         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                     June 19, 2001 Session

                  STATE OF TENNESSEE v. DONALD J. MOORE

                        Appeal from the Circuit Court for Coffee County
                           No. 29, 824F    John W. Rollins, Judge



                     No. M2000-02621-CCA-R3-CD - Filed August 7, 2001


At the conclusion of a sentencing hearing, the trial court imposed a sentence of 11 months and 29
days in the Coffee County jail with Defendant to serve 90 days before being released to probation
for the offense of simple possession of a controlled substance, to wit: methamphetamine, plus a fine
of $1,000. In this appeal as of right, Defendant asserts: (1) That the trial court abused its discretion
in failing to sentence the Defendant to judicial diversion provided by Tenn. Code Ann. § 40-35-313;
(2) Whether the trial court properly weighed the mitigating factors presented by Defendant in the
sentencing hearing?; and (3) Whether the trial court imposed an excessive sentence? After a review
of the entire record, briefs of parties, oral arguments and applicable law, we find the trial court
abused its discretion in denying judicial diversion and remand for a judgment of judicial diversion.
Thus, the trial court’s judgment is reversed and remanded.

       Tenn. R. App. P. 3; Judgment of the Circuit Court is Reversed and Remanded.

L. TERRY LAFFERTY, SR. J., delivered the opinion of the court, in which DAVID G. HAYES, J., joined.
THOMAS T. WOODALL , J., filed a dissenting opinion.

Timothy S. Priest, Winchester, Tennessee, for the appellant, Donald J. Moore.

Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General;
and Kenneth J. Shelton, Jr., Assistant District Attorney General, for the appellee, State of Tennessee.

                                              OPINION

         In a two count indictment, the Coffee County grand jury accused Defendant of possessing
a controlled substance, to wit: Methamphetamine, Schedule II, with the intent to sell or deliver and
the possession of drug paraphernalia, to wit: a pipe and butane pencil torch. Defendant agreed to
plead guilty to the simple possession of methamphetamine and the offense of drug paraphernalia
would be dismissed. The record does not contain a transcript of the actual guilty plea proceedings,
but a sentencing hearing was conducted by the trial court to determine a request for judicial diversion
or in the alternative probation on June 1, 2000. The pre-sentence report (Exhibit 1), reveals:
       On March 16, 1999, the Defendant was stopped on Interstate 24 in Coffee County,
       Tennessee, for speeding by Manchester Police Officer Victor Jones. Officer Jones
       obtained permission to search the Defendant’s vehicle and found a quantity of a
       substance later identified to be methamphetamine, a weapon, cash, a pipe and a
       butane torch.

        At the sentencing hearing, Defendant, age 44, a resident of Edgewater, Florida, testified that
on the date in question, he was driving to Indiana to see his newborn granddaughter. He was pulled
over for speeding, given a warning ticket, and when the officer asked permission to search his car,
Defendant gave permission. Defendant stated that he had purchased the methamphetamine at a truck
stop in Georgia from a truck driver about three weeks prior to his arrest for his personal use.
Defendant testified that he had a drug arrest while in Indiana 22 years ago, which was dismissed.
Defendant denied any present use of drugs or using drugs in the past. When asked why he gave
permission to search the car, Defendant responded, “He just asked me. I had no reason not to let
him.” Defendant stated that he had $1,200 on him at the time of his arrest, $600 for traveling
expenses, and $600 for his daughter and granddaughter. Also, his car was seized, which was
returned to him, but his $1,200 was forfeited. Defendant assured the trial court that he could abide
by the conditions of judicial diversion as well as probation, in that he had a good job, and his boss
had been nice to let him come to Tennessee and take care of his problem. The State declined to
cross-examine Defendant.

        In support of Defendant’s request for judicial diversion, Defendant tendered to the trial court
his application for pre-trial diversion. The application established that Defendant was 43 at the time
of the offense and divorced with two grown children. He was a lifelong resident in Logansport,
Indiana, until moving to Florida. He is a high school graduate, and his employment background is
primarily in the automobile service industry. Defendant presently customizes Harley-Davidson
motorcycles. Defendant has no mental or physical disabilities. At the time of his arrest, Defendant
was not under the influence of any drugs or alcohol, and had bought the methamphetamine for $100
for his personal use, with no intention to sell or deliver the drug. Attached to the application were
three letters of support for Defendant’s request for relief. The Tennessee Bureau of Investigations
issued a certification showing no problems in Defendant's past. Thus, he was qualified for
consideration of judicial diversion. The proof established that Defendant is a productive citizen with
a good employment record.

        The State requested the trial court to impose a sentence of 11 months and 29 days, with the
recommendation that Defendant serve 90 full days and the balance of the sentence to be served on
probation with a $1,000 fine, and 200 hours of public service work. The reason was based on the
fact that Defendant had received a substantial concession from the original charge. The amount of
the substance which he possessed was significant (1.5 grams), which clearly could have fallen within
the realm of a resale charge. Further, the State argued that the nature and circumstances of this
offense and the need for deterrence of others in the county, this particular sentence is necessary to
avoid depreciating the seriousness of this particular offense. Based upon the Court’s docket, there



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is a rampant nature of this type of violation in Coffee County. Defendant urged, based upon the
evidence in the record, that the trial court grant a deferred judgment.

       In its ruling, the trial court acknowledged its obligation to consider the principles of the
Sentencing Act, specifically, Tennessee Code Annotated § 40-35-103. The trial court ruled:

       The thing that disturbs me the most about it is that this is a Schedule II drug, and
       that’s pretty serious stuff. This man is 44 years old. I think that doesn’t mitigate; I
       think it probably is more along the line that he ought to have known better. From all
       the proof I have heard, this Judge finds the confinement sentence is absolutely
       necessary to avoid depreciating the seriousness of the offense, and confinement is
       particularly suited to provide an effective deterrent to others prone to commit this
       type of offense.

       Therefore, gentlemen, based on this record, I’m in agreement with the Attorney
       General’s recommendation. I am going to impose 11 months and 29 days to serve
       90 days, $1,000 fine, 200 hours of public service work, which can be done in Florida.
       I just can’t view -- I think he has been given a break. I think if this matter had gone
       to trial on the felony charge, considering the quantities involved, it would have been
       pretty serious.

                                        LEGAL ANALYSIS

        Defendant asserts that the trial court abused its discretion in failing to sentence Defendant
to judicial diversion. The State counters that Defendant glosses over or ignores the facts militating
against diversion.

         In addressing Defendant's challenge, we are mindful that our de novo review is conditioned
with the presumption that the sentencing determination of the trial court is correct. See Tenn. Code
Ann. § 40-35-401(d). Moreover, Defendant bears the burden of establishing that the sentence
imposed by the trial court is improper. Sentencing Commission Comments, Tenn. Code Ann. § 40-
35-401(d). The sentencing considerations generally used in determining the manner of service for
both misdemeanors and felony sentences are codified at Tenn. Code Ann. § 40-35-102,-103. In
addition to the statutory considerations for issuing sentences of confinement, the misdemeanor
sentencing statute, Tenn. Code Ann. § 40-35-302(d), merely requires a trial judge to consider
enhancement and mitigating factors when calculating the percentage of a misdemeanor sentence to
be served in confinement. State v. Troutman, 979 S.W.2d 271, 274 (Tenn. 1998). Misdemeanor
offenses contain no sentencing range, and as opposed to felony sentencing, trial courts are not
required to make specific findings on the record. See State v. Troutman, 979 S.W.2d at 274; State
v. Allen, M1998-00213-CCA-R3-CD, 2000 WL 641150, at *2 (Tenn. Crim. App. 2000). However,
a trial courts findings are of great benefit and the better practice is to do so. See State v. Troutman,
979 S.W.2d at 274. The offense in this case involves the misdemeanor offense of simple possession
of a controlled substance. A misdemeanor is not entitled to the presumption of a minimum sentence.


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State v. Baker, 966 S.W.2d 429, 434 (Tenn. Crim. App. 1997). Further misdemeanor sentences do
not contain ranges of punishments, and a misdemeanor Defendant may be sentenced to the maximum
term provided for the offense as long as the sentence imposed is consistent with the purposes of the
sentencing act. Id. See State v. Palmer, 902 S.W.2d 391, 393 (Tenn. 1995).

         When an accused has been convicted of a misdemeanor or certain designated felonies, the
trial court may, in the exercise of its discretion, defer further proceedings and place the Defendant
on probation without entering a judgment of guilty. Tenn. Code Ann. § 40-35-313(a)(1). If a
Defendant successfully completes the probationary period, then the Defendant is entitled to a
dismissal of the offense and the records expunged. Tenn. Code Ann. § 40-35-313(b). To be eligible
for judicial diversion, the Defendant (a) was convicted of a misdemeanor, which is punishable by
imprisonment, or a Class C, D, or E felony, (b) has never been convicted of a felony or a Class A
misdemeanor, and (c) consents to deferment of the proceedings and the imposition of probation up
to the maximum length of punishment for the offense in question. State v. Bonestal, 871 S.W.2d
163, 167 (Tenn. Crim. App. 1993); Tenn. Code Ann. § 40-35-313(a)(1). A Defendant may meet
these requirements, but that does not indicate one is entitled to judicial diversion as a matter of right.
Id. Whether a Defendant should be granted judicial diversion is a question which addresses itself
to the sound discretion of the trial court. State v. Electroplating, Inc., 990 S.W.2d 211, 229 (Tenn.
Crim. App. 1998); State v. Cutshaw, 967 S.W.2d 332, 344 (Tenn. Crim. App. 1997). 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. State v. Anderson, 857 S.W.2d 571, 572 (Tenn. Crim. App. 1992).

         The criteria that the trial court must consider in determining whether a qualified Defendant
should be granted judicial diversion include the following: (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 deterrence
value to the Defendant and others. See Cutshaw, 967 S.W.2d at 343-44. An additional consideration
(7) is whether judicial diversion will serve the ends of justice, e.g., the interests of the public as well
as the Defendant. Cutshaw, 967 S.W.2d at 344. Also, relevant to the consideration of judicial
diversion a trial court must consider (8) the Defendant's attitude; (9) the Defendant’s behavior since
arrest; (10) a Defendant’s home environment; (11) current drug usage; (12) emotional stability; (13)
past employments; (14) general reputation; (15) family responsibilities; and (16) the attitude of law
enforcement. See State v. Lewis, 978 S.W.2d 558, 566 (Tenn. Crim. App. 1997).

        In this case, the State requested the trial court to assess some period of confinement based
upon the amount of methamphetamine, depreciating the offense and deterrence due to the rampant
nature of this type of violation in this county. However, the trial court did not address Defendant’s
request for consideration of judicial diversion, but accepted the State’s recommendation for the
appropriate sentence. The trial court found that some confinement was necessary to depreciate the
seriousness of the offense and a need for deterrence. Further, the trial court felt Defendant had been
given a break due to the quantity of drugs involved, otherwise the offense would have been quite
serious.


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       In State v. Curry, 988 S.W.2d 153, 158 (Tenn. 1999), our Supreme Court addressed the
question of denial of pre-trial diversion based upon the seriousness of the offense. The Court stated:

        A review of the case law reveals, however, that the circumstances of the offense and
        the need for deterrence may alone justify a denial of diversion, but only if all of the
        relevant factors have been considered as well. E.g., Washington, 866 S.W.2d at 951
        (“circumstances of the case and the need for deterrence may be considered as two of
        the many factors, [but] they cannot be given controlling weight unless they are of
        such overwhelming significance that they. . . outweigh all other factors”). The facts
        and circumstances of nearly all criminal offenses are by definition serious; only by
        analyzing all of the relevant factors, including those favorable to the Defendant, can
        appropriate candidates for this legislative largess be identified in a manner consistent
        with the purpose of the pre-trial diversion act.

        In State v. Hooper, 29 S.W.3d 1, 13, (Tenn. 2000), the Supreme Court addressed deterrence
as a sole reason to deny probation or an alternative sentence; “we hold that a trial judge may sentence
a Defendant to a term of incarceration based solely on a need for deterrence when the record contains
evidence which would enable a reasonable person to conclude that (1) deterrence is needed in the
community, jurisdiction, or state; and (2) the Defendant’s incarceration may rationally serve as a
deterrent to others similarly situated and likely to commit similar crimes.” The criteria, for
incarceration, favoring deterrence are: (1) whether other incidents of the charged offense are
increasingly present in the community, jurisdiction, or in the state as a whole; (2) whether the
Defendant’s crime was the result of intentional, knowing, or reckless conduct or was otherwise
motivated by a desire to profit or gain from the criminal behavior; (3) whether the Defendant’s crime
and conviction have received substantial publicity beyond that normally expected in the typical case;
(4) whether the Defendant was a member of a criminal enterprise, or substantially encouraged or
assisted others in achieving the criminal objective; and (5) whether the Defendant has previously
engaged in criminal conduct of the same type as the offense in question, irrespective of whether such
conduct resulted in previous arrests or convictions. Hooper, 29 S.W.3d at 10,-12.

         Although the trial court stated it considered the principles of the sentencing act, the trial court
did not state any reason as to why judicial diversion should be granted or denied in this case. Since
the trial court did not grant judicial diversion, we must make a de novo determination if there is any
substantial evidence to support this non-grant. The only substantial evidence in this record is the
State’s statement that Defendant was in the possession of 1.5 grams of methamphetamine, which
raises the inference of an intent to sell or deliver. This statement, we find is insufficient in and of
itself to overcome the overwhelming evidence presented by Defendant as to his suitability for
judicial diversion. Thus, we find the trial court abused its discretion in not considering judicial
diversion as an alternative sentence based upon the facts in this record.

       Therefore, we reverse the trial court’s judgment and remand for entry of an order of judgment
placing the Defendant on judicial diversion for a period of 11 months and 29 days, payment of a fine
of $1,000, with 200 hours of public work service. Furthermore, we recommend that the order of


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judgment should comply with Rule 17, Rules of Supreme Court, as to the proper judgment order.
This order provides for specific sentencing determination on misdemeanor offenses and the granting
of diversion or a community based alternative sentence.



                                                     ___________________________________
                                                     L. TERRY LAFFERTY, SENIOR JUDGE




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