        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                                   July 24, 2012 Session

             STATE OF TENNESSEE v. SCOT E. VANDERGRIFF

                   Appeal from the Criminal Court for Knox County
                     No. 95898     Mary Beth Leibowitz, Judge


               No. E2011-02136-CCA-R3-CD - Filed September 7, 2012


Appellant, Scot E. Vandergriff, pled guilty to soliciting sexual exploitation of a minor by
electronic means, a Class E felony, for which he received an agreed-upon sentence of two
years. The trial court granted his request for probation but denied his application for judicial
diversion. In this appeal, he claims that the trial court erred in denying his application for
judicial diversion. Because the trial court failed to adequately state upon the record the basis
for denying judicial diversion, we vacate the judgment and remand this matter for further
proceedings consistent with this opinion.

       Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court
                              Vacated and Remanded

R OGER A. P AGE, J., delivered the opinion of the court, in which J AMES C URWOOD W ITT, J R.
and R OBERT W. W EDEMEYER, JJ., joined.

Mark E. Stephens, District Public Defender; Sarah Heath Olesiuk, Assistant Public Defender
(on appeal); and Kevin McGee, Assistant Public Defender (at hearing), Knoxville,
Tennessee, for the appellant, Scot E. Vandergriff.

Robert E. Cooper, Jr., Attorney General and Reporter; John H. Bledsoe, Senior Counsel;
Randall E. Nichols, District Attorney General; and Joanie Stewart, Assistant District
Attorney General, for the appellee, State of Tennessee.
                                         OPINION


                              I. Facts and Procedural History

       A Knox County grand jury indicted appellant for three counts involving sexual
exploitation of a minor by electronic means, one of which is a Class B felony and two of
which are Class E felonies, and one count of sexual exploitation of a minor, a Class D felony.
See Tenn. Code Ann. §§ 39-13-529(e)(1) - (2); 39-17-1003(d) (2010). The parties agreed
that appellant would plead guilty to count two of the indictment, a Class E felony, and the
State would dismiss the remaining counts. The State made the following offer of proof at
the guilty plea hearing with regard to the facts underlying the offenses:

       On October 27th , 2009, Detective Greg Faulkner with the Knox County
       Sheriff’s Office responded to Gibbs High School to meet with Principal Lynn
       Hill about an incident involving a teacher and a student at the school. The
       principal had been alerted to the situation by a parent of the minor child . . .
       after the parent had viewed texts of a sexual nature on her son’s phone. The
       principal . . . confronted [appellant,] a teacher’s aid[,] . . . about sending
       inappropriate texts and nude photos back and forth to a student. [Appellant]
       admitted to the principal that he had sent the photos. Appellant turned over his
       phone to authorities and gave consent to search. The phone . . . contained
       pictures of male anatomy. A subsequent forensic examination of the phone
       showed numerous text messages back and forth from [appellant] to the student,
       including the transmission of penis photographs. . . .

       The trial court accepted appellant’s plea and the two-year sentence agreed upon by the
parties. The court scheduled a sentencing hearing to consider appellant’s request for
probation and judicial diversion. Following a sentencing hearing, the trial court granted
appellant’s request for probation but denied his application for judicial diversion. It is from
that decision that appellant now appeals.

                                         II. Analysis

       Pursuant to Tennessee Code Annotated section 40-35-313, a trial court may “defer
further proceedings against a qualified defendant and place the defendant on probation upon
such reasonable conditions as it may require without entering a judgment of guilty and with
the consent of the qualified defendant.” We review the trial court’s granting or denial of
judicial diversion under an abuse of discretion standard. State v. Robinson, 328 S.W.3d 513,
519 (Tenn. Crim. App. 2010) (citing State v. Cutshaw, 967 S.W.2d 332, 344 (Tenn. Crim.

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App. 1997)). If the record contains any substantial evidence to support the trial court’s
decision, we will not overturn it. State v. Nicole Starcher, No. E2011-02078-CCA-R3-CD,
2012 WL 3133811, at *2 (Tenn. Crim. App. Aug. 2, 2012) (citing State v. Parker, 932
S.W.2d 945, 958 (Tenn. Crim. App. 1996)).

         A trial court must consider the following factors in determining a “qualified
defendant’s” suitability for judicial diversion: (1) the defendant’s amenability to correction;
(2) the circumstances of the offense; (3) the defendant’s criminal record; (4) the defendant’s
social history; (5) the defendant’s physical and mental health; and (6) the degree of
deterrence to the defendant and others. Id. (citations omitted); Robinson, 328 S.W.3d at 520
(citations omitted); see also State v. Lewis, 978 S.W.2d 558, 566 (Tenn. Crim. App. 1997).
The court should also consider whether judicial diversion will serve the ends of justice for
both the public and the defendant. Nicole Starcher, 2012 WL 3133811, at *2 (citation
omitted); Robinson, 328 S.W.3d at 519. The record must reflect that the trial court considered
all of the required factors in ruling on an application for judicial diversion. Nicole Starcher,
2012 WL 3133811, at *2 (citing State v. Electroplating, Inc., 990 S.W.2d 211, 229 (Tenn.
Crim. App. 1998)). Moreover, “the court must explain on the record why the defendant does
not qualify under its analysis, and if the court has based its determination on only some of
the factors, it must explain why these factors outweigh the others.” Id. (citations omitted).

       Based on our review, the trial court’s ruling in open court suggests that it touched
upon some of the determinative factors in denying appellant’s application for judicial
diversion. However, substantial compliance with the requirements is insufficient to
withstand appellate review. The record does not reflect that the trial court considered all of
the factors in ruling on the application. See id. (emphasis added). In denying appellant’s
application for diversion, the trial court stated, “It’s a close call . . . , and I’m going to err on
the side of caution in this situation.” This statement by the court is not tantamount to
explaining its weighing of the necessary factors or why appellant did not qualify for diversion
under its analysis. See id.

        “‘Where a trial court fails to consider all of the appropriate factors and its statement
of the reasons for denial is vague and conclusory, this court will remand the matter for the
trial court’s consideration.’” Id. at *3 (quoting State v. Albert Fitzgerald Turner, No. W2004-
01853-CCA-R3-CD, 2005 WL 1812287, *4 (Tenn. Crim. App. Aug. 1, 2005)). As this court
recently held, “This remedy is particularly appropriate in cases where the record before this
court does not contain all of the relevant information. Here the record does not contain the
judicial diversion application or the certificate of eligibility.” Id. (citations omitted). This
reasoning applies equally in this case. The technical record on appeal does not include
appellant’s application for judicial diversion or the certificate of eligibility issued by the
Tennessee Bureau of Investigation. See Tenn. Code Ann. § 40-35-313(a)(3)(A) (2010) (no

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order for judicial diversion may be entered without “a certificate from the Tennessee Bureau
of Investigation stating that the defendant does not have a prior felony or Class A
misdemeanor conviction”). Accordingly, we reverse and vacate the trial court’s judgment
and remand this matter for a hearing to properly consider appellant’s application for judicial
diversion. On remand, the trial court should place on the record its analysis of all of the
required factors, its weighing thereof, and the reasons underlying its decision.


                                      CONCLUSION


        Based upon our review of the record and the parties’ briefs, we vacate the judgment
of the trial court and remand for proceedings consistent with this opinion.


                                                   _________________________________
                                                   ROGER A. PAGE, JUDGE




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