IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED MAY SESSION, 1998 September 10, 1998
Cecil W. Crowson STATE OF TENNESSEE, ) Appellate Court Clerk C.C.A. NO. 01C01-9707-CC-00306 ) Appellee, ) ) ) WILLIAMSON COUNTY VS. ) ) HON . DON ALD P . HARR IS TIMOTHY LANE, ) JUDGE ) Appe llant. ) (Direct Appeal - Judicial Diversion)
FOR THE APPELLANT: FOR THE APPELLEE:
J. TIMOTHY STREET JOHN KNOX WALKUP 136 Fo urth Ave nue, So uth Attorney General and Reporter Franklin, TN 37064 KAREN M. YACUZZO E. COVINGTON JOHNSON Assistant Attorney General 136 Fo urth Ave nue, So uth 425 Fifth Avenu e North Franklin, TN. 37064 Nashville, Tn. 37243
JOE D. BAUGH, JR. District Attorney General
MARK PURYEAR Assistant District Attorney P. O. Box 937 Franklin, TN 37065-0937
OPINION FILED ________________________
AFFIRMED
JERRY L. SMITH, JUDGE OPINION
On March 25, 1997, in the Williamson County Circuit Court, the Appella nt,
Timothy L. Lane , pled guilty to a charge of aggra vated assa ult. As a Range I
standard offender, he was sentenced to a two year sus pended sentence a nd five
years of supervised probation. Mr. Lane was also ordered to continue counseling
with respect to the issues which had caused him to attack the victim, and he was
ordered to pa y restitution to the victim for the injuries su stained by her.
The Appe llant pre sents one is sue fo r our co nside ration o n app eal:
Whether the trial c ourt er red in refusing to grant the Appellant so- called judicial diversion pursuant to Tennessee Code Annotated Section 40-35-313.
We find that the judgment of the trial court must be affirmed.
I. FACTUAL BACKGROUND
In November, 1994, the Appellant was charged with two counts of
aggravated assault involving an attack upon Ms. T eresa McC ord, the Appe llant’s
sister. Mr. Lane applied fo r pretrial divers ion pursu ant to Tennessee Code
Annotated Section 40-35-1 01, et seq. This application was denied and an
interlocutory appe al to this Court was gra nted. State v. Lane, Williamso n County,
No. 01C01-9 506-CC -00213 (T enn. Crim. App. Sept. 5, 1996). The
circumstances surrounding the charges against the Appellant are summarized
in that opinion:
-2- On Septem ber 29, 1 994, the defendant resided in a trailer located upon property owned by his sister, Teresa McCord, who is listed in the indictment as the victim of the alleged offense. The defendant, now 32 years of age, is the custodian of his two minor children; at the time of the charges, he shared his residence with his mother. The defendant had been employed for the last several years in security at Baptist Hospital in Nashville. Although not a high school graduate, he has an em ployment h istory that includes work as a dispatcher in the Fairview Police Department and work in traffic control in Nashville. The de fendan t is licensed to carry a firearm. He has no prior criminal record.
An altercation occurred after the victim, who lived next door, swore out an unlawful detainer warrant against the defen dant. After being notified of the action by local authorities, the defendant had one or more te lephon e conve rsations w ith the victim abou t how long he could ma intain his trailer on her prop erty.
Later, the de fenda nt and the victim argued. While the facts are contested, the victim claimed that the defendant attacked her in her own front year, struck her in the face, and punched his finger into her eyes until she was helpless. The victim, who suffered serious injuries to her eyes, was hospitalized. Photographs in the record s ubstan tiate the severity of her injuries. The defendant claimed that the victim initiated the altercation. He asserted that his sister grabbed him by the throat, cuttin g off his air supply, and that he panicked, swinging wildly, until she release d her ho ld. Lane, Slip Op. at pp. 4-5.
This Cour t affirme d the d istrict atto rney’s denial of pretrial diversion based
on the Appellant’s lack of acceptance of responsibility for the offense and the
severity of the in juries s ustain ed by th e victim . Slip O p. p.5. T his Co urt did
indicate that judicial diversion pursuant to Tennessee Code Annotated Section
40-35-3 13, mig ht be a co nsidera tion in the futu re. Id.
In Marc h of 19 97 the Appe llant en tered a plea o f guilty to a single count of
aggravated assault. He applied for judicial diversion pursuant to Tennessee
Code Annotated Section 40-35-313, but this request was denied and he was
sentenced to a suspended sentence and probation.
At the hearing on the request for judicial diversion the Appellant presented
testimony concerning his good work history, and his care for his ailing mother.
-3- He admitted he was the aggressor in the attack on his sister and stated he was
remorseful and that he had begun counseling for the issues betwe en him and h is
sister that had led to the assault. However, the proof also showed that for over
two years after the assault the Appellant showed no remorse, made no attempt
to pay restitution an d actua lly blamed the victim fo r the incide nt. Only after the
victim, Ms. McCord told the Ap pellan t that sh e wou ld not p ress fo r his
incarceration did he “remember” he had initiated the attack and become
remor seful.
II. DENIAL OF JUDICIAL DIVERSION
The Appe llant’s o nly contention in this appeal is that the trial cou rt erred in
denying him judicial diversion pursuant to Tennessee Code Annotated Section
40-35-313. We disagree.
In order to b e cons idered fo r judicial divers ion und er Section 40-35-313,
a defendant must meet three criteria:
(1) conviction of a misdemeanor punishable by imprisonment or conviction of a Cla ss C, D, or E fe lony;
(2) no prior felony or Class A misdemeanor convictions;
(3) consent by the defendant to deferment of the proceedings and imposition of probation for up to the maximum sentence length for the crime in question.
Tenn. Code Ann. S ec. 40-3 5-313(a )(1). If these criteria are met and the trial
court sentences the defendant pursuant to Sec. 40-35-313, at the completion of
the proba tionary period the de fenda nt is disc harge d witho ut an a djudication of
guilt and the records of the entire proceeding are subject to expungement. Tenn.
Code A nn. § 40-35-3 13(a)(2) and (b ).
-4- Although the Appellant in the instant case meets the statutory prerequisites
for judicial diversion he is not entitled to the benefits of Sec. 40-35-313 as a
matter of right. State v. Bonestal, 871 S.W.2d 163, 168 (Ten n. Crim. App . 1993).
The decision to grant or deny judicial diversion rests within the discretion of the
trial court whose decision will not be reversed on appeal if there is any substantial
evidence to support it. Tenn. Code Ann. § 40-3 5-313(a)(1); State v. Anderson,
857 S.W .2d 571 , 572 (T enn. C rim. App . 1992); Bonestal, 871 S.W.2d at 168.
This Court had held th at in determining whether to grant judicial diversion
the trial court should co nsider:
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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED MAY SESSION, 1998 September 10, 1998
Cecil W. Crowson STATE OF TENNESSEE, ) Appellate Court Clerk C.C.A. NO. 01C01-9707-CC-00306 ) Appellee, ) ) ) WILLIAMSON COUNTY VS. ) ) HON . DON ALD P . HARR IS TIMOTHY LANE, ) JUDGE ) Appe llant. ) (Direct Appeal - Judicial Diversion)
FOR THE APPELLANT: FOR THE APPELLEE:
J. TIMOTHY STREET JOHN KNOX WALKUP 136 Fo urth Ave nue, So uth Attorney General and Reporter Franklin, TN 37064 KAREN M. YACUZZO E. COVINGTON JOHNSON Assistant Attorney General 136 Fo urth Ave nue, So uth 425 Fifth Avenu e North Franklin, TN. 37064 Nashville, Tn. 37243
JOE D. BAUGH, JR. District Attorney General
MARK PURYEAR Assistant District Attorney P. O. Box 937 Franklin, TN 37065-0937
OPINION FILED ________________________
AFFIRMED
JERRY L. SMITH, JUDGE OPINION
On March 25, 1997, in the Williamson County Circuit Court, the Appella nt,
Timothy L. Lane , pled guilty to a charge of aggra vated assa ult. As a Range I
standard offender, he was sentenced to a two year sus pended sentence a nd five
years of supervised probation. Mr. Lane was also ordered to continue counseling
with respect to the issues which had caused him to attack the victim, and he was
ordered to pa y restitution to the victim for the injuries su stained by her.
The Appe llant pre sents one is sue fo r our co nside ration o n app eal:
Whether the trial c ourt er red in refusing to grant the Appellant so- called judicial diversion pursuant to Tennessee Code Annotated Section 40-35-313.
We find that the judgment of the trial court must be affirmed.
I. FACTUAL BACKGROUND
In November, 1994, the Appellant was charged with two counts of
aggravated assault involving an attack upon Ms. T eresa McC ord, the Appe llant’s
sister. Mr. Lane applied fo r pretrial divers ion pursu ant to Tennessee Code
Annotated Section 40-35-1 01, et seq. This application was denied and an
interlocutory appe al to this Court was gra nted. State v. Lane, Williamso n County,
No. 01C01-9 506-CC -00213 (T enn. Crim. App. Sept. 5, 1996). The
circumstances surrounding the charges against the Appellant are summarized
in that opinion:
-2- On Septem ber 29, 1 994, the defendant resided in a trailer located upon property owned by his sister, Teresa McCord, who is listed in the indictment as the victim of the alleged offense. The defendant, now 32 years of age, is the custodian of his two minor children; at the time of the charges, he shared his residence with his mother. The defendant had been employed for the last several years in security at Baptist Hospital in Nashville. Although not a high school graduate, he has an em ployment h istory that includes work as a dispatcher in the Fairview Police Department and work in traffic control in Nashville. The de fendan t is licensed to carry a firearm. He has no prior criminal record.
An altercation occurred after the victim, who lived next door, swore out an unlawful detainer warrant against the defen dant. After being notified of the action by local authorities, the defendant had one or more te lephon e conve rsations w ith the victim abou t how long he could ma intain his trailer on her prop erty.
Later, the de fenda nt and the victim argued. While the facts are contested, the victim claimed that the defendant attacked her in her own front year, struck her in the face, and punched his finger into her eyes until she was helpless. The victim, who suffered serious injuries to her eyes, was hospitalized. Photographs in the record s ubstan tiate the severity of her injuries. The defendant claimed that the victim initiated the altercation. He asserted that his sister grabbed him by the throat, cuttin g off his air supply, and that he panicked, swinging wildly, until she release d her ho ld. Lane, Slip Op. at pp. 4-5.
This Cour t affirme d the d istrict atto rney’s denial of pretrial diversion based
on the Appellant’s lack of acceptance of responsibility for the offense and the
severity of the in juries s ustain ed by th e victim . Slip O p. p.5. T his Co urt did
indicate that judicial diversion pursuant to Tennessee Code Annotated Section
40-35-3 13, mig ht be a co nsidera tion in the futu re. Id.
In Marc h of 19 97 the Appe llant en tered a plea o f guilty to a single count of
aggravated assault. He applied for judicial diversion pursuant to Tennessee
Code Annotated Section 40-35-313, but this request was denied and he was
sentenced to a suspended sentence and probation.
At the hearing on the request for judicial diversion the Appellant presented
testimony concerning his good work history, and his care for his ailing mother.
-3- He admitted he was the aggressor in the attack on his sister and stated he was
remorseful and that he had begun counseling for the issues betwe en him and h is
sister that had led to the assault. However, the proof also showed that for over
two years after the assault the Appellant showed no remorse, made no attempt
to pay restitution an d actua lly blamed the victim fo r the incide nt. Only after the
victim, Ms. McCord told the Ap pellan t that sh e wou ld not p ress fo r his
incarceration did he “remember” he had initiated the attack and become
remor seful.
II. DENIAL OF JUDICIAL DIVERSION
The Appe llant’s o nly contention in this appeal is that the trial cou rt erred in
denying him judicial diversion pursuant to Tennessee Code Annotated Section
40-35-313. We disagree.
In order to b e cons idered fo r judicial divers ion und er Section 40-35-313,
a defendant must meet three criteria:
(1) conviction of a misdemeanor punishable by imprisonment or conviction of a Cla ss C, D, or E fe lony;
(2) no prior felony or Class A misdemeanor convictions;
(3) consent by the defendant to deferment of the proceedings and imposition of probation for up to the maximum sentence length for the crime in question.
Tenn. Code Ann. S ec. 40-3 5-313(a )(1). If these criteria are met and the trial
court sentences the defendant pursuant to Sec. 40-35-313, at the completion of
the proba tionary period the de fenda nt is disc harge d witho ut an a djudication of
guilt and the records of the entire proceeding are subject to expungement. Tenn.
Code A nn. § 40-35-3 13(a)(2) and (b ).
-4- Although the Appellant in the instant case meets the statutory prerequisites
for judicial diversion he is not entitled to the benefits of Sec. 40-35-313 as a
matter of right. State v. Bonestal, 871 S.W.2d 163, 168 (Ten n. Crim. App . 1993).
The decision to grant or deny judicial diversion rests within the discretion of the
trial court whose decision will not be reversed on appeal if there is any substantial
evidence to support it. Tenn. Code Ann. § 40-3 5-313(a)(1); State v. Anderson,
857 S.W .2d 571 , 572 (T enn. C rim. App . 1992); Bonestal, 871 S.W.2d at 168.
This Court had held th at in determining whether to grant judicial diversion
the trial court should co nsider:
(1) the defendant’s amenability to correction; (2) the circumstances of the offense; (3) the defendant’s criminal record; (4) the defenda nt’s social history; (5) the status of the defendant’s physical and mental health; (6) the deterrence value to the defendant as well as others; and (7) whether judicial diversion will serve the be st interests of both the public an d the de fendan t.
Bonestal, 871 S.W.2d at 168 (applying pretrial diversion considerations
enumerated in State v. Hammersley, 650 S.W .2d 352 (Te nn. 1983)); Anderson,
857 S.W .2d at 573 . In addition to the factors enum erated abo ve, the trial court
may conside r the defe ndant’s a ttitude and behavior sinc e his arres t. State v.
Washington, 866 S.W .2d 950-95 1 (Tenn. 19 93).
Judicial diversion is similar in purpose to pretrial diversion and its gran t is
left to the discretion of the trial cou rt subject o nly to the sa me co nstraints
applicable to prosecutors in applying pretrial diversion. Anderson, 857 S.W.2d
at 572. This Court has previously concluded that pretrial diversion was
appro priately denied in this case. The question now becomes whether
-5- circumstances have sufficiently changed so as to characterize a denial of judicial
diversion as an abuse of discretion.
In the instant case re lations between the Appellant a nd his sister have
improve d. However, only after his sister’s assurances that she would not seek
his incarceration did the Appella nt expres s his rem orse an d acce pt respo nsibility
for his actions. One could clearly conclude from this that the Ap pellan t’s remorse
is less that genuine . He also app arently lied in his application for pretrial
diversion when he claimed his sister initiated the altercation which resulted in her
rather severe injuries. This lack of candor also causes us doubt as to the
Appellant’s amenability to rehabilitation.
W e therefo re con clude the trial c ourt did not ab use h is discr etion in
denying judicial diversion and granting the Appellant probation. Accordingly, the
judgment of the trial court is affirmed.
____________________________________ JERRY L. SMITH, JUDGE
CONCUR:
___________________________________ GARY R. WADE, PRESIDING JUDGE
___________________________________ DAVID G. HAYES, JUDGE
-6-