State of Tennessee v. Montgomery Koons

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
April 27, 2010 Session

STATE OF TENNESSEE v. MONTGOMERY KOONS

Appeal from the Criminal Court for Anderson County
No. A6CR0318 Donald R. Elledge, Judge

No. E2008-02602-CCA-R3-CD - Filed December 14, 2010

The Defendant, Montgomery Koons, pled guilty to three counts of aggravated statutory rape,
a Class D felony. See T.C.A. § 39-13-506(c) (2010). He was sentenced to four years each
for the first count and second count as a Range I standard offender and six years for the third
count as a Range II standard offender, with all sentences to be served concurrently. The trial
court denied judicial diversion and ordered the Defendant to serve one year of incarceration
and five years of probation. On appeal, the Defendant contends that (1) the trial court denied
his due process right of compulsory process when it quashed his subpoena for the minor
victim to testify at the sentencing hearing, (2) the trial judge abused his discretion by
declining to recuse himself from the sentencing hearing, (3) the trial court erred by denying
his application for diversion based on an erroneous application for certification of eligibility,
(4) the trial court erred by denying him full probation, and (5) the trial court erred by entering
a Probation Order for six years of probation after one year of incarceration. Because the
Defendant was denied his due process right to compulsory process at the sentencing hearing
and because the denial of judicial diversion was based on an inadvertently submitted
preliminary draft of the application, we reverse the judgments of the trial court and remand
for a new hearing, at which the trial court shall consider judicial diversion and if diversion
is denied, the manner of service of the Defendant’s sentences.

Tenn. R. App. 3 Appeal as of Right; Judgments of the Criminal Court
Reversed and Remanded

J OSEPH M. T IPTON, P.J., delivered the opinion of the Court, in which J AMES C URWOOD W ITT,
J R., and J. C. M CL IN, JJ., joined.

David S. Wigler, Knoxville, Tennessee, for the appellant, Montgomery Koons.
Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney
General; Dave Clark, District Attorney General; Sandra N.C. Donaghy, Assistant District
Attorney General, for the appellee, State of Tennessee.

OPINION

According to the State’s recitation of facts at the Defendant’s guilty plea proceedings,
held on November 8, 2008, the basis for the Defendant’s guilty plea was that he was a fifty-
year-old man who had sexual relations with the fifteen-year-old female victim 1 “almost every
day they were together” during the summer months from June 24, 2006, through September
11, 2006. The Defendant met the victim through his role as a middle school teacher, and at
the time of the offenses, he was serving as the victim’s mentor with the victim’s parents’
consent. The three dates alleged in the indictment were taken from the first encounter (June
24, 2006) and the last encounter (September 11, 2006) recorded by the victim on her
calendar, plus one date during the time period when the victim noted an encounter with the
Defendant (July 1, 2006). The sexual encounters occurred at the Defendant’s home in Oak
Ridge, and the acts included intercourse, fellatio, and cunnilingus, with three separate sexual
acts noted on the last day that the Defendant and victim were together.

At the plea hearing, the Defendant agreed that the facts as recited by the State were
true and pled guilty to three counts of statutory rape. The Defendant’s partial waiver of
sentencing provided that the Defendant would apply for diversion, and if the court denied
diversion, he would seek probation. The State opposed diversion on all counts. In a
sentencing agreement, the parties agreed that if diversion were denied, the Defendant would
receive four years for count one, four years for count two, and six years for count three, to
be served concurrently. The State indicated that it would oppose probation on counts one
and two but not oppose some form of probation on count three. A sentencing hearing was
held on November 17, 2008.

At the sentencing hearing, William Tillery, a licensed clinical social worker, testified
as an expert witness in the field of clinical social work and the diagnosis and treatment of sex
offenders. Mr. Tillery said that he evaluated the Defendant at the probation office and that
he also administered the Substance Abuse Subtle Screening Inventory, the Sexual
Adjustment Inventory, the Personal Sentence Completion Inventory, the Molest Scale of the
Bumpy Cognitive Distortions, and the Able and Becker Cognitions Scale.

1
Because it is the policy of this court to protect the identity of child victims, we will not identify the
victim by name in this opinion.

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 Mr. Tillery testified that the Defendant reported having sexual contact with a fifteen-
year-old girl whom he was counseling. According to Mr. Tillery, the Defendant stated that
at the age of eleven, God told him that he needed to dedicate his life to children. The
Defendant told Mr. Tillery that he had been in two long-term relationships but had never
married and that he ended a relationship because of his desire to work with children.

Mr. Tillery testified that the Defendant described the victim as troubled and that the
Defendant said he was trying desperately to save her. Mr. Tillery said that in contrast to the
reports that he received from the police and interviews with the victim and her family, the
Defendant minimized the sexual contact and said that sexual contact happened only once.
Mr. Tillery said that the Defendant described the victim’s coming out of the bathroom
without her shirt on and that the Defendant asked, “What’s a man to do?”

Mr. Tillery testified that the Defendant reported memory loss due to heavy drug use
during high school. He said the Defendant reported using drugs while he was teaching until
he sought help in 1998. According to Mr. Tillery, police reports indicated that the Defendant
used or supplied crack cocaine or marijuana to the victim almost daily. He said the
Defendant’s substance abuse screening inventory indicated a high risk for drug and alcohol
abuse.

Mr. Tillery testified that the Defendant reported having no history of mental illness.
He said the Defendant generally fit the profile of a pedophile: never married, narcissistic,
a belief that he had been called by God to be around children, and a belief that children could
make him happy. Mr. Tillery said his recommendations for the Defendant included
registration as a sex offender and significant sex offender treatment. Mr. Tillery said he also
recommended that a polygraph test be administered to the Defendant. He said that the
polygraph showed “no deception” but that an apparent contradiction existed between the
Defendant’s claim that he had not used drugs since 1998 and the witnesses who said that he
was providing marijuana to children.

Mr. Tillery testified that the Defendant’s answers to a cognitive test indicated that he
was likely to re-offend. Mr. Tillery said the Defendant agreed with the following five
cognitive distortions in the area of his offense: that some children are willing and eager to
have sexual activity with adults, that some children can act very seductively, that sometimes
victims initiate sexual activity, that people turn to children for sex because they have been
deprived of sex from adult women, and that men who molest children really do not like
molesting children. Mr. Tillery said that the Defendant was in denial regarding his crimes
and that the Defendant blamed the victim and assigned an adult-female role to the victim.
He said the Defendant’s behavior in continuing to have telephone conversations with the
victim after he was under scrutiny was “scary.”

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 Mr. Tillery testified that the Defendant should be able to function on probation if he
were supervised and subjected to frequent drug and alcohol testing. He recommended that
the Defendant be required to stay away from the victim for life. He said the Defendant
scored in the medium-low range on the Static 99 test, which measured the risk of re-
offending. He said that in his experience, individuals who were prone to sexually exploiting
minors scored low on the Static 99 and that in his opinion, there was a risk to the community
that the Defendant would violate rules or boundaries again. He said he did not have any
“researchable evidence” that the Defendant was a pedophile.

On cross-examination, Mr. Tillery testified that he had performed about two thousand
psycho-sexual evaluations during his career and that he had never found an offender to be
at no risk to re-offend because the Tennessee Sex Offender Board considered all convicted
sex offenders to be at some risk. He agreed the Sexual Adjustment Inventory was a valid test
for predicting an offender’s likelihood of re-offending. He agreed the overall result on that
inventory showed that the Defendant had few problems with his thoughts and feelings
regarding his sex life. He agreed the Defendant had scored in the low risk range for
exhibitionism, alcohol, drugs, violence, and anti-social behavior.

Mr. Tillery testified that the Defendant was candid and truthful with him about his
past alcohol and drug problems. He said the only firsthand interviews he read in the
Defendant’s file about the Defendant’s supplying drugs to children were interviews with the
victim and the victim’s sister. He acknowledged he had no way of knowing who was telling
the truth about whether the Defendant used drugs or supplied them to children in recent
years. He said that in his experience about eighty percent of offenders scored in the low or
relatively low range on the Static 99 test and the Sexual Adjustment Inventory. He said that
about fifty percent of the offenders he had tested demonstrated cognitive distortions, or
thinking errors, and that the interview became especially important in those cases because
the offenders were often victims of sexual abuse who learned to defend themselves with
cognitive distortions.

Mr. Tillery testified that although the Defendant mentored many young people in the
past without complaint of a sexual offense, the fact that he committed a sexual offense with
this victim and seemed to think it was a legitimate action put him at greater risk to re-offend.
He said the Defendant told him during their interview that he was in therapy with a
psychologist. Mr. Tillery agreed he did not interview the victim and did not have any way
of determining whether she was exaggerating the number of sexual encounters or whether
the Defendant was minimizing them.

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 Mr. Tillery testified that he did not see anything in the Defendant’s file indicating the
Defendant had been under the influence of drugs or alcohol while teaching. He agreed that
the Defendant passed his polygraph and that the Defendant stated during his polygraph
examination that he stopped using drugs and that there were no additional victims. He said
he based his testimony that the Defendant had contact with the victim after his arrest on a
transcript of a telephone conversation between the two, which the victim had placed with a
police officer present.

On redirect examination, Mr. Tillery testified that he had concerns about the accuracy
of the Defendant’s polygraph. He agreed he considered an offender who met with young
people at a coffee shop to be more dangerous to the community than an offender who preyed
on a victim within the home.

Dr. John Stuhl, a licensed clinical psychologist, testified for the Defendant. He stated
that one of his specialties was treating trauma victims and that he worked with sexual abuse
victims. The court accepted Dr. Stuhl as an expert in counseling and psychology but not as
an expert in working with “child abuse predators.”

Dr. Stuhl testified that he had treated the Defendant since March 2003 for difficulties
related to the deaths of loved ones, substance abuse, and Attention Deficit Hyperactivity
Disorder (ADHD). He said that he met with the Defendant every other week and that the
Defendant never appeared intoxicated at their meetings. He said the Defendant did not suffer
from a diagnosable mental illness that would have caused the Defendant to commit the
offenses. He said that the Defendant repeatedly talked about his “calling” to help young
people who were outcasts and that he talked about being careful and responsible while
helping them.

Dr. Stuhl testified that the Defendant felt great remorse for how the relationship with
the victim developed and that the Defendant realized he had formed an inaccurate belief that
a fifteen-year-old could have a mature relationship. He said that he was never concerned that
the Defendant was a predator and that he believed the Defendant to be at a low risk for re-
offending. He said incarceration would not serve a rehabilitative purpose.

On cross-examination, Dr. Stuhl testified that he was treating the Defendant at the
time of the offenses. He said that during that time, he cautioned the Defendant not to be
alone with a young person because he was concerned that the Defendant could be accused
of acting sexually toward one of them. He said that after the arrest, the Defendant assured
him that he did not contact the victim and reported speaking to the victim by telephone only
once when the victim placed the call.

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 Tennessee Probation and Parole Officer Karen Orsulak testified that she prepared a
presentence investigation report on the Defendant. She said she interviewed the Defendant,
the victim’s school principal, the victim’s mother, and the victim’s father. She said the
victim’s mother forbade an interview with the victim.

Officer Orsulak testified that the Defendant said he sought mental health treatment
due to work stress and took medication in the past to relieve stress and ADHD symptoms.
She said the Defendant said he had used cocaine, speed, and marijuana over twenty years
earlier and smoked marijuana daily from 1972 to 1980. She said the Defendant reported
drinking alcohol regularly until 1998 when he voluntarily joined Alcoholics Anonymous
(AA). She said the Defendant reported being clean and sober since 1998.

Officer Orsulak testified that the Defendant said he worked with the victim as part of
an after-school program geared toward at-risk children. She said that the Defendant made
it clear that the program was separate from school and that he met the children weekly from
about 6:00 to 10:00 p.m. at a local restaurant to discuss starting a drama group. She said the
Defendant told her that he had oral permission from the victim’s parents to take the victim
to meetings.

Officer Orsulak testified that the Defendant never married or had children. She said
he struggled financially after losing his teaching position. She said the Defendant stated he
was a train conductor at an amusement park for a month and lost that job when someone
called the amusement park to say he was a sex offender. She said the Defendant worked as
a spotlight operator at a theater for three months. She said she recently learned that the
Defendant was working around his apartment building in exchange for rent and that he
designed jewelry and sold it at a flea market.

Officer Orsulak testified the Defendant said that he felt remorse over his relationship
with the victim but claimed that the relationship was consensual and loving. She said the
Defendant described times when the victim “hit on” him, particularly a time when the victim
came out of the shower. She said the Defendant provided her with love letters and e-mails
written to him by the victim. She said that the Defendant provided her with one letter or e-
mail he wrote to the victim and that she obtained others from the Defendant’s criminal file.

Officer Orsulak testified that the Defendant described the victim as having a troubled
childhood and suffering from depression. She stated the Defendant reported that the victim
joined AA with him and that he gave the victim rides to AA with her mother’s permission.
She said the Defendant told her that the victim would come to the school where he taught and
also to his house. She said the Defendant stated that he went to the victim’s house one time.

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 Officer Orsulak testified that when she went to the Defendant’s home, he had cable
television and Internet access, but she did not know if he had e-mail access. She said that in
their interview, the Defendant said the number of times he had sexual contact with the victim
was fewer than the number given in the police report. She said the Defendant described a
secret code he and the victim used in correspondence: 394, meaning three years until the
victim would turn eighteen, nine months to be pregnant, and the four children they desired.
She said the Defendant stated that he cared deeply for the victim.

Officer Orsulak testified that the Defendant was adamant in saying he never provided
drugs to the victim or other children. She said the victim and the victim’s sister told police
the Defendant gave them marijuana more than once.

On cross-examination, Officer Orsulak testified that she noted in the presentence
report that the victim’s mother told police the Defendant helped the victim to abstain from
using drugs and alcohol. Officer Orsulak said she knew of no other allegations against the
Defendant from children in his after-school group. She said that she met with the Defendant
once before preparing the presentence report on November 15, 2007, and that she visited his
home to follow up in October 2008. She said she administered a drug screen on the
Defendant at their first meeting, which was negative. She said that she called the Defendant
several times and that he was easy to reach and cooperative.

Officer Orsulak testified that when the Defendant said there were fewer instances of
sexual contact with the victim than those represented in the police report, he mentioned one
day in particular when one of them was out of town and the victim reported having had
sexual intercourse three times. She said the Defendant firmly denied having oral sex with
the victim. She said the Defendant never denied his guilt on the three counts of statutory
rape.

Jefferson Middle School Principal Bruce Lay testified that the Defendant taught under
his supervision. He said he was familiar with the victim and knew she had been in the
Defendant’s after-school drama group, which was sanctioned by the school. He said he was
not sure if the Defendant had been the victim’s classroom teacher. He said that any
counseling or program the Defendant conducted with students at a coffee shop was outside
the principal’s jurisdiction. He said that before the allegations surfaced, he and the
Defendant had a good working relationship and were friends. He said that he completed
formal evaluations of the Defendant’s teaching performance twice in ten years and that those
evaluations were good. He said the Defendant was an excellent teacher who had “done a lot
of good” at the school.

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 Mr. Lay testified that he first spoke to the Defendant about a possible problem when
two teachers expressed concern but that at the time, he had no other information to show
wrongdoing. He said that after allegations surfaced, police became involved in the process
of putting the Defendant on leave and that he and the Defendant discussed the situation
further. He said the Defendant first denied a sexual relationship with the victim but later said
he was guilty. He said the Defendant told him several times that he felt he was a victim, too.

Mr. Lay testified that the Defendant was known as a “free thinker” who often
approached the line of accepted behavior but had not gone over the line before this incident.
He said the Defendant’s relationship with the victim began when the Defendant was the
victim’s mentor at the middle school. He said the Defendant described himself as trying to
keep the victim from making mistakes the Defendant made. He said he was familiar with
press coverage of the Defendant’s case.

On cross-examination, Mr. Lay testified that he had known the Defendant for eight
and one-half years and that the Defendant was teaching at the middle school when Mr. Lay
joined the staff. He said that he attempted to visit every classroom regularly and that he
observed the Defendant’s teaching approximately two or three times a week for five or ten
minutes each visit. He identified a positive recommendation letter that he wrote for the
Defendant during the 2000-01 school year. He agreed that he had a high opinion of the
Defendant before this incident and that he never saw the Defendant under the influence of
drugs or alcohol. He said no other students had made allegations of misconduct against the
Defendant.

Both parties stipulated that the Defendant had not tried to contact the victim since his
arrest. The parties stipulated to four excerpts from a recorded telephone conversation that
took place between the victim and the Defendant on November 22, 2006. The prosecutor
read the following excerpts:

Defendant: Okay, listen to me.
Victim: Uh huh
Defendant: So you listen to me and understand what I’m
telling you.
Victim: Uh huh
Defendant: You are not on drugs; we were happy together.
For the first time in your life, you were happy.
You know that, don’t you?
Victim: [crying]
Defendant: Don’t let them pollute your mind.
Victim: I won’t, I’m sorry, I can’t.

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...

Defendant: What were you doing?
Victim: I was smoking a whole lot of pot, and we did
crack and all that s---.
Defendant: Oh, one time.
Victim: Yeah, but still.

...

Defendant: Yes, and it says this little girl still loves you.
Victim: I still love you.
Defendant: We have got too many years together to p--- it all
away because of stupidity on both of our ends, so
please bear with me. I promise no matter what,
things will work out good in the end. Love
always, no apologies. Love [victim]. [Victim,] I
hold these in my heart. I didn’t take this as a joke.
I didn’t. Listen babe, I didn’t take this as a half
thing. Do you remember the day I came up there
and told you that [Mr. Lay] had talked to me?
Victim: Yeah
Defendant: And you got mad, and you started crying, and you
said, “I knew it. I knew you would do this,” and
I said, “Do what?” I knew you would end it, and
I said, “Sweetheart, that is not what I’m doing.”
I’m telling you that it doesn’t matter. What
matters is you and me.
Victim: Uh huh
Defendant: And baby, that is all that matters to me, [victim].
I’m willing to wait for you. I’m willing to wait
until you turn eighteen. Our numbers: 3, 9, 4.
Do you know what my license f---ing plate
number is?
Victim: What?
Defendant: The new one that I got from the state after you
were gone?
Victim: Is it 394?
Defendant: 934

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 ...

Defendant: Now, that’s where things are, and that’s the truth,
and I can prove it. They can’t prove anything.
You know why? Because they are lying to you,
and [victim], what did I tell you? If they say
something to you, look at them and say, “Well, if
you know the story, why are you asking me?” or
“Why don’t you tell me what you know, and I’ll
fill in the rest.”
Victim: Uh huh
Defendant: If you want to catch them in their lies, that is how
you do it. You’ve probably already given them
enough information though.
Victim: [inaudible] I saw it on the news, and it kills me
about all this s--- and like you were there
[inaudible]. And they tried to interview you, and
you wouldn’t say anything and this s---.
Defendant: They didn’t play the whole thing though.
Victim: Baby, I gotta’ go; my parents just pulled into the
driveway.
Defendant: You get back in touch with me as soon as you
can.
Victim: Uh huh
Defendant: Okay, call [. . .], and we will arrange a meeting.
Victim: Okay
Defendant: It will be safe.
Victim: Are you sure?
Defendant: I know, [victim], I love you. Say it, say it.
Victim: To reassure you or myself?
Defendant: I know you love me.
Victim: It hurts too much.
Defendant: Then you do love me, sweetie.

Oak Ridge Police Detective Ron Boucher testified that he was the primary
investigating officer for this case and the prosecuting officer before the grand jury. He said
that he was aware of press coverage and that he recognized members of the press in the
courtroom. He said he was aware of two other cases in the area involving teachers accused
of sexual relationships with minors.

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 On cross-examination, Detective Boucher testified that he interviewed the victim on
September 14 and September 22, 2006. He said that during the first interview, the victim
said the Defendant had sexual relations with her multiple times but did not claim any drug
use. He said that during the second interview, the victim said she used marijuana with the
Defendant.

On redirect examination, Detective Boucher testified that the victim said there were
more than twenty instances of sexual contact with the Defendant. He said the victim also
said the Defendant gave her marijuana and crack cocaine.

On recross-examination, Detective Boucher testified that he requested a warrant to
search the Defendant’s home for letters between the Defendant and victim. He said he did
not ask to search for drugs and did not ask the Defendant if there were any in the house.

Audrey Collins testified that she grew up with the Defendant in their Oak Ridge
neighborhood and that her son was a student in the Defendant’s fifth grade class. She said
that while growing up, she never knew the Defendant to behave inappropriately or in a sexual
way with her or other children. She said that when she was growing up, the Defendant was
a big brother figure in the neighborhood and protected younger children from bullying.

Ms. Collins testified that since 2000, she stayed in touch with the Defendant through
his younger brother and that she visited the Defendant at school when he was her son’s
teacher. She said the Defendant was an excellent teacher who encouraged at-risk students,
including her son with ADHD, who benefitted from the Defendant’s individual attention.
She said she never saw the Defendant under the influence of alcohol or drugs. She said she
knew of the Defendant’s having had two girlfriends and that she did not believe the
Defendant was a predator or a threat to children. She said the Defendant expressed remorse
to her about his relationship with the victim.

Roger Toler testified that he was a former teacher who taught with the Defendant at
Woodland Elementary School for six or seven years. He said that he knew the Defendant for
about twenty-five years and that he and the Defendant taught as a team and sometimes shared
the same classroom. He said he hired the Defendant to teach in a summer school program
that he administered. He said that the Defendant was diligent in working with students who
needed extra encouragement and that he was often successful with students others had
stopped trying to help. He said he never saw the Defendant under the influence of drugs or
alcohol.

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 Mr. Toler testified that when this incident surfaced, the Defendant called him and
remorsefully admitted making a mistake and having a relationship with the victim. He said
that the Defendant had helped with a youth program at a church and that he knew of no
allegations of misconduct against the Defendant at the church. He said the Defendant
sometimes went to a monastery to find peace with himself and connect to God. He said
prison would not serve an educational purpose for the Defendant.

On cross-examination, Mr. Toler testified that other educators could be deterred if the
Defendant went to prison. He agreed that educators occupied a position of public trust and
that in his experience, once he had a teacher-student relationship with a child, the teacher-
student dynamic remained if he saw the former student in later years.

On redirect examination, Mr. Toler testified that the Defendant had been punished
through losing his teaching credentials and experiencing financial difficulty. He said other
teachers would be deterred from similar behavior by seeing the destruction of the
Defendant’s livelihood and professional reputation.

Tyler Guilliams testified that he was eighteen years old at the time of the hearing and
that he lived in Oak Ridge from 1997 to 2007. He said the Defendant was his teacher for one
summer school class after fifth grade and the director of a play in which he performed the
lead in the eighth grade. He said the Defendant helped him deal with difficulty at home and
was the first adult who listened to him and treated him like a human being. He said he often
met with the Defendant and other students after the play was over as part of an after-school
drama club and later as a group of friends.

Mr. Guilliams testified that he and others shared an idea to form a “coffee shop thing”
called the “outer circle” for Oak Ridge youth and that the Defendant was part of the group.
He said members of the group tended to be “misfits” and young people interested in drama.
He said the victim became a member of the group after it stopped being a drama club. He
said he never saw the Defendant behave inappropriately with students. He said that several
members of the group used drugs and alcohol but that he did not. He said he never saw the
Defendant under the influence of or encouraging group members to use drugs or alcohol.
He said members of the group tried to help each other stop abusing substances.

Mr. Guilliams testified that he had known the victim most of his life and that she once
considered him her best friend. He said the victim confided that she was a victim of abuse
at home and that she had a history of drug and alcohol abuse. He said he asked the
Defendant to intervene when the victim began using drugs and alcohol more heavily and
became negative and suicidal. He said that after the Defendant intervened, the victim’s self-

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esteem improved and that she attended AA with the Defendant. He said all of the young
people in the group were influenced positively by the Defendant.

Mr. Guilliams testified that the victim talked to him about the case after the Defendant
was arrested. He said that he thought the victim was untruthful with police because she was
angry due to her belief that the Defendant made disparaging remarks about her to the police.
He said that he also spoke to the Defendant about the case and that the Defendant was
remorseful and deeply humiliated. He said that he never helped the Defendant contact the
victim after the Defendant’s arrest and that he did not know of any time that the Defendant
tried to contact the victim. He said he did not view the Defendant as a predator.

On cross-examination, Mr. Guilliams testified that he spoke with the victim by
telephone three or four times since the Defendant’s arrest but that he had not sent her
messages by e-mail or text. He said he discussed the case “only very lightly” with former
classmates who were still at school in Oak Ridge and that he never asked any of them to
contact the victim.

Josh Posh testified that he was thirty-four years old at the time of the hearing and that
he had known the Defendant all his life. He said that although he was currently unemployed,
he was a licensed mental health nurse practitioner. He said that his father and the Defendant
were friends who attended school together. He said he and his older sister stayed at the
Defendant’s home occasionally when they spent summers with their father while growing
up. He said he never knew the Defendant to behave inappropriately toward his sister.

Mr. Posh testified that the Defendant remained like an uncle to him and that they often
spent time together. He said he chaperoned one field trip for the Defendant’s class. He said
that he would often see former students warmly greet the Defendant in public and that he
never saw the Defendant behave inappropriately toward a student or former student. He said
that although he was shocked by the Defendant’s admission of statutory rapes, he still felt
that the Defendant was like an uncle to him. He said the Defendant had been punished by
the media.

Iva Patterson testified that she met the Defendant through AA and that she had known
him for five or six years. She said that during the summer of 2006, she was the treasurer of
their AA chapter and that she saw the Defendant at most of the five or six meetings she
attended each week. She said that the Defendant brought students to AA on several
occasions and that he brought the victim at least six times during the summer of 2006. She
said that in the meetings, the victim shared problems, including peer pressure at school, drug
and alcohol abuse, and an unhappy home life. She said the Defendant spoke to her about two
long-term relationships in which he was involved with adult women.

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 Ms. Patterson testified that the Defendant admitted his relationship with the victim to
her after the allegations become public. She said the Defendant told her that he made a
mistake and that he really cared about the victim and hated that she was being hurt. She said
that she never saw the Defendant under the influence of drugs or alcohol and that she had no
concerns that the Defendant would re-offend.

On cross-examination, Ms. Patterson testified that the Defendant was attending AA
meetings in another town at that time because he was no longer comfortable at the Oak Ridge
meetings. She agreed that recovery from addiction was an ongoing process and that relapses
occurred.

At the close of the hearing, the trial court ruled that the Defendant was ineligible for
diversion based on the TBI application for certification of eligibility filed by the Defendant.
The trial court sentenced the Defendant to four years each for the first count and second
count as a Range I standard offender and six years for the third count as a Range II standard
offender. The court denied full probation and ordered the Defendant to serve one year in the
Anderson County Jail and six years’ probation, surrender his teaching license, comply with
the sex offender registration and monitoring requirements, have no contact with the victim,
and pay court costs. This appeal followed.

I

The Defendant contends that the trial court erred in granting the State’s motion to
quash his subpoena of the victim to testify at the sentencing hearing. He argues that he was
denied his constitutional right of compulsory process when he was unable to present the
victim’s testimony. The State contends that the Defendant has not shown that the trial court
abused its discretion in quashing the subpoena. We agree that the Defendant was denied his
right of compulsory process and that a new sentencing hearing is required.

The record reflects that the Defendant subpoenaed the victim to testify at the
sentencing hearing, and the State moved to quash the subpoena. The State did not offer proof
at the hearing on the motion to quash. The State argued that the minor victim should be
protected from further harm, which it said might occur if she testified. The prosecutor noted
that the victim had a history of mental health issues and “was a troubled child.” The
prosecutor noted that defense counsel received a letter purportedly written by the victim,
which expressed her desire that the Defendant not receive a jail sentence and stated that she
was tired of being swayed by her family. The State contended that the letter the victim wrote
to defense counsel was a satisfactory substitute for the victim’s testimony. Defense counsel
stated that the victim also called his office repeatedly but that he had not spoken with her.
He said he did not know whether the victim’s parents permitted her to call his office. The

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defense noted that the victim impact statement in the presentence report contained the
statements of a school principal and the victim’s mother but not of the victim.

In ruling on the matter, the trial court stated that the victim’s wishes with respect to
the Defendant’s sentencing were not material. The court noted that based upon the facts
recited at the plea hearing, the Defendant’s and the victim’s sexual relationship, and their use
of drugs provided by the Defendant, it did not see how the victim’s testimony “could greatly
add or take away from [the sentencing hearing].” The court quashed the subpoena but ruled
that the victim would be permitted to testify with her mother’s permission. The court stated
that its reasons for quashing the subpoena were that (1) the victim was a “troubled child,” (2)
the victim was seventeen years old and the events occurred when she was fifteen years old,
(3) the victim’s involvement with the Defendant would not have happened had the victim not
already been having problems with her parents, and (4) the victim was receiving mental
health treatment. The court allowed the victim’s letter to be filed under seal.

A trial court’s discretion in quashing a subpoena is limited to situations in which there
is an abuse of process. Bacon v. State, 385 S.W.2d 107, 109 (Tenn. 1964). If a witness’s
testimony would be immaterial, the court may act to avoid abuse of process. State v.
Womack, 591 S.W.2d 437, 443 (Tenn. Ct. App. 1979). Otherwise, a trial judge has no
discretion to control a defendant’s ability to subpoena witnesses. Bacon, 385 S.W.2d at 109.
The moving party has the burden to show that the issuance of the subpoena would be an
abuse of process. Womack, 591 S.W.2d at 443. The trial court’s decision is reviewable for
abuse of discretion. See e.g., id. at 446 (applying an abuse of discretion standard); State v.
Burrus, 693 S.W.2d 926, 929 (Tenn. Crim. App. 1985) (applying an abuse of discretion
standard); see also State v. Connie Easterly, No. M2000-00077-CCA-R3-CD, Sequatchie
County, slip op. at 8 (Tenn. Crim. App. Mar. 1, 2001).

Among the rights afforded a criminal defendant is the “right . . . to have compulsory
process for obtaining witnesses in his favor.” U.S. Const. amend. VI; Tenn. Const. art. I, §
9; T.C.A. § 40-17-105; see State v. Brown, 29 S.W.3d 427, 432 (Tenn. 2000); see also
Chambers v. Mississippi, 410 U.S. 284, 302 (1973) (“Few rights are more fundamental than
that of an accused to present witnesses in his own defense.”). In the context of compulsory
attendance of witnesses, the Supreme Court has observed:

The right to offer the testimony of witnesses, and to compel
their attendance, if necessary, is in plain terms the right to
present a defense, the right to present the defendant’s version of
the facts as well as the prosecution’s to the jury so it may decide
where the truth lies. Just as an accused has the right to confront
the prosecution’s witnesses for the purpose of challenging their

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 testimony, he has the right to present his own witnesses to
establish a defense. This right is a fundamental element of due
process of law.

Washington v. Texas, 388 U.S. 14, 19 (1967). S e n t e n c i n g i s a c r i t i c a l s ta g e o f t h e
proceedings at which a defendant’s constitutional rights must be protected. See Mempa v.
Rhay, 389 U.S. 128 (1967); State v. Michael Harlan Byrd, No. 01C01-9609-CC-00411, Giles
County, slip op. at 15 (Tenn. Crim. App. May 1, 1998).

The foundation of a claim of denial of compulsory process is that the witness or the
evidence the Defendant seeks to offer is material to the defense. See, e.g., United States v.
Valenzuela-Bernal, 458 U.S. 858, 867 (1982) (holding that a defendant who attempts to
establish a violation of his constitutional right to compulsory process “must at least make a
plausible showing of how [the witness’s] testimony would have been both material and
favorable to his defense”); State v. Smith, 639 S.W.2d 677, 680 (Tenn. Crim. App. 1982)
(stating that “the constitutional right to compulsory process requires such process for, and
only for, competent, material, and resident witnesses whose expected testimony will be
admissible”); Womack, 591 S.W.2d at 443 (reciting rule that trial court may abate subpoenas
of witnesses whose testimony would be immaterial); Bacon, 385 S.W.2d at 109-10 (holding
that a defendant is entitled to compulsory process of witnesses upon showing of materiality
of witnesses’ testimony); State v. Alvin Glenn Hughes, No. 03C01-9208-CR-0018-00183,
Shelby County, slip op. at 9-11 (Tenn. Crim. App. June 9, 1993) (observing that a defendant
has a fundamental constitutional right to compulsory process of a witness at trial upon
showing the witness is material and that a trial court has no discretion in issuing process).

The Rules of Evidence provide that a person is presumed to be a competent witness
unless otherwise provided by rule or statute. Tenn. R. Evid. 601. There is a rebuttable
presumption of the competency of witnesses who are less than fourteen years old. State v.
Campbell, 904 S.W.2d 608, 612 (Tenn. Crim. App. 1995). The victim in the present case
was seventeen years old at the time of the hearing on the motion to quash.

Although the State had the burden of proof at the hearing, no evidence was received
to show that the victim was not a competent witness, such as the testimony of a parent or a
mental health treatment provider with some knowledge of the victim’s situation and the
probable effect of her testifying at the sentencing hearing. The court accepted as fact the
State’s assertions regarding the victim and the need to protect her. The trial court also relied
on the victim’s status as a minor to justify its ruling. The seventeen-year-old victim was
presumed to be a competent witness. See Tenn. R. Evid. 601. The trial court stated
repeatedly that the victim could testify only with her parents’ consent. We are unaware of
any rule that places minors beyond process of the court without parental consent. At the

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sentencing hearing, held after the trial court had quashed the subpoena, testimony and
information from the presentence report indicated the victim’s troubled past. However, this
evidence was not presented at the hearing on the motion to quash the subpoena, and even if
it had been, there was no proof presented that the victim was incompetent to testify due to
her age or mental health. We conclude that the trial court did not require the State to
shoulder the burden of proof at the hearing.

The trial court also based its ruling on the motion to quash on the lack of relevance
of the victim’s testimony. The court did so, however, without hearing the victim’s testimony,
and its quashing of the subpoena denied the Defendant the opportunity to make an offer of
proof. A review of the issues that faced the trial court at the sentencing hearing is instructive.
First, the trial court’s ruling on the Defendant’s application for judicial diversion required
the court to consider the circumstances of the offense and whether judicial diversion would
serve the ends of justice. See, e.g., State v. Electroplating, Inc., 990 S.W.2d 211, 229 (Tenn.
Crim. App. 1998). Upon denying diversion and sentencing the Defendant, the trial court’s
considerations included “[t]he nature and characteristics of the criminal conduct involved”
and any evidence offered by the parties that was relevant to the mitigating and enhancement
factors. T.C.A. § 40-35-210(b)(4), (5) (2006) (amended 2009). There was no trial in this
case, and at the plea hearing, very limited facts taken from an officer’s report were recited
by the assistant district attorney as the basis for the Defendant’s guilty pleas. At the hearing
on the motion to quash, the trial court stated that due to the evidence of the sexual
relationship between the Defendant and the victim and their drug use, nothing the victim had
to say would influence its determination of the proper sentence. This statement shows that
the court considered the nature and characteristics of the Defendant’s criminal conduct to be
conclusively established, even before the sentencing hearing. The Defendant was foreclosed
from presenting proof through the victim’s testimony that might have addressed relevant
considerations for the trial court’s decisions regarding diversion and sentencing. We
conclude that the victim’s testimony was relevant and material, that the trial court erred in
quashing the defense subpoena, and that the Defendant must receive a new sentencing
hearing.

II

The Defendant contends that the trial judge erred by not recusing himself from
presiding over the sentencing hearing after expressing his concern that defense counsel had
a conflict of interests in representing both the Defendant and a probation officer who
prepared the presentence report. The Defendant claims that the trial court questioned him
in a “hostile” manner about the possible conflict and “repeatedly expressed his ‘incredulity’
that defense counsel had acted ethically.” The State contends that the trial judge did not
abuse his discretion. We agree with the State.

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 A defendant has a fundamental constitutional right to a fair trial before an impartial
tribunal. See, e.g., State v. Austin, 87 S.W.2d 447, 470 (Tenn. 2002). The Code of Judicial
Conduct provides:

E. Disqualification
(1) A judge shall disqualify himself or herself in a
proceeding in which the judge’s impartiality
might reasonably be questioned, including but not
limited to instances where:

(a) the judge has a personal bias or prejudice
concerning a party or a party’s lawyer[.]

Tenn. R. Sup. Ct. 10, Canon 3(E)(1)(a).

When a question of a trial judge’s ability to be impartial arises, a trial judge should
grant a recusal whenever the judge “has any doubts about his or her ability to preside
impartially” or “when a person of ordinary prudence in the judge’s position, knowing all of
the facts known to the judge, would find a reasonable basis for questioning the judge’s
impartiality.” Alley v. State, 882 S.W.2d 810, 820 (Tenn. Crim. App. 1994); see also Tenn.
S. Ct. R. 10, Canon 3(E). “A court should examine the facts alleged by the movant and
consider ‘whether assuming the truth of the facts alleged, a reasonable person would
conclude that a particular judge is biased or prejudiced against a particular defendant.’”
Alley, 882 S.W.2d at 821 (quoting United States v. Baker, 441 F. Supp. 612, 616 (M.D.
Tenn. 1977)). “Not every bias, partiality, or prejudice merits recusal. To disqualify,
prejudice must be of a personal character, directed at the litigant, ‘must stem from an
extrajudicial source and result in an opinion on the merits on some basis other than what the
judge learned from . . . participation in the case.’” Id. at 821 (quoting State ex rel. Wesolich
v. Goeke, 794 S.W.2d 692, 697 (Mo. Ct. App. 1990)). “Adverse rulings by the trial court are
not usually sufficient grounds to establish bias. Rulings of a trial judge, even if erroneous,
numerous and continuous, do not, without more, justify disqualification.” Id. at 821. The
issue to be determined is not “the propriety of the judicial conduct of the trial judge, but
whether he committed an error which resulted in an unjust disposition of the case.” State v.
Boggs, 932 S.W.2d 467, 472 (Tenn. Crim. App. 1996). The matter of recusal is left to the
sound discretion of the trial court and will not be reversed on appeal absent an abuse of that
discretion. Id.

In the present case, the trial judge became concerned about defense counsel’s
representing the Defendant while also representing the probation officer who prepared the
presentence report. It is undisputed that defense counsel’s representation of the probation

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officer was unrelated to this case. When the judge learned of the dual representation, he
contacted the Board of Professional Responsibility to request advice. A telephone
conference occurred with the Board’s disciplinary counsel, the trial judge, and the attorneys.
During the conference, which is not transcribed in the record, there was an exchange between
defense counsel and the trial judge in which the judge asked defense counsel whether he had
obtained information from his probation officer for the benefit of the Defendant. Defense
counsel did not answer immediately, and the trial judge repeated the question multiple times.
By his own admission, the trial judge became angry when defense counsel did not respond
to his inquiry.

The defense then challenged the trial judge’s impartiality to conduct the sentencing
hearing. Defense counsel stated in a letter to the Board, which is part of the record, that he
attempted to answer the question by explaining but that he could not fairly give a “yes” or
“no” answer. He said the judge insisted that he answer “yes” or “no.” He said he
“understood [the judge] to say that [his] reluctance to answer . . . was an indication of
untruthfulness and that we were going to have problems [at the sentencing hearing] if [he]
was representing [the Defendant] in [the judge’s] court.” He said that after disciplinary
counsel for the Board left the conference call, the judge said that he “would not be able to
sleep at night if he was in [defense counsel’s] position going forward at this sentencing
hearing.”

Four days later, the court held the hearing on the Defendant’s motion for an
interlocutory appeal and motion to continue. Although these motions pertained to the trial
court’s order quashing the victim’s subpoena, the conference call exchange between defense
counsel and the trial court was addressed at the beginning of the hearing. The trial judge
addressed allegations in defense counsel’s letter to the Board, acknowledging that he became
frustrated the third time he questioned defense counsel. The trial judge said it was at this
point he stated that the question could be answered with “yes” or “no.” The trial judge
disagreed that he said defense counsel’s credibility was in question. He recounted having
said that if defense counsel were a witness under oath and evaded questions, defense
counsel’s credibility would be questioned. The judge said he also acknowledged that defense
counsel was not under oath. The judge stated that he was “incredulous” when disciplinary
counsel said there was no appearance of impropriety in the dual representation but that he
was not “upset at” defense counsel. The trial judge acknowledged that he said something
about not being able to sleep at night if he were in defense counsel’s position and explained,
“that’s the way I practiced law.” The trial judge disavowed being upset with defense counsel
over the matter. Defense counsel responded that he was concerned on behalf of the
Defendant that the trial judge had formed an opinion about defense counsel’s credibility or
truthfulness. The trial judge again denied that he questioned defense counsel’s credibility
and denied having any bias against defense counsel. The judge said his statement about

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defense counsel’s credibility being questioned if counsel were under oath was “an example”
of how a credibility issue might arise and that he had no issue with defense counsel’s
credibility. With respect to the judge’s factual assertions, the assistant district attorney
agreed that the judge’s recounting of the conference call was accurate.

In the present case, the Defendant has not shown that the trial judge abused his
discretion by not recusing himself from presiding at the Defendant’s sentencing hearing. The
record reflects that there was less dispute about the facts of the conference call than about
defense counsel’s interpretation of them. The trial judge explained his statements from the
conference call and placed them in context, and he disclaimed any credibility questions about
defense counsel or having any bias against defense counsel that might affect the Defendant.
The Defendant is not entitled to relief on this issue.

III

The Defendant contends that the trial court erred by denying his application for
judicial diversion based on an erroneous application for certification of eligibility. The
Defendant argues that if this case is remanded, the trial court should be ordered to consider
the correctly filed diversion application. The State argues that because the Defendant did not
raise an objection to the court’s denial of diversion during the sentencing hearing, he waived
the issue on appeal. We agree with the Defendant that on remand, the trial court should
consider the Defendant’s diversion application de novo.

At the sentencing hearing, the trial court noted that no Tennessee Bureau of
Investigation (TBI) diversion report was in the court file. According to defense counsel’s
affidavit, filed after the hearing, he had taken over the case from the attorney who filed the
diversion application and had been told by the court at an earlier hearing that the court had
a copy of the diversion report. At the sentencing hearing, defense counsel searched the
Defendant’s file while in court and found two completed diversion application forms. He
gave one to the court and one to the prosecutor, not realizing that the two forms were two
different versions and that he had given the trial court an inaccurate copy.

At the close of the hearing, the trial court found that the Defendant was ineligible for
diversion because the application stated that he had a felony or misdemeanor conviction. The
form on which the trial court relied is in the record and has the box checked by “The
defendant has a prior disqualifying felony or misdemeanor conviction.” After the hearing,
defense counsel contacted the prosecutor, who sent a copy of the correct version to defense
counsel. The Defendant filed the corrected TBI diversion report and an explanatory affidavit
on December 4, 2008. The corrected report is in the appellate record and has the box marked

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by “The defendant has not had a prior disqualifying felony or misdemeanor conviction.” It
is undisputed that the Defendant had no criminal record prior to these convictions.

A defendant is eligible for judicial diversion if he or she is convicted of a Class C, D,
or E felony or lesser crime, excluding certain sexual offenses not involved in this case,
driving under the influence, and vehicular assault, and if he or she has not been previously
convicted of a felony or a Class A misdemeanor. See T.C.A. § 40-35-313(a)(1)(B)(I) (2006)
(amended 2007). Judicial diversion allows the trial court to defer further proceedings
without entering a judgment of guilt and to place the defendant on probation under
reasonable conditions. T.C.A. § 40-35-313(a)(1)(A). When the probationary period expires,
if the defendant has completed probation successfully, the trial court will dismiss the
proceedings against the defendant with no adjudication of guilt. See T.C.A. § 40-35-
313(a)(2). The defendant may then apply to have all records of the proceedings expunged
from the official records. See T.C.A. § 40-35-313(b). A person granted judicial diversion
is not convicted of an offense because a judgment of guilt is never entered. See T.C.A. § 40-
35-313(a)(1)(A).

When a defendant challenges the manner of serving a sentence, this court conducts
a de novo review of the record with a presumption that “the determinations made by the court
from which the appeal is taken are correct.” T.C.A. § 40-35-401(d) (2010). However, when
the accused challenges the trial court’s denial of a request for judicial diversion, a different
standard of appellate review applies. Because the decision to grant judicial diversion lies
within the sound discretion of the trial court, this court will not disturb that decision on
appeal absent an abuse of discretion. Electroplating, 990 S.W.2d at 229. Upon review, we
will give the trial court the benefit of its discretion if “‘any substantial evidence to support
the refusal’ exists in the record.” State v. Anderson, 857 S.W.2d 571, 572 (Tenn. Crim. App.
1992) (quoting State v. Hammersley, 650 S.W.2d 352, 356 (Tenn. 1983)).

In determining whether to grant judicial diversion, the trial court must consider (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 defendant’s physical
and mental health; (6) the deterrence value to the defendant and others; and (7) whether
judicial diversion will serve the interests of justice, those of the public as well as the accused.
Electroplating, 990 S.W.2d at 229; State v. Parker, 932 S.W.2d 945, 958 (Tenn. Crim. App.
1996). In addition, “the record must reflect that the court has weighed all of the factors in
reaching its determination.” Electroplating, 990 S.W.2d at 229. If the trial court refused to
grant judicial diversion, it should state in the record “the specific reasons for its
determinations.” Parker, 932 S.W.2d at 958-59.

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 The trial court based its denial of diversion on the inaccurate TBI application for
certification of eligibility and therefore did not explicitly weigh the diversion factors. The
State argues that the Defendant waived the issue of the inaccurate form by not objecting to
its admission at the sentencing hearing. Defense counsel was under the mistaken belief that
the court was examining an accurate copy of the eligibility form and states in his appellate
brief that he was “shocked” when the court found the Defendant ineligible due to a
disqualifying prior conviction.

Tennessee Rule of Appellate Procedure 36(a) states that appellate relief is generally
not available when a party has “failed to take whatever action was reasonably available to
prevent or nullify the harmful effect of an error.” See, e.g., State v. Sims, 45 S.W.3d 1, 16
(Tenn. 2001). Although defense counsel should have objected when the trial court ruled that
the Defendant was ineligible for diversion due to a prior disqualifying conviction, counsel
attempted to correct the error a few days later and raised the issue on appeal. We conclude
that the Defendant’s eligibility for diversion should be examined on the merits rather than
denied on the basis of an erroneous form.

The Defendant concedes that the trial court’s ruling against full probation meant that
the court would have ruled against diversion even if it had been viewing a correct TBI
eligibility application. After the eligibility requirement is met, the factors considered for
diversion are generally included in the factors considered for full probation. See T.C.A. §§
40-35-102 (2006) (amended 2007), -103 (2010); Electroplating, 990 S.W.2d at 229; State v.
Kristi Dance Oakes, No. E2006-01795-CCA-R3-CD, Sevier County, slip op. at 13 (Tenn.
Crim. App. Sept. 27, 2007), app. denied (Tenn. Mar. 3, 2008). We agree that based on the
trial court’s evaluation of alternative sentencing considerations and denial of full probation,
the trial court would have denied diversion even if considering the correct eligibility
application. On remand, however, the Defendant will have the opportunity to subpoena the
victim. We conclude that the trial court should also rule on whether to grant judicial
diversion with an updated TBI application for certification of eligibility.

IV

The Defendant contends that the trial court erred by denying him full probation
because it did not adequately consider sentencing principles and mitigating factors applicable
under the Tennessee Criminal Sentencing Reform Act of 1989. The State contends that the
trial court properly denied full probation after duly considering applicable sentencing factors
and principles. Our reversal of the judgments and remand of this case for a new sentencing
hearing mean that the Defendant will be able to subpoena the victim as a witness and that
both sides may present relevant evidence not currently in the record. We need not address
the trial court’s denial of full probation because that denial was based on evidence presented

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at a hearing at which the Defendant was denied his right to the compulsory process. See,
e.g., State v. Cannon, 254 S.W.3d 287, 307 (Tenn. 2008) (having determined that the
defendant was entitled to a new trial based on the erroneous admission of evidence in
violation of his right to confrontation, the court concluded that it would not review the effect
of that evidence’s admission at the first trial).

Appellate review of sentencing is de novo on the record with a presumption that the
trial court’s determinations are correct. T.C.A. §§ 40-35-401(d), -402(d) (2010). In
conducting a de novo review, one of the components we must consider is any evidence
received at the sentencing hearing. See T.C.A. §§ 40-35-102, -103, -210; State v. Ashby, 823
S.W.2d 166, 168 (Tenn. 1991); State v. Moss, 727 S.W.2d 229, 236 (Tenn. 1986). Because
the evidence at this sentencing hearing lacked testimony that the Defendant had a right to
compel, a de novo review of the sentencing would be premature.

V

As the Defendant notes, the trial court’s Probation Order reflected a sentence of seven
years, with six years of probation after one year of confinement. This does not accurately
reflect the total sentence of six years.

In consideration of the foregoing and the record as a whole, the judgments of the trial
court are reversed and this case is remanded for a new sentencing hearing, at which the trial
court shall consider judicial diversion and if diversion is denied, the manner of service of the
Defendant’s sentences.

___________________________________
JOSEPH M. TIPTON, PRESIDING JUDGE

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