IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
JANUARY 1998 SESSION
FILED
February 12, 1998
Cecil Crowson, Jr.
STATE OF TENNESSEE, ) Appellate C ourt Clerk
) NO. 02C01-9612-CR-00454
Appellee, )
) SHELBY COUNTY
VS. )
) HON. JOHN P. COLTON,
KEVIN R. HYMAN and ) JUDGE
KAREN D. RUSSELL, )
) (Aggravated Assault)
Appellants. )
FOR BOTH APPELLANTS ON FOR THE APPELLEE:
APPEAL:
JOHN KNOX WALKUP
BENJAMIN F. HEAD Attorney General and Reporter
147 Jefferson, Suite 408
Memphis, Tennessee 38103-2234 DEBORAH A. TULLIS
Assistant Attorney General
FOR APPELLANT HYMAN Cordell Hull Bldg. - 2nd Floor
IN TRIAL COURT: 425 Fifth Avenue North
Nashville, TN 37243-0493
MARVIN E. BALLIN
200 Jefferson Avenue, Ste. 1250 WILLIAM L. GIBBONS
Memphis, TN 38103-2328 District Attorney General
FOR APPELLANT RUSSELL J. ROBERT CARTER, JR.,
IN TRIAL COURT: LORRAINE CRAIG
Asst. District Attorneys General
WALTER L. BAILEY, JR. 201 Poplar Avenue, Suite 301
200 Jefferson Avenue, Ste. 800 Memphis, Tennessee 38103
Memphis, TN 38103-2328
OPINION FILED:
AFFIRMED
JOE G. RILEY,
JUDGE
OPINION
This is an appeal from the denial of judicial diversion and total probation.
Appellants, Kevin R. Hyman and Karen D. Russell, each pled guilty to one count of
Class D reckless aggravated assault. The court required thirty (30) days continuous
incarceration with an additional thirty (30) days to be served on weekends; a total
of two (2) years probation, six (6) months of which was to be intensive probation;
one year of house arrest; 200 hours of community service; a letter of apology to the
victim; and curfew for the entire two (2) years of probation.
Finding no error, we affirm the judgment of the trial court.
PROCEDURAL HISTORY
The appellants were each indicted for attempted aggravated robbery. They
entered a guilty plea to reckless aggravated assault, a Class D felony, and agreed
to a two-year sentence with the issue of judicial diversion and alternative sentencing
to be determined by the trial court.
The indictment was based on the following facts. Appellant Russell and the
victim, Katie McSorley, were co-workers at a pizza restaurant in Memphis. The
victim went to the bank at 3:00 a.m. one morning to make the night deposit. The
appellants followed in a car borrowed from a friend of appellant Hyman. As the
victim was making the deposit, she saw appellant Hyman in a ski mask and
camouflage jacket come around the corner, and then he bolted. As she left the
bank she saw a car pulling out of the parking lot going the wrong way, and she
followed it. She came upon the car stopped on a freeway ramp and was able to get
the license plate number. She saw appellant Hyman roll down the window and
display a gun. She testified that she was terrified.
Appellants gave written statements to the police admitting their intention to
rob McSorley, but at sentencing maintained that they were only attempting to teach
McSorley a lesson about going to the bank alone. Appellants also testified at their
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sentencing hearing that they gave the incriminating statements as a result of
coercion by police officers. The trial court found this testimony by the appellants
less than believable.
The appellants chose to plead guilty to Class D reckless aggravated assault
rather than challenge the state’s proof and proceed to trial. Following a lengthy
sentencing hearing, the trial court took the matter under advisement and
pronounced sentence two (2) months later. The appellants were assessed thirty
(30) days of continuous incarceration, thirty (30) days on weekends and the balance
of the two-year sentence on probation.
DENIAL OF JUDICIAL DIVERSION
Appellants first contend the trial court erred in denying judicial diversion. This
Court has recently addressed judicial diversion in State v. Parker, 932 S.W.2d 945,
958 (Tenn. Crim. App. 1996):
The criteria that the trial court must consider in deciding
whether a qualified accused should be granted judicial diversion
include: (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.
Parker also interprets Tenn. Code Ann. § 40-35-313, the judicial diversion
statute, as not entitling the accused to the same favorable presumption created by
Tenn. Code Ann. § 40-35-102(6). Id. at 958. Rather, this decision rests within the
sound discretion of the trial court. “[T]his Court will not interfere with the refusal of
the trial court to grant judicial diversion if there is ‘any substantial evidence to
support the refusal’ contained in the record.” Id. (citations omitted).
In this case the trial judge considered the relevant factors, emphasizing the
seriousness of the circumstances of the offense and the apparent untruthfulness
of the appellants. The trial court concluded the ends of justice and the best
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interests of the appellants dictated the denial of judicial diversion. Clearly, there is
substantial evidence to support the denial. Accordingly, this issue is without merit.
DENIAL OF FULL PROBATION
We now consider whether the trial court erred in denying complete probation
of the sentences. In deciding whether to grant or deny probation, a trial court
should consider the circumstances of the offense, the defendant’s criminal record,
the defendant’s social and present condition, the need for deterrence, and the best
interests of the defendant and the public. State v. Grear, 568 S.W.2d 285, 286
(Tenn. 1978); State v. Boyd, 925 S.W.2d 237, 244 (Tenn. Crim. App. 1995); State
v. Black, 924 S.W.2d 912, 917 (Tenn. Crim. App. 1995). A defendant’s lack of
credibility is also an appropriate consideration and reflects on a defendant’s
potential for rehabilitation. State v. Byrd, 861 S.W.2d 377, 380 (Tenn. Crim. App.
1993).
There is no mathematical equation to be utilized in determining sentencing
alternatives. Not only should the sentence fit the offense, but it should fit the
offender as well. State v. Boggs, 932 S.W.2d 467, 477 (Tenn. Crim. App. 1996).
Indeed, individualized punishment is the essence of alternative sentencing. State
v. Dowdy, 894 S.W.2d 301, 305 (Tenn. Crim. App. 1994). In summary, sentencing
must be determined on a case-by-case basis, tailoring each sentence to that
particular defendant based upon the facts of that case and the circumstances of
that defendant. State v. Moss, 727 S.W.2d 229, 235 (Tenn. 1986).
Although a defendant may be presumed to be a favorable candidate for
alternative sentencing, the defendant has the burden of establishing suitability for
total probation. State v. Boggs, 932 S.W.2d at 477. The trial court obviously
concluded the defendants failed to meet this burden. Our review of the trial court’s
findings and sentences is de novo with a presumption of correctness. Tenn. Code
Ann. § 40-35-401(d). W e find no error in the denial of total probation, nor do we
find any error in the length or manner of confinement. This issue is without merit.
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CONCLUSION
For the foregoing reasons, we affirm the judgment of the trial court.
JOE G. RILEY, JUDGE
CONCUR:
JOE B. JONES, PRESIDING JUDGE
PAUL G. SUMMERS, JUDGE
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