State v. Ray Douglas ( 1997 )

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.
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(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.
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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
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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.
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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.
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DAVID H. WELLES, JUDGE
CONCUR:
___________________________________
JOE B. JONES, PRESIDING JUDGE
___________________________________
JOE G. RILEY, JUDGE
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