        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                    Assigned on Briefs at Knoxville May 21, 2013

                 STATE OF TENNESSEE v. PARESH J. PATEL

                  Appeal from the Circuit Court for Warren County
                    No. F-13471     Larry B. Stanley, Jr., Judge




                 No. M2012-02130-CCA-R3-CD - Filed July 10, 2013




J OSEPH M. T IPTON, P.J., concurring and dissenting.

       I concur with the majority opinion’s conclusion that the trial court did not err by
denying judicial diversion because it properly considered and weighed all the appropriate
factors. See State v. Electroplating, Inc., 990 S.W.2d 211, 229 (Tenn. Crim. App. 1998);
State v. Parker, 932 S.W.2d 945, 958 (Tenn. Crim. App. 1996). I respectfully disagree,
though, with the conclusion that the standard of review announced in State v. Bise, 380
S.W.3d 682 (Tenn. 2012), and State v. Caudle, 388 S.W.3d 273 (Tenn. 2012), is applicable
to judicial diversion.

        The majority opinion quotes and cites recent unpublished cases for the propositions
that (1) the Bise standard of review affording trial court sentencing decisions a presumption
of reasonableness applies to a court’s granting or denying judicial diversion and (2) the
previous principles guiding this court to reverse a denial of judicial diversion for a trial
court’s failure to consider expressly “one or more of the seven legally-relevant factors (or
merely because it failed to specify why some factors outweighed others)” is no longer good
law. See State v. Kiara Tashawn King, No. M2012-00236-CCA-R3-CD, slip op. at 8 (Tenn.
Crim. App. Mar. 4, 2013), petition for perm. app. filed (Tenn. May 2, 2013); State v. Lewis
Green, No. W2011-02593-CCA-R3-CD, slip op. at 13 n.1 (Tenn. Crim. App. Mar. 28, 2013),
petition for perm. app. filed (Tenn. May 29, 2013). I respectfully disagree, and I believe we
are bound by Electroplating, Inc. and Parker.

       In Kiara Tashawn King, this court rejected Electroplating, Inc. and Parker insofar that
they require a trial court to consider and weigh the following factors during its judicial
diversion determinations and that failure to do so was cause for reversal: (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; (6)
the deterrence value to the defendant and others; and (7) whether judicial diversion will serve
the ends of justice. Kiara Tashawn King, slip op. at 8; see Electroplating, Inc., 990 S.W.2d
at 229 (stating that a trial court must consider and weigh each factor in determining whether
to grant or deny diversion (emphasis added)). I note that although a trial court’s failure to
consider and weigh each factor may be cause for a reversal, this court is permitted to review
the record to determine whether the court properly denied judicial diversion. See
Electroplating, Inc., 990 S.W.2d at 229. In Lewis Green, this court noted that the mandate
requiring express consideration of each Electroplating factor “may no longer be appropriate
in light of” our supreme court’s decisions in Bise and Caudle. Lewis Green, slip op. at 13
n.1. The court stated that the mandate conflicted with this court’s duty imposed by Bise and
Caudle to “treat all in-range sentences imposed by trial courts as presumptively reasonable.”
Id. Although this court did not abrogate a trial court’s obligation to consider each factor, it
concluded that a trial court’s failure to consider one or more of the factors or to state its
reasoning why some factors outweighed others was no longer cause for reversal. Id.

        In essence, the majority opinion relies on Kiara Tashawn King and Lewis Green to
conclude that Bise no longer permits a reversal in judicial diversion cases when a trial court
fails to consider each factor as mandated by Electroplating, Inc. and Parker as long as the
court did not wholly depart from the principles and purposes of the Sentencing Act. See
Kiara Tashawn King, slip op. at 8 (citing Bise, 380 S.W.3d at 706); Lewis Green, slip op. at
13 n.1. I respectfully disagree that Bise overruled Electroplating, Inc. and its progeny and
conclude that the proper standard of review regarding a trial court’s decision to grant or deny
judicial diversion is abuse of discretion. See Electroplating, Inc., 990 S.W.2d at 229.

       In Bise, our supreme court concluded that the length of a sentence “within the
appropriate statutory range [is] to be reviewed under an abuse of discretion standard with a
‘presumption of reasonableness.’” Id. at 708. Our supreme court has, likewise, applied the
abuse of discretion standard with a presumption of reasonableness to “questions related to
probation or any other alternative sentences.” Caudle, 388 S.W.3d at 279. Recently, this
court applied the supreme court’s rationale in Bise and Caudle to misdemeanor sentencing.
See State v. Sue Ann Christopher, No. E2012-01090-CCA-R3-CD, slip op. at 9 (Tenn. Crim.
App. Mar. 14, 2013).

        Although the Bise standard applies to the length of a sentence, alternative sentencing,
and misdemeanor sentencing, judicial diversion is a unique legislative concept. Judicial
diversion permits a trial court to defer judicial proceedings in a criminal case and to place a
defendant on probation “without entering a judgment of guilty.” T.C.A. § 40-35-
313(a)(1)(A) (2010). This court has previously distinguished between the appellate review
of the range, length, and the manner of service of a sentence and judicial diversion. See State

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v. Anderson, 857 S.W.2d 571, 572 (Tenn. Crim. App. 1992). Before Bise, review of the
range, length, and the manner of service of a sentence was reviewed de novo with a
presumption of correctness. See T.C.A. § 40-35-401(d) (2010); see also Anderson, 857
S.W.2d at 572. Judicial diversion, though, is “more than these characteristics - it affects the
underlying conviction as well.” Anderson, 857 S.W.2d at 572. Likewise, Tennessee Code
Annotated section 40-35-104 (2010), addressing sentencing alternatives such as probation
and community corrections, does not include judicial diversion. I conclude that our
legislature did not intend judicial diversion to be considered a form of “alternative
sentencing” and that Bise is inapplicable to matters concerning judicial diversion.

        Moreover, although a defendant must admit his or her guilt before receiving judicial
diversion, judgment is withheld during the deferral period. The probation a defendant is
required to complete during the deferral period is simply the mechanism used by the State
to supervise a defendant, not a sentence of probation. I conclude that judicial diversion is
a distinct legislative concept and that nothing in Bise and Caudle suggests our supreme court
intended to alter a trial court’s obligations or the appellate review of a decision to grant or
deny judicial diversion. As a result, this court is bound by existing, published case law
addressing judicial diversion. As previously noted, though, the trial court did not err in
denying diversion.




                                                    ____________________________________
                                                    JOSEPH M. TIPTON, PRESIDING JUDGE




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