                                                                                         04/09/2019
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                         Assigned on Briefs February 5, 2019

                   STATE OF TENNESSEE v. AARON LONG

                  Appeal from the Circuit Court for Fayette County
                    No. 18-CR-65       J. Weber McCraw, Judge
                     ___________________________________

                           No. W2018-01387-CCA-R3-CD
                       ___________________________________


The defendant, Aaron Long, appeals the denial of his request for judicial diversion by the
Fayette County Circuit Court. The defendant contends the trial court erred in denying his
request for diversion by improperly relying on two previous misdemeanor convictions for
which he served no jail time. After our review, we affirm the trial court’s denial and
imposition of an effective three-year sentence of supervised probation. The judgments of
the trial court are affirmed.

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

J. ROSS DYER, J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS,
P.J., and CAMILLE R. MCMULLEN, J., joined.

J. Colin Rosser, Somerville, Tennessee, for the appellant, Aaron Long.

Herbert H. Slatery III, Attorney General and Reporter; Brent Cherry, Senior Assistant
Attorney General; Mark E. Davidson, District Attorney General; and Falen Chandler,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                       OPINION

                             Facts and Procedural History

      The defendant was indicted for and pled no contest to two counts of child abuse
and neglect committed against his minor sons on May 8, 2017. Tenn. Code Ann. § 39-
15-401. Prior to entering the plea, the defendant filed a “Brief on the Issue of Diversion”
wherein he argued he qualified for judicial diversion. Within the brief, the defendant
acknowledged two, prior Class A misdemeanor theft convictions entered against him on
August 12, 2003 and April 19, 2010. Despite the prior convictions, the defendant
maintained he qualified for judicial diversion because he did not serve any jail time for
the same. Tenn. Code Ann. § 40-35-313(a)(1)(B)(i)(d). Additionally, the defendant
noted the presentence report identified him as a “low risk factor.”

       At the plea hearing, the trial court reviewed the presentence report and considered
the agreed-upon sentence of three years for each conviction as offered by the parties. The
State, however, explained the parties had “not agreed upon diversion or not,” and the
defendant confirmed he intended to proceed with the no contest plea regardless of the
granting of diversion. The State presented the following facts for the record:

               Had this matter gone to trial, the State would have introduced proof
       that Investigator Tim Neill with the Fayette County Sheriff’s Department,
       along with Dorothy Long and her two children with the initials “AL,” date
       of birth 09/07/08, and “JL,” date of birth 07/08/2012, that on or about May
       8, 2017, Investigator Neill responded to 201 Lakeview Road where Dr.
       Derek Pendleton’s office is located on a juvenile complaint. Upon arrival,
       Investigator Neill spoke with Dorothy Long who advised that her two sons,
       “AL” and “JR” (sic), were physically abused by their biological father, [],
       the defendant, while they were at his home.

               When her sons returned home, “AL []” was complaining that his leg
       and butt were hurting because his dad had whipped him. Ms. Long noticed
       that “AL []” had bruises on his legs and buttock area. Ms. Long also
       noticed bruises on the upper and lower buttocks of “JL.” According to “AL
       []” they were whipped after they got out of the bathtub while unclothed
       with an unknown object. “AL []” stated that he got a whipping because
       “JL” lied and said that he downloaded a game on the iPad and his dad told
       him not to. He also stated that “JL” got a whipping because he pee-peed in
       his clothes. Investigator Neill did notice visible bruising and open
       abrasions on the right to mid-thigh area, upper left, and side buttocks area
       as well as the lower left leg area of “AL [].” There were also bruises on
       “JL’s” legs.

              This did occur in Fayette County. Had this matter gone to trial, the
       State feels confident it would have met its burden of proof and ask[s] the
       [c]ourt to accept this plea and sentence.

        The trial court conducted a plea colloquy wherein the defendant waived his right
to a jury trial and testified he understood the terms of the no contest plea for two Class D
felonies for child abuse and neglect. The trial court accepted the plea and then addressed

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diversion.1 In doing so, the trial court reviewed the presentence report, a report by the
Tennessee Bureau of Investigation (“TBI”), and affidavits offered by the defendant.
Regarding the presentence report, the State objected to the “Strong-R assessment” which
suggested the defendant “has not displayed any threatening, aggressive, or violent
behaviors within the last five years” based upon “the plea entered here today.” The trial
court noted the TBI report indicated the defendant served time for the theft conviction
entered in 2010. The defendant, however, disputed the same and offered affidavits
indicating the Fayette County Jail had no record of him serving jail time for the 2010
conviction. The State offered photographs of the victims’ injuries for consideration.

      Upon its review, the trial court denied the defendant’s request for diversion and
imposed concurrent, three-year sentences for each conviction. The trial court, however,
suspended the defendant’s sentences to 2 years and 362 days of supervised probation.2
Additionally, the trial court imposed a $500 fine for each conviction and ordered the
defendant to complete anger management and parenting classes. The defendant timely
appealed.

                                              Analysis

        On appeal, the defendant asserts the trial court abused its discretion in denying
judicial diversion, asserting he was eligible for the same. The defendant further contends
the trial court incorrectly relied on two prior misdemeanors for which he served no jail
time, erroneously weighed the prior convictions against the factors in support of granting
diversion, and “did not explain why this factor weighed more . . . than the other factors.”
The State argues the trial court did not abuse its discretion, and we agree.

       Our standard of review of the trial court’s sentencing determinations in this case is
whether the trial court abused its discretion, but we apply a “presumption of
reasonableness to within-range sentencing decisions that reflect a proper application of
the purposes and principles of our Sentencing Act.” State v. Bise, 380 S.W.3d 682, 707
(Tenn. 2012). The application of the purposes and principles of sentencing involves a
consideration of “[t]he potential or lack of potential for the rehabilitation or treatment of
the defendant . . . in determining the sentence alternative or length of a term to be
imposed.” Tenn. Code Ann. § 40-35-103(5). Trial courts are “required under the 2005
amendments to ‘place on the record, either orally or in writing, what enhancement or
mitigating factors were considered, if any, as well as the reasons for the sentence, in order
to ensure fair and consistent sentencing.’” Bise, 380 S.W.3d at 706 n.41 (citing Tenn.
       1
        We note, the judgment forms indicate the defendant pled guilty whereas the plea paperwork
shows the defendant entered a “plea of no contest.”
       2
        The defendant received three days of jail credit for May 10 through 12, 2017.
                                                 -3-
Code Ann. § 40-35-210(e)). Under the holding in Bise, “[a] sentence should be upheld 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.” Id. at 709.
The Bise standard of review applies to “appellate review for a trial court’s sentencing
decision to either grant or deny judicial diversion,” State v. King, 432 S.W.3d 316, 325
(Tenn. 2014), and to “questions related to probation or any other alternative sentence,”
State v. Caudle, 388 S.W.3d 273, 278-79 (Tenn. 2012).

       Judicial diversion is a means by which qualified defendants may avoid a criminal
record following a guilty plea or conviction by successfully completing a period of
probation and payment of court-imposed supervision fees. Tenn. Code Ann. § 40-35-
313. “Qualified defendant” is a statutorily defined term referring to 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;

       (b) Is not seeking deferral of further proceedings for any offense committed
       by any elected or appointed person in the executive, legislative or judicial
       branch of the state or any political subdivision of the state, which offense
       was committed in the person’s official capacity or involved the duties of the
       person’s office;

       (c) Is not seeking deferral of further proceedings for a sexual offense, a
       violation of § 39-15-502, § 71-6-117, § 71-6-119, or § 39-15-508, driving
       under the influence of an intoxicant as prohibited by § 55-10-401, vehicular
       assault under § 39-13-106 prior to service of the minimum sentence
       required by § 39-13-106, or a Class A or B felony;

       (d) Has not previously been convicted of a felony or a Class A
       misdemeanor for which a sentence of confinement is served; and

       (e) Has not previously been granted judicial diversion under this chapter or
       pretrial diversion.

Tenn. Code Ann. § 40-35-313(a)(1)(B)(i). Diversion requires the consent of the qualified
defendant. Id. § 40-35-313(a)(1)(A). “Eligibility under the statute does not, however,
constitute entitlement to judicial diversion; instead, the decision of whether to grant or
deny judicial diversion is entrusted to the discretion of the trial court.” King, 432 S.W.3d
at 323 (citing Tenn. Code Ann. § 40-35-313(a)(1)(A) (“The court may defer proceedings
against a qualified defendant....” (emphasis added)); State v. Teresa Turner, No. M2013-
00827-CCA-R3-CD, 2014 WL 310388, at *4-5 (Tenn. Crim. App. Jan. 29, 2014)).
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        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 of justice – the interests of the public
       as well as the accused.”

Id. at 326 (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.” Id. (citing State v. Electroplating, Inc., 990
S.W.2d 211, 229 (Tenn. Crim. App. 1998)). Adoption of the Bise standard of review for
judicial diversion “did not abrogate the requirements set forth in Parker and
Electroplating, which are essential considerations for judicial diversion.” Id. The trial
court need not “recite all of the Parker and Electroplating factors when justifying its
decision on the record in order to obtain the presumption of reasonableness,” however,
“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.” Id. at 327.

      In reviewing the trial court’s sentencing determinations, we are unable to find an
abuse of discretion as the record makes clear the trial court carefully considered the
Parker and Electroplating before denying judicial diversion. After determining the
defendant to be “qualified” for judicial diversion, the trial court addressed the
Parker and Electroplating factors, as follows:

              The [c]ourt is required to consider several things in determining
       whether to grant or deny judicial diversion so I will go through those
       factors. First, the [c]ourt looks to the accused’s amenability to correction.
       The [c]ourt does note he has two prior Class A misdemeanors. One was in
       2003; one was in 2010. So with regard to his amenability to correction it
       does show that not only has he committed one Class A misdemeanor, then
       he’s committed another. He does have several traffic violations. The
       [c]ourt notes that just so the record is accurate that he does have other
       convictions, just to correct the record, but the [c]ourt really does not focus
       on his speeding tickets as a reason to consider or -- in considering the
       judicial diversion, but he does have two different convictions, so the [c]ourt

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      is concerned about his amenability to correction because now he’s here on a
      third offense, now it’s a felony.

             Circumstances of the offense, it is an abuse situation. It does
      involve younger children which is of concern to the [c]ourt. Again, the
      [c]ourt is to look at the accused’s criminal record. I’ve touched on it. He
      does have a prior criminal record. While technically he may be eligible for
      consideration, he does have a criminal record. Social history, I don’t know
      of any reason why there’s a negative on the social history so that does not
      factor against him. The status of the accused’s physical and mental health,
      I don’t know of any physical or mental health issue that would be a
      negative. Deterrence value to the accused as well as to others, well, there’s
      always some deterrent value that’s out there, somewhat neutral on whether
      or not that’s a factor. Certainly, we all recognize child abuse is an issue as
      is any criminal offense and the Legislature has made child abuse something
      that can be considered, so really there’s no positive or negative either way
      on that. And, then, lastly, whether judicial diversion will serve the interests
      of the public as well as the accused, you know, I understand [the
      defendant’s] desire to keep the felony off his record. To me, he’s had two
      chances to have kept a good clean record but again he has violated the law.
      [Defense counsel] argues that the gentleman was younger and maybe not as
      wise as any of us were at that time but along that argument then while we
      may not have been real bright when we were young, we didn’t commit
      crimes that were misdemeanors and now a felony, so I think the [c]ourt has
      to look at all these factors. The [c]ourt does weigh all of them and the
      things that weigh most heavily is he’s already been convicted of two Class
      A misdemeanors. Therefore, I don’t find he’s a good candidate for judicial
      diversion so that request is denied.

       As noted above, the trial court determined three factors weighed against the
defendant and his request for judicial diversion: the defendant’s amenability to
correction, the defendant’s criminal history, and whether diversion would serve the ends
of justice. In weighing these factors, the trial court considered the presentence report
which indicated the defendant had two prior Class A misdemeanor convictions and
numerous traffic violations. These prior crimes “concerned” the trial court in relation to
the defendant’s amenability to correction as the trial court noted the defendant continued
to commit crimes which were increasing in severity. The trial court also found the
physical abuse committed by the defendant against his two minor children to be “of
concern.” Turning to the remaining Parker and Electroplating factors, including the
defendant’s social history, his physical and mental health, and the deterrence value to
others, the trial court considered each factor to be “neutral” in its sentencing
                                           -6-
determination. The trial court ultimately determined the defendant’s prior criminal
history and his low amenability to correction outweighed the other factors considered.
King, 432 S.W.3d at 326. Accordingly, the record demonstrates the trial court carefully
considered the relevant Parker and Electroplating factors before denying judicial
diversion and imposing suspended, concurrent sentences of three years for each
conviction.

       While the defendant is correct in arguing his prior misdemeanor convictions did
not disqualify him from consideration for judicial diversion, merely qualifying for
diversion does not resolve the issue. Id. Rather, upon finding the defendant eligible for
judicial diversion, the trial court was required to consider if diversion was warranted by
weighing the Parker and Electroplating factors, and the record on appeal demonstrates
the trial court did just that. Id. (quoting Parker, 932 S.W.2d at 958). As such, the
defendant is not entitled to relief.

                                       Conclusion

        Based upon the foregoing authorities and reasoning, we affirm the judgments of
the trial court.



                                             ____________________________________
                                              J. ROSS DYER, JUDGE




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