        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                           Assigned on Briefs June 24, 2014

          STATE OF TENNESSEE v. JENNIFER LEIGH SALYERS

                 Appeal from the Criminal Court for Sullivan County
                         No. S59089    R. Jerry Beck, Judge




                  No. E2013-02332-CCA-R3-CD - Filed June 25, 2014


The Defendant, Jennifer Leigh Salyers, pled guilty to two counts of reckless aggravated
assault. The trial court denied the Defendant’s application for judicial diversion and
sentenced her to serve sixty days in jail, followed by two years of supervised probation. The
Defendant asserts that the trial court erred when it denied her application for judicial
diversion and a sentence of full probation. After a thorough review of the record and
applicable law, we affirm the trial court’s judgments.

  Tenn. R. App. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed

R OBERT W. W EDEMEYER, J., delivered the opinion of the Court, in which J OSEPH M. T IPTON,
P.J. and D. K ELLY T HOMAS, J R., J., joined.

Andrew J. Gibbons, Blountville, Tennessee (on appeal) and Frank L. Slaughter, Jr., Bristol,
Tennessee (at hearing) for the appellant, Jennifer Leigh Salyers.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Senior Counsel;
Barry Staubus, District Attorney General; and Julie Canter, Assistant District Attorney
General for the appellee, State of Tennessee.

                                       OPINION
                                I. Background and Facts


      This case arises from burn marks found on the two-year-old victim at the time of a
custody exchange between the victim’s parents. A Sullivan County grand jury indicted the
Defendant, the victim’s mother, for aggravated child abuse and aggravated child
endangerment. On May 13, 2013, the Defendant entered an Alford plea 1 of guilty to two
counts of the reduced charge of reckless aggravated assault. At this hearing, the State offered
the following recitation of the facts in support of the trial court’s acceptance of the guilty
plea:

        [A] referral was made in regards to a minor child, A.S., in regards to burn
        marks on his right inner thigh and right forearm on June 29 th , 2010. The child
        had gone to visit his mother on Friday morning, June 25 th , and was supposed
        to stay until Sunday, June 27th.

               According to the child’s father, Brad Salyers, his mother, Judy Salyers,
        took the child to the Defendant’s, who’s the mother, Jennifer Salyers’
        residence. When she went back on Sunday to pick up the child, the
        grandmother stated that the Defendant and the victim were not at the residence,
        and she didn’t know where they were.

               She stated that she notified her son of the developments, and ended up
        having a deputy with the Sullivan County Sheriff’s Department go to the
        residence to obtain his son pursuant to the custody order, and this occurred on
        Tuesday June 29th , 2010.

               When Brad Salyers arrived, the Defendant pointed out cigarette burns
        over the victim’s body to the sheriff’s deputy. Brad Salyers picked up the
        victim and immediately took him to Johnson Memorial Hospital in Abingdon,
        Virginia.

               Once at the hospital, the victim was seen by Dr. McBride, who dated
        the burn on his leg and arm as being approximately two to three days old,
        which mean[t] that the burns would have occurred on Saturday or Sunday
        during the time that the child victim was in the custody of his mother, the
        Defendant, Jennifer Salyers. Dr. McBride was also able to diagnose the burns
        as being intentional due to the locations, and as if the child had been seared by
        perhaps hot glass or metal.




        1
         See North Carolina v. Alford, 400 U.S. 25 (1970), in which the United States Supreme Court
discussed the right of an accused to plead guilty in his best interest while maintaining his or her actual
innocence.


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Finding a factual basis for the guilty plea, the trial court accepted the Defendant’s Alford plea
of guilty to two counts of reckless aggravated assault. The trial court did not enter a sentence
at that time because the Defendant was seeking judicial diversion. The parties agreed that,
if the Defendant was denied judicial diversion, she would be sentenced to concurrent two-
year sentences for her convictions, with the trial court to determine the manner of service.

       At the sentencing hearing, the trial court admitted into evidence the presentence report
and victim impact statement. The victim impact statement, written on behalf of the victim
by his father on August 1, 2013, stated:

       This crime has affected me, [the victim], and my entire family. [The victim]
       has extreme difficulty feeling safe in any circumstance. He often wakes up in
       the middle of the night terrified of a multitude of things. [The victim] has
       intense feelings of anxiety that I feel have resulted from what happened to him
       on that day.

       [The victim] received 3 long lasting scars on his arm and leg. I feel he has
       mental scars that may take years to erase.

The victim impact statement also addressed a subsequent event when the Defendant violated
court supervision orders.

       On August 10th , 2013 I found [the victim] with [the Defendant] at Walmart.
       (Exit 7) [The Defendant]’s visitation is supposed to be supervised by [the
       victim’s] grandmother ([the Defendant]’s mom). I called the police who filed
       a report and let [the victim] go home with me.

       This is the first time [the Defendant] has been caught but [the victim] tells me
       this is a common occurance [sic].

       He has told me he woke up in the middle of the night alone with [the
       Defendant’s boyfriend] and that he was scared to death.

       Numerous occasions he has told me he has slept at [the Defendant]’s friend[’]s
       house without Nana.

      The trial court also entered into evidence a January 16, 2012, doctor’s report from a
physical examination of the victim which stated:

       Skin of the right arm and right leg is completely clear except for a crisscross

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       scar o[n] [the victim’s] right lower medial thigh which was the exit site of his
       Broviac catheter [from an unrelated procedure].

        The trial court reviewed the Defendant’s prior arrest history which included: failure
to obey a traffic light, driving while license suspended, improper registration of license
plates, uninspected vehicle, stalking, safety belt violation, no operator’s license, failure to
display license plates, reckless driving amended to speeding, possession of a radar detector,
and defective equipment. About the arrest record, the trial court stated, “Individually those
aren’t very strong, but she’s had a bunch of them. I think it has some weight. Very little
weight, but some weight.”

       The trial court noted the Defendant’s academic history, which included college
attendance and the Defendant’s “sporadic” employment history. The Defendant admitted in
her presentence investigation interview to opiate addiction for which she was seeking
treatment. The Defendant first entered treatment for this addiction in 2005 and successfully
completed the program in January 2008. After a relapse, she sought treatment in March
2008. As of September 2012, she was receiving treatment at Recovery Associates in Bristol,
Tennessee. She was prescribed suboxone to address the side effects of withdrawal from
opiates, and she hoped to no longer be taking Suboxone by the end of 2013. The trial court
noted that the victim’s seeking treatment weighed in her favor but expressed concern
regarding her long-term problem with opiates.

       The Defendant stipulated that she had incurred a contempt of court conviction after
violating a juvenile court order requiring supervision of her visitation with the victim. The
State offered certified documents of the juvenile court’s contempt finding of August 10,
2013.

       Joann Kennedy, the Defendant’s mother, testified on the Defendant’s behalf. Ms.
Kennedy stated that the Defendant had lived with her for the past three years and that the
juvenile court had ordered her to supervise the Defendant’s visits with the victim since 2011.
She denied seeing any scars on the victim’s body other than the surgical scars he received
from unrelated treatment for birth defects. Ms. Kennedy described the victim’s parents’
divorce as “very bitter.” About the Defendant’s violation of the supervision order, Ms.
Kennedy explained that she had asked the Defendant to go to the store to buy nausea
medicine and Gatorade. She recalled that “[the victim] threw a fit to go with [the
Defendant],” so she allowed the Defendant to take the victim unsupervised because she “saw
no harm in it.” Ms. Kennedy agreed that she was to monitor the Defendant’s visits with the
victim. Ms. Kennedy testified that the Defendant’s “main priority” is to complete her
education and teach elementary school.



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       After considering the facts of the case and “negative and positive factors,” the trial
court found that the contempt of court conviction for disobeying the visitation order was
“great enough” to deny judicial diversion.

        The trial court then considered the Defendant’s request for an alternative sentence.
The trial court considered the circumstances related to the offense, the injury to a young
child, and the Defendant’s subsequent refusal to comply with supervision orders, and denied
the request to impose a sentence involving full probation. The trial court ordered the
Defendant to serve sixty days in the Sullivan County jail followed by two years of supervised
probation. It is from these judgments that the Defendant now appeals.

                                         II. Analysis

       The Defendant argues on appeal that the trial court erred when it failed to consider the
relevant factors for decisions involving the grant of judicial diversion. She also asserts that
the trial court failed to “give due weight and proper consideration to the sentencing
principles.” The State responds that the trial court did not abuse its discretion when it denied
the Defendant judicial diversion or when it ordered a sentence of split confinement.
Accordingly, the State asks this Court to affirm the trial court’s sentence.

                                    A. Judicial Diversion

       The Defendant contends that the trial court erred by not considering the relevant
factors for the decision. She maintains that had the trial court conducted a proper review of
her request for judicial diversion, her request would have been granted. The State responds
that the record contains substantial evidence to support the trial court’s denial of judicial
diversion. We agree with the State.

       When a defendant is eligible for judicial diversion, a judge has the discretion to defer
proceedings without entering a judgment of guilty. T.C.A. § 40-35-313(a)(1)(A) (2010).
The statute states that a trial court may grant judicial diversion in appropriate cases. Id.
Following a grant of judicial diversion, the defendant is on probation but is not considered
a convicted felon. Id. To be eligible for judicial diversion, a defendant must be a “qualified
defendant” as defined by the Tennessee Code section governing judicial diversion:

       (B)(i) As used in this subsection (a), “qualified defendant” means a defendant
       who

       (a) Is found guilty of or pleads guilty or nolo contendere to the offense for
       which deferral of further proceedings is sought;

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       (b) Is not seeking deferral of further proceedings for a sexual offense, a
       violation of § 71-6-117 or § 71-6-119 or a Class A or Class B felony; and
       (c) Has not previously been convicted of a felony or a Class A misdemeanor.

T.C.A. § 40-35-313(a)(1)(B)(i). Eligibility does not automatically entitle the defendant
to judicial diversion. 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). Id.

       Once a defendant is deemed eligible for judicial diversion, the trial court must
consider several factors when deciding whether to grant judicial diversion. Due to the
similarities between pre-trial diversion, which is administered by the district attorney
general, and judicial diversion, courts draw heavily from pre-trial diversion law and
examine the same factors:

       [A court] should consider the defendant’s criminal record, social history,
       mental and physical condition, attitude, behavior since arrest, emotional
       stability, current drug usage, past employment, home environment, marital
       stability, family responsibility, general reputation and amenability to
       correction, as well as the circumstances of the offense, the deterrent effect of
       punishment upon other criminal activity, and the likelihood that [judicial]
       diversion will serve the ends of justice and best interests of both the public and
       the defendant.

State v. Cutshaw, 967 S.W.2d 332, 344 (Tenn. Crim. App. 1997).

        When the trial court considers the common law factors, “specifically identifies
the relevant factors, and places on the record its reasons for granting or denying
judicial diversion,” then this court will “apply a presumption of reasonableness and
uphold the grant or denial so long as there is any substantial evidence to support the
trial court’s decision.” State v. Kiara Tashawn King, --- S.W.3d ---, No. M2012-
00236-SC-R11-CD, 2014 WL 1622210, at *9 (Tenn. Apr. 23, 2014). Our Supreme
Court has stated:
        Although the 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, 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. Thereafter, the trial court may proceed
        to solely address the relevant factors.



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Id. Failure to consider the common law factors results in loss of the presumption of
reasonableness, and this Court is required to conduct a de novo review or remand to
the trial court for reconsideration. Id.

       The record in this case demonstrates that the trial court considered the factors
and identified the specific factors applicable to this case. The trial court considered
the Defendant’s criminal and academic history, her behavior since the arrest, which
included a violation of a custody order involving the victim, her drug use and
treatment, her unwillingness to comply with a court order, and her employment history.
The trial court then stated that, in considering all the factors, it believed the
Defendant’s subsequent violation of the custody order involving the victim outweighed
the factors favoring the grant of judicial diversion.

        Our review of the record reveals that there is substantial evidence to support the
trial court’s decision. The Defendant had numerous arrests, was in treatment for an
ongoing addiction to prescription medication, and had a “sporadic” work history.
After an arrest for burn marks found on the minor victim while in the Defendant’s
custody, the Defendant violated a juvenile court’s order that her visitation with the
victim be supervised. Based upon this evidence, we can not conclude that the trial
court abused its discretion in denying the Defendant judicial diversion. The Defendant
is not entitled to relief.

                               B. Alternative Sentence

       The Defendant asserts that the trial court abused its discretion when it ordered
the Defendant to serve sixty days in confinement before serving a two-year supervised
probation sentence. The State responds that the trial court acted within its discretion
in denying the Defendant a sentence of full probation. We agree with the State.

        In State v. Bise, the Tennessee Supreme Court reviewed changes in sentencing
law and the impact on appellate review of sentencing decisions. The Tennessee
Supreme Court announced that “sentences imposed by the trial court within the
appropriate statutory range are to be reviewed under an abuse of discretion standard
with a ‘presumption of reasonableness.’” 380 S.W.3d 682, 708 (2012). A finding of
abuse of discretion “‘reflects that the trial court’s logic and reasoning was improper
when viewed in light of the factual circumstances and relevant legal principles
involved in a particular case.’” State v. Shaffer, 45 S.W.3d 553, 555 (Tenn. 2001)
(quoting State v. Moore, 6 S.W.3d 235, 242 (Tenn. 1999)). To find an abuse of
discretion, the record must be void of any substantial evidence that would support the
trial court’s decision. Id.; State v. Grear, 568 S.W.2d 285, 286 (Tenn. 1978); State v.

                                           -7-
Delp, 614 S.W.2d 395, 398 (Tenn. Crim. App. 1980). The reviewing court should
uphold the sentence “so long as it is within the appropriate range and the record
demonstrates that the sentence is otherwise in compliance with the purposes and
principles listed by statute.” Bise, 380 S.W.3d at 709-10. So long as the trial court
sentences within the appropriate range and properly applies the purposes and principles
of the Sentencing Act, its decision will be granted a presumption of reasonableness.
Id. at 707.

       Our Supreme Court extended the Bise standard to appellate review of the
manner of service of the sentence. The Court explicitly held that “the abuse of
discretion standard, accompanied by a presumption of reasonableness, applies to
within-range sentences that reflect a decision based upon the purposes and principles
of sentencing, including the questions related to probation or any other alternative
sentence.” State v. Caudle, 388 S.W.3d 273, 278-79 (Tenn. 2012). We are also to
recognize that the defendant bears the burden of demonstrating that the sentence is
improper. State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).

        In determining the proper sentence, the trial court must consider: (1) the
evidence, if any, received at the trial and the sentencing hearing; (2) the presentence
report; (3) the principles of sentencing and arguments as to sentencing alternatives; (4)
the nature and characteristics of the criminal conduct involved; (5) evidence and
information offered by the parties on the mitigating and enhancement factors set out
in Tennessee Code Annotated sections 40-35-113 and -114; (6) any statistical
information provided by the administrative office of the courts as to sentencing
practices for similar offenses in Tennessee; and (7) any statement the defendant made
in the defendant’s own behalf about sentencing. See T.C.A. § 40-35-210 (2012); State
v. Taylor, 63 S.W.3d 400, 411 (Tenn. Crim. App. 2001). The trial court must also
consider the potential or lack of potential for rehabilitation or treatment of the
defendant in determining the sentence alternative or length of a term to be imposed.
T.C.A. § 40-35-103 (2012).

      With regard to alternative sentencing, Tennessee Code Annotated section 40-
35-102(5) provides as follows:

       In recognition that state prison capacities and the funds to build and
       maintain them are limited, convicted felons committing the most severe
       offenses, possessing criminal histories evincing a clear disregard for the
       laws and morals of society, and evincing failure of past efforts at
       rehabilitation shall be given first priority regarding sentencing involving
       incarceration.

                                           -8-
A defendant who does not fall within this class of offenders, “and who is an especially
mitigated offender or standard offender convicted of a Class C, D or E felony, should
be considered as a favorable candidate for alternative sentencing options in the absence
of evidence to the contrary.” T.C.A. § 40-35-102(6). Additionally, we note that a trial
court is “not bound” by the advisory sentencing guidelines; rather, it “shall consider”
them. T.C.A.§ 40-35-102(6) (emphasis added).

       Even if a defendant is a favorable candidate for alternative sentencing under
Tennessee Code Annotated section 40-35-102(6), a trial court may deny an alternative
sentence because:

       (A) Confinement is necessary to protect society by restraining a defendant
       who has a long history of criminal conduct;

       (B) Confinement is necessary to avoid depreciating the seriousness of the
       offense or confinement is particularly suited to provide an effective deterrence
       to others likely to commit similar offenses; or

       (C) Measures less restrictive than confinement have frequently or recently
       been applied unsuccessfully to the defendant.

T.C.A. § 40-35-103.

        At the sentencing hearing, the trial court sentenced the Defendant, as a Range
I, standard offender, to concurrent two-year sentences for each of her convictions for
reckless aggravated assault, a Class D felony.

       In this case, the trial court properly considered the relevant sentencing factors.
The trial court concluded that the Defendant did not have a long history of criminal
conduct or that less restrictive measures than confinement had frequently or recently
been applied. The trial court found that the Defendant failed to abide by a juvenile
court order, filed after the Defendant’s arrest for her role in the victim’s injuries. The
order required that the Defendant’s visits with the victim be supervised, and the
Defendant violated this order by taking the victim to a store unaccompanied. The trial
court found that the Defendant needed to appreciate the importance of following court
orders when it denied her request for alternative sentence.

      In sentencing matters we are to afford the trial court a presumption of
reasonableness. In so doing, we can not conclude in this case that the trial court’s

                                           -9-
logic and reasoning were improper when viewed in light of the factual circumstances.
The trial court considered the pertinent facts of this case and appropriate sentencing
principles in ordering confinement. As such, its denial of alternative sentencing is
presumptively correct. See T.C.A. § 40-35-401(d). The Defendant is not entitled to
relief.

                                   III. Conclusion

        After a thorough review of the record and relevant authorities, we conclude that
the trial court properly denied judicial diversion and properly sentenced the Defendant.
As such, we affirm the trial court’s judgments.

                                            _________________________________
                                              ROBERT W. WEDEMEYER, JUDGE




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