IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
February 15, 2005 Session
STATE OF TENNESSEE v. JOHN A. JUDKINS, JR.
Appeal from the Criminal Court for DeKalb County
No. 01-25 Lillie Ann Sells, Judge
No. M2004-00389-CCA-R3-CD - Filed July 20, 2005
The Appellant, John A. Judkins, Jr., appeals the sentencing decision of the DeKalb County Criminal
Court following termination of his judicial diversion. Judkins was indicted for aggravated burglary
and two counts of theft of property and was granted judicial diversion and placed on supervised
probation for a period of three years. Simultaneously with the entry of an order of judicial diversion,
a negotiated plea agreement was presented and approved by the court to the indicted offenses which
provided that Judkins would receive two three-year sentences and one eleven month and twenty-nine
day suspended sentence for the three crimes. The agreement further provided for concurrent
sentences to be served on “straight probation.” A probation violation warrant was subsequently
issued alleging that Judkins had committed additional offenses. Following termination of judicial
diversion, in the absence of a sentencing hearing, Judkins was sentenced to three years confinement
in the Department of Correction. Judkins argues on appeal that the trial court erred by not imposing
the effective three-year sentence of “straight probation” as provided in the plea agreement. After
review, we conclude that the Sentencing Act does not contemplate the coexistent grant of judicial
diversion and service of a sentence imposed pursuant to a negotiated plea agreement as the two are
inconsistent in purpose. Accordingly, the trial court’s consideration of the terms of the plea
agreement in the sentencing decision was error. The case is, therefore, remanded to the trial court
for a sentencing hearing.
Tenn. R. App. P. 3; Judgment of the Criminal Court Reversed;
Remanded for a Sentencing Hearing
DAVID G. HAYES, J., delivered the opinion of the court, in which GARY R. WADE, P.J., and THOMAS
T. WOODALL, J., joined.
David Brady, Public Defender; and John B. Nisbet, III, Assistant Public Defender, Cookeville,
Tennessee, for the Appellant, John A. Judkins, Jr.
Paul G. Summers, Attorney General and Reporter; Preston Shipp, Assistant Attorney General;
William A. Gibson, District Attorney General; and William M. Locke, Assistant District Attorney
General, for the Appellee, State of Tennessee.
OPINION
Procedural History
On July 13, 2001, the Appellant pled guilty under the terms of a negotiated plea agreement
to aggravated burglary, theft over $1000, and theft under $500. The plea agreement provided for
sentences of three years for the aggravated burglary, three years for the theft over $1000, and eleven
months and twenty-nine days for the theft under $500. Further, the agreement specified that the
sentences were to be served concurrently and that the sentences were “all suspended to straight
probation.” A notation appears on the agreement that “pending TBI certification the defendant will
be granted judicial diversion.” The record reflects that on the same date, the trial court granted the
Appellant judicial diversion, deferred service of the sentences until July 13, 2004, and placed the
Appellant on three years supervised probation.1
On June 28, 2003, a probation violation warrant was issued alleging that the Appellant had
been charged and arrested on June 15, 2003, with possession of drug paraphernalia and on June 21,
2003, with aggravated burglary and theft of property over $10,000.2 Based upon the proof presented
at the sentencing hearing, the trial court found sufficient evidence to establish that the Appellant had
violated the conditions of his probation. Thereafter, on October 5, 2003, the trial court terminated
the Appellant’s program of judicial diversion and entered adjudications of guilt regarding the three
convictions. With regard to sentencing, it was the State’s position that a sentencing hearing should
be conducted while the Appellant argued that the terms of the original plea agreement should be
imposed, i.e., three-year sentences suspended to straight probation.
On January 15, 2004, the trial court, without conducting a sentencing hearing, reinstated the
original agreed-upon sentences of three years and ordered that the sentences be served in
incarceration. This appeal follows.
Analysis
On appeal, the Appellant does not challenge the termination of his diversion. Rather, he
challenges only the imposition of the effective three-year sentence to be served in incarceration. The
Appellant argues that the negotiated plea agreement, which was approved by the trial court, survives
the termination of diversion and that, upon termination, the court was required to sentence him to
1
This order was entered on November 23, 2001, by Judge Leon Burns, who conducted these proceedings.
2
The drug paraphernalia charge was later dropped.
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the agreed sentence of “three years, suspended to straight probation.” Alternatively, he argues that
the trial court erred in not conducting a sentencing hearing prior to the imposition of the sentence.
Although the State initially argued that the plea agreement did not survive the termination of
diversion, on appeal it asserts that the plea agreement does survive the termination but disagrees with
the Appellant as to how the agreement should be interpreted.
Our Sentencing Act provides that in granting a qualified defendant judicial diversion, the trial
court, upon the entry of a guilty plea, places the defendant on probation without entering a judgment
of guilt. Tenn. Code Ann. § 40-35-313(a)(1)(A) (2003). If the defendant successfully completes
probation, the court shall discharge the defendant and dismiss the proceedings. Id. at (a)(2).
However, if the defendant’s probation is revoked, the trial may then enter an adjudication of guilt
and “proceed as otherwise provided.” Id.
Case law decisions from this court have reached different conclusions with regard to the
meaning of the term “proceed as otherwise provided.” In State v. Daniel Bilbrey, No. M2002-
01043-CCA-R3-CD (Tenn. Crim. App. at Nashville, Mar. 3, 2004) and State v. Jeremy Daniel
Loader, No. M2003-01084-CCA-R3-CD (Tenn. Crim. App. at Nashville, Sept. 14, 2004), guilty plea
agreements and grants of judicial diversion were concurrently entered. Following termination of
judicial diversion probation, the trial courts sentenced Bilbrey and Loader as provided by the terms
of the guilty plea agreement without conducting a sentencing hearing. The trial courts concluded
that the plea agreement survived termination of the diversion as the defendants had agreed to the
pleas. On appeal, panels of this court affirmed imposition of the two sentences.
In State v. Nikobi I. Dunn, No. E2001-02120-CCA-R3-CD (Tenn. Crim. App. at Knoxville,
Dec. 23, 2002) and State v. Hollie D. Campbell, No. E2000-00373-CCA-R3-CD (Tenn. Crim. App.
at Knoxville, July 2, 2001) panels of this court reached the opposite conclusion. The respective trial
courts held that the plea agreement did not survive the termination of diversion, and panels of this
court affirmed the rulings. In Dunn, this court concluded that a remand for a sentencing hearing was
necessary, as no sentencing hearing had been held prior to imposition of the sentences. Dunn, No.
E2001-02120-CCA-R3-CD. In Campbell, the sentence was affirmed because the trial judge,
following termination, had conducted a proper sentencing hearing prior to imposition of the
sentence. Campbell, No. E2000-00373-CCA-R3-CD.
After a thorough review of the issue presented, and upon reconsideration by all members of
this panel, we conclude that the Sentencing Act does not contemplate the trial court’s acceptance of
a negotiated guilty plea concurrently with a grant of judicial diversion. First, to allow the State and
the defendant to enter into a sentencing agreement prior to termination of diversion contradicts the
purpose of the diversion statute, which is deferral of the sentence until a future date. Moreover, as
evidenced by the holdings in Dunn and Campbell, any plea agreement which by its terms is
incongruent with principles of sentencing, e.g., a plea agreement which imposes probation after the
offender has been revoked from diversion probation, will necessarily be rejected by the sentencing
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court when termination of diversion occurs.3 Thus, entry of a plea agreement under these
circumstances represents an exercise in futility as it accomplishes nothing.
Second, although the Appellant contends that the terms of the guilty plea agreement should
be enforced upon termination of diversion, the record does not reflect that the plea agreement was
ever reduced to judgment. The record includes a guilty plea document reflecting the terms and
conditions of the plea agreement of “straight probation” signed by the Appellant and approved by
the trial judge. At the guilty plea hearing, the trial judge “accepted” the Appellant’s pleas of guilty
and entered judgment accordingly. However, the trial court made no pronouncement with regard
to the terms of the plea agreement.4 Indeed, the trial judge specifically stated that no judgment of
conviction would be entered. Our rules of procedure provide that “if the court accepts the plea
agreement, the court shall inform the defendant that it will embody in the judgment and sentence the
disposition provided for in the plea agreement.” Tenn. R. Crim. P. 11(e)(c)(3). Additionally, Rule
32(e) of the Tennessee Rules of Criminal Procedure provides, in pertinent part, that “[a] judgment
of conviction shall set forth the plea, the verdict or findings, and the adjudication and sentence.”
Because no final judgment of conviction was ever entered embodying the plea agreement, there is
no judgment from which to appeal. See Tenn. R. App. P. 3(b). It is apparent from a review of the
record that the trial judge did not intend the negotiated plea agreement to represent a final judgment
but, rather, a contingent sentence should diversion fail. Indeed, if judgments had been entered upon
both the plea agreement and the diversion, the sentences would have been voidable, as there is no
authority to sentence a defendant to two separate sentences at the same time for the same crime. See
State v. Turco, 108 S.W.3d 244, 245 (Tenn. 2003) (holding that there is no statutory authority for
permitting judicial diversion after an adjudication of guilt or imposition of sentence.
We conclude that our Sentencing Act never contemplated that a contingency type of plea
agreement would be attached to the diversion, which would usurp the sentencing authority of the trial
judge following a termination of diversion. We interpret the term “proceed as otherwise provided”
following revocation of judicial diversion probation to mean that a sentencing hearing should be held
pursuant to the considerations of Tennessee Code Annotated section 40-35-210 (2003) and principles
of sentencing.
3
This is not to say that the State and the Appellant are precluded from presenting to the trial court a plea
agreement as provided by Rule 11(e), Tenn. R. Crim. P., subsequent to termination of judicial diversion. However, the
plea agreement should not be entered or approved by the sentencing court prior to or concurrently with the grant of
judicial diversion.
4
The record does include a judicial diversion order.
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CONCLUSION
Based upon the foregoing, the three-year sentence of incarceration is vacated, and the case
is remanded to the Dekalb County Criminal Court for a sentencing hearing to determine the
appropriate sentence for the Appellant.
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DAVID G. HAYES, JUDGE
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