         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                            Assigned on Briefs March 22, 2005

                  STATE OF TENNESSEE v. BRIAN CARL LEV

                       Appeal from the Criminal Court for Knox County
                         No. 76621     Richard Baumgartner, Judge



                      No. E2004-01208-CCA-R3-CD - Filed July 21, 2005



The Appellant, Brian Carl Lev, appeals the denial of judicial diversion following his guilty pleas to
two counts of statutory rape. After review, we reverse the sentencing decision of the trial court and
remand for deferment of the proceedings as provided by Tennessee Code Annotated section 40-35-
313 (2003).

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

DAVID G. HAYES, J., delivered the opinion of the court, in which JERRY L. SMITH and JAMES
CURWOOD WITT, JR., JJ., joined.

Mark E. Stephens, District Public Defender; and John Halstead, Assistant Public Defender,
Knoxville, Tennessee, for the Appellant, Brian Carl Lev.

Paul G. Summers, Attorney General and Reporter; Blind Akrawi, Assistant Attorney General;
Randall E. Nichols, District Attorney General; and Takisha Fitzgerald, Assistant District Attorney
General, for the Appellee, State of Tennessee.

                                            OPINION

                                       Factual Background

        In 2001, the thirty-five year old Appellant and the sixteen-year old victim both worked at
Food City in Powell, Tennessee. The Appellant was employed as a meat cutter, and the victim was
a part-time cashier. The two began a consensual sexual relationship in November 2001, which
continued through Christmas 2001. The sexual relations occurred on eight separate occasions at the
home of the Appellant.

       After the victim’s mother was informed that her daughter was seeing an older person, the
mother invited the Appellant to her home on Christmas Day. When the mother learned of the actual
age difference, she contacted authorities and initialed a criminal prosecution of the Appellant. In
February 2003, a Knox County grand jury returned an eight-count indictment against the Appellant
charging him with statutory rape.

       Under the terms of a plea agreement, the Appellant pled guilty to two counts of statutory rape
and received concurrent two-year sentences for the convictions. The agreement further provided that
the manner of service of the sentences would be determined by the trial court and that the Appellant
would be requesting judicial diversion.

        At the plea hearing, the Appellant acknowledged his wrongs and expressed remorse for his
actions. Letters were introduced on behalf of the Appellant, and the proof established that the
Appellant had a stable work history, was single, never having been married, and lived with his
mother whom he supported financially. The record reflects no prior criminal history. The
psychosexual evaluation concluded that the Appellant was not a danger to the community and that
he was unlikely to re-offend. Further, the evaluation noted that the Appellant appeared to be a good
candidate for judicial diversion.

        The victim and her mother testified that the Appellant should be required to serve the
sentence in confinement. At the conclusion of the hearing, the trial court found the Appellant
statutorily eligible for diversion but, relying primarily upon the differences in ages, concluded that
diversion was not warranted. The Appellant appeals the trial court’s denial of judicial diversion.

                                               Analysis

        On appeal, the Appellant argues that the trial court erred in its denial of his application for
judicial diversion. He argues that the record does not reflect consideration of all the relevant factors
required for a determination. He contends that proper consideration of the factors would have
resulted in a grant of diversion.

         “Judicial diversion is legislative largess whereby a defendant adjudicated guilty may, upon
successful completion of a diversion program, receive an expungement from all ‘official records’
any recordation relating to ‘arrest, indictment or information, trial, finding of guilty, and dismissal
and discharge’ pursuant to the diversion statute.” State v. Schindler, 986 S.W.2d 209, 211 (Tenn.
1999). The effect of discharge and dismissal under the diversion statute “is to restore the person .
. . to the status the person occupied before such arrest or indictment or information.” Id. (citing
Tenn. Code Ann. § 40-35-313(b) (2003)).

        A defendant is eligible for judicial diversion when he or she is found guilty or pleads guilty
to a class C, D, or E felony and has not previously been convicted of a felony or a class A
misdemeanor. Tenn. Code Ann. § 40-35-313 (a)(1)(B)(i). However, eligibility under the diversion
statute does not ensure the grant of diversion. Indeed, the decision of whether to place a defendant
on judicial diversion is within the sound discretion of the trial court. State v. Harris, 953 S.W.2d
701, 705 (Tenn. Crim. App. 1996).


                                                  -2-
         In determining whether to grant judicial diversion, the trial court must consider: (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. State v. Electroplating, Inc., 990 S.W.2d 211, 229 (Tenn. Crim. App. 1998). The
trial court should also consider whether judicial diversion will serve the ends of justice - the interests
of the public as well as the accused. State v. Lewis, 978 S.W.2d 558, 566 (Tenn. Crim. App. 1997).
Additional factors which may be considered include the Appellant’s attitude, his behavior since his
arrest, his home environment, current drug usage, emotional stability, past employment, general
reputation, family responsibilities, and the attitude of law enforcement. Id. In addition, “the record
must reflect that the court has weighed all of the factors in reaching its determination.”
Electroplating, 990 S.W.2d at 229. If the trial court refused to grant judicial diversion, it should
state in the record “the specific reasons for its determination.” State v. Parker, 932 S.W.2d 945, 958-
59 (Tenn. Crim. App. 1996). If the trial court “based its determinations on only some of the factors,
it must explain why these factors outweigh the others.” Electroplating, 990 S.W.2d at 229.

       The Appellant contends that in reaching its decision, the trial court considered only the age
discrepancy between the Appellant and the victim and the fact that non-sexual contact continued
between the two after the victim’s mother had requested that contact cease. He asserts that the court
should have considered and commented on the eight letters from family and friends attesting to his
character, the psychosexual evaluation indicating that the Appellant was not a risk for re-offending,
the Appellant’s expressed remorse, his positive work history, and lack of prior criminal history.

         In announcing its ruling, the trial court stated:

         I do not think that this is . . . an appropriate case, Mr. Lev, for judicial diversion.
         You know, if you’d been 19 or 21, that would be one thing, but I mean, you were - -
         you were fully 20 years older, 19 years older - - you were older - - much older than
         she was even that age, if you understand what I’m saying about that. But the point
         is it was - - the discrepancy in ages here has a bearing on my - - my thinking in this
         case. It also has a bearing on my thinking that - - that even after confronted and told
         that this was going to end, it didn’t end.

In essence, the trial court based its decision to deny judicial diversion on a single factor, the
circumstances of the offense, focusing only upon the age difference between the Appellant and the
victim and their continued non-sexual relationship.1


         1
           At the hearing, the victim’s mother testified that after the relationship was discovered, the Appellant and the
victim “continued to sneak and call each other.” During further examination of this issue by the trial court, the victim’s
mother testified that at “another time” after Christmas, her daughter had supposedly gone to her stepson’s house;
however, after calling her stepson, she learned that her daughter was not there. The mother explained that she then drove
to the A ppe llant’s house looking for her daughter, “and she was not at his house, and so when she called to check in, I
told her I knew that she was over at his house, that she needed to return home. So those kinds of things are how I found
                                                                                                            (continued...)

                                                           -3-
        The denial of judicial diversion may be based solely on the nature and circumstances of the
offense, so long as all of the other relevant factors have been considered, and this factor outweighs
all others that might favorably reflect on the Appellant’s eligibility. State v. Curry, 988 S.W.2d 153,
158 (Tenn. 1999). Here, however, we would note that while the factors relied upon by the trial court
are relevant, they do not encompass all of the factors which the court “must” consider in arriving at
a decision to grant or deny a program of diversion. See Lewis, 978 S.W.2d at 566. As observed by
this court on more than one occasion, “[c]areful consideration must be given to the defendant’s lack
of criminal record, favorable social history, and obvious amenability to correction.” State v. Norman
Pipkin, No. W1998-02738-CCA-RM-CD (Tenn. Crim. App. at Jackson, May 24, 2000) (citing
Curry, 988 S.W.2d at 158).

        As previously observed, the trial court found the Appellant statutorily eligible for judicial
diversion. Also included in the record is a certificate from the Tennessee Bureau of Investigation
stating that the Appellant does not have a prior felony or Class A misdemeanor conviction. He is
single, has never been married, has no children, lives with his mother and contributes to her financial
support. He has maintained a stable history of employment, most recently as meat cutter. The
presentence report finds no abuse of alcohol or illegal drugs. He is in good condition, both mentally
and physically. He has a strong support network as evidenced by letters from his family and friends.
The psychosexual evaluation revealed that “it is not believed that [the Appellant] is a danger to the
community.” The evaluation further concluded:

         At the time of the offenses or attempted offenses, [the Appellant] reports believing
         that he had a mutually agreed-upon boyfriend/girlfriend relationship with the victim.
         [The Appellant] made this relationship acceptable in his mind by way of the
         cognitive distortion, common among abusers, that the victim was more mature for
         her age than she was in reality, while feeling that he himself functioned at a level
         younger than his chronological age. He has since corrected that distortion.
         Moreover, it should be noted that this client has achieved significant insight into his
         behavior without therapeutic intervention, suggesting a great deal of serious
         introspection. [The Appellant] takes full responsibility for his offense. He does
         understand that he has caused harm to this girl, and expresses deep regret and
         remorse for his actions. . . . He gives no reason to consider him a serial sexual
         predator, or to believe he has a particular sexual interest in teenagers. He has no
         previous sexual offenses, nor has he had further offenses, sexual or otherwise, since
         he was charged. It is not believed that this client needs intensive supervision in the
         community. He appears to be a good candidate for judicial diversion.



         1
           (...continued)
out that she was still seeing him .”

          W e are not persuaded that the clarity of the above testimonial evidence suppo rts a finding that the Appellant
instigated continued contact with the victim.

                                                          -4-
        Based upon the proof before us, we conclude that the Appellant’s positive factors for
diversion, as articulated above, outweigh any negative factors and that granting judicial diversion
would promote the ends of justice. Accordingly, the sentencing decision of the trial court is reversed
and entry of the judgments of conviction is vacated.

                                          CONCLUSION

       Based upon the record and the trial court’s failure to consider all relevant factors, we
conclude that the trial court abused its discretion by denying judicial diversion. For this reason, the
judgment is reversed, and the case is remanded for deferment of further proceedings as provided by
Tennessee Code Annotated section 40-35-313 and for the imposition of such other reasonable
conditions as may be deemed appropriate by the trial court.



                                                       ___________________________________
                                                       DAVID G. HAYES, JUDGE




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