        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                           Assigned on Briefs January 7, 2014

             STATE OF TENNESSEE v. ROMMEL OBLIGACION

                   Appeal from the Circuit Court for Crockett County
                        No. 4183     Clayburn Peeples, Judge


                 No. W2013-00702-CCA-R3-CD - Filed April 15, 2014




R OGER A. P AGE, J., concurring.

        I concur with the majority opinion. However, I respectfully disagree with the standard
of review followed by the majority regarding judicial diversion. I agree with the reasoning
set forth in State v. Kiara Tashawn King, No. M2012-00236-CCA-R3-CD, 2013 WL
793588, at *7 (Tenn. Crim. App. Mar. 4, 2013), perm. app. granted (Tenn. Aug. 14, 2013),
that after Bise, Caudle, and Pollard,

       portions of Parker, Electroplating, and their progeny in which this court
       reversed a trial court’s decision to deny judicial diversion merely because the
       trial court failed to expressly consider one or more of the seven
       legally-relevant factors (or merely because it failed to specify why some
       factors outweighed others) can no longer be considered governing law.

Kiara Tashawn King, 2013 WL 793588, at *7. This reasoning flows from the concept in
Bise that not all mistakes by the trial court merit reversal when the trial court adheres to the
sentencing principles and guidelines. Furthermore, due to the changes in our sentencing
review in other areas,

       it is undesirable, both as a matter of logic and as a matter of public policy, to
       maintain a rule that makes it far more onerous for trial courts to engage in the
       simple act of denying judicial diversion than it is for them to impose the
       maximum available sentence upon a defendant.

State v. James Louis Rhodes, II, No. M2013-00622-CCA-R3-CD, 2014 WL 989733, at *4
(Tenn. Crim. App. Mar. 13, 2014). Thus, a trial court should not be reversed because of a
failure to strictly follow Electroplating. Instead, this court should review a trial court’s
denial of judicial diversion for abuse of discretion, applying a presumption of reasonableness
for decisions made within the guidelines. Kiara Tashawn King, 2013 WL 793588, at *6
(citing State v. Bise, 380 S.W.3d 682, 707 (Tenn. 2012); State v. Caudle, 388 S.W.3d 273,
278-79 (Tenn. 2012)). “If this court determines that a trial court made errors when imposing
sentence, we are nonetheless directed to th[o]roughly review the record to determine if the
sentence imposed by the trial court may be affirmed on any other grounds appearing therein.”
Id. (citing Bise, 380 S.W.3d at 710). In short, it defies my understanding that a trial court can
sentence an individual to one hundred years or more and have that sentence enjoy the
presumption of reasonableness, yet the same trial court contemplating judicial diversion must
consider several factors, assign weight to each factor, and properly weigh them against each
other when exercising its discretion in determining if a defendant can have his or her record
expunged.

       The trial court heard arguments from defense counsel about appellant’s military
service, his work history, his family situation, and his mental and physical health. The trial
court found that appellant had an “exemplary record” but further stated:

       Some offenses are such that the nature of the offense outweigh[s] some of the
       aspects of the Defendant’s character. I don’t see any reason in this case to
       isolate the Defendant. There’s no need to put him in jail to keep the public
       safe from future offenses that he might [commit]. There’s no need that I see
       for rehabilitation. I don’t see any need to punish him so that he won’t do this
       again. I agree with you. That’s not going to be a problem. I have a great
       problem, however, when it comes to what some people refer to as general
       deterrence.

The trial court also stated that diversion would not serve the ends of justice or the interest of
the public. The majority stated, “The only factor it appears that the trial court did not
consider at all was the Defendant’s mental and physical health.” The majority further stated
that the trial court failed to assign weight to the factors and “explain how they were
outweighed by the ‘nature’ of the offense and need for general deterrence.” In my opinion,
the trial court’s recitation shows that it considered and weighed the factors for judicial
diversion. I would conclude that the trial court’s denial of judicial diversion should be
afforded a presumption of reasonableness and upheld despite its not explicitly discussing
appellant’s mental and physical health, the weight to be given to each judicial diversion
factor, or how each factor was considered in its decision. I would affirm the judgment of the
trial court without a finding of harmless error.




                                                     _________________________________
                                                     ROGER A. PAGE, JUDGE

                                               -2-
