        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                        Assigned on Briefs February 27, 2013

           STATE OF TENNESSEE v. GRETCHEN ROCHOWIAK

                 Appeal from the Criminal Court for Sullivan County
                         No. S58873    R. Jerry Beck, Judge


                No. E2012-00931-CCA-R3-CD - Filed March 26, 2013


The defendant, Gretchen Rochowiak, appeals the Sullivan County Criminal Court’s denial
of judicial diversion for her convictions of conspiracy to introduce contraband into a penal
institution and introduction of buprenorphine into a penal institution. Discerning no error,
we affirm the judgments of the trial court.

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

J AMES C URWOOD W ITT, J R., J., delivered the opinion of the Court, in which N ORMA M CG EE
O GLE and D. K ELLY T HOMAS, J R., JJ., joined.

Jim R. Williams, Kingsport, Tennessee (on appeal), and Stephanie A. Sherwood, Blountville,
Tennessee (at trial), for the appellant, Gretchen Rochowiak.

Robert E. Cooper, Jr., Attorney General and Reporter; DeShea Dulany Faughn, Assistant
Attorney General; H. Greeley Wells, Jr., District Attorney General; and Joseph Eugene
Perrin, Assistant District Attorney General, for the appellee, State of Tennessee.

                                        OPINION

               In January 2010, the defendant was in a relationship with Leslie Allen Ware,
Jr., a prisoner in the Sullivan County jail who was facing charges of felony murder. Ware
convinced the defendant to assist him in smuggling buprenorphine, a Schedule III controlled
substance, into the jail. The defendant, with the assistance of an accomplice, concealed
crushed buprenorphine pills between the front and back of photographs, and at the direction
of Ware, the defendant delivered the photographs to Ware’s attorneys. The attorneys’ private
investigator, in turn, delivered the photographs to Ware at the jail on January 11, 2010, so
that Ware could review them prior to meeting with a mitigation expert. Neither the attorneys
nor their investigator had any knowledge that the photographs contained concealed narcotics.
               A correctional officer at the jail realized that the photographs had been altered,
and he discovered what appeared to be crushed pills within the photographs. The substance
was sent to the Tennessee Bureau of Investigation Crime Laboratory for analysis, and it was
determined to be buprenorphine.

               After conducting an investigation, the Sullivan County Sheriff’s Department
spoke with the defendant, and she confessed her involvement in delivering the pills to Ware.
As a result of this crime, Ware’s capital murder trial, which was set to begin approximately
two weeks later, had to be reset; Ware’s two attorneys, who had worked on his case for years,
were removed, and new counsel had to be appointed; and the private investigator was
temporarily barred from the Sullivan County jail until an investigation into his potential
involvement in the crime was completed.

                The defendant was charged with, and pleaded guilty to, one count of conspiracy
to introduce contraband into a penal institution, a Class D felony, and one count of
introduction of buprenorphine into a penal institution, a Class C felony. On April 25, 2011,
the trial court sentenced the defendant as a Range I, standard offender to concurrent terms
of two years on count one and three years on count two, for an effective sentence of three
years with all time to be served on probation. In addition, the defendant was ordered to pay
a $500 fine, complete ten hours of community service, and testify truthfully against Ware and
her co-conspirators. On May 20, 2011, the defendant filed a motion to amend the trial
court’s judgment, seeking to withdraw her guilty plea and have a hearing on the issue of
judicial diversion. The trial court granted the defendant’s motion and conducted a hearing
on February 16, 2012. At that time, the defendant re-entered her plea of guilty. The court
then proceeded with its hearing on the matter of judicial diversion.

                At the conclusion of the hearing, the trial court noted, in favor of granting
diversion, that the defendant had no criminal record, that she had expressed remorse, that she
was physically and mentally healthy, and that she had a strong employment record. The trial
court stated that, with the exception of the crime itself, there was “nothing in the presentence
report . . . that would prevent” the court from granting judicial diversion. The trial court,
however, found that the egregious nature of the crime outweighed all positive factors and
denied judicial diversion.

               In this appeal, the defendant contends that the trial court abused its discretion
by refusing to place her on judicial diversion. The State contends that the denial of diversion
was appropriate.

             “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.

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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).

              Eligibility, however, does not automatically translate into entitlement to judicial
diversion. See State v. Bonestel, 871 S.W.2d 163, 168 (Tenn. Crim. App. 1993), overruled
on other grounds by State v. Hooper, 29 S.W.3d 1, 9 (Tenn. 2000). The statute states that
a trial court may grant judicial diversion in appropriate cases. See T.C.A. § 40-35-
313(a)(1)(A) (citing that court “may defer further proceedings”). Thus, whether an accused
should be granted judicial diversion is a question entrusted to the sound discretion of the trial
court. Bonestel, 871 S.W.2d at 168.

               “Tennessee courts have recognized the similarities between judicial diversion
and pretrial diversion and, thus, have drawn heavily from the case law governing pretrial
diversion to analyze cases involving judicial diversion.” State v. Cutshaw, 967 S.W.2d 332,
343 (Tenn. Crim. App. 1997). Accordingly, the relevant factors related to pretrial diversion
also apply in the judicial diversion context. They are:

              [T]he defendant’s criminal record, social history, mental and
              physical condition, attitude, behavior since arrest, emotional
              stability, current drug usage, past employment, home
              environment, marital stability, family responsibility, general
              reputation and amenability to correction, as well as the
              circumstances of the offense, the deterrent effect of punishment
              upon other criminal activity, and the likelihood that [judicial]
              diversion will serve the ends of justice and best interests of both
              the public and the defendant.

Id. at 343-44; see also State v. Washington, 866 S.W.2d 950, 951 (Tenn. 1993). Moreover,
the record must reflect that the trial court has weighed all of the factors in reaching its
determination. Bonestel, 871 S.W.2d at 168. The trial 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.

               On appeal, this court must determine whether the trial court abused its
discretion in failing to grant judicial diversion. Cutshaw, 967 S.W.2d at 344; Bonestel, 871

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S.W.2d at 168. Accordingly, when a defendant challenges the denial of judicial diversion,
we may not revisit the issue if the record contains any substantial evidence supporting the
trial court’s decision. Cutshaw, 967 S.W.2d at 344; Bonestel, 871 S.W.2d at 168.

                In the instant case, the record establishes that the trial court considered
appropriate factors in denying judicial diversion. The trial court determined that the
defendant’s lack of criminal history, good health and employment record, and demonstrated
remorse were outweighed by the circumstances of the offense. Although the record does not
reflect that the trial court considered each and every factor, such as the deterrence value and
amenability to correction, the trial court adequately explained why the nature of the crime
outweighed all other factors. See Bonestel, 871 S.W.2d at 168. The conduct of the defendant
in delivering narcotics to Ware’s attorneys and allowing his attorneys and investigator to
deliver those narcotics to Ware at the jail seriously jeopardized their careers and professional
reputations. Ware’s two attorneys had invested approximately two years of time and money
in his defense, but it was all for naught because they were forced to move to withdraw as
counsel. Because this crime was committed a few short weeks before Ware’s capital murder
trial was to begin, the case had to be reset and new counsel had to be assigned, all of which
“wrecked the [trial court’s] docket.” Furthermore, the necessity of assigning new counsel
who essentially had to start from the beginning in their defense of Ware resulted in
“considerable” costs. These consequences of the defendant’s actions were foreseeable. In
sum, although the trial court found that there were many factors weighing in favor of judicial
diversion, the court ultimately concluded that the circumstances of the offense outweighed
any factors favoring diversion. The trial court acted within its discretion when making this
determination and properly outlined its reasoning in the record. See Cutshaw, 967 S.W.2d
at 344; Bonestel, 871 S.W.2d at 168. Moreover, we hold that there is substantial evidence
in the record to support the court’s finding that the offense committed by the defendant was
particularly egregious. See Bonestel, 871 S.W.2d at 168.

              Accordingly, the judgments of the trial court are affirmed.




                                                    _________________________________
                                                    JAMES CURWOOD WITT, JR., JUDGE




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