State v. Antonio Johnson

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE

FILED

APRIL 1998 SESSION

August 20, 1998

Cecil W. Crowson

Appellate Court Clerk

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STATE OF TENNESSEE , APPELLEE

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VS. C.C.A. No. 01C01-9707-CC-00244 § WILLIAMSON COUNTY

HON. HENRY DENMARK BELL

ANTONIO JOHNSON, § APPELLANT (JUDICIAL DIVERSION)

FOR THE APPELLANT FOR THE APPELLEE

Niles S. Nimmo John Knox Walkup Realtors Bldg., Suite 200 Attorney General and Reporter 306 Ga y St. 425 Fifth A venue, N orth Nashville, TN 37201 Nashville, TN 37243 ––––– Daryl J. Brand

Assistant Attorney General 425 Fifth A venue, N orth Nashville, TN 378243

Derek K . Smith

Assistant District Attorney General P. O. Box 937

Franklin, TN 37065-0937

OPINION FILED: _______________________

AFFIRMED L. T. LAFFERTY, SPECIAL JUDGE

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OPINION

Following a bench trial, the appellant, Antonio Jackson, was convicted of the unlawful possession of cocaine, a Class A misdemeanor. The trial court sentenced the defendant to serve sixty (60) days, day for day, and pay a fine of $2,500. The trial court suspended the sixty (60) day sentence and placed the defendant on supervised probation for eleven (11) months and twenty-nine (29) days. Following a direct appeal, this Court found that the trial court had abused its discretion in sentencing the defend ant and reman ded the case fo r resente ncing p ursuan t to judic ial diver sion. State v. Anto nio Jac kson, Williamson County, No. 01C01-9601-CC-00014 (Tenn. Crim. App. Nashv ille, December 13, 19 96). In resentencing the de fendant, the trial court imposed judicial diversion but retained the conditions of probation from the original judgme nt.

The defendant presents one issue for review: “Whether the trial court erred by imposing a fine as part of a sentence entered under authority of Tenn. Code Ann. § 40- 35-313.” After a thorough review of the record, the briefs submitted by both parties, and the law gov erning the issue presented fo r review, it is the opinion of this Cou rt that the sentence imposed by the trial court should be affirmed.

A.

When an accuse d challeng es the length and ma nner of serv ice of a sente nce, it is the duty of this Court to conduct a de novo review on the record with a presumption that the “determinations m ade by the court from which the appe al is taken are correct.” Tenn. Code Ann. § 40-35-401(d). This presumption is “conditioned upon the affirmative showing in the record that the trial court considered the sentencing principles and all relevant facts and circumstances.” State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1994). The presumption does not apply to the legal conclusions reached by the trial court in sentencing the accused or to the determinations made by the trial court w hich are predica ted upo n unco ntrove rted fac ts. State v. B utler, 900 S.W.2d

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305, 311 (Tenn. C rim. App . 1994); State v. S mith, 891 S.W.2d 922, 929 (Tenn. Crim. App. 19 94), per. Ap p. Denied (Tenn. 19 94); State v. B oneste l, 871 S.W.2d 1634, 166 (Tenn. Crim. App. 1993). However, this court is required to give great weight to the trial court’s determination of controverted facts because the trial court’s determination of these facts is predicated upon the witnesses’ demeanor and appearance when testifying.

The party challenging the sentences imposed by the trial court has the burden of establishin g that the sen tences are e rroneous. S entencing Comm ission Com ments to Tenn. C ode An n. § 40-35 -401; Ashby, 823 S.W .2d at 169; Butler, 900 S.W.2d at 311. In this case, the defendant has the burden of illustrating that the sentences imposed by the trial court are erroneous.

The record indicates that during the resentencing hearing the trial court failed to articulate the conditions. The trial court merely stated “put on 11/29 supervised probation, report by mail, on ordinary conditions and drug screens.” Therefore, the standard of review on appeal is de novo without a presumption of correctness. Tenn. Code Ann. § 40-35 -402(d ).

B.

The defendant argues that judicial diversion is similar in purpose to pretrial diversion, therefore, this Court’s holding in State v. Alberd, 908 S.W.2d 414 (Tenn. Crim. App. 1994), controls.1 Additionally, the defendant asserts the trial court lacked authority to impose a fine in conjunction with judicial diversion.

(1)

Pretrial diversion and judicial diversion are similar in nature but differ statutorily. The pretrial diversion statute is located in Tenn. Code Ann. § 40-15-101, seq. Th e judicia l diversio n statute , howe ver, is loc ated in T enn. C ode A nn.

1 In Alberd, this court concluded that statutory fines may not be imposed in cases involving pretrial diversion

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§ 40-35-313, and was incorporated in the Sentencing Act of 1989. Under pretrial diversion, Tenn. Code Ann. § 40-15-105(a), a defendant who meets certain criteria, enters into a m emoran dum of understan ding with the District A ttorney G eneral, whereby both parties agree that the prosecution of certain crimes will be suspended for a spe cified pe riod, no t to exce ed two (2) yea rs from the filing of the m emor andum . The parties agree that the defendant will be supervised by an appropriate agency, department, program, group or association and at the conclusion of the supervised period, if no violations of the memorandum of understanding are proven, the trial court may dismiss the prosecutions with prejudice.

The judicial diversion statute, Tenn. Code Ann. § 40-35-313(a)(1)(A) states:

“If any person w ho has not previou sly been convicted o f a felony of a Class A misdemeanor is found guilty or pleads guilt to a misdemea nor which is pun ishable by imprisonm ent of a Class C, D or E felony, the court may, without entering a judgment of guilty and with the consent of such person, defer further proceedings and place the person on probation upon such reasonable conditions as it may require, and for a period of time not less than the period of the maximum sentence for the misdemeanor with which the person is charged, or not more than the period of the maximum senten ce of the felony with w hich the person is charg ed. . . .

(2) . . . If, during the period of probation, such person does not violate any of the conditions of the probation, then upon expiration of such period, the court shall discharge such person and dismiss the proceedings against the person. Discharge and dismissal under this subsection is without court adjudication of guilt, but a non-public record thereof is retained by the court solely fo r the purpo se of use by the courts in d etermining whether or not, in subsequent proceedings, such person qualifies under this subsection, or for the limited purposes provided in subsection (b). Such discharge and dismissal shall not be deemed a conviction for purposes of disqualifications or disabilities imposed by law upon conviction of a crime or for any other purpose, except as provided in subsection (b). Discharge and dismissal under this sub section may o ccur on ly once with re spect to any pe rson.”

In State v. A lberd, 908 S.W .2d 414 (T enn. Crim . App. 199 4), a panel o f this court concluded that mandatory minimum fines for drug offense may not be required as a condition of a m emorandum of understanding for p retrial diversion. This court held that mandatory minimum fines may only be imposed following a conviction, and pretrial diversion was not a result of conviction. Because judicial diversion follows a

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determ ination o f guilt, Alberd, does n ot gove rn case s involv ing jud icial dive rsion. Howe ver, even in cases invo lving pretrial d iversion, trial cou rts have the a uthority to require defendants to pay restitution, court costs, and costs of supervision. Tenn. Code An n. § 40-15-105(a)(2).

(2)

The judicial diversion statute, Tenn. Code Ann. § 40-35-313 authorizes the imposition of probation “upon such reasonable conditions as it may require.” Conditions of probation “must be reasonable and realistic and must not be so stringent as to be harsh, oppressive, or palpably unjust.” Stiller v. S tate, 516 S.W.2d 617, 620 (Tenn. 19 74). Trial co urts may im pose any terms and conditions n ot inconsisten t with the Tennessee Sentencing Reform Act. See State v. H uff, 760 S.W.2d 633, 639 (Tenn. Crim. App. 19 88).

The Co urt finds the im position of a fine or contrib ution of a m onetary am ount, not exceeding the maximum statutory fine, to be a reasonable condition of judicial diversion. Tenn. Code Ann. § 40-35-313. The United States Sixth Circuit Court of Appeals addressed a similar question in construing Tenn. Code Ann. § 40-21-109 (now Tenn. Code Ann. § 40-35-313) regarding the payment of costs as a condition of probation. The Court concluded In re H ollis, 810 F.2d 106 , 108 (6th Cir. 1987):

“The state c riminal cou rt clearly intend ed the asses sment of c osts to be a condition of appellee’s probation under section 40-21-109. Tenn. Code Ann. § 40-21-109 (1982). An assessment of costs, moreover, appears to be an appropriate condition of probation under this section. . . . We believe that section 40- 24-105(b ) of the Ten nessee C ode, wh ich provide s that costs ‘sh all not be deemed part to the penalty’ in a criminal case, and upon which the district court relied in reaching its decision, is displaced in this instance by the more specific provisio ns of se ction 40 -21-10 9.”

Federal courts have also held the imposition of fines to be permissible pursuant to the parallel fe deral statute fo r post-conv iction deferra l. See 18 U .S.C. 3651 ; United States v . Tepfer , 748 F.Supp. 31 0, 311 (E.D. Pa. 19 90).

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Althoug h pretrial dive rsion and ju dicial diversio n are simila r in nature, ther e is a significant difference between the imposition of probation pursuant to pretrial diversion and judicial diversion. The purpose of judicial diversion is to avoid placing the stigma and collatera l consequ ences of a c riminal con viction on th e defenda nt, in addition to providing the defendant a means to be restored fully and to useful and produ ctive citiz enship . State v. P orter, 885 S .W.2d 93, 95 ( Tenn . Crim . App. 1 994). This Court has recognized the very “fact that a defendant seeking judicial diversion stands b efore th e court h aving a lready b een fou nd guil ty--read y to be s entenc ed,” places the defendant in dramatically different posture than that of a person seeking pretrial diversion. See State v. P orter, 885 S.W.2d at 94-95.

A somewhat analogous situation was addressed by this Court in State v. Vasser, 870 S.W.2d 543 (Tenn. Crim. App. 1993). The defendant, Vasser, upon being found guilty of drivin g under th e influence of an intoxic ant conten ded he w as entitled to judicial diversion after serving forty-eight (48) hours, per Tenn. Code Ann. § 40-35- 313. This Court in construing Tenn. Code Ann. §55-10-403(B)(1)--Penalties for Driving under the influence of intoxicants--concluded that a “convicted” person must serve the “minimum sentence” and thus is not eligible for the provisions of Tenn. Code Ann. § 40-35-313. Thus in a general sense, a “conviction” has been defined as the “result of a criminal trial (or guilty plea) which ends in a judgment or sentence that the accused is guilty as charged.” Technically, a conviction involves not only a verdict, but also a sentence passed by the court. See State v. V asser, 870 S.W.2d 543, at 545; Ru le 32(e) Te nnessee R ules of Crim inal Proced ure. Since th e trial court did not enter an order of conviction, but ordered the defendant to judicial diversion, the trial court was entitled to set reasonable conditions of probation including the payment of fines.

In conclusion, this Court finds that the order of the trial court requiring the defendant to pay a fine of $2,500 as a condition of his probation pursuant to judicial

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diversion w as approp riate. The im position of a statutory m andatory m inimum fine is acceptable in cases involving judicial diversion because judicial diversion, unlike pretrial diversion, involves an adjud ication of guilt by the trial court. Finally, fines are permissible conditions of probation under judicial diversion so long as they do not exceed the maximum specified by statute for the offense committed.

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L. T. Lafferty, Special Judge

CONCUR:

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Gary Wade, Presiding Judge

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Thomas Woodall, Judge