                                                                                         08/10/2020
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                                  June 9, 2020 Session

          STATE OF TENNESSEE v. DEMARIUS JEROME PITTS

                Appeal from the Circuit Court for Williamson County
                   No. IICR180442 Deanna B. Johnson, Judge
                     ___________________________________

                           No. M2019-00866-CCA-R3-CD
                       ___________________________________


Defendant, Demarius Jerome Pitts, pleaded guilty to possession of a Schedule IV drug
with intent to sell or deliver. After denying judicial diversion, the trial court sentenced
Defendant to serve three years to be suspended to supervised probation. On appeal,
Defendant contends that the trial court erred when it denied his request for judicial
diversion. After review, we affirm the judgment of the trial court.

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

THOMAS T. WOODALL, J., delivered the opinion of the court, in which ROBERT L.
HOLLOWAY, JR. and TIMOTHY L. EASTER, JJ., joined.

Vanessa Pettigrew Bryan, District Public Defender; and M. Todd Ridley, Assistant Public
Defender (on appeal); and James John Croley, Assistant Public Defender (at trial), for the
appellant, Demarius Jerome Pitts.

Herbert H. Slatery III, Attorney General and Reporter; Samantha L. Simpson, Assistant
Attorney General; Kim R. Helper, District Attorney General; and Sean Bernard Duddy,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                       OPINION


Procedural background

       On July 9, 2018, Defendant was indicted by the Williamson County Grand Jury
for possession of Xanax, a Schedule IV drug, with intent to sell or deliver; possession of
marijuana; driving with a suspended license; and failure to stop at a stop sign. On
February 11, 2019, Defendant entered a guilty plea to possession of a Schedule IV drug
with intent to sell or deliver, a Class D felony, and the remaining charges were dismissed.
As part of the negotiated plea agreement, the parties agreed that a hearing would be
conducted “to decide the sole issue of whether the Defendant receives diversion pursuant
to T.C.A. 40-35-313.” The agreement recommended a three-year probated sentence if
the trial court denied diversion.

      At Defendant’s plea hearing, the State gave the following factual basis for
Defendant’s guilty plea:

              On the date contained within the indictment, officers with the
        Franklin Police Department Flex Unit were patrolling the Galleria Mall
        located here in the Williamson County area. During their patrol, Your
        Honor, they did observe two vehicles come together. One of them being
        a vehicle driven by the Defendant. And upon making observation of the
        two vehicles they did observe an individual get out of their [sic] vehicle
        and enter into the passenger seat of the Defendant’s vehicle, stay for a
        short period of time, and then enter back into the original vehicle. The
        Defendant’s vehicle at that point then drove off.

              The officers recognized that this activity was consistent with illegal
        drug activity and therefore followed Defendant’s vehicle.               The
        Defendant’s vehicle then failed to stop completely at a stop sign – a
        traffic violation for which the officers then pulled the Defendant’s
        vehicle over.

             Upon running the Defendant’s driver’s license it was learned that
        the Defendant’s license was suspended. Based on the positioning of the
        vehicle, being a traffic hazard, the vehicle was towed. An inventory
        pursuant to the towing of that vehicle did reveal a plastic bag of
        approximately 100 Xanax located in the center console area of the
        vehicle. A T.B.I. scientist would testify that those Xanax are indeed a
        Schedule IV controlled substance. Expert testimony would be that the
        possession of a hundred Xanax without a prescription is a quantity
        consistent with intent to sell or deliver.

       On April 22, 2019, the trial court conducted a hearing to determine whether
Defendant should be placed on judicial diversion. A presentence report was admitted
into evidence. Defendant testified that he had recently moved back to live with his
parents after he and his girlfriend separated. Defendant graduated from high school in
2011. He attended Tennessee State University from 2011 to 2013, and he attended
Nashville State Community College from 2014 to 2016. Defendant testified that he
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stopped attending college because of “transportation issues.” Defendant testified that he
had plans to return to college to study nursing.

       Defendant testified that he began having seizures “toward the end of [the prior]
year[,]” and he was taking medication for his seizures. Defendant testified that he was
shot in the back of his neck during “an altercation [where an]other vehicle just opened
fire on [his] car.” Defendant testified that the bullet was still in his neck and he did not
know whether that was the cause of his seizures.

        At the time of his arrest, Defendant was employed full-time as a forklift operator.
At the time of sentencing, Defendant had been unemployed for one year. Defendant
testified that he had applied for jobs that did not require him to operate machinery, but he
was “just trying to get [his] health together.” He testified that he had outstanding student
loan debt and that he had difficulty affording his seizure medication. He testified that he
did not have health insurance.

        Defendant acknowledged that he began using marijuana when he was 18 years
old. Defendant was 26 years old at the time of the judicial diversion hearing. He
testified that he used marijuana prior to entering his guilty plea in February 2019.
Defendant testified that the 100 tablets of Xanax he was charged with being in possession
of were given to him. He acknowledged that he intended to sell the Xanax. He testified
that he was “pressured into doing it.” He testified that he lived in an area where people
deal drugs, and “they see [he’s] down and needing help, so that’s how they try to offer to
help.”

       The State presented no witnesses at the hearing. At the beginning of the hearing,
the State submitted the probation investigative report as an exhibit, and with no objection
by defense counsel, the report was admitted as an exhibit. The assistant district attorney
immediately announced, “[u]pon entering that exhibit, the State rest[s].”

       Defendant was the only witness who testified, and the State cross-examined him.
At the conclusion of the hearing, the State declined to present any argument and
announced to the trial court, “State stands on testimony of the witness, Your Honor, and
the presentence report.”

       Defense counsel presented a brief argument, but like the State, did not specifically
argue what facts addressed any of the factors which a trial court is required to consider in
making the determination of whether a defendant should be granted judicial diversion if
the defendant is statutorily eligible for such relief.



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        The trial court’s ruling, stated on the record, is relatively brief, comprising three
pages of transcript. The trial court did make some findings of fact. The trial court found
that Defendant was eligible to be considered for judicial diversion. Defendant admitted
that his driver’s license had been suspended in the past. Defendant had “sixteen prior
arrest[s] or encounters with law enforcement[,]” and on one of them in 2016, “he had to
pay a find and court cost[s].” Defendant used marijuana shortly before his guilty plea in
the case sub judice. However, the trial court acknowledged Defendant had no prior
criminal record.

       The trial court stated it had concerns about Defendant’s credibility by “not
remembering, conveniently not remembering a lot of things that I feel like he should have
remembered.” The trial court found that Defendant had driven in the past while his
license was suspended.

        The trial court, in examining factors that must be considered, specifically made the
following conclusions. As to amenability to correction, the trial court concluded “that
may be where those sixteen prior run-ins with law enforcement would come into play.”
As to Defendant’s social history, the trial court stated that not a lot of proof was
presented, but that “[w]e’ve heard about him living with his family and that kind of
thing.”

       As to physical and mental health, the trial court found that he began to suffer
seizures six or seven months prior to the judicial diversion hearing, and he had been shot
in the back of his neck three years prior to the hearing. The trial court stated it had to
look at deterrence as to Defendant and others, but made no factual findings regarding
deterrence and did not apply deterrence in favor of or against granting diversion.

      As to Defendant’s attitude and behavior since his arrest, the trial court considered
Defendant’s act of smoking marijuana shortly before his guilty plea. The trial court
determined its findings of credibility problems with Defendant applicable to his
emotional stability. The trial court found Defendant had a good work record.

       As to marital stability, the trial court noted Defendant is single, but did not have
very much family responsibility.           Concerning Defendant’s attitude about law
enforcement and enforcement of laws, the trial court pointed out Defendant’s use of
marijuana while this case was pending and that he had driven prior to his arrest while his
license had been suspended.

        Without specifically weighing factors that favored judicial diversion or weighing
factors that went against granting diversion the trial court concluded by stating its ruling
as follows:
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        The 40-35-313 [s]tatute is supposed to be a rare, sort of a gift, and apply
        in very limited situations. This is not that kind of limited situation in my
        opinion. So, respectfully, the request for judicial diversion is denied.

      Pursuant to the recommendation in the plea agreement, the trial court sentenced
Defendant to three years in the Tennessee Department of Correction as a standard
offender. The sentence was suspended to supervised probation.

Analysis

       On appeal, Defendant contends that the trial court abused its discretion when it
denied his request for judicial diversion. He contends that the trial court failed to
properly consider and weigh the applicable factors, and the court’s ruling was “nothing
more than a cursory and perfunctory recitation of the Parker and Electroplating factors.”
Defendant also contends that the trial court erred by considering prior charges that were
dismissed in determining that Defendant lacked amenability to correction.

       The trial court found, and the parties agree, that Defendant is qualified for judicial
diversion under the requirements of Tennessee Code Annotated section 40-35-
313(a)(1)(B) (2019). However, “a ‘qualified’ defendant is not necessarily entitled to
diversion. Whether to grant judicial diversion is left to the discretionary authority of the
trial courts.” State v. King, 432 S.W.3d 316, 326 (Tenn. 2014). Following a
determination that the defendant is eligible for judicial diversion, the trial court must
consider:

        (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.

State v. Electroplating, Inc., 990 S.W.2d 211, 229 (Tenn. Crim. App. 1998) (citing State
v. Parker, 932 S.W.2d 945, 958 (Tenn. Crim. App. 1996) ); see also King, 432 S.W.3d at
326 (reaffirming that the Electroplating requirements “are essential considerations for
judicial diversion”).

       The trial court must weigh the factors against each other and explain its ruling on
the record. King, 432 S.W.3d at 326 (citing Electroplating, 990 S.W.2d at 229). If the
trial court adhered to these requirements, “the determination should be given a
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presumption of reasonableness on appeal and reviewed for an abuse of discretion.” Id. at
319. This court will “not revisit the issue if the record contain[ed] any substantial
evidence supporting the trial court’s decision.” Electroplating, 990 S.W.2d at 229; see
also Parker, 932 S.W.2d at 958.

         A trial court is “not required to recite all of the Parker and Electroplating factors
when justifying its decision on the record in order to obtain the presumption of
reasonableness.” King, 432 S.W.3d at 327. However, “the record should reflect that the
trial court considered the Parker and Electroplating factors in rendering its decision and
that it identified the specific factors applicable to the case before it.” Id. If the trial court
“fails to consider and weigh the applicable common law factors, the presumption of
reasonableness does not apply and the abuse of discretion standard . . . is not
appropriate.” Id. “In those instances, the appellate courts may either conduct a de novo
review or . . . remand the issue for reconsideration.” Id. at 328.

       Defendant contends that the trial court did not adequately weigh the required
factors. While the trial court did make findings of fact and identified facts that applied to
the factors, there is no explicit weighing of the factors by the trial court. Accordingly, we
agree with Defendant. However, even though the trial court failed to explicitly weigh the
factors, the findings of fact made by the trial court and its application of those facts to
certain factors allows this court to conduct a de novo review.

       In the preparation of the presentence report, Defendant admitted that he had used
marijuana since the age of 18 and had used it “a few days prior to his [February 11, 2019]
court appearance.” Defendant had no prior convictions. He had been charged with
driving with a revoked or suspended license nine times prior to the current offense. The
presentence report also shows that Defendant had previously been charged with drug
paraphernalia, possession of drugs, and theft. However, the State offered no evidence to
show any violation of the law by Defendant involving these charges, even by a
preponderance of the evidence. Thus, the trial court erred by relying on the prior charged
offenses to deny judicial diversion. The trial court considered Defendant’s employment
history and determined that he had a “good work record.”

       In our de novo review, we conclude that Defendant’s lack of credibility, as found
by the trial court, weighs heavily against Defendant’s amenability to correction, as does
his use of marijuana while this felony drug charge was pending. As to Defendant’s prior
criminal conduct (without convictions there is not a criminal record), the appropriate
facts found by the trial court was Defendant’s driving while his license was suspended
and his use of marijuana. Defendant’s physical and mental health is slightly in favor of
granting judicial diversion, with his suffering from seizures. The State offered no
evidence and made no argument of a need to deny judicial diversion based upon
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deterrence to Defendant or the public. This weighs in favor of granting judicial
diversion, but should have only slight weight due to the circumstances of the offense.
Defendant was found in possession of a significant number of pills of a controlled
substance, just minutes after being observed in a situation that appeared to be a drug sale.
Defendant’s social history weighs neither in favor of nor against granting judicial
diversion. The trial court found that Defendant had a good work record. This weighs
somewhat in favor of his social history as well as the factor that judicial diversion could
serve the ends of justice as to the interests of the public as well as Defendant. Defendant
testified that his seizures prevented him from performing some of his prior jobs, but he
also testified that he chose not to work while the charges in this case were pending. In
other words, Defendant’s good work record diminished during the approximately seven
months the charges were pending.

       Judicial diversion, if granted and successfully completed, allows for dismissal of
all the charges, setting aside the guilty plea, and expungement of the records of the
offenses. If granted judicial diversion, a defendant can be restored to having no criminal
record. Lawful conduct during the period of probation is a requirement, with virtually no
exceptions. Hence, a defendant’s amenability to correction is the cornerstone as to a
successful completion of judicial diversion. We conclude upon de novo review that
Defendant’s strong lack of amenability to correction, as found in the findings of fact,
substantially outweighs all factors which marginally weigh in favor of granting judicial
diversion. Accordingly, judicial diversion must be denied.

       Lastly, Defendant asserts that the trial court’s statement that a grant of judicial
diversion is a “rare gift” indicates that the trial court applied an incorrect legal standard
and was a blanket denial of diversion. We disagree. While the trial court made a poor
choice of words that are inapplicable to consideration of judicial diversion (the General
Assembly has never explicitly or implicitly determined that judicial diversion is a “gift”),
since we choose to make a de novo review, this comment is harmless. Defendant relies
on State v. Teresa Turner, M2013-00827-CCA-R3-CD, 2014 WL 310388, at *6 (Tenn.
Crim. App. Jan. 29, 2014), no perm. app. filed. However, that case is distinguishable. In
that case, a panel of this court reversed the denial of judicial diversion because the trial
court’s ruling suggested a categorical exclusion of diversion when a death was involved.
The panel stated, “[i]n our view, the trial court’s denial of judicial diversion based solely
upon the death of the victim is an abuse of discretion.” In this case, the trial court did not
categorically deny diversion based solely on one improper factor.

       Upon de novo review, we conclude that the record supports the trial court’s denial
of judicial diversion. Defendant is not entitled to relief.



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                                   CONCLUSION

        In accordance with the aforementioned reasoning and authorities, we affirm the
trial court’s judgment.


                                 ____________________________________________
                                 THOMAS T. WOODALL, JUDGE




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