        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                                 April 22, 2014 Session

                 STATE OF TENNESSEE v. CHERYL A. KING

                 Appeal from the Criminal Court for Sullivan County
                   No. S58,637    Robert H. Montgomery, Judge


                  No. E2013-01799-CCA-R3-CD - Filed May 15, 2014


Appellant, Cheryl A. King, entered a no contest plea to arson, a Class C felony, and applied
for judicial diversion. The trial court denied diversion and sentenced her to three years,
suspended to probation. Appellant now appeals from the denial of judicial diversion.
Following our review, we affirm the judgment of the trial court.

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

R OGER A. P AGE, J., delivered the opinion of the court, in which T HOMAS T. W OODALL and
A LAN E. G LENN, JJ., joined.

Timothy Reid Wilkerson (on appeal), Richard A. Spivey (at guilty plea hearing and on
appeal), and Nat Thomas (at guilty plea hearing), Kingsport, Tennessee, for the appellant,
Cheryl A. King.

Robert E. Cooper, Jr., Attorney General and Reporter; John H. Bledsoe, Senior Counsel;
Deshea Dulany Faughn, Assistant Attorney General; Barry Staubus, District Attorney
General; and Jack Lewis Combs, Jr., Assistant District Attorney General, for the appellee,
State of Tennessee.

                                        OPINION

                                          I. Facts

       On October 26, 2010, appellant was charged by presentment with the May 12, 2008
arson of a structure. The structure in question was the house appellant and her now ex-
husband owned and were disputing in their pending divorce. Appellant entered a no contest
plea on July 26, 2012.
       The parties stipulated that the factual basis for the plea was summarized in the fire
department’s investigation report.1 We glean from this report that the fire had multiple points
of origin. One point of origin was an upstairs bedroom, where a wall heater had ignited a
dresser that had been placed in front of it. Another point of origin was a downstairs
bedroom, where “[t]he only ignition source that could not be excluded [was] from human
factor.” In addition, the fire department investigator found a clothes iron on a bed in the
residence that had been turned on but had safety features that prevented it from igniting the
bed. The investigation report noted that firefighters had to remove a refrigerator that had
been pulled in front of the kitchen door to gain access to the room. In addition, it was clear
from the condition of the house that many household items had been removed prior to the
fire. A car was parked outside of the house containing household items.

        As part of her plea agreement, appellant agreed to a three-year sentence if her
application for judicial diversion was denied. The State agreed not to oppose judicial
diversion or probation. The trial court held a judicial diversion hearing on July 11, 2013. The
only evidence presented was appellant’s presentence report and letters from the community
expressing support for appellant. Notably, the presentence report indicated that appellant had
two minor traffic offenses on her record and that she admitted to abusing alcohol and using
marijuana and cocaine. She had no convictions during the five years from the offense date
to the hearing date. She was a part-time employee of the United States Postal Service at the
time of the hearing. Defense counsel argued that the offense was “totally out of character”
for appellant and that it was a result of “a very bitter, difficult divorce situation.”

        After hearing arguments from the parties, the trial court denied judicial diversion and
imposed a three-year sentence, suspended to probation. In denying judicial diversion, the
trial court stated that it considered the letters from the community in support of appellant and
the presentence report, as well as the facts and circumstances of the case. The trial court
determined that appellant’s amenability to correction weighed in favor of judicial diversion
and that appellant’s mental and physical health were a neutral consideration because she had
sought mental health treatment in the past but was not currently in treatment. However, the
trial court further determined that the circumstances of the offense weighed against judicial
diversion, citing the risk to the firefighters who had to search the burning residence after
neighbors reported that someone might be inside. Considering appellant’s admitted use of
illegal drugs, namely marijuana and cocaine, as well as her abuse of alcohol, the trial court
found that appellant’s criminal activity and social history weighed against judicial diversion.
The trial court also found that there was a deterrence value in denying judicial diversion.
Ultimately, the trial court found that the factors against judicial diversion outweighed those
in favor of diversion. Appellant now appeals the denial of judicial diversion.

       1
           The fire investigation report was included in appellant’s presentence report.

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                                         II. Analysis

       Appellant contends that the trial court did not adequately explain the basis for its
finding of factors weighing against judicial diversion nor how the negative factors
outweighed the positive factors. In addition, appellant argues that the trial court’s
interpretation of the circumstances was faulty and that the trial court improperly relied on the
deterrence factor. The State responds that the trial court did not abuse its discretion in
denying judicial diversion.

        “Judicial diversion is a form of ‘legislative largess’ available to qualified defendants
who have entered a guilty or nolo contendere plea or have been found guilty of an offense
without the entry of a judgment of guilt.” State v. Kiara Tashawn King, --- S.W.3d ---, No.
M2012-00236-SC-R11-CD, 2014 WL 1622210, at *5 (Tenn. Apr. 23, 2014) (citations and
footnote omitted). Eligibility does not “constitute entitlement,” however, and the trial court
is vested with the discretion to grant or deny judicial diversion. Id. In making its decision,
the trial court must consider several common law factors:

       (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.

Id. at *8 (quoting State v. Parker, 932 S.W.2d 945, 958 (Tenn. 1996)). “[T]he trial court
must weigh the factors against each other and place an explanation of its ruling on the
record.” Id. (citing State v. Electroplating, Inc., 990 S.W.2d 211, 229 (Tenn. Crim. App.
1999)).

        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.”
Id. at *9. 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

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       it. Thereafter, the trial court may proceed to solely address the relevant
       factors.

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.

        In this case, the trial court clearly considered the common law factors, weighed the
factors, and placed its ruling on the record. Thus, we review its decision for abuse of
discretion and afford the decision a presumption of reasonableness. While appellant argues
that the trial court did not “adequately explain” its reasoning, the transcript of the hearing
belies this contention.

        Appellant also argues that the trial court’s reasoning behind its consideration of the
circumstances of the offense was faulty and “contrary to the statutory framework for
determining eligibility for judicial diversion.” The trial court found that the circumstances
of the offense weighed against judicial diversion primarily because of the risk of harm to the
firefighters who responded. In particular, the trial court expressed concern that the
firefighters were required to search the house for anyone who might have been inside
because the house was typically occupied and because neighbors were concerned that
appellant’s son might have been inside. Appellant contends that arson of a structure carries
an inherent risk of harm and that if that risk of harm was sufficient to deny judicial diversion,
then the legislature would have included arson in the list of crimes excluded from eligibility
for judicial diversion. However, the record indicates that the trial court did not rely on a
general risk of harm but rather a specific risk of harm to the responding firefighters due to
the necessity of searching the house. The trial court did not deny diversion solely because
the crime was arson. Moreover, consideration of the circumstances of the offense was not
the only factor in the trial court’s determination. Thus, appellant’s argument in this regard
is inapposite.

        Appellant further argues that the trial court did not properly consider the deterrence
value of denying judicial diversion because it did not state a factual basis “for finding
deterrence applied to arson in Sullivan County.” However, in its discussion of the deterrence
value, the trial court focused on the deterrence value to appellant rather than to others.
Specifically, it expressed concern over the way appellant set up the fire, evincing “a
thought[-]through type of process” despite her alleged impairment through use of alcohol and
illegal drugs. The deterrence value to the accused is a legitimate factor for the trial court to
consider. See Kiara Tashawn King, 2014 WL 1622210, at *8 (quoting Parker, 932 S.W.2d
at 958). Therefore, appellant has failed to show that the trial court abused its discretion. We



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conclude that substantial evidence exists to support the decision of the trial court and, thus,
affirm its denial of judicial diversion.

                                      CONCLUSION

       Based on the record, the applicable law, and the arguments of the parties, we affirm
the judgment of the trial court.




                                                    _________________________________
                                                    ROGER A. PAGE, JUDGE




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