        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                Assigned on Briefs September 15, 2015 at Knoxville

         STATE OF TENNESSEE v. KEIAHTEE JAMAL TERRELL

                  Appeal from the Criminal Court for Davidson County
                     No. 2014-B-1446    Steve R. Dozier, Judge


              No. M2015-00019-CCA-R3-CD – Filed December 11, 2015


The defendant, Keiahtee Jamal Terrell, pled guilty to aggravated burglary and robbery,
Class C felonies, in exchange for an effective four-year sentence at 30%, with the manner
of service to be determined by the trial court. On appeal, he argues that the trial court
erred in denying judicial diversion or probation. After review, we affirm the sentencing
decision of the trial court.

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

ALAN E. GLENN, J., delivered the opinion of the court, in which NORMA MCGEE OGLE
and D. KELLY THOMAS, JR., JJ., joined.

Dustin E. Sharp, Nashville, Tennessee, for the appellant, Keiahtee Jamal Terrell.

Herbert H. Slatery III, Attorney General and Reporter; Clarence E. Lutz, Senior Counsel;
Victor S. Johnson, III, District Attorney General; and Pamela Anderson, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                       OPINION

                                         FACTS

       On June 6, 2014, the Davidson County Grand Jury indicted the defendant and two
co-defendants, Demontise Martez Drumwright and Secquoyah Shanice Smikes, for
aggravated burglary acting in concert with others and robbery acting in concert with
others, Class B felonies. Additionally, Ms. Smikes was indicted for prostitution. At the
guilty plea hearing, the prosecutor recited the evidence the State would have presented
had the case proceeded to trial:
       Had the parties proceeded to trial on case number 2014-B-1446, the
State anticipates the facts at trial would reveal that on March the 14th of
[2014], a hotel employee reported two male subjects were attempting to
break into room 284 at the Econo Lodge, located at 1412 Brick Church
Pike here in Davidson County. Several officers responded to the call.

       When Officer Brown arrived on the scene, Demontise Drumwright
was inside room 284. Drumwright was screaming, walking around the
room and refused to follow officers[‟] instructions. Officers escorted Mr.
Drumwright out of the room. The victim Robert Hammonds was hiding in
the bathroom. Secquoyah Smikes and [the defendant] were located in the
parking lot. Hammonds related the following: He and Ms. Smikes were
going to spend the night together at that location. At about 11:00 p.m.
someone knocked on the door. Mr. Hammonds looked out of the peephole
and saw two men standing outside of the room. He recognized one of the
subjects as Ms. Smikes[‟s] exboyfriend, [the defendant]. Ms. Smikes ha[d]
previously told Mr. Hammonds about how [the defendant] used to rob
people.

       Hammonds refused to open the door, the suspects began pounding
on the door and kicked it open. The suspects then forced their way into the
room and began assaulting Mr. Hammonds. He managed to get away from
them[,] run into the bathroom and locked the door. The officers noticed
scratches to the left side of Mr. Hammond[s‟] neck, back and che[e]k, his
shirt was also ripped.

        Smikes originally told the officers that she was also a victim of the
assault. She sustained asthma-type symptoms and was transported to
General Hospital that night. [The defendant] told Officer Holycross that his
girlfriend Ms. Smikes and Mr. Hammonds met and were going to hang out
in a room in the Econo Lodge. [The defendant] stated that Smikes
contacted him, stated she was uncomfortable with Hammonds and wanted
[the defendant] to come to the room.

       [The defendant] stated that he and his friend Drumwright went to the
lodge and began banging on the door. [The defendant] stated the door
opened, stepped inside. Mr. Hammonds began shutting the door on him.
[The defendant] continued trying to push the door back open. At that time,
[the defendant] stopped talking to Officer Holycross and refused to provide
any other information.

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               At about 12:45 a.m. Officer Holycross placed [the defendant] under
       arrest and advised him of his rights. He said he understood his rights an[d]
       refused to talk. Due to discrepancies in her story, Ms. Smikes was
       questioned again after being advised of her rights by Officer Brown. She
       then confessed that she helped set Mr. Hammonds up. She agreed to go to
       the hotel with Mr. Hammonds and have sex with him. Smikes stated she
       waited until Hammonds was in the shower and then called [the defendant]
       and Mr. Drumwright to come and rob him.

              The plan was to wait until the victim was naked and Smikes would
       let Drumwright and [the defendant] into the room. And [the defendant] and
       Drumwright knocked, Hammonds refused to open the door. Hammonds
       tried without success to stop Smikes from opening the door.

              According to Ms. Smikes, Mr. Drumwright entered the room and
       began assaulting Mr. Hammonds. After he locked himself into the
       bathroom, Mr. Drumwright took Mr. Hammond[s‟] car keys. Ms. Smikes
       admitted that it was premeditated and Mr. Drumwright would hide the keys
       outside of the room in the bushes and retrieve them later and take Mr.
       Hammond[s‟] vehicle. The keys were not recovered.

       At the November 13, 2014 sentencing hearing, Keylonzo Terrell, the defendant‟s
brother, testified that the defendant could live with him and his family in Goodlettsville if
the defendant were released on probation and that he would provide transportation for the
defendant. He said he was aware of the defendant‟s juvenile record.

       The twenty-year-old defendant testified that he left his mother‟s home at the age
of eighteen and was living with his co-defendant at the time of the offenses. He said he
quit school in the eleventh grade and acknowledged that he had some “juvenile
problems” because he did not get the help he needed and “just gave up.” The defendant
said he had been accepted into the 180 Program, which could provide him with a job and
help him earn his GED, if he were granted probation. Additionally, if granted probation,
the defendant said he would “spend time with [his] family, go to school, try to abide by
the rules on probation, [and] change for society.” The defendant said he had a daughter
who was almost two years old.

       At the conclusion of the hearing, the trial court took the matter under advisement
and subsequently entered an order on December 17, 2014, denying judicial diversion and
ordering the defendant to serve his four-year sentence in confinement.



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                                       ANALYSIS

       The defendant argues that the trial court abused its discretion in denying judicial
diversion or probation because “nothing in the record demonstrates that the seriousness of
the offense was substantial enough to rise to the level of negating the precepts of the
[S]entencing Act and supporting statutes.”

       Following a determination of guilt by plea or by trial, a trial court may, in its
discretion, defer further proceedings and place a qualified defendant on probation without
entering a judgment of guilt. Tenn. Code Ann. § 40-35-313(a)(1)(A). A qualified
defendant is one who is found guilty or pleads guilty or nolo contendere to the offense for
which deferral of further proceedings is sought, is not seeking deferral of further
proceedings for a sexual offense, a violation of section 71-6-117 or section 71-6-119, or a
Class A or Class B felony, and who has not been previously convicted of a felony or a
Class A misdemeanor. Id. § 40-35-313(a)(1)(B)(i). If the defendant successfully
completes the period of probation, the trial court is required to dismiss the proceedings
against him, and the defendant may have the records of the proceedings expunged. Id. §
40-35-313(a)(2), (b).

       The decision to grant or deny a qualified defendant judicial diversion lies within
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); 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). As such, it will not be
disturbed on appeal absent an abuse of discretion. Electroplating, 990 S.W.2d at 229;
Cutshaw, 967 S.W.2d at 344; Bonestel, 871 S.W.2d at 168. To constitute an abuse of
discretion, the record must be devoid of any substantial evidence in support of the trial
court‟s decision. Cutshaw, 967 S.W.2d at 344; Bonestel, 871 S.W.2d at 168; State v.
Anderson, 857 S.W.2d 571, 572 (Tenn. Crim. App. 1992).

       In determining whether to grant diversion, the trial court must consider all of the
following factors: (a) the accused‟s amenability to correction, (b) the circumstances of
the offense, (c) the accused‟s criminal record, (d) the accused‟s social history, (e) the
accused‟s physical and mental health, (f) the deterrence value to the accused as well as
others, and (g) whether judicial diversion will serve the interests of the public as well as
the accused. Electroplating, 990 S.W.2d at 229; Bonestel, 871 S.W.2d at 168. A trial
court should not deny judicial diversion without explaining the factors in support of its
denial and how those factors outweigh other factors in favor of diversion. Id.

      Under the revised Tennessee sentencing statutes, a defendant is no longer
presumed to be a favorable candidate for alternative sentencing. State v. Carter, 254
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S.W.3d 335, 347 (Tenn. 2008) (citing Tenn. Code Ann. § 40-35-102(6)). Instead, the
“advisory” sentencing guidelines provide that a defendant “who is an especially mitigated
or standard offender convicted of a Class C, D or E felony, should be considered as a
favorable candidate for alternative sentencing options in the absence of evidence to the
contrary.” Tenn. Code Ann. § 40-35-102(6).

        A defendant shall be eligible for probation, subject to certain exceptions, if the
sentence imposed on the defendant is ten years or less. Id. § 40-35-303(a). A defendant
is not, however, automatically entitled to probation as a matter of law. The burden is
upon the defendant to show that he is a suitable candidate for probation. Id. § 40-35-
303(b); State v. Goode, 956 S.W.2d 521, 527 (Tenn. Crim. App. 1997); State v. Boggs,
932 S.W.2d 467, 477 (Tenn. Crim. App. 1996). In order to meet this burden, the
defendant “must demonstrate that probation will „subserve the ends of justice and the best
interest of both the public and the defendant.‟” State v. Bingham, 910 S.W.2d 448, 456
(Tenn. Crim. App. 1995) (quoting State v. Dykes, 803 S.W.2d 250, 259 (Tenn. Crim.
App. 1990)).

       There is no bright line rule for determining when a defendant should be granted
probation. Bingham, 910 S.W.2d at 456. Every sentencing decision necessarily requires
a case-by-case analysis. Id. Factors to be considered include the circumstances
surrounding the offense, the defendant‟s criminal record, the defendant‟s social history
and present condition, the need for deterrence, and the best interest of the defendant and
the public. Goode, 956 S.W.2d at 527.

      In determining if incarceration is appropriate in a given case, a trial court should
consider whether:

            (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(1).             Furthermore, the defendant‟s potential for
rehabilitation or lack thereof should be examined when determining whether an
alternative sentence is appropriate. Id. § 40-35-103(5).

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     The trial court imposed an effective sentence of four years. With regard to the
manner of service of the sentence, the court determined:

       The Court must consider the lack or potential for rehabilitation in
       determining the sentence length or how the sentence is to be served.
       T.C.A. § 40-35-103. In making that determination, the Court notes the
       defendant‟s criminal history includes two weapon offenses and a prior
       [a]ggravated [b]urglary. The Court also notes the serious nature of this
       offense. Therefore, the Court denies the defendant‟s request for judicial
       diversion under § 40-35-313 and orders the defendant‟s four year sentence
       at 30% to serve.

        In this case, we cannot conclude that the trial court abused its discretion in
imposing a sentence of confinement. The court noted that the defendant‟s criminal
history included two weapon offenses and a prior aggravated burglary. We note that
these offenses apparently were set out in the record of the defendant‟s convictions, which
is not contained in the record on appeal. However, the defendant has not contested the
accuracy of this information. Accordingly, we affirm the sentencing determinations of
the trial court.

                                    CONCLUSION

        Based upon the foregoing authorities and reasoning, the judgment of the trial court
is affirmed.

                                                 _________________________________
                                                 ALAN E. GLENN, JUDGE




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