Judicial Diversion, Failure to Grant
Except as indicated, all indented material is copied directly from the court’s opinion.
Decisions of the Tennessee Supreme Court
Decisions of the Tennessee Court of Criminal Appeals
State v. Farley, No. M2022-01691-CCA-R3-CD, p. 6 (Tenn. Ct. Crim. App. Oct. 18, 2023).
The Tennessee Supreme Court has recognized that “sentences imposed by the trial court within the appropriate statutory range are to be reviewed under an abuse of discretion standard with a ‘presumption of reasonableness.’” State v. Bise, 380 S.W.3d 682, 708 (Tenn. 2012). Our supreme court has stated that “the abuse of discretion standard of appellate review accompanied by a presumption of reasonableness applies to all sentencing decisions.” State v. King, 432 S.W.3d 316, 324 (Tenn. 2014) (citing State v. Pollard, 432 S.W.3d 851, 864 (Tenn. 2013)). This standard also applies to “questions related to probation or any other alternative sentence.” State v. Caudle, 388 S.W.3d 273, 278-79 (Tenn. 2012). The supreme court has also stated this standard of appellate review applies to a trial court’s decision to grant or deny judicial diversion. See King, 432 S.W.3d at 324.
However, to be afforded deference on appeal, the trial court must “place on the record any reason for a particular sentence.” Bise, 380 S.W.3d at 705. In the context of judicial diversion, the presumption of reasonableness does not apply when “the trial court fails to consider and weigh the applicable common law factors[.]” King, 432 S.W.3d at 327-28. The same holds true for alternative sentencing decisions. Caudle, 388 S.W.3d at 29. But as this court has observed:
[T]rial courts need not comprehensively articulate their findings concerning sentencing, nor must their reasoning be “particularly lengthy or detailed.” Bise, 380 S.W.3d at 706. Instead, the trial court “should set forth enough to satisfy the appellate court that [it] has considered the parties’ arguments and has a reasoned basis for exercising [its] own legal decisionmaking authority.” Id. [(citing Rita v. United States, 551 U.S. 338, 356-57 (2007))].
State v. Sheets, No. M2022-00538-CCA-R3-CD, 2023 WL 2908652, at *4 (Tenn. Crim. App. Apr. 12, 2023) (alterations in original), no perm. app. filed.
In short, the trial court’s sentencing decision will be upheld on appeal “so long as it is within the appropriate range and the record demonstrates that the sentence is otherwise in compliance with the purposes and principles listed by statute.” Bise, 380 S.W.3d at 709-10. A defendant bears the burden of proving the sentence is improper. Tenn. Code Ann. § 40-35-401, Sentencing Comm’n Cmts; see also State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).
State v. Fucci, No. M2022-01425-CCA-R3-CD, p. 7 (Tenn. Ct. Crim. App. Oct. 13, 2023).
Although judicial diversion is not a sentence, our supreme court has determined that the standard of review first expressed in State v. Bise, applies to “appellate review for a trial court’s sentencing decision to either grant or deny judicial diversion.” King, 432 S.W.3d at 325; State v. Bise, 380 S.W.3d 682, 707 (Tenn. 2012) (holding that the standard of review of the trial court’s sentencing determinations is whether the trial court abused its discretion, but we apply a “presumption of reasonableness to within-range sentencing decisions that reflect a proper application of the purposes and principles of our Sentencing Act”). Importantly, the supreme court emphasized that the adoption of the Bise standard of review “did not abrogate the requirements set forth in Parker and Electroplating, which are essential considerations for judicial diversion.” King, 432 S.W.3d at 326. Thus, when the trial court considers each of the factors enumerated in Parker and weighs them against each other, placing its findings in the record, as required by Electroplating, we “apply a presumption of reasonableness,” per Bise, and will “uphold the grant or denial so long as there is any substantial evidence to support the trial court’s decision.” King, 432 S.W.3d at 326. When “the trial court fails to consider and weigh the applicable common law factors, the presumption of reasonableness does not apply and the abuse of discretion standard . . . is not appropriate.” Id. Instead, “the appellate courts may either conduct a de novo review or, if more appropriate under the circumstances, remand the issue for reconsideration. The determination as to whether the appellate court should conduct a de novo review or remand for reconsideration is within the discretion of the reviewing court.” Id. at 328.
State v. Eakes, No. M2022-01275-CCA-R3-CD, p. 9-10 (Tenn. Ct. Crim. App. Aug. 30, 2023).
The Tennessee Supreme Court has recognized that “sentences imposed by the trial court within the appropriate statutory range are to be reviewed under an abuse of discretion standard with a ‘presumption of reasonableness.’” State v. Bise, 380 S.W.3d 682, 708 (Tenn. 2012). Our supreme court has stated that “the abuse of discretion standard of appellate review accompanied by a presumption of reasonableness applies to all sentencing decisions.” State v. King, 432 S.W.3d 316, 324 (Tenn. 2014) (citing State v. Pollard, 432 S.W.3d 851, 864 (Tenn. 2013)). This includes questions related to probation or any alternative sentence and also whether to grant or deny judicial diversion. State v. Caudle, 388 S.W.3d 273, 278-79 (Tenn. 2012) (applying standard to probation and alternative sentence; King, 432 S.W.3d at 324 (applying standard to judicial diversion).
To be afforded deference on appeal, however, the trial court must “place on the record any reason for a particular sentence.” Bise, 380 S.W.3d at 705. In the context of judicial diversion, the presumption of reasonableness does not apply when “the trial court fails to consider and weigh the applicable common law factors[.]” King, 432 S.W.3d at 327-28. The same holds true for alternative sentencing decisions. Caudle, 388 S.W.3d at 29. But as this court has observed:
[T]rial courts need not comprehensively articulate their findings concerning sentencing, nor must their reasoning be “particularly lengthy or detailed.” Bise, 380 S.W.3d at 706. Instead, the trial court “should set forth enough to satisfy the appellate court that [it] has considered the parties’ arguments and has a reasoned basis for exercising [its] own legal decision making authority.” Id.
State v. Sheets, No. M2022-00538-CCA-R3-CD, 2023 WL 2908652, at *4 (Tenn. Crim. App., at Nashville, Apr. 12, 2023) (alterations in original), no perm. app. filed. A defendant bears the burden of proving the sentence is improper. T.C.A. § 40-35-401, Sentencing Comm’n Cmts; see also State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).
State v. Sheets, No. M2022-00538-CCA-R3-CD, p. 6-8 (Tenn. Ct. Crim. App. April 12, 2023).
Our supreme court has recognized that “sentences imposed by the trial court within the appropriate statutory range are to be reviewed under an abuse of discretion standard with a ‘presumption of reasonableness.’” State v. Bise, 380 S.W.3d 682, 708 (Tenn. 2012). This standard of appellate review applies to a trial court’s decision to grant or deny judicial diversion. See State v. King, 432 S.W.3d 316, 324 (Tenn. 2014). It also applies to a trial court’s decision to grant or deny probation or alternative sentencing. See State v. Caudle, 388 S.W.3d 273, 279 (Tenn. 2012).
In each of these contexts, however, this deferential standard of review is subject to an important caveat: the trial court must “place on the record any reason for a particular sentence.” Bise, 380 S.W.3d at 705. In Bise, the supreme court recognized that “appellate courts cannot properly review a sentence if the trial court fails to articulate in the record its reasons for imposing the sentence.” Id. at 706 n.41.
As such, in the context of judicial diversion, the presumption of reasonableness does not apply when “the trial court fails to consider and weigh the applicable common law factors[.]” King, 432 S.W.3d at 327-28. The same is true for alternative sentencing decisions. Caudle, 388 S.W.3d at 279. Of course, trial courts need not comprehensively articulate their findings concerning sentencing, nor must their reasoning be “particularly lengthy or detailed.” Bise, 380 S.W.3d at 706. Instead, the trial court “should set forth enough to satisfy the appellate court that [it] has considered the parties’ arguments and has a reasoned basis for exercising [its] own legal decisionmaking authority.” Id.
…
It is true that the factors that a trial court considers in deciding issues of judicial diversion and alternative sentencing can overlap substantially. See State v. Trent, 533 S.W.3d 282, 291 (Tenn. 2017). However, these concepts and their underlying purposes are distinct, and we have recognized that a trial court should analyze the issues separately and differentiate between judicial diversion and alternative sentencing. See State v. John Edward Wilson, Jr., No. W2019-01550-CCA-R3-CD, 2020 WL 6828966, at *6 (Tenn. Crim. App. Nov. 19, 2020), no perm. app. A trial court’s failure to place this separate analysis on the record will remove the presumption of reasonableness from any review on appeal. See id. at *4 (“If the trial court fails to consider and weigh the factors [in its judicial diversion analysis], the deferential standard of review does not apply.”).
The appellate court has two options where the record does not reveal the trial court’s findings or reasoning. It may conduct a de novo review to determine whether an adequate basis for the sentencing decision exists. Or, it may remand the case for the trial court to consider the relevant factors in determining an appropriate sentence. See State v. Noah Cassidy Higgins, No. M2021-00281-CCA-R3-CD, 2022 WL 1207759, at *6 (Tenn. Crim. App. Apr. 25, 2022) (citing State v. Pollard, 432 S.W.3d 851, 864 (Tenn. 2013), no perm. app. In choosing between these alternatives, the appellate court may consider “the adequacy of the record, the fact-intensive nature of the inquiry, and the ability of the court to request supplementation of the record.” King, 432 S.W.3d at 328.
State v. Hayes, No. E2021-01123-CCA-R3-CD, p. 4-5 (Tenn. Ct. Crim. App. Aug. 31, 2022).
Like other sentencing decisions, the decision to grant or deny diversion is reviewed for an abuse of discretion. King, 432 S.W.3d at 324-25. “Reviewing courts will find an abuse of discretion only when the trial court applied incorrect legal standards, reached an illogical conclusion, based its decision on a clearly erroneous assessment of the evidence, or employed reasoning that causes an injustice to the complaining party.” State v. Banks, 271 S.W.3d 90, 116 (Tenn. 2008). Although the deferential standard of review articulated in State v. Bise, 380 S.W.3d 682 (Tenn. 2012), applies to the decision to grant or deny diversion, the common law factors which the trial court has long been required to consider in its decision have not been abrogated. King, 432 S.W.3d at 326. Accordingly, in determining whether judicial diversion is appropriate, a trial court must consider:
(a) the accused’s amenability to correction, (b) the circumstances of the offense, (c) the accused’s criminal record, (d) the accused’s social history, (e) the accused’s physical and mental health, and (f) the deterrence value to the accused as well as others. The trial court should also consider whether judicial diversion will serve the ends of justice—the interests of the public as well as the accused.
State v. Parker, 932 S.W.2d 945, 958 (Tenn. Crim. App. 1996) (footnote omitted). In addition to considering these factors, the trial court must weigh them against one another and place an explanation of its ruling on the record. King, 432 S.W.3d at 326 (citing State v. Electroplating, Inc., 990 S.W.2d 211, 229 (Tenn. Crim. App. 1998)).
If the trial court has adhered to these requirements, the reviewing court merely looks to see whether “any substantial evidence” exists in the record to support the trial court’s decision. Id. “Under the Bise standard of review, when the trial court considers the Parker and Electroplating factors, specifically identifies the relevant factors, and places on the record its reasons for granting or denying judicial diversion,” this Court must apply a presumption of reasonableness and uphold the trial court’s decision so long as there is any substantial evidence to support the decision. King, 432 S.W.3d. at 327. The trial court need not “recite” all of the factors, but the record must reflect that it considered each factor, identified the specific factors applicable to the case, and addressed the relevant factors. Id. “‘[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.’” State v. Walter Townsend, No. W2015-02415- CCA-R3-CD, 2017 WL 1380002, at *2 (Tenn. Crim. App. Apr. 13, 2017) (quoting State v. Cutshaw, 967 S.W.2d 332, 344 (Tenn. Crim. App. 1997)), no perm. app. filed.
State v. Bell, No. E2021-01120-CCA-R3-CD, p. 7 (Tenn. Ct. Crim. App. Aug. 29, 2022).
We review a trial court’s decision regarding judicial diversion under the same standard set forth in State v. Bise, 380 S.W.3d 682 (Tenn. 2012). King, 432 S.W.3d at 324. If the trial court considers the Parker and Electroplating factors, specifically identifies the relevant factors, and places on the record its reasoning for granting or denying judicial diversion, then “the appellate court must apply a presumption of reasonableness and uphold the grant or denial so long as there is any substantial evidence to support the trial court’s decision.” Id. at 327. The trial court need not recite all the Parker and Electroplating factors when justifying its decision on the record in order to be granted a presumption of reasonableness. Id. However, the record should reflect that the trial court considered the factors when rendering its decision and that it identified the relevant factors applicable to the case. Id. Once the trial court identifies the relevant factors, it may proceed solely on those. Id.
State v. Waters, No. E2021-00218-CCA-R3-CD, p. 15 (Tenn. Ct. Crim. App. July 28, 2022).
“A trial court’s decision to grant or deny judicial diversion is reviewed for an abuse of discretion with a presumption of reasonableness.” King, 432 S.W.3d at 327.
State of Tennessee v. Myers, No. E2021-00841-CCA-R3-CD, p. 13 (Tenn. Ct. Crim. App. July 22, 2022).
Like other sentencing decisions, the decision to grant or deny diversion is reviewed for an abuse of discretion. [State v.] King, 432 S.W.3d at 324-25. “Reviewing courts will find an abuse of discretion only when the trial court applied incorrect legal standards, reached an illogical conclusion, based its decision on a clearly erroneous assessment of the evidence, or employed reasoning that causes an injustice to the complaining party.” State v. Banks, 271 S.W.3d 90, 116 (Tenn. 2008). Although the deferential standard of review articulated in Bise applies to the decision to grant or deny diversion, the common law factors which the trial court has long been required to consider in its decision have not been abrogated. King, 432 S.W.3d at 326.
. . . [discussing the factors for consideration in determining whether diversion is appropriate]
If the trial court has adhered to these requirements, the reviewing court merely looks to see whether “any substantial evidence” exists in the record to support the trial court’s decision. Id. “Under the Bise standard of review, when the trial court considers the Parker and Electroplating factors, specifically identifies the relevant factors, and places on the record its reasons for granting or denying judicial diversion,” this court
must apply a presumption of reasonableness and uphold the trial court’s decision so long as there is any substantial evidence to support the decision. Id. at 327. The trial court need not “recite” all of the factors, but the record must reflect that it considered each factor, identified the specific factors applicable to the case, and addressed the relevant factors. Id. “‘[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.’” State v. Walter Townsend, No. W2015-02415-CCA-R3-CD, 2017 WL 1380002, at *2 (Tenn. Crim. App. Apr. 13, 2017) (quoting State v. Cutshaw, 967 S.W.2d 332, 344 (Tenn. Crim. App. 1997)).
State v. Killgo, No. E2020-00996-CCA-R3-CD, p. 12 (Tenn. Ct. Crim. App. June 24, 2022).
The record must reflect that the trial court has taken all of the factors into consideration, and “we may not revisit the issue if the record contains any substantial evidence supporting the trial court’s decision.” Id. Furthermore, “[t]he court must explain on the record why the defendant does not qualify under its analysis, and if the court has based its determination on only some of the factors, it must explain why these factors outweigh the others.” Id. When reviewing a trial court’s decision to grant or deny judicial diversion, the standard of review is abuse of discretion with a presumption of reasonableness. State v. King, 432 S.W.3d 316, 327 (Tenn. 2014). However, if the trial court failed to weigh and consider the relevant factors, this court may conduct a de novo review or remand the case for reconsideration. Id. at 328. This court has analyzed the standard of review for a trial court’s decision whether to order a defendant to register as a sex offender pursuant to Tennessee Code Annotated section 39-13-506(d)(2)(B) and has concluded that the same standard, abuse of discretion with a presumption of reasonableness, applies. State v. Ryan Patrick Broadrick, No. M2017-01136-CCA-R3- CD, 2018 WL 4203883, at *5-7 (Tenn. Crim. App. at Nashville, Sept. 4, 2018); see State v. Scott A. Brown, No. M2019-00988-CCA-R3-CD, 2020 WL 5509750, at *3 (Tenn. Crim. App. at Nashville, Sept. 14, 2020); State v. Quantorius Rankins, No. M2019-00687- CCA-R3-CD, 2020 WL 5204229, at *6 (Tenn. Crim. App. at Nashville, Sept. 1, 2020); State v. Presley William Nave, Jr., No. M2018-02085-CCA-R3-CD, 2020 WL 774347, at *6 (Tenn. Crim. App. at Nashville, Feb. 18, 2020), perm. app. denied, (Tenn. June 3, 2020) (all relying on Ryan Patrick Broadrick).
State v. Holmes, No. M2020-01539-CCA-R3-CD, p. 20 (Tenn. Ct. Crim. App. June 23, 2022).
Generally, “[s]entences imposed by the trial court within the appropriate statutory range are to be reviewed under an abuse of discretion standard with a ‘presumption of reasonableness.’” State v. Bise, 380 S.W.3d 682 (Tenn. 2012). A finding of abuse of discretion “‘reflects that the trial court’s logic and reasoning was improper when viewed in light of the factual circumstances and relevant legal principles involved in a particular case.’” State v. Shaffer, 45 S.W.3d 553, 555 (Tenn. 2001) (quoting State v. Moore, 6 S.W.3d 235, 242 (Tenn. 1999)). Although judicial diversion is not a sentence, our supreme court determined that the standard of review expressed in State v. Bise applies to “appellate review for a trial court’s sentencing decision to either grant or deny judicial diversion.”King, 432 S.W.3d at 325. Importantly, however, the court emphasized that the adoption of the Bise standard of review “did not abrogate the requirements set forth in Parker and Electroplating, which are essential considerations for judicial diversion.” King, 432 S.W.3d at 326.
The trial court need not provide a recitation of all the applicable “factors when justifying its decision on the record in order to obtain the presumption of reasonableness,” but “the record should reflect that the trial court considered the Parker and Electroplating factors in rendering its decision and that it identified the specific factors applicable to the case before it.” King, 432 S.W.3d at 327. When the trial court considers each of the factors enumerated in Parker and weighs them against each other, placing its findings in the record, as required by Electroplating, Inc., we “apply a presumption of reasonableness,” per Bise, and will “uphold the grant or denial so long as there is any substantial evidence to support the trial court’s decision.” Id. When “the trial court fails to consider and weigh the applicable common law factors, the presumption of reasonableness does not apply and the abuse of discretion standard . . . is not appropriate.” Id. Instead, “the appellate courts may either conduct a de novo review or, if more appropriate under the circumstances, remand the issue for reconsideration. The determination as to whether the appellate court should conduct a de novo review or remand for reconsideration is within the discretion of the reviewing court.” Id. at 328.
State of Tennessee v. Radzvilowicz, No. M2021-00671-CCA-R3-CD, p. 6 (Tenn. Ct. Crim. App. May 12, 2022).
The trial court is granted broad discretion to impose a sentence anywhere within the applicable range, regardless of the presence or absence of enhancement or mitigating factors, and “sentences should be upheld so long as the statutory purposes and principles, along with any enhancement and mitigating factors, have been properly addressed.” State v. Bise, 380 S.W.3d 682, 706 (Tenn. 2012). Accordingly, we review a trial court’s sentencing determinations under an abuse of discretion standard, “granting a presumption of reasonableness to within-range sentencing decisions that reflect a proper application of the purposes and principles of our Sentencing Act.” Id. at 707. This same standard of review applies to the trial court’s decisions regarding probation or other alternative sentencing, State v. Caudle, 388 S.W.3d 273, 278-79 (Tenn. 2012), as well as the decision to grant or deny judicial diversion. State v. King, 432 S.W.3d 316, 324-25 (Tenn. 2014).
State of Tennessee v Allen, No. W2021-00673-CCA-R3-CD (Tenn. Ct. Crim. App. Mar. 22, 2022).
Judicial diversion is a form of “legislative largess.” State v. Schindler, 986 S.W.2d 209, 211 (Tenn. 1999). Being qualified for diversion under the statute does not entitle a defendant to judicial diversion; instead, the decision whether to grant judicial diversion is left to the trial court’s discretion. State v. King, 432 S.W.3d 316, 323 (Tenn. 2014). The defendant bears the burden of proving that he or she is a suitable candidate for judicial diversion. State v. Faith Renea Irwin Gibson, No. E2007-01990-CCA-R3-CD, 2009 WL 1034770, at *4 (Tenn. Crim. App. Apr. 17, 2009) (citing State v. Curry, 988 S.W.2d 153, 157 (Tenn. 1999); State v. Baxter, 868 S.W.2d 679, 681 (Tenn. Crim. App. 1993)).
When determining whether to grant judicial diversion to a qualified defendant, the trial court must consider the following factors:
(a) the accused’s amenability to correction; (b) the circumstances of the offense; (c) the accused’s criminal record; (d) the accused’s social history; (e) the accused’s physical and mental health; (f) the deterrence value to the accused as well as others; and (g) whether judicial diversion will serve the interests of the public as well as the accused.
State v. Electroplating, Inc., 990 S.W.2d 211, 229 (Tenn. Crim. App. 1998); State v. Parker, 932 S.W.2d 945, 958 (Tenn. Crim. App. 1996). In addition to the Parker and Electroplating factors, the trial court may consider the following factors in making its decision: the defendant’s “attitude, behavior since arrest, prior record, home environment, current drug usage, emotional stability, past employment, general reputation, marital stability, family responsibility[,] and attitude of law enforcement.” State v. Anthony Adinolfi, No. E2013-01286-CCA-R3-CD, 2014 WL 2532335, at *2 (Tenn. Crim. App. June 2, 2014) (quoting State v. Washington, 866 S.W.2d 950, 951 (Tenn. 1993)) (internal quotation marks omitted). The record must reflect that the trial court weighed all the Parker and Electroplating factors against each other, and the trial court must give an explanation of its ruling on the record. King, 432 S.W.3d at 326; Electroplating, 990 S.W.2d at 229. A defendant’s “continued denial of guilt should not, in and of itself, preclude judicial diversion.” State v. Lewis, 978 S.W.2d 558, 567 (Tenn. Crim. App. 1997).
We review a trial court’s decision regarding judicial diversion under the same standard set forth in State v. Bise, 380 S.W.3d 682 (Tenn. 2012). King, 432 S.W.3d at 324. If the trial court considers the Parker and Electroplating factors, specifically identifies the relevant factors, and places on the record its reasoning for granting or denying judicial diversion, then “the appellate court must apply a presumption of reasonableness and uphold the grant or denial so long as there is any substantial evidence to support the trial court’s decision.” Id. at 327. The trial court need not recite all the Parker and Electroplating factors when justifying its decision on the record in order to be granted a presumption of reasonableness. Id. However, the record should reflect that the trial court considered the factors when rendering its decision and that it identified the relevant factors applicable to the case. Id. Once the trial court identifies the relevant factors, it may proceed solely on those. Id.
State v. White, No. M2021-00118-CCA-R3-CD (Tenn. Ct. Crim. App. Feb. 25, 2022).
Pursuant to Tennessee Code Annotated section 40-35-313(a)(1)(B)(i)(a)-(e), a defendant is eligible for judicial diversion when he or she is found guilty or pleads guilty or nolo contendere to a Class C, D, or E felony; is not seeking deferral for an offense committed by an elected official; is not seeking deferral for a sexual offense; has not been convicted of a felony or a Class A misdemeanor previously and served a sentence of confinement; and has not been granted judicial diversion or pretrial diversion previously. Additionally, in determining whether to grant a defendant judicial diversion, the trial court must consider all of the following factors: (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 status of the defendant’s physical and mental health, (6) the deterrence value to the defendant and others, and (7) whether judicial diversion will serve the interest of the public as well as the defendant. State v. Electroplating, Inc., 990 S.W.2d 211, 229 (Tenn. Crim. App. 1998) (citing State v. Parker, 932 S.W.2d 945, 958 (Tenn. Crim. App. 1996)).
The record must reflect that the trial court has taken all of the factors into consideration, and “we may not revisit the issue if the record contains any substantial evidence supporting the trial court’s decision.” Id. Furthermore, “[t]he court must explain on the record why the defendant does not qualify under its analysis, and if the court has based its determination on only some of the factors, it must explain why these factors outweigh the others.” Id. When reviewing a trial court’s decision to grant or deny judicial diversion, the standard of review is abuse of discretion with a presumption of reasonableness. State v. King, 432 S.W.3d 316, 327 (Tenn. 2014). However, if the trial court failed to weigh and consider the relevant factors, this court may conduct a de novo review or remand the case for reconsideration. Id. at 328.
State of Tennessee v. Brown, No. E2020-01392-CCA-R3-CD (Tenn. Ct. Cr. App. Jan. 25, 2022).
Pursuant to Tennessee Code Annotated section 40-35-313(a)(1)(B)(i)(a)-(e), a defendant is eligible for judicial diversion when he or she is found guilty or pleads guilty or nolo contendere to a Class C, D, or E felony; is not seeking deferral for an offense committed by an elected official; is not seeking defenal for a sexual offense; has not been convicted of a felony or a Class A misdemeanor previously and served a sentence of confinement; and has not been granted judicial diversion or pretrial diversion previously. Additionally, in determining whether to grant a defendant judicial diversion, the trial court must consider all of the following factors: (1) the defendant’s amenability to correction, (2) the circumstances of the offense, (3) the defendant’s criminal record, (4) the defendant’s social histow, (5) the status of the defendant’s physical and mental health, (6) the detelTence value to the defendant and others, and (7) whether judicial diversion will serve the interest of the public as well as the defendant. State v. Electroplating, Inc.,990 S.W.2d 211, 229 (Tenn. Crim. App. 1998) (citing State v. Parker, 932 S.W.2d 945, 958 (Tenn. Crim. App. 1996)).
The record must reflect that the trial court has taken all of the factors into consideration, and “we may not revisit the issue if the record contains any substantial evidence supporting the trial court’s decision.” Id. Furthermore, “[t]he court must explain on the record why the defendant does not qualify under its analysis, and if the court has based its determination on only some of the factors, it must explain why these factors outweigh the others.” Id. When reviewing a trial court’s decision to grant or deny judicial diversion, the standard of review is abuse of discretion with a presumption of reasonableness. State v. King,432 S.W.3d 316, 327 (Tenn. 2014). However, if the trial court failed to weigh and consider the relevant factors, this court may conduct a de novo review or remand the case for reconsideration. Id. at 328.
