        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                             Assigned on Briefs May 4, 2010

                   STATE OF TENNESSEE v. LINDA PINKINS

               Direct Appeal from the Criminal Court for Shelby County
                       No. 09-02193    John T. Fowlkes, Judge




                  No. W2009-02037-CCA-R3-CD - Filed June 11, 2010


The defendant, Linda Pinkins, pled guilty to vehicular homicide, a Class C felony, on July
22, 2009. The trial court sentenced her to three years in the workhouse and ordered that she
serve six months in confinement and five years on probation. On appeal, the defendant
argues that the trial court erred by denying judicial diversion and by sentencing her to a term
of confinement. Following our review, we affirm the judgment of the trial court.

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

J.C. M CL IN, J., delivered the opinion of the court, in which A LAN E. G LENN and D. K ELLY
T HOMAS, J R., JJ., joined.

Kim G. Sims, Memphis, Tennessee, for the appellant, Linda Pinkins.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney
General; William L. Gibbons, District Attorney General; and Garland Erguden, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                           OPINION

                                         Background

        This case stems from the September 14, 2008, vehicular accident that resulted in the
death of a seven-year-old child. Initially, we note that the transcript of the guilty plea hearing
is not in the record before this court. However, the police report reveals that the defendant
was driving northbound on Josephine Street in Memphis, Tennessee, when she side-swiped
one vehicle and rear-ended a second vehicle. The homicide victim was a passenger in the
second vehicle. Paramedics transported the victim from the scene in critical condition, and
he passed away the following day. Crash data from the defendant’s car revealed that she was
traveling seventy-six miles per hour at the time of the accident. The posted speed limit was
thirty-five miles per hour. The defendant gave a statement to police, saying that she could
not remember anything from the time she left the grocery store to after the accident. She
further stated that she was on medication for diabetes and seizures and that she had been in
an accident in 2006 “where [she thought] the same thing happen[ed].” In March 2009, a
Shelby County grand jury indicted the defendant, Linda Pinkins, for vehicular homicide, a
Class C felony. She pled guilty as charged on July 22, 2009. The trial court held a
sentencing hearing on August 11, 2009, at which the defendant and the victim’s great-aunt
testified.

        The defendant testified that she was a secretary for Memphis City Schools. She also
had a position at the airport, but because she was unable to drive for six months after the
accident by operation of law, the airport placed her on medical leave. In 1999, doctors
diagnosed her as a diabetic, and in the same year she began having seizures, for which she
took medication. On the day of the accident, she had taken the prescribed dosage of
medication. She admitted that she blacked out while driving. The defendant said the last
thing she remembered before the accident was leaving a grocery store. When she learned
that a child died as a result of the accident, she became depressed and sought help from her
church. She said, “I’m very sorry that this happened and I wished [sic] it didn’t and I ask
forgiveness from the family.”

       On cross-examination, the defendant admitted that after the accident, she drove
occasionally. In 2000, she had an accident where there was a personal injury, but she could
not remember if a seizure or blackout caused the accident. The defendant did not remember
her doctor telling her, on August 10, 2006, that she should not drive. She had not seen her
doctor for approximately two years before the accident, but she continued taking medication.
Her doctor released her to “return to full duty,” which she considered to mean that she could
drive because her position at the airport required driving. The defendant said she did not
consider herself to be a “menace on the streets” because of her seizures. She stated that she
had valid car insurance at the time of the accident.

       On re-direct examination, the defendant said she thought she did not need to see her
doctor if her seizures were under control. Since the accident, she had been to her doctor two
or three times.

       In response to questions by the court, the defendant said that she has “partial
seizure[s]” that cause her to black out for three to four minutes. She further stated that there
is no warning prior to the onset of the seizures. She had two to three seizures a year, and she
never thought about ceasing to drive “because that’s the only way [she could] get to work and

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anywhere [she needed] to go.” Additionally, she did not believe anyone told her to stop
driving. The defendant said her last car accident was in 2003. She denied that she told
police that her last accident was in 2006 but said she was not sure whether that was true. She
could not remember whether a seizure caused the 2003 accident. When asked how many
accidents she had that resulted from blackouts, she said, “I guess two.”

       Barbara Wakefield, the great-aunt of the victim, testified that the victim was seven
years old when he died. His mother was driving the car, and his two older brothers were also
in the car. All three were injured in the accident. The thirteen-year-old boy “bruised his
back and messed up his leg.” The eleven-year-old boy was in intensive care for an extended
time but has since recovered. The accident injured the mother’s back and leg, and she
continued to take pain medication for her injuries.

       Following the hearing, the trial court denied the defendant’s requests for judicial
diversion and full probation. The court sentenced her to three years in the workhouse and
ordered that she serve six months in confinement and five years on probation.

                                           Analysis

       On appeal, the defendant assigns error to the trial court’s denial of judicial diversion
and imposition of a six-month term of confinement. The state responds that this court should
deem the defendant’s sentencing issues waived for lack of an adequate record due to the
absence of a guilty plea hearing transcript. Alternatively, the state argues that the trial court
properly denied judicial diversion and full probation.

        The record before this court does not contain a transcript of the guilty plea. In order
to conduct an effective appellate review of sentencing, a transcript of the guilty plea hearing
is necessary. State v. Keen, 996 S.W.2d 842, 844 (Tenn. Crim. App. 1999). The transcript
of the guilty plea is usually necessary in order for this court to ascertain the facts and
circumstances surrounding the offense. Indeed, the guilty plea hearing is the equivalent of
a trial. Id. at 843. In the absence of a transcript of a guilty plea, this court must generally
conclude that the sentence imposed by the trial court was correct. Id. at 844. However, the
record in this matter is sufficient to determine the issues presented by the defendant.

        A defendant who challenges his or her sentence has the burden of proving the
sentence imposed by the trial court is improper. Tenn. Code Ann. § 40-35-401, Sentencing
Comm’n Comments; State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). It is this court’s
duty to conduct a de novo review of the record with a presumption that the trial court’s
determinations are correct when a defendant appeals the length, range, or manner of service
of his or her sentence. Tenn. Code Ann. § 40-35-401(d). The presumption of correctness

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is conditioned upon the affirmative showing in the record that the trial court considered the
sentencing principles and all relevant facts and circumstances. State v. Pettus, 986 S.W.2d
540, 543-44 (Tenn. 1999).

                                        Judicial Diversion
        Judicial diversion is a “legislative largess” where a defendant, upon being found guilty
or pleading guilty, may complete a diversion program and receive expungement of records
and dismissal of the charges. State v. Schindler, 986 S.W.2d 209, 211 (Tenn. 1999). When
a defendant contends that the trial court committed error in refusing to impose a sentence
pursuant to Tennessee Code Annotated section 40-35-313, commonly referred to as “judicial
diversion,” this court must determine whether the trial court abused its discretion in failing
to sentence pursuant to the statute. State v. Cutshaw, 967 S.W.2d 332, 344 (Tenn. Crim.
App. 1997). Judicial diversion is similar to pretrial diversion; however, judicial diversion
follows a determination of guilt, and the decision to grant judicial diversion rests with the
trial court, not the prosecutor. State v. Anderson, 857 S.W.2d 571, 572 (Tenn. Crim. App.
1992). When a defendant challenges the trial court’s 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; State v. Parker, 932 S.W.2d 945, 958 (Tenn. Crim.
App. 1996). As this court said in Anderson:

               We conclude 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 T.C.A. § 40-15-105. Therefore, upon review, if “any
       substantial evidence to support the refusal” exists in the record, we will give
       the trial court the benefit of its discretion. Only an abuse of that discretion will
       allow us to overturn the trial court

857 S.W.2d at 572 (citation omitted).

       The criteria that must be considered in determining whether an eligible accused should
be granted judicial diversion include: (a) the defendant’s amenability to correction; (b) the
circumstances of the offense; (c) the defendant’s criminal record; (d) the defendant’s social
history; (e) the defendant’s physical and mental health; and (f) the deterrence value to the
defendant and others. Cutshaw, 967 S.W.2d at 343-44; Parker, 932 S.W.2d at 958. An
additional consideration is whether judicial diversion will serve the ends of justice, i.e., the
interests of the public as well as the defendant. Cutshaw, 967 S.W.2d at 344; Parker, 932
S.W.2d at 958.




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       In this case, the trial court found that the defendant was amenable to correction, had
a good social history, and did not have a criminal record. However, the court also found that
the circumstances of the offense were egregious because the defendant knew that she
occasionally blacked out and had blacked out while driving in the past. Also, four people
were injured as a result of the accident, one of whom died. The court further found that
denial of judicial diversion would serve as a deterrent for both the defendant and those
similarly situated and that judicial diversion would not serve the best interest of the defendant
and the public. The defendant’s testimony provides substantial evidence in support of the
denial of judicial diversion. She admitted that she resumed driving when her doctor released
her to “full duty” and that she had previously had two accidents caused by blackouts. We
conclude that the trial court sentenced the defendant according to the statute and that the
record contains substantial evidence to support the denial of judicial diversion. Therefore,
the defendant is not entitled to relief on this issue.

                                          Probation
       A defendant is eligible for probation if the sentence received by the defendant is ten
years or less, subject to some statutory exclusions. Tenn. Code Ann. § 40-35-303(a). A
defendant with a total effective sentence in excess of ten years is eligible for probation if the
individual sentences imposed for the convictions fall within the probation eligibility
requirements. State v. Langston, 708 S.W.2d 830, 832-33 (Tenn. 1986).

        An especially mitigated or standard offender convicted of a Class C, D, or E felony
is presumed to be a favorable candidate for alternative sentencing in the absence of evidence
to the contrary. Tenn. Code Ann. § 40-35-102(6). A trial court must presume that a
defendant sentenced to ten years or less and for whom incarceration is not a priority is subject
to alternative sentencing. State v. Byrd, 861 S.W.2d 377, 379-80 (Tenn. Crim. App. 1993).
It is further presumed that a sentence other than incarceration would result in successful
rehabilitation unless rebutted by sufficient evidence in the record. Id. at 380. However,
although a defendant may be presumed to be a favorable candidate for alternative sentencing,
the defendant has the burden of establishing suitability for total probation. Tenn. Code Ann.
§ 40-35-303(b); State v. Boggs, 932 S.W.2d 467, 477 (Tenn. Crim. App. 1996). Even though
probation must be automatically considered, “the defendant is not automatically entitled to
probation as a matter of law.” Tenn. Code Ann. § 40-35-303(b), Sentencing Commission
Comments; State v. Hartley, 818 S.W.2d 370, 373 (Tenn. Crim. App. 1991). A defendant
seeking full probation bears the burden on appeal of showing that the sentence imposed is
improper and that full probation will be in the best interest of the defendant and the public.
State v. Baker, 966 S.W.2d 429, 434 (Tenn. Crim. App. 1997).

      In determining whether to grant or deny probation, a trial court should consider the
circumstances of the offense, the defendant’s criminal record, the defendant’s social history

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and present condition, the need for deterrence, and the best interest of the defendant and the
public. State v. Grear, 568 S.W.2d 285, 286 (Tenn. 1978); State v. Boyd, 925 S.W.2d 237,
244 (Tenn. Crim. App. 1995). The defendant’s lack of credibility is also an appropriate
consideration and reflects on a defendant’s potential for rehabilitation. State v. Nunley, 22
S.W.3d 282, 289 (Tenn. Crim. App. 1999).

       Probation may be denied based solely upon the circumstances surrounding the offense.
State v. Ring, 56 S.W.3d 577, 586 (Tenn. Crim. App. 2001); State v. Hartley, 818 S.W.2d
370, 374 (Tenn. Crim. App. 1991). However, the circumstances of the offense as committed
must be especially violent, horrifying, shocking, reprehensible, offensive or otherwise of an
excessive or exaggerated degree; and the nature of the offense must outweigh all factors
favoring probation. Hartley, 818 S.W.2d at 374-75.

       There is no mathematical equation to be utilized in determining sentencing
alternatives. Not only should the sentence fit the offense, but it should fit the offender as
well. Tenn. Code Ann. § 40-35-103(2); State v. Batey, 35 S.W.3d 585, 588-89 (Tenn. Crim.
App. 2000). Indeed, individualized punishment is the essence of alternative sentencing.
State v. Dowdy, 894 S.W.2d 301, 305 (Tenn. Crim. App. 1994). In summary, sentencing
must be determined on a case-by-case basis, tailoring each sentence to that particular
defendant based upon the facts of that case and the circumstances of that defendant. State
v. Moss, 727 S.W.2d 229, 235 (Tenn. 1986).

      Guidance as to whether the trial court should grant alternative sentencing is found in
Tennessee Code Annotated section 40-35-103. Sentences involving confinement should be
based upon the following considerations:

       (A) Confinement is necessary to protect society by restraining a defendant who
       has a long history of criminal conduct;

       (B) Confinement is necessary to avoid depreciating the seriousness of the
       offense or confinement is particularly suited to provide an effective deterrence
       to others likely to commit similar offenses; or

       (C) Measures less restrictive than confinement have frequently or recently
       been applied unsuccessfully to the defendant . . . .

Tenn. Code Ann. § 40-35-103.

        As a standard offender convicted of a Class C felony, the defendant is presumed to
be a favorable candidate for alternative sentencing in the absence of evidence to the contrary.

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Because the defendant is seeking full probation, she bears the burden of showing that the
sentence imposed was improper. In this case, the trial court placed great emphasis on
providing an effective deterrence, which supports the court’s imposition of a period of
confinement. Additionally, the court’s finding that the circumstances of the accident were
egregious further supports its imposition of confinement. In our view, the defendant has not
shown that six months of incarceration was an improper sentence nor has she shown that full
probation is in her best interest or the best interest of the public. The trial court determined
that split confinement was appropriate, and this court is without reason to disturb that
decision.

                                         Conclusion

       Based on the foregoing reasons, we affirm the judgment of the trial court.




                                                    ___________________________________
                                                    J.C. McLIN, JUDGE




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