        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT JACKSON

                          JUNE SESSION, 1999                 FILED
                                                           July 12, 1999
STATE OF TENNESSEE,           )       C.C.A. NO. 02C01-9805-CR-00128
                              )                          Cecil Crowson, Jr.
      Appellee,               )                         Appellate Court Clerk
                              )
                              )       SHELBY COUNTY
VS.                           )
                              )       HON. CHRIS CRAFT
CHARLES SMITH,                )       JUDGE
                              )
      Appe llant.             )       (Judicial Diversion)


                ON APPEAL FROM THE JUDGMENT OF THE
                 CRIMINAL COURT OF SHELBY COUNTY


FOR THE APPELLANT:                          FOR THE APPELLEE:

A.C. WHARTON                                PAUL G. SUMMERS
Shelby County Public Defender               Attorney General and Reporter

W. MARK WARD                                R. STEPHEN JOBE
Assistant Public Defender                   Assistant Attorney General
Criminal Justice Complex, Suite 201         425 Fifth Avenu e North
201 Poplar Avenue                           Nashville, TN 37243-0493
Memphis, TN 38103
                                            WILLIAM L. GIBBONS
                                            District Attorney General

                                            AMY WEIRCH
                                            Assistant District Attorney General
                                            Crimina l Justice C omple x,
                                            Suite 301
                                            201 Poplar Avenue
                                            Memphis, TN 38103



OPINION FILED ________________________

AFFIRMED

DAVID H. WELLES, JUDGE
                                  OPINION
       The Defendant, Charles Smith, was charged by criminal info rmation with

aggravated burglary.      H e plead ed guilty on April 8, 1998, with an agreed

sentence of three years and one day. The agreement called for the trial judge to

determine the manner of service of the sentence, and the Defendant requested

that the trial court suspend his sentence or grant him judicial diversion. Following

a hearing , the trial court d enied th e Defendant’s request for judicial diversion,

suspended his sentence, and placed him on probation for three years. The sole

issue for our consideration on appeal is whether the trial court erred by denying

his reque st for judicial d iversion. W e affirm the judgm ent of the tria l court.



       At the sente ncing he aring, the D efenda nt adm itted to having burglarized

the home of Agnes Park, the victim in this case, on September 30, 1997. He

stated that he “forced the door open,” walked into the home, and took personal

property belonging to the victim, including a stereo, a vacuum cleaner, and a

computer game. He testified that the items were too heavy for him to carry, so

he enlisted the help of the maintenance ma n at the com plex wh ere the victim

lived to help him transport the stolen property. The Defendant apparently told the

maintenance man that he ha d bee n given the item s and simp ly need ed he lp

carrying them. They transported the property to the home of a friend of the

Defen dant, where the Defendant hid the property. Shortly afterwards, police

discove red the p roperty an d placed the Defe ndant u nder arre st.



       The Defendant testified that he made a “spur of the mom ent” dec ision to

burglarize the victim’s home. He stated that he acted out of desperation because

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of his “income problems.” He explained that he was living with his pregnant sister

and pregnant cousin at the time; he was paying all the bills for the three of them;

he was having difficulty finding a job due to his lack of transportation; and he was

facing a pos sible e viction. He state d that h e cho se to b reak in to the vic tim’s

house in an effort to obtain prop erty to sell for money. The Defendant admitted

that he had made “the wrong choices in life” and maintained that he was “trying

to better [him]self.”



       The Defendant also testified about his background. He stated that he was

twenty-five years old. He reported that he dropped out of high school in the

eleventh grade becau se he w as “runn ing along with the cro wd.” He stated that

he had worked as a maintenance man and at a Mc Don ald’s re staura nt. His

presentence report indica tes tha t he ha d work ed for a total of o nly six months and

that he had abandoned his most recen t jobs.          The Defendant has no prior

criminal record.



       The sentencing option commonly known as judicial diversion is codified at

Tennessee Code Annotated § 40-35-313. A defenda nt is eligible for judicial

diversion if he or she (a) “is found guilty or pleads guilty to a misdemeanor which

is punishable by imprisonment or a Class C, D or E felony,” (b) “has not

previo usly been c onvicted of a felony or a Class A misdemeanor,” and (c)

conse nts to the deferm ent of proceed ings and plac ement on probation “for a

period of time no t less than the period of the m aximum sentence for the

misdemeanor with which the person is charged, or not more than the period of

the maximum sentence of the felony with which the person is charged.” Tenn.

Code A nn. § 40-35-3 13(a)(1)(A).

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      The fact that the ac cuse d me ets the se pre requis ites do es no t entitle
      the accused to judicial diversion as a matter of right. The statute
      states that a trial court “m ay” gra nt judic ial divers ion in approp riate
      cases. . . . Thus, whether the accused should be granted judicial
      diversion is a question which addresses itself to the sound discretion
      of the trial cou rt.

State v. Bonestel, 871 S.W .2d 163, 168 (Tenn. Crim . App. 1993 ).



      Tennessee courts have recognized the similarities between judicial

diversion and pretrial diversion and, thus, have drawn heavily from the case law

governing pretrial d iversion to ana lyze ca ses inv olving ju dicial diversion. For

instance, in determining whether to grant pretrial diversion, a district attorney

general should consider the defendant’s criminal record, social history, mental

and physical condition, attitude, behavior since arrest, emotional stability, current

drug usage , past employm ent, ho me e nviron men t, marita l stability, fa mily

responsibility, genera l reputation , and amenability to correction; as well as the

circumstances of the offense, the deterrent effect of punishment upon other

crimin al activity, and the likelihood that pretrial diversion will serve the ends of

justice and best interests of both the public and the defend ant. See State v.

Washington, 866 S.W .2d 950, 951 (Tenn. 199 3).



      A trial cou rt shou ld con sider g enera lly the sa me fa ctors w hen d ecidin g

whether to grant judicial divers ion. See Bonestel, 871 S.W .2d at 168 ; State v.

Hammersley, 650 S.W.2d 352, 355 (T enn. 19 83); State v. Anderson, 857 S.W.2d

571, 572-73 (Tenn. Crim. App. 1992). In assessing a defend ant’s am enability to

correction, a court may consider the defend ant’s truthfu lness on the stand . State

v. Dowdy, 894 S.W .2d 301 , 305 (T enn. Crim. App. 19 94); see Anderson, 857

S.W.2d at 574. If, after a ssessin g all relevan t factors, the trial court cho oses to



                                          -4-
deny judicial diversion, the court must articula te on th e reco rd both the sp ecific

reasons supporting the denial and why those factors applicable to the denial of

diversion outweigh the other factors for con sideration . See Bonestel, 871 S.W.2d

at 168.



      In reviewing the de cision of a trial court to grant or deny judicial diversion,

this Court applies “the same level of review as that which is applicable to a review

of a district attorney gene ral’s action in denying p re-trial diversion.” State v.

George, 830 S.W .2d 79, 8 0 (Tenn. Crim. A pp. 199 2); see also Bonestel, 871

S.W.2d at 168; Anderson, 857 S.W .2d at 572 . In other words, this Court reviews

the record to determine whether the trial court ab used its d iscretion.          See

Bonestel, 871 S.W.2d at 168; Anderson, 857 S.W.2d at 572. To find an abuse

of discretion, we must determine that no substantial evidence e xists to support

the ruling of the trial court. See Bone stel, 871 S.W .2d at 16 8; Anderson, 857

S.W .2d at 572 .



      In the case at bar, the trial judg e expr esse d con cern w ith the D efend ant’s

decision to drop out of high school and his sporadic work history. He also

pointed out that some of the Defendant’s statements to the court were

“misleading”.      Apparently, the Defendant had previously alleged police

misconduct to the court, claiming that he was unfairly singled out for prosecution

because the police did not arrest the maintenance man or his friend in whose

home the sto len pro perty w as hid den. W hen c onfron ted with this complaint by

the trial judge, the Defen dant main tained that his allegation s of miscond uct were

a result of a misun derstan ding.




                                         -5-
          The judge concluded that the Defendant was not a credible witness,

stating, “I just don’t thin k Mr. Sm ith is a prop er cand idate for diversion . . . . I just

don’t feel he is telling u s wha t is goin g on in his life. . . . T he co urt just d oesn ’t

believe M r. Smith.” H e continu ed,

         [The Defendant is] 25 years old and for seven years he never went
         to get his GED, didn’t work to amount to noth ing, didn’t try to
         improve himself at all. And then all of a sudden says he’s just
         walking down the street and decides to com mit a burg lary. I don ’t
         see it. Th ere’s som ething els e going on.



         W e cannot conclude that the trial judge abused his discretion by denying

judicial diversion in this case. Because the trial judge w as in a be tter position to

assess the Defendant’s attitude and dem eanor, w e defer to his findings with

regard to the Defend ant’s candor.             Although the trial judge’s finding of

untruthfulness alone is eno ugh to upho ld his denial of judicial diversion, see State

v. Dowdy 894 S.W.2d 301, 305 (Tenn. Crim. App. 1994), we note that the judge

delved into the Defe ndan t’s attitude, background, and the circumstances of the

offense before making his ruling. The record reflects that the trial judge acted

within h is discretionary authority. Therefore, we affirm the judgment of the trial

court.




                                     ____________________________________
                                     DAVID H. WELLES, JUDGE




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CONCUR:



___________________________________
THOMAS T. WOODALL, JUDGE


___________________________________
NORMA McGEE OGLE, JUDGE




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