 S.W.2d 211, 229 (Tenn. Crim. App. 1998); see State v.
Harris, 953 S.W.2d 701, 705 (Tenn. Crim. App. 1996) (citing State v. Bonestel, 871 S.W.2d
163, 168 (Tenn. Crim. App. 1993)). This court will give the trial court the benefit of its
discretion if “‘any substantial evidence to support the refusal’ exists in the record.” State v.
Anderson, 857 S.W.2d 571, 572 (Tenn. Crim. App. 1992) (quoting State v. Hammersley, 650
S.W.2d 353, 356 (Tenn. 1983)). “The same guidelines are applicable in diversion cases as
are applicable in probation cases, but they are more stringently applied to those seeking
diversion.” State v. Bingham, 910 S.W.2d 448, 456 (Tenn. Crim. App. 1995), overruled on
other grounds by State v. Hooper, 29 S.W.3d 1, 9 (Tenn. 2000).

        In determining whether to grant judicial diversion, the trial court must consider (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; (6) the deterrence value to the defendant and others; and (7) whether
judicial diversion will serve the ends of justice. Electroplating, 990 S.W.2d at 229; State v.
Parker, 932 S.W.2d 945, 958 (Tenn. Crim. App. 1996). In addition, “the record must reflect
that the court has weighed all of the factors in reaching its determination.” Electroplating,
990 S.W.2d at 229. If the trial court refused to grant judicial diversion, it should state in the
record “the specific reasons for its determinations.” Parker, 932 S.W.2d at 958-59.

        Although the trial court found that the deterrence value to the Defendant and to others
was not especially strong in this case, the court found that the Defendant’s lack of credibility
made it difficult to believe the Defendant would be rehabilitated on judicial diversion. A
finding that a defendant is dishonest provides a sufficient basis “to give the trial court the
benefit of discretion” in deciding whether to grant or deny judicial diversion. See State v.
Dowdy, 894 S.W.2d 301, 307 (Tenn. Crim. App. 1994). Likewise, the court found that
judicial diversion would not serve the public interest because the Defendant was not candid
about the circumstances surrounding his court martial or the circumstances surrounding the
instant offense. We conclude that the trial court did not abuse its discretion by denying the
Defendant’s request for judicial diversion. The Defendant is not entitled to relief.

        In consideration of the foregoing and the record as a whole, we affirm the judgment
of the trial court.




                                            ____________________________________
                                            JERRY L. SMITH, JUDGE

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