         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                             Assigned on Briefs March 14, 2006

               STATE OF TENNESSEE v. LOUIS LESLIE MYLES

                     Appeal from the Criminal Court for Davidson County
                        No. 2005-A-129     Cheryl Blackburn, Judge


                     No. M2005-01671-CCA-R3-CD - Filed May 25, 2006


The Appellant, Louis Leslie Myles, appeals the denial of judicial diversion following his guilty pleas
to two counts of theft of property over $1,000. After review of the record, we reverse the sentencing
decision of the Davidson County Criminal 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 JOHN EVERETT WILLIAMS and
ROBERT W. WEDEMEYER , JJ., joined.

Adrian Chick, Nashville, Tennessee, for the Appellant, Louis Leslie Myles.

Paul G. Summers, Attorney General and Reporter; Preston Shipp, Assistant Attorney General; Victor
S. Johnson III, District Attorney General; and Bret Gunn, Assistant District Attorney General, for
the Appellee, State of Tennessee.

                                             OPINION

                                       Factual Background

        On October 6, 2001, the Appellant, while serving in a managerial capacity at Wendy’s
Restaurant in Nashville, appropriated for his personal use $3,585 that he was entrusted to deposit
in the bank. He did the same with $2,055 while working at Shoney’s Restaurant in Nashville on
October 5, 2002. In January of 2005, a Davidson County grand jury returned an indictment against
the Appellant charging him with two counts of theft of property over $1,000.

       Under the terms of a plea agreement, the Appellant pled guilty to both counts of theft of
property over $1,000, Class D felonies. The terms of the agreement provided: (1) the Appellant
would receive concurrent two year sentences for the two convictions, which would be suspended,
with three years probation on each of the two suspended sentences; (2) the Appellant would be
permitted to request judicial diversion, his suitability for which the trial court would determine at
a sentencing hearing; and (3) he would pay restitution to each of the victims. After a sentencing
hearing, the trial court denied the Appellant’s request for judicial diversion. The Appellant now
appeals this sentencing decision.

                                               Analysis

        On appeal, the Appellant asserts 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 and 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
T.C.A. § 40-35-313(b)).

        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. T.C.A. § 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).

         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 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, Inc., 990 S.W.2d at 229. If the trial court refuses 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,
Inc., 990 S.W.2d at 229.



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       The Appellant contends that the trial court failed to consider all relevant factors in
determining whether to grant judicial diversion and that it gave undue importance to the
circumstances of the offenses. Specifically, he asserts that the trial court “failed to give any
consideration to [his] amenability to correction” and failed to give proper weight to his “lack of
criminal record and lack of drug usage.”

       In denying judicial diversion, the trial court stated:

       Looking at all these factors, we have some good and bad factors in all of this.
       Obviously, he has a work history. However, there are lots of different places, but,
       this particular crime involves two of those and about a year apart. . . . [D]rug usage
       is not a problem, criminal record is not a problem, . . . his marital stability . . . his
       child support. But, basically, it sort of comes down to a judgment in this case about
       whether or not given these two separate instances that are like a year apart, . . . and
       exactly the same, whether the deterrent effect of punishment on criminal activity and
       the ends of justice for this would serve that.

       . . . [Q]uite honestly, this is a large amount from two separate businesses. . . . The
       things that bother me the most about this, is the fact that it’s two separate fast food
       places where it’s the bank deposit that he doesn’t deposit. . . . [T]he warrants were
       taken out a year apart from each other. So, it wasn’t a single isolated event that
       occurred in its history. . . . [I]t might not have occurred since, but, still we’ve got two
       separate ones.

        The trial court undoubtably was troubled most by the Appellant’s pattern of criminal
behavior, i.e., the fact that while working as a manager at two separate Nashville restaurants on
occasions separated by one year, the Appellant committed identical offenses of appropriating for his
personal use money that he was entrusted to deposit in the bank. From the record, it is clear that the
trial court based its denial solely upon the circumstances of the offense.

        We find it difficult to distinguish this case from our supreme court’s holdings in State v.
Herron, 767 S.W.2d 151 (Tenn. 1989) and State v. Curry, 988 S.W.2d 153 (Tenn. 1999). In Herron,
our supreme court reversed a denial of diversion which was denied solely based upon the
circumstances of the offense. In that case, the facts established that the two offenses for which the
defendant was indicted “were committed by means of a carefully contrived, deliberate scheme. [The
defendant] obviously devoted quite a bit of planning toward formulating the scheme.” Herron, 767
S.W.2d at 152. Additionally, the “criminal venture was not one of impulse” as it was committed on
separate dates, resulting in a loss of $11,000. Id. Our supreme court reversed the denial of
diversion, holding that review of diversion requires “more than an abstract statement” in the record
that the positive factors for diversion have been considered. Id. at 156.

        Again, in Curry, our supreme court upheld the grant of diversion to a defendant who “worked
as an assistant clerk for the City of McKenzie, Tennessee. Over a two-year period from July of 1993


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to July of 1995, [the defendant] embezzled over $27,000 from the City. She was later indicted for
theft of property valued between $10,000 and $60,000.” Curry, 988 S.W.2d at 155. Diversion was
denied by the district attorney general based upon “the circumstances of the offense and, arguably,
a veiled consideration of deterrence.1 There was no apparent consideration given to the defendant’s
lack of a criminal record, favorable social history, and obvious amenability to correction.” Id. at 159.
Our supreme court held that:

         the circumstances of the offense and the need for deterrence may alone justify a
         denial of diversion, but only if all of the relevant factors have been considered as
         well. E.g., State v. Washington, 866 S.W.2d 950, 951 (Tenn. 1993) (“circumstances
         of the case and the need for deterrence may be considered as two of the many factors,
         [but] they cannot be given controlling weight unless they are of such overwhelming
         significance that they . . . outweigh all other factors”).

Id. at 158. The supreme court explained that more than a simple acknowledgment that positive
factors exist must be noted upon the record. Id. at 159. The trial court must articulate how these
positive factors are outweighed by other relevant factors, including the circumstances of the offense
and the need for deterrence. Id.

        In the case sub judice, many of the elements weigh in favor of the Appellant being granted
judicial diversion. The thirty-seven year old Appellant has been on his own and in the work force
since he was fifteen years old. With regard to his full-time employment, he began working
immediately after completing high school and has worked full-time up to the present date. The
Appellant testified that he has never had less than two jobs at a time and on some occasions has
“worked three jobs.” He is divorced and the father of three children. He is currently enrolled in
community college, and it is his intent to complete an associate’s degree in business. The Appellant
does not drink or smoke and has no history of drug usage. He acknowledges remorse for his actions
and current criminal convictions, and he offers no excuse for his conduct. The record reflects that
the Appellant has no prior criminal history and has committed no additional offenses. He presents
a positive social history, employment history, and acknowledges his familial responsibilities.2

        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.



         1
           In both Herron and Curry, the diversion program sought was that of pretrial diversion, which was denied by
the district attorney general. “Judicial diversion is similar to pretrial diversion and is to be imposed within the discretion
of the trial court subject only to the same constraints applicable to prosecutors in applying pretrial diversion under
Tennessee Code Annotated section 40-14-105.” State v. Anderson, 857 S.W .2d 571, 572 (Tenn. Crim. App. 1992).

         2
          The Appellant states that he is currently in arrears in his child support payments but acknowledges his
responsibility to his children who he asserts are straight “A” students.

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                                          CONCLUSION

        Based upon the record and the trial court’s failure to weigh and 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 imposition of such other reasonable
conditions as may be deemed appropriate by the trial court.



                                                       _______________________________
                                                       DAVID G. HAYES, JUDGE




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