        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                        Assigned on Briefs November 27, 2012

                   STATE OF TENNESSEE v. TONI S. DAVIS

                 Appeal from the Criminal Court for Sullivan County
                   No. S58,575    Robert H. Montgomery, Judge


                  No. E2012-00495-CCA-R3-CD - Filed May 22, 2013


        The appellant, Toni S. Davis, entered a plea of guilty to six counts of the sale and
delivery of Suboxone, a Schedule III controlled substance used for treatment of opioid
addiction. The trial court denied her request for judicial diversion, instead imposing
concurrent two-year suspended sentences. The appellant challenges the denial of judicial
diversion and also the imposition of a special condition of her probation that she must
petition the trial court if she wishes to remain in her Suboxone treatment program for opiate
addiction past six months. Following our review of the record, we affirm the judgment of
the trial court.

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

CHRISTOPHER CRAFT, SP. J., delivered the opinion of the Court, in which ROBERT W.
WEDEMEYER and CAMILLE R. MCMULLEN, JJ., joined.

Richard A. Spivey, Kingsport, Tennessee, for the appellant, Toni S. Davis.

Robert E. Cooper, Jr., Attorney General and Reporter; Kyle Hixson, Assistant Attorney
General; Barry P. Staubus, District Attorney General; and Kent Chitwood, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                         OPINION

       The appellant, Toni S. Davis, entered a plea of guilty to the sale and delivery of
Suboxone (a brand name for buprenorphine, a Schedule III controlled substance) on three
separate dates. Her agreement with the State was that the trial judge would merge the three
delivery counts into the three sale counts, and that if the appellant did not receive judicial
diversion, the state would recommend the minimum Range I sentence of two years and a
$2,000 fine as to all three counts to be served concurrently, and the appellant could petition
for an alternative sentence. During the plea, there was a stipulation to the facts surrounding
the three offenses set out in the presentence report, summarized as follows:
        On December 16, 2009 around 5:38 p.m. a confidential informant (“CI”) working for
the police placed a recorded call to the appellant, who advised her to meet her at the CVS
side of Food City on Virginia Avenue. The appellant would be driving a Gray Ford Taurus.
The CI was searched by police officer Crowe and was given a video and audio recording
device and $90 in prerecorded bills. When Officer Crowe drove her there, the appellant
called at 5:48 to tell her to move the meeting location to Dave's Super Wash “due to cops at
Food City.” They arrived at the car wash at 5:52, and the CI got into a gray Ford Taurus with
a white female and then returned to Officer Crowe with six Suboxone pills, was searched
again and gave a written statement of what occurred.
        On December 17th, the next day, the appellant was recorded calling the CI at 5:37 pm
telling her it would be about ten minutes before she would be ready. At 5:58, she called
again stating “it was OK to come on to her house.” The CI was searched by officer Crowe
again and given the recording equipment and another $90. At 6:08 p.m., they pulled into the
appellant's residence. The CI came out four minutes later, returned to the car and gave the
officer ten Suboxone pills, was searched again and gave another written statement of what
occurred.
        On February 9, 2010, about two months later, the CI was to go to an address on
Pemberton Ct. in Bristol, Tennessee, and meet two females to purchase six Suboxone pills
for $120. The CI was searched, given the recording equipment and $120, and was driven to
that address at 3:06 p.m. She went inside but returned stating that the appellant wanted them
to wait down the road because another female was bringing the pills. The CI advised that the
appellant had been given the money. They drove down the road and after approximately 45
minutes, the appellant called and advised they could come get the pills. The CI went to the
front door, spoke to a female and returned with six Suboxone pills. She was again searched.
The appellant was arrested on October 20, 2010, pursuant to a capias.

                                Denial of Judicial Diversion
        At the sentencing hearing, the appellant testified that she was the mother of three
children in the process of obtaining her second divorce. She did not deny giving the CI the
Suboxone pills. She stated that five years ago she had been taking Lortab while pregnant
with her four year old child, her youngest, and fearing it would harm the development of her
child, she went to a Suboxone clinic in Kingsport under doctor’s orders.1 She admitted that
she was an addict, but she also stated that she had chronic pain. Her doctor was prescribing
three Suboxone pills a day but she had lowered that amount, on her own, to one half of one


        1
           In 2002, the FDA approved the use of buprenorphine (Suboxone) for the treatment of opioid
addiction in the United States. It suppresses withdrawal symptoms and cravings for opioids, does not cause
euphoria in the opioid-dependent patient, and it blocks the effects of problem opioids for at least 24 hours.

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pill per day. The CI, Heather, was a friend of hers that had recently moved into the
neighborhood, and the other lady involved, Robin, was also a friend. They all had
prescriptions for Suboxone and traded pills, but she made no profit selling them. The CI had
gotten in trouble with the police and had been told to turn in other people. She stated she has
never sold pills to anyone else. She wished to receive diversion so that she could better
provide for her children “when I do try to get a job and move on with my life. I know it will
be hard to do that with a felony on my record and I mean it terrifies me.” She stated that this
was her first mistake, although a big one.
        On cross-examination, she summarized her offenses as “she would run out I would
let her borrow a few of mine until she went to the doctor and then she would give them back
to me and vice versa.” She also admitted to selling to other persons. When asked why she
changed the location of one sale from Food City to Dave's Car Wash because of the presence
of the police, she stated that it was because she was worried about the CI, who was driving
without a license. When questioned by the trial judge, she stated that “I was the middle
person.” She would get the drugs from Robin, give them to the CI and then give the money
to Robin. She then admitted there was really no “borrowing” involved, but “we all three
knew each other.” When asked why she didn’t just tell the CI to get the pills from Robin, she
had no explanation. When asked why she once asked the CI to wait down the street until the
pills were delivered by Robin since the CI already knew Robin, she stated they might not
have been getting along then.
        A defendant is eligible for judicial diversion when he or she is found guilty or pleads
guilty to a Class C, D, or E felony and has not previously been convicted of a felony or a
Class A misdemeanor. See Tenn. Code Ann. § 40-35-313(a)(1)(B). The decision to grant
judicial diversion lies within the discretion of the trial court and will not be disturbed on
appeal unless it is shown that the trial court abused its discretion. State v. Parker, 932 S.W.2d
945, 958 (Tenn. Crim. App. 1996). In other words, a denial of judicial diversion will not be
overturned if the record contains any substantial evidence to support the trial court's action.
Id. Moreover, we observe that “judicial diversion is similar in purpose to pretrial diversion
and is to be imposed within the discretion of the trial court subject only to the same
constraints applicable to prosecutors in applying pretrial diversion under [Tennessee Code
Annotated section] 40-15-105.” State v. Anderson, 857 S.W.2d 571, 572 (Tenn. Crim. App.
1992).
        The trial judge in this case placed his findings on the record prior to making his
decision. Although he found that factors such as her social history and her mental and
physical health had a neutral effect, he was concerned that the appellant was not amenable
to correction because she depreciated her crimes, and “just saw it as what friends do for each
other,” noting her statement in the presentence report that “I never sold, I gave it to her until
she got her own prescription. The friendship consisted of her bumming.” He also noted the
circumstances of the offenses, involving moving to other places and waiting down the road,
implying clandestine activity that contradicted her testimony at the hearing. He also placed

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emphasis on the deterrent effect on all of the others in the appellant's “circle,” whom she
testified were buying and selling these drugs without a prescription and knew she was in
court for this offense. He therefore found that placing her on diversion would not serve her
best interests or those of the public. He did place her on full probation, however, despite
noting as a negative factor that the appellant had made no recent efforts to get a GED or
become employed.
        The trial court properly weighed all of the relevant factors and determined that the
Defendant was not a suitable candidate for judicial diversion. We conclude that the trial court
adequately explained his findings on the record and did not abuse his discretion.

                                Special Condition of Probation
        In its grant of probation to the appellant, the trial court ordered the following special
condition of probation, as reflected on the judgment of conviction on Count One: “Defendant
needs to petition court if she wants to remain in Suboxone program for over 6 mo.” The
appellant urges this court to relieve her of that probation condition as unreasonable, as the
trial court is overstepping his bounds by intervening in medical treatment matters that should
remain between the appellant and her doctor, and are “beyond the bounds of traditional
rehabilitation,” citing State v. Robinson, 139 S.W.3d 661, 666 (Tenn. Crim. App. 2004).
        “The Sentencing Act provides that ‘the trial court has great latitude in formulating
punishment, including the imposition of conditions of probation.’” State v. Jones, 328
S.W.3d 520, 523-24 (Tenn. Crim. App. 2010)(quoting State v. Burdin, 924 S.W.2d 82, 85
(Tenn. 1996)). However, the primary purpose of a sentence of probation “is rehabilitation of
the defendant,” Burdin, 924 S.W.2d at 86, and the conditions of probation must be suited to
this purpose. “Once the trial judge determines that probation is justified under the
circumstances, the conditions imposed must be reasonable and realistic and must not be so
stringent as to be harsh, oppressive or palpably unjust.” Stiller v. State, 516 S.W.2d 617, 620
(Tenn. 1974). The Act does not grant to the trial court “unfettered authority” to impose any
condition on the defendant's probation, but it limits the court's discretion to “the bounds of
traditional notions of rehabilitation.” Burdin, 924 S.W.2d at 87; see also State v. Mathes, 114
S.W.3d 915, 918 (Tenn. 2003) (disapproving probation condition that did “not serve either
the goal of rehabilitation or the goal of deterrence”); State v. Robinson, 139 S.W.3d 661, 666
(Tenn. Crim. App. 2004). That being said, however, the burden of demonstrating the
impropriety of a probation condition rests with the defendant. Burdin, 924 S.W.2d at 84.
        The trial court, after asking the appellant if she was still in the treatment program,
stated that in the court's opinion “there's no reason that that should last more than another six
months.” When her attorney questioned this, the court stated “Well, then, we can have a
hearing on that within six months ...” to which the attorney agreed. The trial judge then
stated
        based on everything I know six months is the limit. I mean it's just, Suboxone is just
        another drug and while it has some benefits for people that have opiate addiction I

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       mean it's just another drug and she ---- and unfortunately there are too many people
       out here that are in the business, legally in the business, of distributing, prescribing
       and distributing those kinds of drugs and I'm afraid that people are taken advantage
       as part of that.

The trial judge also explained his reasons for imposing that special condition as follows:

       Well, let me state two things... . She testified there's some days that she only takes a
       half one, that she on her own is trying to get off of that, which I assume is probably
       contrary to what her physician has told her. I mean she's trying to get off.
       ....
       The other thing though is, is that she testified that she was ---- as I say she was trying
       to get off of it herself and what I said was is that if she's ---- that I thought that six
       months was a reasonable time period for her to obtain that. The drugs involved in this
       .... sale and delivery were Suboxone and so ---- you know, and if you are prescribed
       a certain amount and you obtain a certain amount and then you're only using a half a
       one then that means all those others are free for you to do with whatever you want to.
       ....
       ... [W]hat I've done is provided a mechanism that if there's medical evidence that I
       need to hear that causes me to change my mind as a result of probation I'm more than
       happy to do that.

The special condition of probation was clearly meant to be rehabilitative, not punitive. The
trial court was properly concerned that the appellant had been in the Suboxone treatment
program for five years and had been convicted of selling and delivering the very pills that she
was receiving from the program. She also had admitted under oath that she was not presently
using more than two thirds of the pills prescribed to her by the physician monitoring her
treatment program, and those extra pills could easily be subject to illegal sale, delivery or
other abuse by the appellant. The trial court also provided an avenue for the continuance of
the program past the six-month limit by allowing her to petition the court and show a medical
necessity for continuing treatment. In the court's opinion, the appellant has not carried her
burden of showing the impropriety of this probation condition.




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                                        CONCLUSION
        For the reasons set forth above, this court finds that the appellant was properly denied
judicial diversion and was properly ordered, as a special condition of probation, to petition
the trial court if she wished to continue participation in her Suboxone treatment program six
months past the sentencing date. The decisions of the trial court are affirmed.


                                                 ___________________________________
                                                 CHRISTOPHER CRAFT, SPECIAL JUDGE




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