       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                 Assigned on Briefs September 26, 2018

                STATE OF TENNESSEE v. AARON HATFIELD

                  Appeal from the Criminal Court for Knox County
                          No. 111759 Bob McGee,Judge
                                                                              FILED
                                                                             JAN 0 3 2019
                                                                        Clerk of the Appellate Courts
                            No. E2018-00041-CCA-R3-CD                   Rec'd By



The defendant, Aaron Hatfield, appeals the denial of his bid for judicial diversion of the
three-year sentence imposed for his Knox County Criminal Court guilty-pleaded
conviction of aggravated assault. Following our review, we conclude that the defendant
is entitled to judicial diversion. We remand the case for entry of an order placing the
defendant on judicial diversion under the same terms and conditions of the previously-
imposed sentence of probation.

   Tenn. R. App. P. 3; Judgment of the Criminal Court Reversed and Remanded

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which ROBERT W.
WEDEMEYER,J.,joined. ROBERT L. HOLLOWAY,JR., J., filed a dissenting opinion.

Mark E. Stephens, District Public Defender, and Jonathan Harwell, Assistant District
Public Defender (on appeal); and Sarah Parker, Assistant District Public Defender (at
plea and sentencing), for the appellant, Aaron Hatfield.

Herbert H. Slatery III, Attorney General and Reporter; Caitlin Smith, Assistant Attorney
General; Charme P. Allen, District Attorney General; and Debbie Malone, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                       OPINION

              On November 6, 2017, the defendant pleaded guilty to a single count of
aggravated assault based upon his attacking the victim, Kylie Gainers, in exchange for a
three-year sentence with the manner of service of the sentence to be determined by the
trial court. At the plea submission hearing, the State provided the following summary of
facts:
       Your Honor, if we were called to trial in this matter,
we could call the witnesses listed on the information. The
testimony would be that Karen Heights, with the Knoxville
Police Department, responded to a domestic call at 430 East
Oldham Avenue, in Knox County, Tennessee; that once she
arrived on scene, she spoke with a . . . Jolie Bonavita, who
said she had come over to pick up her granddaughter, Kylie
Gainers and discovered that Ms. Gainers had been assaulted
by her boyfriend,[the defendant].

       Officer Heights then spoke with Kylie Gainers. She
stated, Kylie told Officer Heights that she had come to her
boyfriend's house about 4:00 p.m. to spend time with him
before she left on vacation. When it was time to go home, he
began arguing with her and became upset. He became angry
at something his mother did and started taking it out on Ms.
Gainers.

       Ms. Gainers told Officer Heights that Mr. Hatfield
pushed her into the back bedroom, threw her down on the
floor and hit her, knocking her glasses off her face and
breaking them. Ms. Gainers told Officer Heights that he then
placed his knees on her chest and ribs and began pressing to
where she couldn't breathe and he would not let her up.

       Ms. Gainers told Officer Heights that at one point in
time, Mr. Hatfield put his hands around her neck and began
choking her. When he finally did let her up, she was
attempting to leave, but he kept blocking her way to the door
and pushing her back in and telling her that the only way she
was going to leave was in a casket.

       During that time, Ms. Gainers' mother and
grandmother were attempting to contact Ms. Gainers on her
cell phone, but Mr. Hatfield had taken it away from her and
would not let her have it back in order to talk to them.

       It was only when Kylie Gainers' grandmother texted
that she was calling the police and that she was out in front of
the house that Mr. Hatfield gave her phone back and let her
leave out the back door.
                              -2-
                    Officers did observe a mark on Ms. Gainers' forehead,
             a small abrasion on her right arm and both knees, and a small
             mark on the right side of her neck.

              At the sentencing hearing, the defendant asked the trial court for a judicial
diversion placement, citing primarily his lack of criminal history or problems with
alcohol or drugs. The State opposed the placement, citing primarily the defendant's
failure to take responsibility for his actions, the seriousness of the offense, and the
defendant's lack of social structure to facilitate his completion of diversion.

             The defendant's version of the offense, which was included in the
presentence report exhibited to the sentencing hearing provided:

             My girlfriend came over to my house to spend time with me
             before she went on vacation and me and my mom start
             arguing so I told my girlfriend that we was going to leave and
             I was upset so when we got outside my girl was yelling at me
             and told me not to take it out on her so I took her around
             back because it was raining outside and we was arguing and
             she pushed me so I pushed her back and she fell down and her
             glasses broke then she gets up and tr[i]ed to push me again so
             I did the same and she fell back down and I put my knee on
             her chest and I was telling her to calm down or I was not
             going to let her up and she grab[b]ed my hair and was pulling
             it so I did the same to her and I took her phone and she came
             at me and she pushed me and I fell down and I got mad so I
             put my arm close to her neck and held her down and I let her
             up and told her to calm down so I gave her phone back and I
             told her to let me walk her home and she s[ai]d no she was
             trying to go by herself and I s[aid] no so I did not let her and
             her family called her and came to pick her up and they called
             the cops and she started crying and I got locked up and she
             was going to break up with me and I s[ai]d the only way that
             going to happen is when you[`re] in a casket.

              The victim's statement provided:

              I went to spen[d] time with Aaron before I went on vacation
              the next day. We were at his moms. He got mad at his mom
              and we went outside and he started getting mad at me and
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             was pushing and pulling me into the backyard. When we got
             to the gate he picked me up and carried me into the back yard
             and threw me down. I landed face down on the back porch
             and my glasses flew off my face & broke. He took my phone
             & threw it in the yard. I ran to get it & he took it from me
             and took the battery out so I couldn't use it. He slung me
             around, pulled my hair, threw me down & put his hand over
             my mouth so I couldn't scream.

              He put his knee on my ribs to hold me down & I couldn't
              breathe. At some point he put me in a choke hold from
              behind and lifted me off the ground choking me. He told me
              the only way I was leaving was in a casket. My family finally
              found me & called the police.


               The trial court found that "as far as the physical and mental health
conditions concerned, he should be able to comply and be compliant with probation."
The court described the defendant's social history as "sparse" and noted that the
defendant, who had been placed in foster care at a young age, had had "a troubled
upbringing through no fault of his own." The court also noted that the defendant was
"developing a church home, apparently, and that certainly speaks well of a person's
social history." The court found that the defendant had no criminal history but that he
had "simply stated himself he got fired from McDonald's for stealing money." The court
observed that, as to the defendant's potential for rehabilitation, "there's not much to base
a prediction on . . . but actually, that works to his benefit." The court found the
circumstances of the offense to be "very aggravated," stating, "Choking . . . is a very
dangerous kind of assault. It's easy to break or damage the fragile bones and structures
in the human throat, and it's just very dangerous. It was very aggravated. It went on for
a while. There were a couple of different kinds of choking involved." With regard to the
deterrence value to the defendant and others, the trial court expressed concern,
explaining, "[W]hen he gave his account, although the facts ended up kind of jiving
pretty well, the sense of responsibility who was at fault and how bad was what he did, he
soft-pedaled, and that suggests that it's not having the deterrent value that punishment
should have." Finally, the court found that a grant ofjudicial diversion would not serve
the interests of the defendant or the public because the offense occurred "within the
context of a domestic relationship" and the victim had indicated other episodes of
domestic violence in her relationship with the defendant. The court stated,"I'm not at all
satisfied that the interest of the public would be served if it were impossible to find out
about this episode and this damage to this woman in this domestic context."

                                            -4-
                                  A. Judicial Diversion

              "Judicial diversion" is a reference to the provision in Tennessee Code
Annotated section 40-35-313(a) for a trial court's deferring proceedings in a criminal
case. See T.C.A. § 40-35-313(a)(1)(A). Pursuant to such a deferral, the trial court places
the defendant on probation "without entering a judgment of guilty." Id. To be eligible or
"qualified" for judicial diversion, the defendant must plead guilty to, or be found guilty
of, an offense that is not "a sexual offense or a Class A or Class B felony," and the
defendant must not have previously been convicted of a felony or a Class A
misdemeanor. Id. § 40-35-313(a)(1)(B)(i)(b), (c). Diversion requires the consent of the
qualified defendant. Id. § 40-35-313(a)(1)(A). "[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 ofjustice—the
             interests ofthe public as well as the accused.

Id. (quoting State v. Parker, 932 S.W.2d 945, 958 (Tenn. Crim. App. 1996)). "Further,
the trial court must weigh the factors against each other and place an explanation of its
ruling on the record." King, 432 S.W.3d at 326 (citing State v. Electroplating, Inc., 990
S.W.2d 211, 229(Tenn. Crim. App. 1998)).

               Although judicial diversion is not a sentence, our supreme court determined
that the standard of review first expressed in State v. Bise, 380 S.W.3d 682(Tenn. 2012),
applies to "appellate review for a trial court's sentencing decision to either grant or deny
judicial diversion." King, 432 S.W.3d at 325. Importantly, however, the court
emphasized that the adoption of the Bise standard of review "did not abrogate the
requirements set forth in Parker and Electroplating, which are essential considerations
for judicial diversion." King,432 S.W.3d at 326.

             The trial court need not provide a recitation of all the applicable "factors
when justifying its decision on the record in order to obtain the presumption of
reasonableness," but "the record should reflect that the trial court considered the Parker
and Electroplating factors in rendering its decision and that it identified the specific
                                            -5-
factors applicable to the case before it." King, 432 S.W.3d at 327. When the trial court
considers each of the factors enumerated in Parker and weighs them against each other,
placing its findings in the record, as required by Electroplating, Inc., we "apply a
presumption of reasonableness," per Bise, and will "uphold the grant or denial so long as
there is any substantial evidence to support the trial court's decision." Id. When "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. Instead, "the appellate courts may either conduct a de novo review
or, if more appropriate under the circumstances, remand the issue for reconsideration.
The determination as to whether the appellate court should conduct a de novo review or
remand for reconsideration is within the discretion of the reviewing court." Id. at 328.

              Here, the record establishes that the trial court considered all the applicable
"factors when justifying its decision on the record," that the court weighed those factors
against each other, and that the court placed sufficient findings in the record as required
by Electroplating, Inc. See King, 432 S.W.3d at 327. Accordingly, we "apply a
presumption of reasonableness" to the denial ofjudicial diversion in this case. See id.

             The defendant asserts that the trial court erred by concluding that the
circumstances of the offense and the need for deterrence weighed against a grant of
diversion when the facts did not support those findings.

              "If the seriousness of the offense forms the basis for the denial" ofjudicial
diversion, then "the circumstances of the offense as committed must be especially
violent, horrifying, shocking, reprehensible, offensive or otherwise of an excessive or
exaggerated degree, and the nature of the offense must outweigh all factors favoring a
sentence other than confinement." State v. Trotter, 201 S.W.3d 651, 654 (Tenn. 2006)
(citations and internal quotation marks omitted). We agree with the defendant that the
circumstances of the offense in this case cannot be so classified. The defendant was
charged with aggravated assault by strangulation, see T.C.A. § 39-13-102(a)(1)(iv), and
the factual summary provided by the State established that offense. The trial court noted,
correctly, that strangulation is inherently dangerous, which explains the legislature's
decision to classify it as aggravated assault. That being said, the inherent dangers of
strangulation cannot form the basis of a finding that the circumstances of the offense are
particularly exaggerated when the conviction offense is assault by strangulation.

               We also agree with the defendant that the trial court's findings with regard
to deterrence were less than coherent. The "need for deterrence" will support the denial
of judicial diversion only "when the record contains evidence which would enable a
reasonable person to conclude that (1) deterrence is needed in the community,
jurisdiction, or state; and (2) the defendant's incarceration may rationally serve as a
                                             -6-
deterrent to others similarly situated and likely to commit similar crimes." State v.
Hooper, 29 S.W.3d 1, 13 (Tenn. 2000). The record does not contain any such evidence
in this case. The court appeared to indicate that the defendant's "soft-pedal[ing]" the
facts of the offense in his statement somehow indicated a failure of deterrence.
Traditionally, a lack of candor or failure to accept responsibility could support a denial of
diversion because it negatively impacts a defendant's amenability to correction.
Additionally, although it is true that the versions of events offered by the defendant and
the victim differ, those differences are not significant enough, in our view, to indicate a
lack of candor by the defendant.

              Finally, the record does not support the trial court's decision that a grant of
judicial diversion in this case would not serve the needs of the public or the defendant.
The trial court indicated that it did not believe diversion to be appropriate because the
public in general, and any future potential romantic partner of the defendant, should be
aware that the defendant had committed the offense of aggravated assault against his
girlfriend. The legislature, however, has seen fit to make aggravated assault by
strangulation, even of one's romantic partner, an offense eligible for judicial diversion.
Consequently, the fact of the defendant's having committed that offense cannot support a
denial ofjudicial diversion.

              Because the record does not support the trial court's findings with regard to
those factors that formed the basis of that court's denial ofjudicial diversion, we reverse
the ruling of the trial court and remand the case for the entry of an order placing the
defendant on judicial diversion for the same period and under the same conditions
attendant to the previously-imposed sentence of probation.


                                                   JAMES CURWOOD WITT, JR., JUDGE




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