        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                     Assigned on Briefs at Knoxville May 21, 2013

                  STATE OF TENNESSEE v. PARESH J. PATEL

                   Appeal from the Circuit Court for Warren County
                     No. F-13471      Larry B. Stanley, Jr., Judge




                   No. M2012-02130-CCA-R3-CD- Filed July 10, 2013




J AMES C URWOOD W ITT, J R., J., concurring.

              I concur in the results reached in Judge McMullen’s opinion, but I respectfully
depart from the conclusion that State v. Bise, 380 S.W.3d 682 (Tenn. 2012), and State v.
Caudle, 388 S.W.3d 273 (Tenn. 2012), changed the methodology for reviewing judicial
diversion determinations.

                What once was new ground is now trampled by judicial feet pounding out the
refrain that the Sixth Amendment to the United States Constitution forbids the use of any
fact, “‘[o]ther than the fact of a prior conviction, [to increase] the penalty for a crime beyond
the prescribed statutory maximum [unless the same] be submitted to a jury, and proved
beyond a reasonable doubt.’” Blakely v. Washington, 542 U.S. 296, 301 (2004) (quoting
Apprendi v. New Jersey, 530 U.S. 466, 490 (2000)) (emphasis added). I will neither trample
again, see State v. Schiefelbein, 230 S.W.3d 88, 140-50 (Tenn. Crim. App. 2007), nor will
I take the time to identify those who have previously covered this ground. We know that the
United States Supreme Court case law provided the impetus for Tennessee’s amending its
sentencing law to comply with constitutional requirements. See Caudle, 388 S.W.3d at 278
(citing David L. Raybin, The Blakely Fix: New Tennessee Law Restores Judicial Discretion
in Criminal Sentencing, 41 Tenn. B.J. 14, 16 (2005)). Consequently, Bise and Caudle
address no judicial activity other than sentencing. Suffice it to say that the lever that invoked
Sixth Amendment concerns and that unleashed the flood of Blakely progeny was that of
exacting a “penalty” – or imposing a sentence – in a criminal case. Indeed, the legislature’s
2005 amendments targeted specific provisions of our law governing sentences.

               The most obvious reason why Bise and Caudle have no influence over judicial
diversion is that a grant of judicial diversion is not a sentence and is not punitive. Our case
law is clear that a judicial diversion term is not a sentence under the terms of the Sentencing
Act. See, e.g., State v. Turco, 108 S.W.3d 244, 247 (Tenn. 2003); Alder v. State, 108 S.W.3d
263, 267 (Tenn. Crim. App. 2002) (“The judicial diversion probationary period is not a
sentence nor is it punishment.”). Judicial diversion is not listed among the sentencing
alternatives found in Tennessee Code Annotated section 40-35-104. A grant of judicial
diversion does not result in a judgment, see State v. Norris, 47 S.W.3d 457, 462 (Tenn. Crim.
App. 2000), which by definition, in the case of a finding of guilty, imposes both a conviction
and a sentence, T.C.A. § 40-35-209 (e)(2); Tenn. R. Crim. P. 32(e). Indeed, our supreme
court recently recognized that the inclusion of a “judicial diversion” option for disposing of
a case had been improvidently inserted into the uniform judgment form, and it not only
adopted a new judgment form deleting the judicial diversion “box” but also adopted new
Rule 17A that promulgated the use of a separate judicial diversion order. See Tenn. Sup. Ct.
R. 17, 17A (adopted July 27, 2011, effective November 1, 2011). Cf. State v. Deandre
Marcellus Howard, No. M2010-00327-CCA-R3-CD, slip op. at 4 n. 3 (Tenn. Crim. App.,
Nashville, Dec. 14, 2010) (“The inclusion of this box [for judicial diversion in the previous
judgment form] as well as the box labeled “Guilty Plea--Pursuant to 40-35-313” is contrary
to the action taken when deferring proceedings under Code section 40-35-313 and invites
confusion, as is evident in this case.”). Unquestionably, a term of judicial diversion is not
a sentence. For this reason, I cannot see that Bise and Caudle have any application to the
present case.

                Furthermore, even if these cases somehow address judicial diversion, I cannot
subscribe to the proposition that the notion of presumptive reasonableness works a rejection
of established methodology for handling and reviewing judicial diversion cases. The grant
or denial of diversion has always been reviewed for an abuse of discretion, see State v.
Bonestel, 871 S.W.2d 163, 168 (Tenn. Crim. App. 1993) (judicial diversion); State v.
Hammersley, 650 S.W.2d 352, 353 (Tenn. 1983) (pretrial diversion), but just because a
judicial activity is discretionary and is reviewed for abuse of discretion does not signify that
the activity must be unstructured and devoid of principles and guidelines. The diversion
principles and guidelines embodied in Hammersley and 30 years of progeny no doubt have
developed because of the need to guide a court’s discretion – to provide that “soundness” of
which we often speak. See Bonestel, 871 S.W.2ds at 168 (stating, after proclaiming the
abuse of discretion standard of review, that “[w]hen the trial court refuses to grant judicial
diversion to an accused, the court should clearly articulate and place in the record the specific
reasons for its determination”). I have no doubt that were we to toss out these guidelines or
the mandate that the trial court follow them, we would soon have to replace them. Such is
the nature of legal development.

              Indeed, the so-called Bonestel factors for guiding the adjudication of diversion
bear substantive similarity to the sentencing principles and guidelines still in use pursuant to

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our sentencing code. Cf. Bonestel, 871 S.W.2d at 168 (listing “(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 status of the accused’s physical and mental health, and (f)
the deterrence value to the accused as well as others”) with T.C.A. § 40-35-210(b) (listing
“(1) [t]he evidence, if any, received at the trial and the sentencing hearing; (2) [t]he
presentence report; (3) [t]he principles of sentencing and arguments as to sentencing
alternatives; (4) [t]he nature and characteristics of the criminal conduct involved; (5)
[e]vidence and information offered by the parties on the mitigating and enhancement factors
set out in §§ 40-35-113 and 40-35-114; (6) [a]ny statistical information provided by the
administrative office of the courts as to sentencing practices for similar offenses in
Tennessee; and (7) [a]ny statement the defendant wishes to make in the defendant’s own
behalf about sentencing”). Despite the use of an abuse of discretion standard of review of
sentencing decisions, we expect those decisions to be in harmony with the sentencing
considerations. See T.C.A. § 40-35-401(b) (authorizing a sentencing appeal when the
“sentence was not imposed in accordance with [the sentencing act],” the “sentence is
excessive under the sentencing considerations,” or the “sentence is inconsistent with the
purposes of sentencing” set out in the sentencing act) (emphasis added); see also Bise, 380
S.W.3d at 698 (stating that the 2005 sentencing law amendments only insignificantly
amended the factors listed in Code section 40-35-210(b)). Thus, the statement quoted in
Judge McMullen’s opinion that a reviewing court should “‘treat all in-range sentences
imposed by trial courts as presumptively reasonable’” is deflective. Bise actually says, “[W]e
adopt an abuse of discretion standard of review, granting a presumption of reasonableness
to within-range sentencing decisions that reflect a proper application of the purposes and
principles of our Sentencing Act.” Bise, 380 S.W.3d at 707 (emphasis added). The Bonestel
factors influence and inform the exercise of discretion in judicial diversion decisions in the
same way the skeletal structure of the sentencing considerations, principles, and guidelines
influence and inform sentencing discretion. The presence of neither is inimical to the
professed ambit of discretion; indeed, the presence of these hierarchies help to ensure the use
of discretion that is sound. See MacDonnell v. Blankenship, 417 S.W.2d 713, 715 (Tenn. Ct.
App.1967) (explaining that “sound discretion” is that which is “‘exercised, not arbitrarily or
wilfully, but with regard to what is right and just under the circumstances and the law, and
directed by the trial judge’s reason and conscience to a just result’”).

               We as a reviewing court cannot discern whether a trial court utilized an
applicable standard of principles in exercising its discretion unless the trial court, in some
manner, tells us so. Therefore, when that standard of principles exists, we do not encroach
upon the trial court’s discretion to require it not only to be in harmony with the applicable
standard but also to inform us of its conformity.




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               For the foregoing reasons, I can see neither the basis nor the merit of applying
Bise and Caudle to the judicial diversion determination. I would, however, affirm the trial
court’s denial of diversion based upon the time-honored method of review. That being said,
I fully concur in the separate opinion of Presiding Judge Tipton.




                                                    JAMES CURWOOD WITT, JR., JUDGE




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