IN THE SUPREME COURT OF TENNESSEE
AT KNOXVILLE
FILED
FOR PUBLICATION
February 1, 1999
Filed: February 1, 1999
Cecil W. Crowson
Appellate Court Clerk
STATE OF TENNESSEE, )
)
APPELLEE, ) KNOX CRIMINAL
)
v. ) Hon. Mary Beth Leibowitz, Judge
)
KRISTINA SCHINDLER, ) No. 03S01-9804-CR-00040
)
APPELLANT. )
FOR APPELLANT: FOR APPELLEE:
MARK E. STEPHENS JOHN KNOX WALKUP
DISTRICT PUBLIC DEFENDER ATTORNEY GENERAL & REPORTER
PAULA R. VOSS MICHAEL E. MOORE
ASSISTANT PUBLIC DEFENDER SOLICITOR GENERAL
Knoxville PETER M. COUGHLAN
ASSISTANT ATTORNEY GENERAL
GREGORY D. SMITH
Clarksville Nashville
OPINION
AFFIRMED HOLDER, J.
OPINION
We granted this appeal to address whether a trial court can consider prior
grants of diversion or previously expunged offenses in determining a defendant's
suitability for diversion. In the case now before us, the trial court denied the
defendant's request for judicial diversion because the defendant had previously
been placed on diversion on two different occasions. The appellate court
affirmed the trial court's decision to deny the defendant's application for judicial
diversion. Upon review, we hold that evidence of prior diversions may be
considered in determining whether a defendant is a suitable candidate for
diversion.
FACTUAL BACKGROUND
The defendant, Kristina Schindler, was convicted of aggravated burglary.
In 1994, Schindler learned that her boyfriend of two years was leaving her for the
victim. Schindler searched through her boyfriend's mail and found the victim's
address in Knoxville. Schindler then drove from Texas to Knoxville, found the
victim's residence, retrieved an eighteen-inch axe handle from the truck, and
approached the victim's apartment. Schindler stated that she found a key under
the victim's doormat and entered the apartment. Schindler confronted the victim
and instructed her not to scream. The victim apparently called for help.
Schindler then repeatedly struck the victim with the axe handle.
Schindler was charged with especially aggravated burglary but was
convicted of the lesser included offense of aggravated burglary. Schindler
requested post-trial diversion. Her presentence report indicated that she had a
prior conviction for shoplifting in Texas and had previously pled guilty to charges
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of telephone harassment in Kansas. She further acknowledged these prior
convictions in her post-trial diversion application. According to the defendant,
she was granted diversion in both cases and her records were expunged
following successful completion of diversion programs.
The trial court denied the defendant's request for post-trial diversion. The
trial court's order stated:
As to judicial diversion--which is, for the record, strongly opposed
by the State--there have been two other diversions. Ms. Hendricks
has cited me some cases, which the Court is familiar with. In terms
of evidentiary rulings and as to evidence in admissions of guilt in
those types of cases, which is what those involved, diversion might
otherwise not be admissible. In this case, whether there has been
previous diversion is admissible in determining whether or not
judicial diversion is appropriate. An individual can't just keep
having diversion and expunging records and keep going, and we
are now dealing with the third state involved.
The other thing that the Court is very concerned about, as far as
judicial diversion is that this Court takes this type of offense
extremely seriously in its seriousness. I am trying to use the right
word--in an effort to support how serious the Court takes this
offense and not to mitigate its effect, the Court does not feel that
Ms. Schindler is eligible for judicial diversion, based upon the two
other diversions and the nature of the offense.
The Court of Criminal Appeals affirmed the trial court's denial of diversion.
STATUTORY BACKGROUND
Judicial diversion is legislative largess whereby a defendant adjudicated
guilty may, upon successful completion of a diversion program, receive an
expungement from all "official records" any recordation relating to "arrest,
indictment or information, trial, finding of guilty, and dismissal and discharge"
pursuant to the diversion statute. Tenn. Code Ann. § 40-35-313(b). The effect
of discharge and dismissal under the diversion statute "is to restore the person,
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in the contemplation of the law, to the status the person occupied before such
arrest or indictment or information." Id. When general inquiries are made by
prospective employers in non-related civil matters or in other matters not
precluded by statute, a criminal defendant granted expungement pursuant to the
diversion statute may deny or refuse to acknowledge being arrested, tried, or
convicted. See generally Tenn. Code Ann. § 40-35-313(b)(1) & (2).
The Sentencing Reform Act of 1989 ("Act") establishes the general
requirements for program eligibility. The Act provides in pertinent part:
If any person who has not previously been convicted of a felony or
a Class A misdemeanor is found guilty or pleads guilty to a
misdemeanor which is punishable by imprisonment or a Class C, D
or E felony, the court may, without entering a judgment of guilty
and with the consent of such person, defer further proceedings
....
Tenn. Code Ann. § 40-35-313(a)(1)(A) (1997 Repl.). In addition, certain
statutory offenses have been excluded from program eligibility and are
enumerated in Tenn. Code Ann. § 40-35-313(a)(1)(B). A defendant, however,
may be placed in a judicial diversion program only once. Tenn. Code Ann.
§ 40-35-313(a)(2).
Tennessee courts may retain records pertaining to cases where discharge
and dismissal is granted under the Tennessee diversion statute. These "non-
public" records are retained for the purpose of determining whether, in
subsequent proceedings, an applicant meets the general program eligibility
requirements set forth in § 40-35-313(a)(1)(A). See Tenn. Code Ann.
§ 40-35-313(a)(2) ("but a non-public record thereof is retained . . . solely for the
purpose of . . . determining [program eligibility], or for the limited purposes
provided in subsection (b)."). In the case now before us, however, the defendant
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was twice granted diversion in states other than Tennessee, and court records
are not available in Tennessee which reflect the prior grants. Accordingly, we
must decide whether trial courts can consider expunged records of previous
convictions occurring in states other than Tennessee when determining eligibility
under Tenn. Code Ann. § 40-35-313(a)(1)(A).
ANALYSIS
Expungement following successful completion of a judicial diversion
program removes from certain official records recordation relating to the
defendant's arrest, indictment, trial, finding of guilt, and dismissal and discharge.
Tenn. Code Ann. § 40-35-313. Expungement returns the person to the position
"occupied before such arrest or indictment or information." Tenn. Code Ann.
§ 40-35-313(b). Expungement does not return a person to the position
occupied prior to committing the offense. Defendants obtaining expungement
may have committed criminal acts resulting in lasting physical, emotional, or
financial injuries to victims. In many cases, the injured victims cannot be
returned to the status quo. Accordingly, the law would blind itself to reality if the
law refused to recognize these criminal acts and accord them any legal
significance whatsoever.
We hold that the testimony and evidence of the criminal acts preceding
the arrest are admissible as evidence of prior bad acts or evidence of social
history even if expungement is later obtained. See generally State v. Williams,
645 S.W.2d 258, 260 (Tenn. Crim. App. 1982) (holding diversion act cannot be
used to shield witness from credibility attack when witness is asked about prior
bad acts); see also State v. Dishman, 915 S.W.2d 458, 463-64 (Tenn. Crim.
App. 1995). Moreover, the judicial diversion statute does not preclude
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consideration of subsequent witness admissions or public records compiled after
the expungement that reveal the fact of a prior grant of diversion.
The defendant's presentence report in the case now before us was not a
public record subject to a previous expungement. Accordingly, the information in
this report was admissible and properly considered by the trial judge. This report
indicates that the defendant was convicted of shoplifting in Texas in the mid-
1980s. She received one year probation. The shoplifting offense was later
expunged from her record upon her completion of the probationary period. In
1990 or 1991, she pled guilty to telephone harassment in Kansas. She received
three months probation and judicial diversion. She stated that this record had
also been expunged.
Our legislature has explicitly stated that a defendant may be placed on
judicial diversion only once under Tenn. Code Ann. § 40-35-313. The
defendant's prior grants of diversion in Kansas and Texas, however, were not
pursuant to Tenn. Code Ann. § 40-35-313. Accordingly, the defendant is not
statutorily precluded from being placed on diversion by § 40-35-313(a)(2) merely
by reason of the prior grants. The defendant must still meet the eligibility
requirements pursuant to Tenn. Code Ann. § 40-35-313 of not having been
previously convicted of a felony or a Class A misdemeanor.
The record before us does not indicate the classifications of the
defendant's prior offenses, and it is impossible to grade those offenses based on
the information before us. Accordingly, the defendant was statutorily eligible for
diversion. Evidence of the defendant's prior bad acts and prior grants of
diversion, however, support the denial of diversion. This evidence was directly
relevant in determining: (1) the defendant's potential for rehabilitation; (2) the
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deterrent value of diversion upon the defendant; and (3) the likelihood that the
defendant will become a repeat offender. The decision of the appellate court
affirming the trial court's denial of diversion is affirmed as modified. Costs of this
appeal shall be taxed to the defendant for which execution shall issue if
necessary.
JANICE M. HOLDER, JUSTICE
Concurring:
Anderson, C.J.
Birch, J.
Tipton, Sp.J.
Drowota and Barker, J.J., Not Participating
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