         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                           Assigned on Briefs December 4, 2007

                 STATE OF TENNESSEE v. WILLIE McDONALD

                      Appeal from the Circuit Court for Madison County
                              No. 06-451   Donald Allen, Judge



                    No. W2007-01001-CCA-R3-CD - Filed March 6, 2008


The defendant, Willie McDonald, entered a best interest guilty plea to possession of marijuana with
the intent to “sell/deliver,” a Class E felony. Under the terms of his plea agreement, he received a
Range I, standard offender sentence of two years on probation. The defendant now appeals the trial
court’s denial of judicial diversion. We hold that the trial court erred in denying judicial diversion,
and we reverse the judgment of the trial court. We remand the case for entry of an order placing the
defendant on diversion, provided the defendant is not disqualified pursuant to Tennessee Code
Annotated section 40-35-313(a)(3).

   Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed, Case
                                        Remanded

JOSEPH M. TIPTON , P.J., delivered the opinion of the court, in which DAVID G. HAYES and ROBERT
W. WEDEMEYER , JJ., joined.

George Morton Googe, District Public Defender, and Greg D. Gookin, Assistant Public Defender,
for the appellant, Willie McDonald.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General;
James G. Woodall, District Attorney General; and Shaun A. Brown, Assistant Attorney General, for
the appellee, State of Tennessee.

                                             OPINION

       The record reflects that the petitioner was indicted on two counts, possession of more than
.5 ounce of marijuana with the intent to sell (Count 1) and possession of more than .5 ounce of
marijuana with the intent to deliver (Count 2), and that the two counts were merged into one
conviction. See T.C.A. § 39-17-417. The facts underlying these charges were summarized at the
plea hearing as follows:
               May the 15th, 2006, officers were looking for a shooting suspect.
               They knocked on Mr. McDonald’s apartment door as well as other
               apartment doors over on Hollywood Drive. When they knocked on
               Mr. McDonald’s door, he opened the door and the officer
               immediately smelled marijuana and saw some marijuana sitting on
               the kitchen table. Mr. McDonald then voluntarily told the officer that
               he had some more marijuana in the house and showed it to the officer
               who did then recover that marijuana. I believe that was in a safe area
               in the house. All of that tested positive. There was also . . . a
               marijuana cigarette. . . . I believe there were five [cigarettes]. They
               weighed the marijuana that was loose . . . [and] between the table and
               the other marijuana that Mr. McDonald voluntarily turned over to law
               enforcement was 135 grams of marijuana, a Schedule VI controlled
               substance, as tested positive by the T.B.I. Crime Lab to be marijuana.
               . . . All of this occurred in Madison County, Tennessee.

The trial court accepted the best interest plea agreement and held a hearing on the issue of judicial
diversion.

         At the judicial diversion hearing, the defendant testified that he was originally from Chicago,
Illinois, and that he came to Tennessee to attend Lane College on a football scholarship in 1998. He
said he left the college after one semester because he was not happy there and returned to Illinois.
He said he joined the military but was given a medical discharge after being in basic training for six
months. He said he also worked while he was in Illinois. He said he returned to Tennessee in 2001
to enroll at Lane College. He said he needed to retake one class in order to graduate, which he
planned on doing the upcoming fall semester. He said he had been working before he was arrested
and continued working after he was released from jail. He said he worked while he went to school.
Before going to jail, he worked at Bruce Hardwood Floors, but he said he was discharged from there
for missing workdays due to jail. He said he worked at Royston until a week before the hearing,
when he started a new job at Rusken Packaging. He said he worked twelve hours a day, seven days
a week at Royston and eight to ten hours a day, five days a week at Rusken.

       The defendant testified that he planned to become a physical education teacher and that he
had community service experience at an elementary school. He said he would also like to become
a coach and worked as a student coach for the baseball team at Lane College. He said he was
engaged and planning to marry on January 8, 2008. He said his fiancée would soon graduate from
college and hoped to become an assistant manager at Wal-Mart. He said he planned to continue
working in Jackson for two years.

        The defendant testified that, to his knowledge, he had no criminal convictions in his record
other than the current marijuana conviction. He said a charge against him for shoplifting was
dismissed in 2001. He said that he had not “touched a drug” since his arrest and that he took and
passed drug tests administered through his employer. He said that he moved out of the Brookfield


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Apartments, where he was living when he was arrested, and that his parents came from Illinois to
help him move. He said his parents are both retired from their professions; his mother was a school
teacher and his father repaired computers. He said his parents were a good influence on him. He
said that his obtaining diversion and not having a felony conviction on his record was “the difference
between [him] teaching and not teaching.”

        Upon questioning by the court, the defendant testified that he did not complete the courses
he needed to graduate because of his demanding work schedule at Royston. He said he had paid fees
to the public defender that the court had ordered.

        The defendant’s fiancée, Tianequa Haywood, testified that she was a student at Union
College set to graduate in the upcoming month. She said she and the defendant had dated for over
a year and that she was in a managerial internship program at Wal-Mart that she hoped would lead
to a position as a manager at the store. She said she would do everything she could to support the
defendant’s successful completion of judicial diversion. She said the defendant had a good work
ethic and had been working since they began dating. She said she would not tolerate the defendant
using drugs. She said the defendant had a three-year old son who lived with the boy’s mother in
Jackson. She said the defendant paid child support, although she did not know how much.

        After hearing the testimony and arguments by counsel, the trial court denied judicial
diversion. The trial court stated:

               I have heard testimony that he has attended college. He has not quite
               graduated yet. Apparently only lacks about four hours to graduate,
               but for whatever reason he was apparently enrolled at Lane College
               this semester . . . , but apparently he just didn’t follow through and
               didn’t obtain four hours in order to graduate from Lane College.

                        Of course, I do find in his behalf he has been working. He
               tells me he’s been working. He’s working about five days a week, 8
               to 10 hours a day, which is good. I certainly give that consideration
               in this case. I believe he testified that he has no prior criminal record
               other than apparently there was a shoplifting that was dismissed back
               in 2001. I don’t really hold that against him because that was
               dismissed. I believe also previously he told me under oath that there
               may have been a violation of bad check law at some point that was
               also dismissed. You know, relatively has no prior criminal record.

                      Now, you know, certainly the Court finds that the defendant
               is amenable to rehabilitation. The State has recognized that. They
               have agreed to place him on probation for this two year period of
               time. The question really comes down to whether or not he is an
               appropriate candidate for diversion.


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                        Given the circumstances the Court has been presented with
                here in this case, again, you know, a relatively large amount of
                marijuana that was found there in this apartment which I wouldn’t say
                he has admitted to it, but he has accepted responsibility that this was
                possessed with intent to sell it or deliver. The Court finds that
                judicial diversion in this particular case is not in the best interest of
                the public and would not serve the interest of justice in this case.

                        I’m just not quite ready to start putting people on judicial
                diversion for possessing a relatively large amount of marijuana. At
                least in this case, I just don’t feel like Mr. McDonald qualifies for
                judicial diversion. . . .

         On appeal, the defendant challenges the trial court’s denial of judicial diversion, arguing that
the court did not consider all the relevant factors and improperly denied diversion solely on the basis
of the circumstances of the offense. The state counters that the trial court considered relevant factors
and did not abuse its discretion in denying diversion.

         A defendant is eligible for judicial diversion when he or she is found guilty or pleads guilty
to a Class C, D, or E felony and has not previously been convicted of a felony or a Class A
misdemeanor. See T.C.A. § 40-35-313(a)(1)(B). 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. Id. When the probationary period expires, if the defendant has
completed probation successfully, then the trial court will discharge the defendant and dismiss the
prosecution with no adjudication of guilt. See id. at (a)(2). The defendant may then apply to have
all records of the proceedings expunged from the official records. See id. at (b). A person granted
judicial diversion is not convicted of an offense because a judgment of guilt is never entered. See
id. at (a)(1)(A). Because the decision to grant judicial diversion lies within the sound discretion of
the trial court, 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); State v. Bonestel, 871 S.W.2d
163, 168 (Tenn. Crim. App. 1993), overruled on other grounds by State v. Hooper, 29 S.W.3d 1, 9
(Tenn. 2000). An abuse of discretion exists if the record contains no substantial evidence to support
the denial. State v. Hammersley, 650 S.W.2d 352, 356 (Tenn. 1983); Bonestel, 871 S.W.2d at 167.

         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); Bonestel, 871 S.W.2d at 168. 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


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for its determinations.” Parker, 932 S.W.2d at 958-59. If the trial court “based its determination on
only some of the factors, it must explain why these factors outweigh the others.” Electroplating, 990
S.W.2d at 229. We also note that “Tennessee courts have recognized the similarities between
judicial diversion and pretrial diversion and, thus, have drawn heavily from the case law governing
pretrial diversion to analyze cases involving judicial diversion.” State v. Cutshaw, 967 S.W.2d 332,
343 (Tenn. Crim. App. 1997).

         First, we point out that the defendant was convicted of a Class E felony and had no prior
felony convictions and thus qualifies for judicial diversion. Second, we note that the trial court did
not consider all of the factors listed above, although it did consider some factors that it found to
weigh in the defendant’s favor, including the defendant’s work, amenability to rehabilitation, and
lack of a criminal history. However, the trial court still denied judicial diversion based on the
circumstances of the offense, particularly the amount of marijuana recovered from the defendant,
and, based on this factor, concluded that diversion would not be in the best interest of the public.
The trial court did not, however, consider other relevant factors, such as the defendant’s social
history in general and the deterrence value of denying diversion. Nor do we view the trial court’s
statements that it was “not quite ready to start putting people on judicial diversion for possessing a
relatively large amount of marijuana” to be an adequate explanation of its denial of diversion and,
in particular, why this factor outweighed the factors favoring diversion. Therefore, we will conduct
a de novo review to determine “whether the trial court reached the correct result notwithstanding its
failure to explain its reasoning.” Electroplating, 990 S.W.2d at 229.

        Several factors weigh in favor of the defendant’s request for diversion. The trial court
discussed only a few of these, which were that the defendant was working full-time, that he had no
prior criminal record, and that he was amenable to correction. Additional facts related to the
defendant’s social history also support his receiving diversion, including his pending graduation
from college and support from his parents and fiancée. The defendant and his fiancée also testified
that the defendant had not used drugs since his arrest, and the defendant testified that he passed drug
tests for his work and moved away from the environment in which he was living when the offense
occurred. In addition, judicial diversion would be sufficient deterrence for the defendant in light of
the defendant’s plans to become a school teacher and his awareness that a felony conviction, which
would result from his inability to successfully complete the diversion program, would halt those
plans. The record is silent as to the defendant’s physical and mental health, so we give this factor
no weight.

       The trial court found only one factor that weighed against granting diversion: the
circumstances of the offense and, in particular, the amount of marijuana in the defendant’s
possession when he was arrested. We agree that the amount of marijuana possessed by the defendant
weighs against his receiving diversion. However, there are also circumstances of the offense which
support the defendant’s request for judicial diversion, including that he readily cooperated with
police and voluntarily assisted them in seizing the marijuana. Furthermore, while this court has
upheld denials of diversion based on the large quantities of drugs involved in the offenses, the
amount in the current case–135 grams or approximately 4.7 ounces–is not of such a significant


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quantity to outweigh other factors. See State v. Martin Conley, C.C.A. 03C01-9702-CC-00056,
Rhea County, slip op. at 5 (Tenn. Crim. App. Mar. 5, 1998) (denial of pretrial diversion proper when
based on large quantity of marijuana recovered–nineteen pounds–together with prior criminal history
and lack of candor, which suggest a lack of amenability to correction); State v. Don Fleming, C.C.A.
No. 01-C-01-9009-CR-00217, Sumner County, slip op. at 2 (Tenn. Crim. App. Apr. 11, 1991)
(pretrial diversion properly denied based on district attorney’s conclusion that amount of marijuana
possessed–three pounds–“was indicative of a significant participation in unlawful drugs” and that
“the need for deterrence was compelling”); see also State v. James T. Parks, C.C.A. No. 86-1-III,
Rutherford County, slip op. at 2 (Tenn. Crim. App. July 25, 1986) (holding that no substantial
evidence supported district attorney’s denial of diversion and stating that the amount of marijuana
recovered from defendant–three ounces–was “not substantial evidence of more extensive criminality
than ha[d] been charged and admitted”). In our view, the ends of justice do not require denying
judicial diversion in this case, nor do the negative circumstances of the case outweigh the many other
factors in the defendant’s favor. See State v. Washington, 866 S.W.2d 950, 951 (Tenn. 1993)
(“while the circumstances of the case and the need for deterrence may be considered as two of many
factors, they cannot be given controlling weight unless they are ‘of such overwhelming significance
that they [necessarily] outweigh all other factors’”) (quoting State v. Markham, 755 S.W.2d 850, 853
(Tenn. Crim. App. 1988)); see also State v. Curry, 988 S.W.2d 153 (Tenn. 1999) (agreeing with trial
court that prosecutor erred in denying diversion solely on basis of circumstances of the offense,
including the large amount of money stolen by defendant and long duration of offense, when several
other factors weighed in favor of diversion).

        In making these determinations, we note that the evidence in the record comes only from the
circumstances of the offense, as announced at the plea hearing, and the testimony of the defendant
and Ms. Haywood. However, the state did not question the credibility of these witnesses, nor did
the court question their credibility in its findings. Furthermore, we also recognize some weaknesses
in the defendant’s evidence, particularly as it relates to his college history, which began in 1998 but
was not yet concluded at the time of the diversion hearing in 2007. There was evidence that the
defendant left college once and later did not graduate when he expected because of poor grades.
However, although the trial court noted that the defendant “didn’t follow through and didn’t obtain”
the credits needed to graduate on time, it did not state that this finding was a factor considered in its
denial of diversion. Rather, the only factor the trial court expressly considered relative to the denial
was the amount of marijuana in the defendant’s possession, and we have concluded that this factor
is not of such significance as to outweigh other factors.

        In light of the number of factors supporting a grant of diversion, we conclude that the
defendant is an optimal candidate for judicial diversion. We note, in particular, the defendant’s
amenability to correction, which the trial court also found. See Curry, 988 S.W.2d at 157 (stating
that in deciding whether to grant pretrial diversion, focus should be on defendant’s amenability to
correction). The record does not contain sufficient evidence supporting the trial court’s denial of
diversion. We hold that the trial court erred in denying diversion, and we remand the case for an
order placing the defendant on diversion, provided a certificate is obtained from the Tennessee



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Bureau of Investigation reflecting that the defendant is not disqualified from diversion. See T.C.A.
§ 40-35-313(a)(3).

        We do note, though, that the judgment of conviction entered by the trial court reflects a
conviction offense of “poss[ession] of marijuana with the intent to sell/deliver.” This, however, is
not an offense specified in our Code. Rather, our Code states, “It is an offense for a defendant to
knowingly . . . [p]ossess a controlled substance with the intent to manufacture, deliver or sell the
controlled substance.” T.C.A. § 39-17-417(a)(4) (emphasis added). While the judgment of
conviction should have reflected the merger of Count 2 with Count 1, it should have stated only one
offense, e.g., possession of marijuana with the intent to sell.

       Based on the foregoing and the record as a whole, we reverse the trial court’s judgment
denying judicial diversion and remand the case. Provided that the defendant is not disqualified
pursuant to law, the trial court shall enter an order placing the defendant on judicial diversion “on
such reasonable conditions as it may require” and for a time period not to exceed the maximum
sentence length allowed for a Class E felony. T.C.A. § 40-35-313(a)(1)(A), (a)(3).




                                                      ___________________________________
                                                      JOSEPH M. TIPTON, PRESIDING JUDGE




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