State of Tennessee v. Sterling Panchikal

06/05/2019
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
January 8, 2019 Session

STATE OF TENNESSEE v. STERLING PANCHIKAL

Appeal from the Criminal Court for Shelby County
No. 17-02115 Chris Craft, Judge
___________________________________

No. W2018-00826-CCA-R3-CD
___________________________________

The Defendant, Sterling Panchikal, caused a traffic accident which resulted in one death
and several injuries. She entered guilty pleas to reckless homicide, three counts of
reckless endangerment, and possession of marijuana. The Defendant sought but was
denied judicial diversion for her offenses, and she was sentenced to six years of
probation, with thirty days to be served incarcerated. On appeal, she argues that the trial
court was mistaken about the nature of one of the offenses to which she was pleading
guilty and that the trial court erred in denying diversion. Because the record reflects that
the trial court believed that the Defendant was pleading guilty to vehicular homicide as a
result of reckless conduct rather than reckless homicide, we vacate the judgments and the
denial of diversion, and we remand the case to the trial court for further proceedings.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Vacated;
Case Remanded

JOHN EVERETT WILLIAMS, P.J., delivered the opinion of the court, in which CAMILLE R.
MCMULLEN and J. ROSS DYER, JJ., joined.

Jason D. Ballenger (on appeal), Memphis, Tennessee, and Juni Ganguli and Laurie Hall
(at trial), Memphis, Tennessee, for the Appellant, Sterling Panchikal.

Herbert H. Slatery III, Attorney General and Reporter; Robert W. Wilson, Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Abby Wallace,
Assistant District Attorney General, for the Appellee, State of Tennessee.
 OPINION

FACTUAL AND PROCEDURAL HISTORY

The accident at issue took place on the morning of the Defendant’s seventeenth
birthday, after she had consumed intoxicants on the previous night. The facts were
introduced during a hearing which served both as a guilty plea hearing and a sentencing
hearing. During the plea portion of the hearing, the prosecutor summarized the
circumstances of the offense by stating that the Defendant had veered off the roadway,
crossed the median, smashed through a cable barrier, and struck an oncoming vehicle
head-on, resulting in the death of Ms. Alejandra Sanchez Ponce. Ms. Sanchez Ponce’s
daughter, Ms. Araceli Rubio Sanchez, was airlifted from the scene with critical injuries.
The Defendant’s vehicle also struck a second car, resulting in non-life-threatening
injuries to its three occupants, Ms. Mayra Herrera Monteil and two children. A third
oncoming vehicle was struck with debris from the accident.

The prosecutor noted that law enforcement found a pink bag in the Defendant’s
vehicle and that inside the bag was marijuana, a marijuana grinder, a glass pipe,
electronic scales, and a pill bottle. Also located in the vehicle were two bottles of vodka.
One of the bottles was broken, and the other had been opened and was partially empty. A
toxicology report showed the presence of a small amount of marijuana in the Defendant’s
system at the time. Her blood also tested positive for citalopram and alprazolam1 but was
negative for the presence of alcohol.

The Defendant stood indicted for the reckless vehicular homicide of Ms. Sanchez
Ponce, the aggravated assault with a deadly weapon of Ms. Rubio Sanchez, the
aggravated assault by means of serious bodily injury of Ms. Rubio Sanchez, the
aggravated assault with a deadly weapon of Ms. Herrera Monteil, one count of reckless
endangerment of the two children in Ms. Herrera Monteil’s car, and possession of a
controlled substance. As part of the guilty plea, the Defendant agreed to an amendment
of the indictment. Accordingly, the charge of vehicular homicide was amended to the
offense of reckless homicide; the two charges of aggravated assault with a deadly weapon
were amended to charges of reckless endangerment with a deadly weapon, and the count
charging the aggravated assault of Ms. Rubio Sanchez by means of serious bodily injury
was dismissed.

1
Although the State did not introduce proof regarding the substances in the Defendant’s blood,
the Defendant on cross-examination was asked about the origin of the Xanax that “was in [her] system,”
and responded that she was given the Xanax by a friend.
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 In ascertaining whether the Defendant’s guilty plea was knowing and voluntary,
the trial court noted that if she were convicted of “reckless vehicular homicide,” she
would face a sentence of between three and fifteen years in prison, and that this sentence
would be three to six years if she were a Range I offender. The trial court did not address
the range of punishment for reckless homicide. The trial court also recited the potential
range of punishment for her charges of aggravated assault, a Class D felony. The court
inquired into whether the Defendant agreed to an amendment of the indictment from
counts charging aggravated assault to counts charging reckless endangerment with a
deadly weapon, a Class E felony. The court noted that the aggravated assault had a
potential punishment of two to twelve years, whereas the reckless endangerment had a
potential punishment of one to six years.

The trial court accepted the Defendant’s guilty pleas, and the State introduced
evidence related to sentencing. Mr. Russell Duvall, a crash investigator with the Shelby
County Sheriff’s Office, testified that when he arrived on the scene, the Defendant and all
of the victims except for Ms. Sanchez Ponce had been transported to the hospital.
Witnesses told Mr. Duvall that the Lexus driven by the Defendant veered off the
roadway, crossed the median, proceeded through the cable barrier, struck Ms. Sanchez
Ponce’s vehicle, and then struck Ms. Herrera Monteil’s vehicle. Mr. Duvall retrieved
data from the “black box” in the airbag control module on the Defendant’s vehicle. The
data revealed that, five seconds before the crash, the Defendant was traveling two miles
per hour over the speed limit. The Defendant never engaged the brake during the five
seconds it took her to cross the median and break through the cable barrier, although the
car slowed down somewhat as it travelled on the grass and through the barrier. At the
time of impact, the vehicle was travelling at forty-seven miles per hour. There were no
skid marks or “erratic movements.”

Mr. Duvall testified that he attempted to inventory the Defendant’s vehicle and to
locate her driver’s license. He found an unopened, broken bottle of vodka and a partially
consumed bottle of vodka on the passenger’s side floorboard. Next to the bottles of
vodka was the Defendant’s purse, which contained marijuana, electronic scales, a
marijuana grinder, and a pipe used for smoking marijuana.

The Defendant’s cell phone was searched pursuant to a search warrant. The cell
phone contained pictures of the bottle of vodka, the marijuana, the grinder, and the pipe
on a hotel bed. A photograph of the phone displaying recent messages sent by the
Defendant was introduced into evidence. The Defendant had sent a text message that
read, “[W]e literally just sat down on the grass and started smoking a blunt.” In response
to a text observing that the night sounded fun, she stated, “It was bahaha.” She then
wrote that she had spent time with the friend who had gotten her the two bottles of vodka

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for her birthday. She stated, “I got barred out and stoned af.” The cell phone also
contained a text message which was partially typed out but never sent.

Mr. Duvall testified that the Defendant tested positive for marijuana but that the
results were “more than likely” residual due to the low level of the substance in her
blood. He testified that the toxicology results led him to believe that the accident was not
caused by intoxication but by recklessness.

Ms. Rubio Sanchez testified that she and her mother were driving home from work
on the day of the accident. Ms. Rubio Sanchez suffered a broken arm and bruising to her
head which required a three-day hospital stay and a year of subsequent medical care. Ms.
Rubio Sanchez testified that Ms. Sanchez Ponce had thirteen children ranging in age from
thirty-two to seven and that she had been a hard worker who was always ready to do a
favor for anyone.

The Defendant’s father testified regarding the Defendant’s childhood and mental
health. The Defendant’s father and mother divorced when the Defendant was eight years
old due to the Defendant’s mother’s mental health issues, which included bipolar disorder
and schizophrenia. The Defendant’s father testified that the Defendant’s mother was
abusive to the children and that, due to his work hours, he was not aware of everything
happening in their home. He elaborated that the Defendant’s mother began using drugs,
took the children to get drugs, and then threatened or spanked them to ensure their
secrecy. On one occasion, the Defendant’s mother threatened the family with a knife,
and the Defendant’s maternal grandmother called the police. On another occasion, the
Defendant’s mother passed out in the carpool line at school. The Defendant’s father
testified that he was an immigrant and had a difficult time raising the children by himself.

When the Defendant was fifteen or sixteen years old, she began to rebel and asked
to spend time with her mother, bringing her younger sister along. The Defendant’s
younger sister eventually showed the Defendant’s father a video of the Defendant and her
friends drinking alcohol and smoking marijuana with the Defendant’s mother. The
Defendant ran away from home, and after she was located, she was admitted to Lakeside,
a behavioral health facility. The Defendant’s mother exercised sporadic visitation and
had not attended the Defendant’s court dates.

The Defendant’s father testified that he spoke to her in the hospital soon after the
accident and that she told him that she had not been drinking. The next morning, the
Defendant called him, hysterical because she did not know where she was or what had
happened. The Defendant has had no memory of the accident since that time. When the
Defendant was told that someone died in the accident, she wanted to kill herself and was

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put on medication and suicide watch. The Defendant’s father testified that the Defendant
is remorseful.

The Defendant was placed into Memphis Recovery Center (“MRC”) for five
months for inpatient treatment after the accident. She returned to school and graduated
on time by taking extra classes. She was enrolled in college and active in church. The
Defendant’s father testified that she was diagnosed with bipolar disorder and was taking
medication and that she suffered from anxiety. He stated that “all of the sorrys in the
world … won’t bring back the victim” but asked for clemency.

The Defendant also testified at sentencing. The accident took place on the
Defendant’s seventeenth birthday, May 2, 2015. She testified that she could not recall
anything from the day of the accident but that she recalled going to the Beale Street
Music Festival and to a hotel with friends the night before. The Defendant received the
alcohol and marijuana as presents for her birthday.

The Defendant confirmed that she attempted to harm herself after the accident
because she “didn’t know how [she] could fix it.” She also suffered injuries including a
fractured hip, ribs, shoulder, and pelvis. She confirmed that she used drugs with her
mother, although she noted that she did not like alcohol and her mother was the one
drinking. She was diagnosed with bipolar disorder at Lakeside the year before the
accident. After the accident, she went to Parkwood Behavioral Center and subsequently
to MRC. She testified that she was currently in counseling and currently taking
medication. She stated that she attended Alcoholics Anonymous or Narcotics
Anonymous meetings “[s]poradically.” The Defendant testified that she was not using
drugs or alcohol and that she was in school. She wanted to work with children and
currently had a job as a barista. She apologized to the victim’s family and said she
wished she could take the victim’s place.

The Defendant acknowledged that the marijuana pipe and grinder belonged to her.
She also acknowledged that she used marijuana and was intoxicated the night before the
accident. She testified that the Xanax in her system came from the friend who had given
her the alcohol. She acknowledged she did not regularly wear a seatbelt and that her
seatbelt was not fastened at the time.

In assessing whether to grant judicial diversion, the trial court examined the
Defendant’s amenability to correction. It noted that she seemed compliant and
remorseful at the hearing. However, the trial court expressed certain concerns based on
information in the presentence report. The presentence report reflects that the Defendant
acknowledged only marijuana use and that she “adamantly denied use of Xanax and
alcohol,” asserting that “she only used Xanax once on the night of this offense.” When
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MRC was contacted for the report, the Defendant’s counselor stated that while the
Defendant at first denied using substances other than marijuana, “as treatment progressed
she admitted to use of alcohol and ‘pill use’ (which is usually benzodiazepines according
to [the counselor]) and Xanax.” The trial court found that while the Defendant denied the
use of Xanax when interviewed for the presentence report “she had already admitted to
Xanax when she was at [MRC] at the age of 15, well apparently.” The trial court also
highlighted that, according to the presentence report, the Defendant had “reported she is
not taking medication as she wants to feel happy on her own.” The court also found that
the Strong R Report indicated that mental health counseling was recommended for the
Defendant but that she was not attending counseling. The trial court noted that
defendants would sometimes comply with counseling “right before they have the
sentencing hearings.” The trial court concluded it was “not 100 percent sure she’s
amenable to correction,” noting that she was resistant to taking her medication.

The trial court found that the circumstances of the offense were aggravated in that
the Defendant was sending text messages about her drug use while driving over 65 miles
per hour and not wearing a seatbelt. The trial court also noted that the Defendant crossed
over a “huge median wider than the three lane traffic on either side” and broke through
the cable barrier without ever applying the brakes. The trial court found that it was
“disturbing” that the Defendant did not “have some kind of conscience to where she
would at least pull over, because she might be a danger.”

The trial court found that the Defendant had no criminal record at all, which
weighed in favor of diversion. Regarding the Defendant’s social history, the trial court
found that it was “good and bad,” noting that she had a history of drug abuse and mental
health problems but also noting that she had a difficult childhood and that she was only
seventeen at the time of the accident. Regarding the Defendant’s mental health, the trial
court expressed concern that the Defendant was not addressing her mental health
problems or was only temporarily complying with treatment for the purposes of
sentencing.

On the issue of deterrence, the trial court found that “when this happened, it was
all over the media.” The judge noted that “[t]he first four or five times this was set, I got
calls from the news media.” The trial court noted that “people are concerned that you’d
have a 17-year-old on dope killing a person and injuring so many people.” The trial court
noted that there would be deterrence value in punishment “because this will most likely
be reported, and we’re having a huge problem, not just in Memphis but in the United
States with texting and driving without drugs.”

In evaluating the best interest of the public and the accused, the trial court found
that diversion would be in the best interest of the Defendant because public knowledge of
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the offense could affect her future employment prospects. The trial court found that the
interests of the public would best be served by having the offenses on her record because
“the public has a great interest in making sure that we don’t have folks working with kids
without letting their issues be known to the people over them.”

The trial court denied diversion. It also found a sustained intent to violate the law
because the Defendant had been using drugs the night before and then drove in the
morning. The trial court noted that “she was texting people about how she was wasted.”

The trial court found that the Defendant was a Range I offender. The trial court
repeatedly referred to the Defendant’s crime as “reckless vehicular homicide.” It noted
that she was “not pleading guilty to homicide by intoxication” but that she acted
recklessly in “allowing herself to drive impaired in this manner, and not caring, and the
texting.” The trial court found as an enhancement factor that her drug use constituted
prior criminal behavior and as a mitigating factor that she had had a difficult childhood.

The trial court sentenced the Defendant to concurrent sentences of two years for
the homicide, one year for each reckless endangerment conviction, and six months for the
marijuana conviction. The trial court noted it did not want to depreciate the seriousness
of the offenses and expressed concern that the Defendant was “resistant” to treatment and
accepting responsibility based on the presentence report. The trial court ordered the
Defendant to serve thirty days in prison and then be placed on probation for a period of
six years. See T.C.A. § 40-35-303(c), Sentencing Comm’n Cmt. The Defendant was
ordered to undergo drug screenings, counseling, and be compliant with her medication as
part of her probation. The trial court noted that it would “have to by law revoke her
license for three years to drive under the statute.” While the court acknowledged it might
be difficult for the Defendant to attend school and work, it noted that the revocation was
mandatory under statute.

ANALYSIS

The Defendant asserts that the trial court erroneously sentenced her under the
incorrect statute and challenges the trial court’s denial of judicial diversion. The State
responds that any error in sentencing was clerical in nature or waived and that the trial
court did not abuse its discretion in denying diversion.

I. Erroneous Sentencing

According to the Defendant, the record indicates that the trial court imposed its
sentence not for the offense to which she pled guilty, reckless homicide, but for reckless
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vehicular homicide. She also argues that the trial court erred in revoking her license for a
period of three years. The State, narrowly interpreting the issue as related only to the
revocation of the Defendant’s license, responds that the issue is waived, that the
Defendant has not established plain error, that this court should remand for correction of
a clerical error only, and that the trial court had the authority to revoke the Defendant’s
license.2 The Defendant disputes that the issue is waived.

The vehicular homicide statute provides, as pertinent to this case:

(a) Vehicular homicide is the reckless killing of another by the
operation of an automobile, airplane, motorboat or other motor vehicle, as
the proximate result of:

(1) Conduct creating a substantial risk of death or serious bodily
injury to a person; [or]

(2) The driver’s intoxication, as set forth in § 55-10-401. For the
purposes of this section, “intoxication” includes alcohol intoxication as
defined by § 55-10-411(a), drug intoxication, or both;

T.C.A. § 39-13-213(a) (2015). Vehicular homicide as a result of recklessness is a Class
C felony, whereas vehicular homicide by intoxication is a Class B felony. T.C.A. § 39-
13-213(b)(1), (b)(2)(A). “The court shall prohibit a defendant convicted of vehicular
homicide from driving a vehicle in this state for a period of time not less than three (3)
years nor more than ten (10) years.” T.C.A. § 39-13-213(c). Reckless homicide, on the
other hand, is “a reckless killing of another.” T.C.A. § 39-13-215(a). Reckless homicide
is a Class D felony. T.C.A. § 39-13-215(b).

We begin by observing that the trial court regularly and throughout the hearing
referred to the offense in question as “reckless vehicular homicide.” While the
prosecutor stated at the beginning of the hearing that the Defendant would be pleading
guilty to reckless homicide rather than vehicular homicide, the trial court on four
occasions referred to the offense as reckless vehicular homicide. On only one occasion,
the trial court used the phrase “reckless homicide” in describing the crime, while
referring to how the circumstances of the crime were aggravated. On one other occasion,
when the trial court mentioned “reckless homicide,” it quickly “corrected” itself: “If you
were convicted of reckless homicide -- I mean, excuse me, of vehicular homicide -- just a
second. I -- as -- as a reckless vehicular homicide….” When analyzing potential
enhancement, the trial court noted that the severity of the injuries was already accounted

2
We are unable to view certain pages of the State’s brief due to an error in the electronic file.
-8-
for in the offense of “reckless vehicular homicide.” In imposing the sentence, the court
summarized that the Defendant was entering a “plea of guilty to reckless vehicular
homicide.”

We note likewise that, when the trial court was summarizing the potential
punishment the Defendant faced, it informed her that “reckless vehicular homicide” was
punishable by three to fifteen years in prison, which is indeed the range of punishment
available for reckless vehicular homicide, a Class C felony. See T.C.A. § 40-35-
111(b)(3); T.C.A. § 39-13-213(b)(1). The trial court did not inform the Defendant of the
range of punishment for reckless homicide, a Class D felony, although the judgment form
reflects a sentence of two years for that offense. In contrast, when the trial court
summarized the potential punishments for the reckless aggravated assault charges that
had been amended to reckless endangerment with a deadly weapon, it noted to the
Defendant that the charges were being amended, that she was agreeing to the amendment
of the charges, and that the new charges were a lower class of felony, carrying a potential
sentence of one to six years rather than two to twelve years. See T.C.A. §§ 40-35-
111(b)(4), (b)(5); 39-13-103(a)(2); 39-13-102(a)(1)(B)(iii), (e)(1)(A)(v) (2015).

The judgment form, reflecting that the Defendant was sentenced to two years for a
Class D felony, has a typewritten entry which originally showed the indicted offense as
“reckless homicide” and the conviction offense as “reckless homicide.” However, the
word “homicide” is crossed out in both entries and replaced with the handwritten phrase
“vehicular homicide,” making the offenses “reckless vehicular homicide.” The judgment
form does not reflect the amendment to the indictment. The other counts which were
amended contain handwritten corrections to show that the indicted offense was reckless
aggravated assault and that the amended and conviction offenses were reckless
endangerment.3

As further proof that the trial court was mistaken regarding the nature of the
offense, the court noted at the end of the plea/sentencing hearing that the revocation of
the Defendant’s license was mandatory for the statutory period of three years, expressing
reservations about the requirement due to the fact that the Defendant would have
difficulty with transportation for school and work.

In sum, the record reflects that the error here was anything but clerical in nature.
Instead, the trial court was laboring under a fundamental misapprehension about the

3
We note that Count 5, originally charged as reckless endangerment with a deadly weapon, was
erroneously “corrected” with a handwritten note to show the indicted offense as aggravated assault and
amended offense as reckless endangerment with a deadly weapon. The conviction offense is correctly
stated as reckless endangerment with a deadly weapon. On resentencing, this error is to be corrected.
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nature of the offense, reflected in its numerous references to “reckless vehicular
homicide,” its omission in informing the Defendant of the range of punishment she faced
under the amended indictment, its statement that the Defendant was entering a guilty plea
to reckless vehicular homicide, the erroneous completion of the judgment form, and the
trial court’s statement that revocation of the Defendant’s license for three years was
mandatory. While the State may be correct that the trial court was obligated to require
the surrender of the Defendant’s license and to forward the conviction to the department
of safety for further action,4 the trial court’s ruling that the Defendant’s license was
revoked for three years was obviously predicated on its erroneous belief that she was
pleading guilty to reckless vehicular homicide and that revocation for a minimum of three
years was required by law.

Despite the trial court’s repeated references to “reckless vehicular homicide,”
neither trial counsel nor the prosecution clarified the nature of the plea at the hearing.
The State asserts that the issue is waived, whereas appellate counsel argues that no timely
objection could have been made because the nature of the error was not clear until the
trial court announced its ruling. See Tenn. R. App. P. 36(a) (“Nothing in this rule shall be
construed as requiring relief be granted to a party responsible for an error or who failed to
take whatever action was reasonably available to prevent or nullify the harmful effect of
an error.”).

We conclude that, even if we were to determine that the issue was waived, the
error was nevertheless so serious that it would constitute plain error meriting relief. For
an error to constitute plain error, the following factors must be present:

(1) the record must clearly establish what occurred in the trial court; (2) a
clear and unequivocal rule of law must have been breached; (3) a
substantial right of the accused must have been adversely affected; (4) the
accused did not waive the issue for tactical reasons; and (5) consideration
of the error is necessary to do substantial justice.

State v. Bishop, 431 S.W.3d 22, 44 (Tenn. 2014) (citing State v. Adkisson, 899 S.W.2d
626, 641-42 (Tenn. Crim. App. 1994)). Additionally, “‘the plain error must be of such a
great magnitude that it probably changed the outcome’” of the proceeding. Id. (quoting
4
The State notes that under Tennessee Code Annotated section 55-50-501, the department of
safety “shall forthwith revoke the license” of an operator of a motor vehicle who has been convicted of
“[a]ny felony in the commission of which a motor vehicle is used” “upon receiving a record of the
operator’s … conviction …, when the conviction has become final.” T.C.A. § 55-50-501(a), (a)(3).
Furthermore, when revocation is mandatory, the court of conviction “shall require the surrender” of the
offender’s license, “and the court shall thereupon forward the licenses together with a record of the
conviction to the department.” T.C.A. § 55-50-503(a).
- 10 -
Adkisson, 899 S.W.2d at 642). This court need not consider all the factors if it is clear
that the defendant will fail to establish at least one. State v. Jordan, 325 S.W.3d 1, 58
(Tenn. 2010). Plain error “would have to especially egregious in nature, striking at the
very heart of the fairness of the judicial proceeding.” State v. Page, 184 S.W.3d 223, 231
(Tenn. 2006).

We conclude here that the record clearly establishes that the trial court was, at a
minimum, confused about the nature of the offense to which the Defendant was pleading
guilty. Despite the State’s haphazard contentions otherwise, sentencing the Defendant
for an offense to which she did not plead guilty breaches a clear and unequivocal rule of
law and adversely affects her substantial rights. In particular given the trial court’s
reservations regarding the mandatory revocation of the Defendant’s driver’s license for a
period of three years, we conclude that consideration of the error is necessary to do
substantial justice and that it probably changed the outcome of the proceeding. Here, the
nature of the right affected was “so fundamental as to reflect upon ‘the fairness, integrity
or public reputation of judicial proceedings.’” State v. Bledsoe, 226 S.W.3d 349, 354
(Tenn. 2007) (quoting United States v. Olano, 507 U.S. 725, 736 (1993)). There is no
indication that the issue was waived for tactical reasons.

Having determined that the trial court erred in sentencing, we remand the case for
resentencing.5

II. Judicial Diversion

The Defendant insists that the trial court abused its discretion in denying her
diversion. The Defendant acknowledges that the trial court considered the proper factors
in assessing diversion but asserts that the trial court relied on an erroneous assessment of
the evidence, that the trial court impermissibly considered facts outside the record, and
that the trial court erred in weighing the factors. The State responds that the trial court
properly denied diversion after considering and weighing the relevant factors.

Judicial diversion is a “legislative largess” granted to certain qualified defendants
whereby the judgment of guilt is deferred and the defendant is placed on probation. State
v. King, 432 S.W.3d 316, 323 (Tenn. 2014); see T.C.A. § 40-35-313(a)(1)(A). If the
5
We note parenthetically that the Defendant’s contention that the trial court could not sentence
her to six years of probation for a Class D felony as a Range I offender is incorrect. The Sentencing
Commission Comments in fact use this exact scenario to illustrate the fact that probation may be imposed
“up to and including the statutory maximum time for the class of the conviction offense,” T.C.A. § 40-35-
303(c), explaining that a Range I offender convicted of a Class D felony could receive a sentence of two
years “which could be suspended for a period of time up to 12 years, because the statutory maximum for a
Class D felony is 12 years,” T.C.A. § 40-35-303(c), Sentencing Comm’n Cmt.
- 11 -
defendant is successful in completing the probation assigned as part of diversion, the
charges will be dismissed and the defendant may seek expungement. T.C.A. § 40-35-
313(a)(2), (b). Upon successful completion, the defendant will be restored “‘to the status
the person occupied before such arrest or indictment or information.’” State v. Dycus,
456 S.W.3d 918, 925 (Tenn. 2015) (quoting T.C.A. § 40-35-313(b)). Violation of the
probation imposed as a condition of diversion may result in an adjudication of guilt and
imposition of a sentence. Id.; T.C.A. § 40-35-313(a)(2). The statute defines which
defendants are qualified to apply for diversion, and the parties here do not dispute that the
Defendant was a qualified to be considered for diversion. See T.C.A. § 40-35-313
(a)(1)(B)(i). However, “[t]here is no presumption that a defendant is a favorable
candidate for judicial diversion.” Dycus, 456 S.W.3d at 929.

Like other sentencing decisions, the decision to grant or deny diversion is
reviewed for an abuse of discretion. King, 432 S.W.3d at 324-25. “Reviewing courts
will find an abuse of discretion only when the trial court applied incorrect legal standards,
reached an illogical conclusion, based its decision on a clearly erroneous assessment of
the evidence, or employed reasoning that causes an injustice to the complaining party.”
State v. Banks, 271 S.W.3d 90, 116 (Tenn. 2008). Although the deferential standard of
review articulated in Bise applies to the decision to grant or deny diversion, the common
law factors which the trial court has long been required to consider in its decision have
not been abrogated. King, 432 S.W.3d at 326. Accordingly, in determining whether
judicial diversion is appropriate, a trial court must consider:

(a) the accused’s amenability to correction, (b) the circumstances of the
offense, (c) the accused’s criminal record, (d) the accused’s social history,
(e) the accused’s physical and mental health, and (f) the deterrence value to
the accused as well as others. The trial court should also consider whether
judicial diversion will serve the ends of justice—the interests of the public
as well as the accused.

State v. Parker, 932 S.W.2d 945, 958 (Tenn. Crim. App. 1996) (footnote omitted). In
addition to considering these factors, the trial court must weigh them against one another
and place an explanation of its ruling on the record. King, 432 S.W.3d at 326 (citing
State v. Electroplating, Inc., 990 S.W.2d 211, 229 (Tenn. Crim. App. 1998)).

If the trial court has adhered to these requirements, the reviewing court merely
looks to see whether “any substantial evidence” exists in the record to support the trial
court’s decision. Id. “Under the Bise standard of review, when the trial court considers
the Parker and Electroplating factors, specifically identifies the relevant factors, and
places on the record its reasons for granting or denying judicial diversion,” this court
must apply a presumption of reasonableness and uphold the trial court’s decision so long
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as there is any substantial evidence to support the decision. Id. at 327. The trial court
need not “recite” all of the factors, but the record must reflect that it considered each
factor, identified the specific factors applicable to the case, and addressed the relevant
factors. Id. “‘[A] trial court should not deny judicial diversion without explaining both
the specific reasons supporting the denial and why those factors applicable to the denial
of diversion outweigh other factors for consideration.’” State v. Walter Townsend, No.
W2015-02415-CCA-R3-CD, 2017 WL 1380002, at *2 (Tenn. Crim. App. Apr. 13, 2017)
(quoting State v. Cutshaw, 967 S.W.2d 332, 344 (Tenn. Crim. App. 1997)).

When the trial court has neglected to consider and weigh the factors, its decision
may either be reviewed de novo or remanded for reconsideration. King, 432 S.W.3d at
327-28. The determination of whether to conduct a de novo review or to remand to the
trial court lies within the discretion of the appellate court. Dycus, 456 S.W.3d at 930.

As we have noted above, it appears that the trial court was laboring under the
impression that the Defendant was pleading guilty to reckless vehicular homicide rather
than reckless homicide. Accordingly, when the trial court denied diversion, it did so
thinking that it was denying diversion for the crime of reckless vehicular homicide as
well as the other offenses to which the Defendant pled guilty. We conclude that the
misapprehension regarding the nature of the crime to which the Defendant was pleading
guilty had a pervasive effect on the entirety of the trial court’s sentencing decisions. The
trial court was confused about the statutory offense to which the Defendant was pleading
guilty, and we cannot but conclude that this mistake “tainted the court’s decision-making
process such that the presumption of reasonableness standard is not appropriate.” State v.
Chyanne Elizabeth Gobble, No. E2014-01596-CCA-R3-CD, 2015 WL 12978645, at *9
(Tenn. Crim. App. Aug. 12, 2015). In any case, a court “by definition abuses its
discretion when it makes an error of law.” Koon v. United States, 518 U.S. 81, 100
(1996); see State v. Iris A. Jones, No. M2013-00938-CCA-R3-CD, 2014 WL 4101210, at
*7 (Tenn. Crim. App. Aug. 20, 2014) (concluding that an error of law in determining
whether the defendant was qualified for diversion was an abuse of discretion). We
conclude that the trial court’s erroneous application of the reckless vehicular homicide
statute to the Defendant’s guilty plea to reckless homicide requires us to remand the case
for a new determination regarding whether the Defendant should be granted judicial
diversion. See State v. Brys Andrew Hensley, No. E2012-00812-CCA-R3-CD, 2013 WL
793579, at *5 (Tenn. Crim. App. Mar. 4, 2013) (concluding that the trial court’s mistaken
belief that it was required to revoke the defendant’s diversion when he violated a
condition of his probation was reversible error).

We further note that although the trial court meticulously addressed each of the
Parker factors in turn, it did not indicate what weight it assigned to any particular factor
or why the factors weighing against diversion outweighed the factors weighing in favor
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of diversion. The trial court made a lengthy finding that the Defendant was not amenable
to correction because the presentence report indicated she was not compliant with her
medication or counseling and had not been entirely honest during the presentence
interview. It also concluded that the circumstances of the offense were aggravated,
inferring that intoxication played a role in the accident based on the Defendant’s texts
about intoxication, the presence of intoxicants in her bloodstream, and her failure to
apply the brakes during the five seconds that she travelled across the wide median and
broke through the cable barrier. The trial court found the Defendant’s lack of criminal
history weighed in favor of diversion. Her social history was neutral, as her mental
illness and difficult childhood reduced her culpability while her history of drug use and
unstable mental health raised concern. The trial court expressed concern that she was
failing to treat her mental illness. It concluded that considerations of deterrence weighed
against diversion, that the Defendant’s interest weighed in favor of diversion, and that the
public’s interest weighed against diversion. However, the trial court did not indicate
what weight it applied to any of the factors. When the trial court has not weighed the
factors on the record, the appellate court may remand or conduct a de novo review. King,
432 S.W.3d at 328. While the record here is certainly adequate to allow for a de novo
review, our conclusion that the trial court was mistaken regarding the nature of the
offense to which the Defendant was entering a plea in any case requires a remand for a
new determination regarding diversion.

Because we have concluded that the error regarding the nature of the homicide
offense requires the trial court to reconsider its decision regarding the denial of judicial
diversion, we vacate all of the judgments and remand for further proceedings. See id. at
324 (recognizing that “the conditional probationary period incident to the grant of judicial
diversion does not qualify as a sentence per se” but is instead a decision to either defer or
impose a judgment).

CONCLUSION

The record reveals that the State and the Defendant had a full and complete
evidentiary hearing. The problem here is with the trial court’s mistaken belief that it was
sentencing the Defendant under a statute to which she did not plead guilty. On remand, it
is left with the sound discretion of the trial court as to any further evidence concerning
sentencing that needs to be received.

____________________________________________
JOHN EVERETT WILLIAMS, PRESIDING JUDGE
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