        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                         Assigned on Briefs November 1, 2012

         STATE OF TENNESSEE v. CYNTHIA DENISE MARSHALL

                 Appeal from the Circuit Court for Hardeman County
                    No. 2012-CR-76     J. Weber McCraw, Judge


               No. W2012-01011-CCA-R3-CD - Filed January 23, 2013


The Defendant, Cynthia Denise Marshall, pleaded guilty to introducing contraband into a
penal institution, a Class C felony, possession with the intent to deliver morphine, a Class C
felony, and possession with the intent to deliver more than one-half gram of marijuana, a
Class E felony. See T.C.A. §§ 39-16-201 (2010) (amended 2012), 39-17-417 (2010)
(amended 2012). She was sentenced as a Range I, standard offender to an effective six years
on probation. On appeal, she contends that the trial court erred by denying judicial diversion.
We reverse the trial court’s denial of judicial diversion and remand the case for a new
sentencing hearing.

  Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Reversed;
                                  Case Remanded

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

Shana Johnson, Somerville, Tennessee, for the appellant, Cynthia Denise Marshall.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Senior Counsel; D.
Michael Dunavant, District Attorney General; and Joe L. Van Dyke, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                         OPINION

       This case relates to the Defendant’s entering the Hardeman County Correctional
Center with a concealed package of drugs when attempting to visit an inmate. At the guilty
plea hearing, the parties stipulated that the Defendant entered the prison with three bags of
marijuana, weighing 118 grams, and one bag of morphine in her undergarments. The
package was found during a routine search of visitors. Pursuant to the plea agreement, the
Defendant received a four-year sentence for introducing contraband into a penal facility, a
four-year sentence for possession with the intent to deliver morphine, and a two-year
sentence for possession with the intent to deliver more than one-half gram of marijuana. The
parties agreed that the introduction of contraband and the possession with the intent to deliver
more than one-half gram of marijuana convictions would run consecutively and that the
possession with intent to deliver morphine conviction would run concurrently with the
introduction of contraband conviction, with all sentences suspended. The Defendant applied
for judicial diversion.

       At the sentencing hearing, the Defendant testified that she did not have any previous
misdemeanor or felony convictions but that she had been convicted of one minor traffic
violation. She denied having received judicial diversion before the present offenses or
serving time in confinement. She agreed that she made a poor decision and said that she was
not going to visit anyone else in jail.

        The Defendant testified that she had been employed throughout her life and that she
was currently employed at KSW Childcare. She said she was capable of paying the fines and
agreed she would satisfy her obligations. She said she planned to apply any tax return refund
to her fines. The State did not cross-examine the Defendant.

        The trial court stated on the record that no presentence report was prepared and that
the parties waived having a presentence report. In determining whether to grant the
Defendant’s request for judicial diversion, the court commented that with regard to the
Defendant’s amenability to correction, nothing was presented that gave the court “great
concern.” The court stated that it was “greatly concerned” about the circumstances of the
offense and that taking drugs into a penal facility was a “significant problem” in Hardeman
County. The court found that although the prison environment should have intimidated the
Defendant, she was “bold enough” to enter a prison with drugs and to attempt to deliver them
to an inmate. The court commented that no evidence was presented showing the Defendant
had a previous criminal history or giving the court concern about her physical and mental
health or her social history. The court noted that it was concerned that the Defendant was
employed in a childcare facility when she attempted to deliver drugs to an inmate.

       With regard to deterring the Defendant and others, the trial court stated that it had
been “a significant problem in this county with visitors taking drugs or phones or other
contraband into a prison. . . . The prisons are difficult enough to control without having
access to drugs and other contraband.” The court said it “weigh[ed] heavily the need to deter
others who would be this foolish as to try to complicate the running of prisons.” The court
found that the public interest would not be served by allowing “people who are already in
violation of the law to further be presented with opportunities to violate the law.” The court

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stated that it needed “to send a strong message, which I’ve tried to do to others, that this will
not be tolerated. . . .” The trial court denied judicial diversion and ordered the Defendant’s
effective six-year sentence to be served on probation.

       On appeal, the Defendant contends that the trial court erroneously denied judicial
diversion because it relied solely on deterrence rather than the proof presented at the hearing.
The State responds that the trial court did not abuse its discretion by denying diversion and
argues that there is substantial evidence supporting the denial of diversion.

        A defendant is eligible for judicial diversion if he or she is found guilty of or pleads
guilty or nolo contendere to a Class C, D, or E felony or a lesser crime, has not previously
been convicted of a felony or a Class A misdemeanor, and is not seeking deferral for a sexual
offense. See T.C.A. § 40-35-313(a)(1)(B)(I) (2010). The decision to grant judicial diversion
lies within the sound discretion of the trial court, and this court will not disturb that decision
on appeal absent an abuse of discretion. State v. Electroplating, Inc., 990 S.W.2d 211, 229
(Tenn. Crim. App. 1998). Upon review, we will give the trial court the benefit of its
discretion if “‘any substantial evidence to support the refusal’ exists in the record.” State v.
Anderson, 857 S.W.2d 571, 572 (Tenn. Crim. App. 1992) (quoting State v. Hammersley, 650
S.W.2d 353, 356 (Tenn. 1983)).

        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. Electroplating, 990 S.W.2d at 229; State v.
Parker, 932 S.W.2d 945, 958 (Tenn. Crim. App. 1996). In addition, “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 the trial court refused to grant judicial diversion, it should state in the
record “the specific reasons for its determinations.” Parker, 932 S.W.2d at 958-59.
Appellate review is precluded if the trial court fails to make findings in support of its
determination regarding judicial diversion.           See State v. Kevin Spurling, No.
E2008-02599-CCA-R3-CD, slip op. at 4 (Tenn. Crim. App. Feb. 8, 2010).

        The trial court commented that nothing in the record showed that the Defendant had
a previous criminal history or mental or physical health problems. It also commented that
no evidence was presented giving the court concern about her amenability to correction. The
court denied judicial diversion because it found diversion would not serve the public interest
and because the court needed to deter others from committing similar offenses. With regard
to deterrence, the court was greatly concerned about the circumstances of the offense because
visitors taking drugs and other contraband into the prison was a “significant problem” in

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Hardeman County. No evidence was presented regarding the number of incidents involving
visitors bringing illegal narcotics into the local prison, although the court stated that it had
tried to send a strong message to others that such behavior will not be tolerated. A trial court
must only consider “evidence in the record of the trial, the sentencing hearing, the
presentence report and the record of prior felony convictions filed by the district attorney
general with the court.” T.C.A. § 40-35-210(f) (2010). See State v. Hooper, 39 S.W.3d 1,
12 (Tenn. 2001); State v. Nunley, 22 S.W.3d 282, 288 (Tenn. Crim. App. 1999). Sufficient
evidence establishing the need for deterrence includes statistics and “testimony by someone
with special knowledge of the level of a particular crime. . . .” Hooper, 29 S.W.3d at 11. A
court’s general observation that a particular offense occurs frequently within the county
“cannot serve as a substitute for factual findings containing comparisons to indicate”
increased instances of visitors taking drugs and other contraband into the local prison. See
State v. Fields, 40 S.W.3d 435, 442 (Tenn. 2001). We conclude that the court erred by
finding, without sufficient evidence, that visitors taking drugs and other contraband into the
local prison was a significant problem in Hardeman County.

        We note that after defense counsel’s direct examination of the Defendant, the court
asked the prosecutor if the State had any challenge. The prosecutor stated, “The State
understands the Court’s prior policy related to drugs being taken into the prison. Otherwise,
we would have no challenge.” The court began its findings of fact and conclusions of law.
This statement indicates that the court had a general policy of denying judicial diversion for
this particular offense, although judicial diversion is permitted for introducing contraband
into a penal institution. See T.C.A. § 40-35-313(a)(1)(B)(I) (2010). Any such policy is in
direct contravention of the statute making this offense diversion eligible and is an abuse of
discretion.

       We also note that Tennessee Code Annotated section 40-35-205 requires that a
presentence report be completed “upon the acceptance of a guilty plea or upon a verdict or
findings of guilty” in felony cases. The Defendant was convicted of two Class C felonies
and one Class E felony. No presentence report was prepared, and the parties waived having
a report prepared for the trial court’s judicial diversion determination. This court has
concluded that sentencing a defendant in the absence of a presentence report is reversible
error. See State v. Rice, 973 S.W.2d 639, 642 (Tenn. Crim. App. 1997); see also State v.
Danny Ray Hensley, No. E2012-02325-CCA-R3-CD, slip op. at 4-5 (Tenn. Crim. App.
October 31, 2012); State v. Edward Wooten Titus, No. E2011-02407-CCA-R3-CD, slip op.
at 2-3 (Tenn. Crim. App. Aug. 17, 2012); State v. Ronnie C. Allen, No. 03C01-9409-CR-
00347, slip op. at 2 (Tenn. Crim. App. Mar. 10, 2005).




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        State v. Richard Douglas Lowery, No. 03C01-9604-CC-00146 (Tenn. Crim. App.
May 19, 1997), perm. app. denied (Tenn. Mar. 16, 1998), is instructive. Although not a case
involving judicial diversion, the parties in Richard Douglas Lowery also waived the
preparation and filing of a presentence report before the trial court sentenced the defendant
to confinement. Id., slip op at 7. Whether a presentence report is prepared for the trial
court’s sentencing determination or its granting or denial of judicial diversion, this court does
not condone the practice of failing to prepare and file a report with the trial court. The
presentence report allows the court to follow the sentencing principles required under our
laws and is necessary for appellate review. Id., slip op at 8; see State v. Charles Eberhardt,
No. 03C01-9307-CR-00230, slip op. at 5 (Tenn. Crim. App. Feb. 17, 1994). Because the
presentence report was not prepared, this court is unable to determine whether the Defendant
is entitled to judicial diversion.

       Because the trial court relied upon information not contained in the record in denying
judicial diversion, we remand the case for a new hearing. In consideration of the foregoing
and the record as a whole, the judgment of the trial court is reversed, and the case is
remanded for further proceedings consistent with this opinion.




                                                ____________________________________
                                                JOSEPH M. TIPTON, PRESIDING JUDGE




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