        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT JACKSON

                            JULY SESSION, 1997

                                                               FILED
STATE OF TENNESSEE,           )    C.C.A. NO. 02C01-9610-CR-00349
                              )                         September 10, 1997
      Appellee,               )
                              )                                Cecil Crowson, Jr.
                                                               Appellate C ourt Clerk
                              )    SHELBY COUNTY
VS.                           )
                              )    HON. BERNIE WEINMAN
RAY A. DOUGLAS,               )    JUDGE
                              )
      Appellant.              )    (Denial of Judicial Diversion)


               ON APPEAL FROM THE JUDGMENT OF THE
                CRIMINAL COURT OF SHELBY COUNTY


FOR THE APPELLANT:                 FOR THE APPELLEE:

A. C. WHARTON                      JOHN KNOX W ALKUP
Public Defender                    Attorney General and Reporter

SHERRY BROOKS                      CLINTON J. MORGAN
Assistant Public Defender          Assistant Attorney General
201 Poplar, Suite 2-01             450 James Robertson Parkway
Memphis, TN 38103                  Nashville, TN 37243-0493

                                   JOHN W. PIEROTTI
                                   District Attorney General

                                   REGINALD HENDERSON
                                   Assistant District Attorney General
                                   Criminal Justice Complex, Suite 301
                                   201 Poplar Street
                                   Memphis, TN 38103



OPINION FILED ________________________

AFFIRMED

DAVID H. WELLES, JUDGE
                                            OPINION

           The Defendant appeals as of right from the trial court’s denial of judicial

diversion. The Defendant had entered a plea of guilty to the Class C felony

offense of selling less than .5 grams of cocaine.1 The trial court sentenced the

Defendant to the minimum sentence of three years, with all time suspended

except for sixty days, which the Defendant was allowed to serve on weekends.

On appeal, the Defendant argues that the trial judge abused his discretion when

he denied judicial diversion.2 W e disagree and affirm the judgment of the trial

court.



           The record does not contain a transcript of the guilty plea proceeding.

About all we can ascertain regarding the underlying facts of the offense is that the

Defendant sold another individual a small quantity of crack cocaine. He pleaded

guilty, with sentencing left to the discretion of the trial judge. The State first

argues that the Defendant was sentenced pursuant to a plea agreement and that

therefore the Defendant has no right to appeal the denial of diversion. From our

view of the record, we believe the Defendant entered into a “open-ended” plea

with sentencing left to the discretion of the trial court. W e therefore conclude that

an appeal lies as of right pursuant to Rule 37(b)(2)(ii) of the Tennessee Rules of

Criminal Procedure. See State v. Talmadge G. W ilbanks, C.C.A. No. 02C01-

9601-CR-00003, Shelby County (Tenn. Crim. App., Jackson, Nov. 19, 1996)




1
    Ten n. Code A nn. § 39-17-41 7(c)(2).

2
    See Tenn. Code Ann. § 40-35-313.

                                               -2-
(holding that an appeal lies as of right from the judgment of a trial court denying

judicial diversion).



       W e now turn to the principal issue before us in the present case, namely,

whether the trial court abused its discretion in denying judicial diversion.

Tennessee courts have recognized the similarities between judicial diversion and

pretrial diversion and, thus, have drawn heavily from the case law governing

pretrial diversion to analyze cases involving judicial diversion. For instance, in

determining whether to grant pretrial diversion, a district attorney general should

consider the defendant’s criminal record, social history, mental and physical

condition, attitude, behavior since arrest, emotional stability, current drug usage,

past employment, home environment, marital stability, family responsibility,

general reputation and amenability to correction, as well as the circumstances of

the offense, the deterrent effect of punishment upon other criminal activity, and

the likelihood that pretrial diversion will serve the ends of justice and best

interests of both the public and the defendant. See State v. Washington, 866

S.W.2d 950, 951 (Tenn. 1993); State v. Hammersley, 650 S.W .2d 352, 355

(Tenn. 1983). A trial court should consider the same factors when deciding

whether to grant judicial diversion. See State v. Bonestel, 871 S.W.2d 163, 167

(Tenn. Crim. App. 1993); State v. Anderson, 857 S.W .2d 571, 572-73 (Tenn.

Crim. App. 1992). Moreover, a trial court should not deny judicial diversion

without explaining both the specific reasons supporting the denial and why those

factors applicable to the denial of diversion outweigh other factors for

consideration. See Bonestel, 871 S.W .2d at 168.




                                        -3-
        In addition, this Court applies “the same level of review as that which is

applicable to a review of [a] district attorney general’s action in denying pre-trial

diversion.” State v. George, 830 S.W .2d 79, 80 (Tenn. Crim. App. 1992); see

also Bonestel, 871 S.W.2d at 168; Anderson, 857 S.W.2d at 572. In other words,

this Court reviews the record to determine whether the trial court abused its

discretion. See Bonestel, 871 S.W .2d at 168; Anderson, 857 S.W .2d at 572. To

find an abuse of discretion, we must determine that no substantial evidence

exists to support the ruling of the trial court. See Bonestel, 871 S.W .2d at 168;

Anderson, 857 S.W .2d at 572.



        In the case sub judice, the presentence report reflects that the Defendant

was twenty-one years old, unmarried and had successfully completed high

school. He had a good work record and no significant criminal history. He had

recently undergone surgery for a kidney problem, but his health was apparently

good.    His mother had some health problems and she reported that the

Defendant helped care for her.



        At the hearing on the petition for judicial diversion, the only witness to

testify was the Defendant. He stated that the person to whom he sold the drugs,

who was a codefendant, came to his home and asked him if he had any drugs

to sell. He sold her the cocaine and it turned out she was working with the police

and he was subsequently arrested. He testified that this was the first time he had

ever sold drugs. He stated that at the time he sold the other person the drugs,

he did not know her and that he was among a group of people shooting

basketball in front of a house and she just approached them and asked if

someone could sell her some drugs. He said that he was the one who happened

                                         -4-
to respond. He first stated that he had acquired the drugs the day before he sold

them but then stated it was more like two weeks before he sold them. He said

that he bought ten “rocks” for one hundred dollars but he later testified that he

paid five dollars per “rock”. He said that the “rock” that he sold the other person

was the only “rock” he had at the time and that he had put the rest of the “rocks”

in a field and as far as he knew they were still in the field at the time of the

sentencing hearing. He testified that they were the first drugs he had dealt with

and that he got them from someone who he knew only as “Snake”. When the

judge asked the Defendant about the person he had acquired the drugs from, the

Defendant stated, “I don’t know his full nam e. I just know him as Snake. That’s

all I know.”



       In denying the Defendant diversion, the trial judge expressed his concern

that drug trafficking is a “horrible crime.” Concerning drug traffickers, the judge

stated “I think if there’s any set of circumstances that does not deserve diversion,

it’s these set of circumstances. Randomly selling drugs to people on the street

and care not what happens to them, because of greed.” The trial judge found the

Defendant lacking in credibility, stating, “no, sir, Mr. Douglas, I thought that a

good bit of your testimony wasn’t the truth, very honestly.” The State argues that

the Defendant’s lack of candor during his testimony justifies the trial judge’s

denial of diversion. From our review of the Defendant’s testimony, we certainly

understand why the trial judge found the Defendant lacking in credibility and why

the trial judge was unimpressed with the Defendant’s explanation of the

circumstances surrounding this offense. If a trial judge finds that a defendant

testifies untruthfully at a hearing on an application for judicial diversion, a

favorable decision can hardly be expected.

                                        -5-
      As we have stated, the granting of judicial diversion lies within the sound

discretion of the trial court. The trial court is in the best position to determine the

Defendant’s attitude and dem eanor. Here, it is clear that the judge found the

Defendant to be dishonest and unrepentant.            These factors alone may be

sufficient to justify the trial court’s denial of judicial diversion. See State v.

Dowdy, 894 S.W .2d 301, 307 (Tenn. Crim. App. 1994). The record shows that

the trial judge considered the presentence report, the nature of the offense, and

the circumstances of the Defendant. The trial judge denied judicial diversion but

granted probation. W e are unable to conclude that the trial judge abused his

discretion. See State v. George, 830 S.W .2d 79, 80 (Tenn. Crim. App., 1992);

see also State v. Anderson, 857 S.W.2d 571, 574 (Tenn. Crim. App., 1992).



      The judgment of the trial court is affirmed.



                                  ____________________________________
                                  DAVID H. WELLES, JUDGE



CONCUR:



___________________________________
JOE B. JONES, PRESIDING JUDGE


___________________________________
JOE G. RILEY, JUDGE




                                          -6-
