        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                 Assigned on Briefs at Knoxville September 16, 2014

               STATE OF TENNESSEE v. CHARLES NEWSOM

                Appeal from the Criminal Court for Davidson County
                  No. 2013-I-1290 J. Randall Wyatt, Jr., Judge


               No. M2014-00168-CCA-R3-CD - Filed October 10, 2014


The Defendant, Charles Newsom, was convicted of aggravated burglary upon his best
interest guilty plea. See T.C.A. § 39-14-403 (2014). As part of the plea agreement, he
accepted a three-year, Range I sentence, with the question of judicial diversion and the
manner of service to be determined by the trial court. The trial court denied judicial
diversion and imposed a split-confinement sentence of one year of confinement followed by
two years of probation. On appeal, he contends that the trial court erred in denying judicial
diversion. We affirm the judgment of the trial court.

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

R OBERT H. M ONTGOMERY, J R., J., delivered the opinion of the court, in which N ORMA
M CG EE O GLE and R OGER A. P AGE, JJ., joined.

Dawn Deaner, District Public Defender; Emma Rae Tennent, Assistant District Public
Defender (on appeal); and Aisha McWeay, Assistant District Public Defender (at hearing),
Nashville, Tennessee, for the appellant, Charles Newsom.

Robert E. Cooper, Jr., Attorney General and Reporter; Caitlin Smith, Assistant Attorney
General; Glenn R. Funk, District Attorney General; and Amy Hunter, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                        OPINION

       At the guilty plea hearing, the prosecutor stated the following:

               Had this case gone to trial the State’s proof would have shown that on
       October 15, 2013 the victim Adria Sambor returned to her residence and found
       that the home had been burglarized via the bedroom window. Caleb Rich also
       lives at that location. Two Macbooks, an Ipad, a silver 120GB Ipod, and a
       PlayStation 3 with four controllers and eight games were stolen.

              At about 4:45 a suspicious person call was dispatched at 1506
       Fatherland. The caller said there were two male blacks, late teens, one with
       dreads wearing a white t-shirt and baggy blue jeans, the other with short hair
       wearing a red long sleeve shirt were looking into houses in the area. About
       five minutes later a theft call was dispatched at 207 South 13th Street. A
       neighbor called the police and said that there were two male blacks, one with
       dreads wearing a white t-shirt and the other with shorter hair and wearing a red
       long sleeve shirt had stolen a package from the porch of that location and that
       they were in the alley.

               Officer Donegan responded and located the defendant and a juvenile
       codefendant at 1001 Shelby Avenue. The defendant had dreads and was
       wearing a white t-shirt and baggy blue jeans. The juvenile codefendant was
       wearing a red long sleeve shirt and had shorter hair. They were both positively
       identified by the witness. The defendant granted consent to search his person
       and Officer Donegan found the silver Ipod in his pants pocket that had Caleb
       Rich’s name on the main screen.

              The defendant said that he and the codefendant were in the area but
       denied stealing the package from 207 South 13th and denied burglarizing 1200
       Shelby Avenue.

       The presentence report was received as an exhibit at the sentencing hearing and
reflected that the eighteen-year-old Defendant had neither completed high school nor
obtained his high school equivalency. He reported that he had never used alcohol, narcotics,
or unprescribed medications. He had Type I Diabetes that required insulin shots with every
meal, and he took medication for a heart condition. He was declared physically disabled in
2001 and had never been employed.

       Adria Sambor, one of the victims, testified that she found her door unlocked and her
home ransacked when she returned from work on October 15, 2013. She found dirt, sticks,
and mud throughout the house and a broken bedroom window, which she said was the point
of entry. She felt scared, horrified, and violated. She listed several missing items: two laptop
computers, a telephone, an iPad, speakers, two large hiking backpacks, a Play Station, games,
and other unspecified items. She valued the stolen items at $4500 to $5000 and said that
although the property was insured, she had a $500 deductible. She said personal photographs
and other information that could not be replaced had been stored on some of the items. She

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worried daily when she left home about someone burglarizing the house and being inside
when she returned.

       Ms. Sambor asked that the trial court give the Defendant the strictest punishment
possible and that the sentence include confinement. She said that she and her boyfriend had
agreed previously to a bond reduction from $35,000 to $3500 for the Defendant in exchange
for his consent and plea to a criminal information and that they agreed because they
understood the conviction “would go on his permanent record.”

        The prosecutor stated that Ms. Sambor’s boyfriend, Caleb Rich, was present but
preferred not to testify and that Mr. Rich’s testimony would have been consistent with Ms.
Sambor’s. The prosecutor also explained that although the plea agreement documents stated
that the issue of judicial diversion was to be determined by the trial court, Ms. Sambor and
Mr. Rich had not agreed to diversion and thought the Defendant was pleading guilty and
would receive a conviction. He thought Ms. Sambor had been misinformed by a
representative of the district attorney general’s office about the terms of the plea agreement.

        The prosecutor also stated that the Defendant had a history of juvenile adjudications
for truancy, loitering, two instances of disorderly conduct, and resisting arrest. The defense
did not contest the accuracy of the prosecutor’s statement. Although the record reflects that
the trial court was provided with documentation related to the Defendant’s juvenile history,
no document appears in the record.

       Metro Police Detective Jack Stanley testified that he was present in general sessions
court for a discussion of lowering the Defendant’s bond, although he was unaware of the
conditions of the plea agreement. He recalled providing information to one of the
prosecutors that the juvenile codefendant was being investigated for other incidents. He said
that only the iPod had been recovered and that the Defendant reported he had found it on the
ground.

       Detective Stanley testified that although the victims had begun cleaning the house
before he arrived on the date of the offense, “items [were] strewn everywhere” and dirt was
on the floors. He said the Defendant and a juvenile codefendant were identified relative to
this case after they were apprehended for a theft of a package outside a home a couple of
blocks away. During the detention for the package theft, officers found Mr. Rich’s iPod on
the Defendant’s person. Detective Stanley said a third incident was reported as occurring
nearby and within a short period of time of the burglary and the theft. He thought that the
collection of fingerprint evidence was attempted but that either no printable surfaces were
available or no fingerprints were obtained.



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       The trial court deferred its ruling until a later hearing, stating that it wanted to review
both the Defendant’s and the codefendant’s juvenile histories. At a subsequent hearing, the
defense offered as an exhibit a statement from the Defendant’s nurse practitioner regarding
his diabetes, his need for regular insulin administration, the danger of developing a life-
threatening illness without insulin, and his high blood pressure.

       The trial court stated that a period of confinement was appropriate “to protect society
from people who commit this type of an offense” and to avoid depreciating the seriousness
of the offense. The court noted the invasion and ransacking of the victims’ home and the
disregard for the victims’ feelings. The court sentenced the Defendant to one year’s
confinement at “CCA,” stating the Defendant could participate in a residential drug abuse
treatment program, followed by two years’ probation. The court said that within the year,
it would consider releasing the Defendant to probation after he completed the rehabilitation
program. In the information provided for the presentence report, the Defendant stated that
he did not use illegal drugs or alcohol. However, the Defendant has not raised an issue
regarding the rehabilitation order, and the transcript of the sentencing hearing reflects
defense counsel’s statement that the sentencing request included drug and alcohol treatment.

       On appeal, the Defendant contends that the trial court erred in denying judicial
diversion. The State contends that the trial court did not err in denying diversion and that the
Defendant was sentenced properly.

       A trial court may order judicial diversion for certain qualified defendants who are
found guilty of or plead guilty or nolo contendere to a Class C, D, or E felony or a lesser
crime; have not previously been convicted of a felony or a Class A misdemeanor; and are not
seeking deferral for a sexual offense. See T.C.A. § 40-35-313(a)(1)(B)(i) (Supp. 2013)
(amended 2014). The grant or denial of judicial diversion is within the discretion of the trial
court. State v. King, 432 S.W.3d 316, 323 (Tenn. 2014) (citing T.C.A. § 40-35-
313(a)(1)(A)). When considering whether to grant judicial diversion, a 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, 990 S.W.2d
211, 229 (Tenn. Crim. App. 1998); State v. Parker, 932 S.W.2d 945, 958 (Tenn. Crim. App.
1996); see King, 432 S.W.3d at 326 (stating that recent caselaw affecting the standard of
review for sentencing determinations “did not abrogate the requirements set forth in Parker
and Electroplating, which are essential considerations for judicial diversion”). “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 a trial court refuses to grant judicial diversion, “[T]he



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court should clearly articulate and place in the record the specific reasons for its
determinations.” Parker, 932 S.W.2d at 958-59.

        On review of a decision to grant or deny judicial diversion, this court will apply a
presumption of reasonableness if the record reflects that the trial court considered the Parker
and Electroplating factors, specifically identified the relevant factors, and placed on the
record the reasons for granting or denying judicial diversion, provided any substantial
evidence exists to support the court’s decision. King, 432 S.W.3d at 327. If, however, the
trial court failed to weigh and consider the relevant factors, this court may conduct a de novo
review or remand the case for reconsideration. Id. at 328.

        The Defendant contends that the trial court failed to conduct an analysis of the
relevant factors, focusing only on the circumstances of the offense and the need for
deterrence, and that no presumption of reasonableness should apply. The State counters that
the court analyzed the appropriate factors and that in any event, it was not required to specify
the reasons it weighed some factors more heavily than others. The record reflects that at the
sentencing hearing, the court deferred its decision until a later date, stating that the Defendant
was going to “serve some time.” The judge also stated that he would consider the
Defendant’s request for “special probation,” noting that although he was not inclined toward
that disposition, he would review everything before making a decision.

       When the trial court announced its ruling at the subsequent hearing, it noted that the
issues were whether the Defendant would receive judicial diversion and the manner of
service of the sentence. The court summarized the evidence regarding the crime and its
impact on Ms. Sambor and stated that it had considered the Defendant’s and his
codefendant’s “criminal records.”1 The court stated its rationale for imposing split
confinement, focusing on the need “to protect society from people who commit this type of
an offense” and “to avoid depreciating the seriousness of going into someone’s house,
ransacking it, just treating people like trash or whatever way you want to put it and not caring
anything about how they would feel.” The judge stated without elaboration that judicial
diversion was not appropriate. Although the judge stated that he would prepare a written
order regarding the denial of diversion, the record does not contain an order.

       Because the record does not reflect that the trial court considered and weighed the
Electroplating factors in denying judicial diversion either at the sentencing hearing or in a
written order, we will conduct a de novo review without a presumption of reasonableness.


        1
        As we have noted, the Defendant was eighteen years old and had a history of juvenile adjudications.
His codefendant was a juvenile. We presume the trial court was referring to the Defendant’s and the
codefendant’s juvenile records.

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See id. at 328. We note the Defendant’s young age and history of less serious juvenile
adjudications. We are concerned, though, that his four juvenile adjudications each occurred
on different dates in 2009, 2011, 2012, and 2013, which shows repeated involvement in the
juvenile justice system. Regarding the present offense, Detective Stanley testified that the
Defendant was cooperative and respectful. The Defendant reported that he did not use
alcohol or drugs other than prescribed medications, although defense counsel stated that the
sentencing request included drug abuse treatment. The Defendant had significant health
concerns that required ongoing medical care. He was disabled from employment due to his
medical conditions, and he had not completed high school or an equivalency examination.
He reported excellent mental health.

       The information about the Defendant’s social history is limited. The presentence
report states that his mother and a minor brother lived in Nashville, that he had two adult
brothers, and that he was unmarried with no children. The trial court noted on the date it
announced the sentence that the Defendant’s family members had been present at an earlier
hearing.

       Regarding the circumstances of the offense, the Defendant was apprehended near the
victims’ house after a theft of a package from the porch of another residence was reported.
The Defendant possessed Mr. Rich’s iPod when he was detained but claimed he found it on
the ground. The Defendant matched the description of one of the two people seen stealing
the package, and he matched a separate description of one of the two people seen looking
into another house. He was identified by an eyewitness. The victims’ house was ransacked,
and dirt and debris were left throughout it. Even though property valued at $4500 to $5000
was stolen, only the iPod was recovered. Ms. Sambor was traumatized by the invasion of her
home and was in fear of future burglaries.

       We afford significant weight to the circumstances of the offense. We are concerned,
as well, by the Defendant’s history of multiple juvenile adjudications and the escalation of
the severity of the present offense from the level of his juvenile incidents. The present
offense is a Class C felony and involved the intrusion into a home. Although the Defendant
appears to have family support, it has not deterred him from continuing to commit offenses.
We conclude that judicial diversion is not appropriate to deter the Defendant from continuing
to commit offenses. In view of the circumstances of the offense, we likewise conclude that
judicial diversion would not serve the ends of justice. The trial court did not err in denying
judicial diversion.




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The judgment of the trial court is affirmed.




                                   ____________________________________
                                   ROBERT H. MONTGOMERY, JR., JUDGE




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