Earlier this year, the Tennessee Court of Criminal Appeals reversed a trial court’s denial of judicial diversion after finding that the trial court’s ruling was not entitled to a presumption of reasonableness. Judicial diversion is the procedure where the trial court does not impose the sentence against a qualified defendant who pled guilty, was found guilty, or pled nolo contendre, but rather, places the defendant on probation. See T.C.A. § 40-35-313. If the defendant successfully completes probation, he can request that the charge(s) be expunged from his record. If the defendant fails to complete probation, the sentence will go into effect and he cannot have the charge(s) expunged from record.
A qualified defendant is one who (1) has not previously been granted adult judicial diversion or pretrial diversion, (2) has not been convicted of a felony or Class A misdemeanor for which a sentence of confinement was served, and (3) is not seeking the deferral of a Class A or Class B felony, a sexual offense, driving under the influence of an intoxicant, or vehicular assault prior to the minimum sentence required by T.C.A. § 39-13-106. While a qualified defendant is eligible for diversion, it is not guaranteed. Rather, it is left to the trial court’s discretion. In determining whether a qualified defendant should receive judicial diversion, the trial court must consider and weigh 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, 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. King, 432 S.W.3d 316, 326 (Tenn. 2014) (quoting State v. Parker, 932 S.W.2d 945, 958 (Tenn. Crim. App. 1996). While the trial court does not have to recite all the applicable factors, the record should reflect that it considered the factors and identified specific factors applicable to the case before it. When a trial court does so, its decision is entitled to a presumption of reasonableness and the appellate court will uphold the decision so long as there is any substantial evidence in the record to support it. However, when a trial court fails to consider and weigh the applicable factors, the presumption of reasonableness does not apply and the appellate court will either conduct a de novo review or remand the issue for reconsideration.
In the case at hand, a motorist found the remains of a deceased new born baby in the alley behind the restaurant where the defendant worked. It appeared that the infant had been run over by a vehicle. After an investigation, the officers tracked down the defendant, who stated that she had had a miscarriage and put the baby in a dumpster behind the restaurant. A medical exam could not determine the cause of death and whether this was a live birth or not. Given there was no way to tell whether the infant had been born alive, the defendant was charged with the abuse of a corpse instead of homicide.
At the initial sentencing hearing, the defendant testified that she went to the restroom near the end of her shift and had a miscarriage there: “[T]he baby came out. It wasn’t moving or making any sounds or anything.” After the miscarriage, the defendant was “distraught, hurt and shocked and just weak all in one.”
I just was thinking I just really want to go home. I just have to go home. And so I put the baby in the bag and put it in the dumpster and I told my manager I have to go. I had a[n] accident. And of course he could see all the blood over me.
The defendant denied running over her child, and asked the trial court to grant judicial diversion so that the offense would not prevent her from getting a good job, which she needed to provide for her other children.
During cross-examination, the defendant said that she could not explain why she did what she did and that she was just in shock. The trial court was incredulous at her lack of explanation and implored the defendant to offer more:
This is the only time you’re going to get a chance to go through this and you might as well tell me now because it will depend on how I rule on this. I don’t care what the truth is. I just want to know what it is.
Despite the court’s questioning, the defendant adamantly denied that she acted out of a desire to get rid of the child. In response, the trial court said that the defendant needed “serious counseling” and worried that she was “likely to repeat the same behavior again.” Indicating that it was not ready to rule on the defendant’s request for judicial diversion, the court asked the defendant to provide “a written report from a doctor and a psychologist.” Over the next eleven months, the defendant underwent two mental health evaluations and attended counseling.
At the final sentencing hearing, the trial court denied the defendant’s request for judicial diversion, concluding that it wanted people to have notice in the form of a felony conviction on the defendant’s record so “that if for some reason, or another, something like this even remotely happened, again, due to this, everyone would be put on notice.” Moreover, the court expressed “a very, very deep concern” for the safety of the defendant’s current and any future children. Notably, the court stated that it had done “some outside research” on cases similar to the defendant’s:
There is a huge number, in terms of the increase of the number of women who are being prosecuted exactly for this same type of offense. And they are not going as far as we went on this case. They have a woman who has recently had a baby, or a miscarriage, or was pregnant and if they can find the fetus, or the baby, they are prosecuting murder one, across this country, in numbers that you would not believe. And I don’t want the same thing to happen to her.
On appeal, the defendant argued that the trial court erred in denying her request for judicial diversion because it failed to weigh and consider all the factors relevant to a determination of judicial diversion. Agreeing with the defendant, the Tennessee Court of Criminal Appeals stated that the “[t]he trial court did not mention any of the applicable factors and focused exclusively on the circumstances of the offense and its own concerns about the potential of future harm to the defendant’s children.” Importantly, the appellate court noted the trial court’s improper use of independent research, which weighed heavily in its denial of judicial diversion. Because of the above errors, the trial court’s decision was not entitled to a presumption of reasonableness.
Conducting a de novo review, the appellate court stated that the defendant’s social history weighed heavily in favor of a grant of judicial diversion. She had no criminal record. There was no evidence that she used illegal drugs or drank alcohol in excess. She possessed a high school diploma and some credits toward an associate’s degree. At the time of the hearing, the defendant had worked nearly her entire adult life. However, the arrest had already caused her to lose one good-paying job. Regarding her other children, she had never been the subject of a Department of Children’s Services investigation and there was no evidence in the record that she had ever harmed her other children. Also, there was no evidence in the record that the defendant caused the death of her infant. Furthermore, medical records showed that one of her previous children had been born prematurely and had to spend several weeks in the neonatal intensive care unit.
Additionally, between the time of her plea and the final sentencing hearing, the defendant complied with all conditions and picked up no new criminal charges.
Regarding the circumstances of the offense, there was evidence in the record that, after the defendant placed the dead infant in the trash bin, animals took the infant’s corpse from the trash bin and that it was later run over by a vehicle. While these facts are certainly unsettling, they are already incorporated into the offense of abuse of a corpse. Thus, there was no evidence in the record that “the defendant’s actions significantly exceeded those required to satisfy the elements of the offense.”
Importantly, the court of criminal appeals took issue with the trial court’s independent research. While “a trial court may take into account matters that are of common knowledge to every person,” Fairbanks v. State, 508 S.W.2d 67, 69 (Tenn. 1974), this does not include the contents of news articles. State v. Henretta, 325 S.W.3d 112, 144 (Tenn. 2010). The appellate court quoted our supreme court,
There is ample authority for the proposition that a judge is not to use from the bench, under the guise of judicial knowledge, that which he knows only as an individual observer outside of the judicial proceedings. Judicial knowledge upon which a decision may be based is not the personal knowledge of the judge, but the cognizance of certain facts the judge becomes aware of by virtue of the legal procedures in which he plays a neutral role. No judge is at liberty to take into account personal knowledge which he possesses when deciding upon an issue submitted by the parties. In other words, “[i]t matters not what is known to the judge personally if it is not known to him in his official capacity.”
Vaughn v. Shelby Williams of Tenn., Inc., 813 S.W.2d 132, 113 (Tenn. 1991). The court of criminal appeals stated that there was no evidence in the record to support “the trial court’s finding of a significant increase in the occurrence of cases similar to the defendant’s.”
Regarding the trial court’s statement that crimes similar to the defendant’s were prosecuted as first degree murder, the appellate court noted that while it recognized that leniency in a plea agreement may support a formidable sentence, this was only where the defendant was originally charged with and the facts supported a much greater charge. A trial court’s consideration of an offense different or greater than that for which the defendant was indicted violates the defendant’s right to due process.
Finally, the appellate court weighed the defendant’s ready admission to and full cooperation with the police in favor of the grant of judicial diversion.
Based on the foregoing, the Tennessee Court of Criminal Appeals reversed the trial court’s denial of judicial diversion and remanded the case for the entry of an order placing the defendant on judicial diversion.
State v. Lacy, No. W2016-00837-CCA-R3-CD (Tenn. Crim. App. May 12, 2017)