In re Treylynn T.

• Decision Date: 09 September 2020
• Docket Number: No. W2019-01585-COA-R3-JV,W2019-01585-COA-R3-JV
• Parties: IN RE TREYLYNN T. ET AL.
• Court: Tennessee Court of Appeals

IN RE TREYLYNN T. ET AL.

No. W2019-01585-COA-R3-JV

COURT OF APPEALS OF TENNESSEE AT JACKSON

July 14, 2020 Session

September 9, 2020

Appeal from the Circuit Court for Henderson County

No. 19028-1

Roy B. Morgan, Jr., Judge

J. STEVEN STAFFORD, P.J., W.S., dissenting.

In this case, the trial court ruled, and the majority affirms, that Mother's conviction for child endangerment is preclusive evidence that she committed severe abuse in this dependency and neglect action. Because I believe that the majority opinion fails to consider the effect of the diversion that Mother received, I must respectfully dissent.

First, a brief overview of the procedural history surrounding this case is helpful. On July 17, 2018, Mother entered an Alford plea¹ to the charge of child endangerment. Mother was placed on diversion for eleven months and twenty-nine days. Following a January 23, 2019 hearing, the juvenile court found the children dependent and neglected due to severe abuse by Mother by order of March 19, 2019. Mother appealed the decision to circuit court. A de novo hearing was held on August 19, 2019, more than a year following Mother's placement on diversion. At trial, Mother's plea form was entered into evidence. Mother testified, however, that she had successfully completed diversion and that her charge was dismissed and her record was expunged. No order of expunction was entered as an exhibit.

Following the proof, the trial court found that

[S]he did get diversion, and that was approved by the Court, and I take it the proper order has been signed and she's completed all that based on her testimony. And I point out that, too, although this is evidence against her today, as I make my ruling, this being Exhibit 1, and her sworn testimony, it's also a very positive note that she's been successful in her completion of that.

In its final order, however, the trial court ultimately ruled that Mother had been "convicted" of child endangerment, which included a knowing element, and that in the absence of anorder of expunction, the conviction and "finding of guilt" was sufficient to show that Mother was guilty of severe abuse. From this finding, Mother now appeals, arguing that the trial court erred in using her conviction to establish the knowing element of severe abuse under our child protection statutes.

Somewhat recently, the Tennessee Supreme Court held that a prior conviction was entitled to preclusive effect in a later civil action under the doctrine of collateral estoppel when the defendant had a full and fair opportunity to contest the allegations. See Bowen ex rel. Doe v. Arnold

, 502 S.W.3d 102, 116 (Tenn. 2016) (noting some exceptions under the Restatement (Second) of Judgments §§ 28, 29 & 85). As the majority correctly points out, this rule appears to be valid even when the defendant enters an Alford plea to the charge. See State v. Albright, 564 S.W.3d 809, 818 n.5 (Tenn. 2018), cert. denied, 139 S. Ct. 2746, 204 L. Ed. 2d 1134 (2019) (citing Stephanos Bibas, Harmonizing Substantive-Criminal-Law Values and Criminal Procedure: The Case of Alford and Nolo Contendere Pleas, 88 Cornell L. Rev. 1361, 1373 (July 2003)).² The problem, of course, with the trial court's reliance on Mother's conviction is that there was not one. Rather, Mother entered an Alford plea to the charge of child endangerment, but ultimately received judicial diversion.

Pursuant to Tennessee's judicial diversion statute, Tennessee Code Annotated section 40-35-313, a court may order a criminal defendant to complete diversion instead of entering a conviction. See Tenn. Code Ann. § 40-35-313(a)(1)(A) ("The court may defer further proceedings against a qualified defendant and place the defendant on probation upon such reasonable conditions as it may require without entering a judgment of guilty. . . ."). If the defendant successfully completes diversion, "the court shall discharge [her] and dismiss the proceedings against [her]." Tenn. Code Ann. § 40-35-313(a)(2) (emphasis added). A successfully completed period of diversion does not, therefore, result in aconviction. See Moss v. Shelby Cty. Civil Serv. Merit Bd.

, 597 S.W.3d 823, 834 n.2 (Tenn. 2020) ("If a qualified defendant complies with all of the conditions of diversion, including completing the required probationary period without violating a condition of probation, the trial court will dismiss the diverted charges. The defendant can then request that the charges be expunged from the public record. Tenn. Code Ann. § 40-35-313 (2014).");³

Moss v. Shelby Cty. Civil Serv. Merit Bd., No. W2017-01813-COA-R3-CV, 2018 WL 4913829, at *3 (Tenn. Ct. App. Oct. 10, 2018), rev'd on other grounds, 597 S.W.3d 823 (Tenn. 2020) ("[I]t should be noted that because Mr. Moss was placed on judicial diversion following his Alford plea, there was no technical conviction."). As the Tennessee Supreme Court succinctly explained, "Although the judicial diversion statute has a component of guilt that could be characterized as a conviction in the general sense, the statute forecloses the entry of a judgment of conviction unless the defendant violates the terms of his diversion." Rodriguez v. State, 437 S.W.3d 450, 457 (Tenn. 2014).

Further, such "[d]ischarge and dismissal . . . is without court adjudication of guilt . . . [and t]he discharge and dismissal shall not be deemed a conviction for purposes of disqualifications or disabilities imposed by law upon conviction of a crime or for any other purpose, except as provided in subsections (b) and (c)." Tenn. Code Ann. § 40-35-313(a)(2).⁴ Thus, regardless of whether Mother followed through on expunction of her record, Mother simply does not have a conviction that may be entitled to preclusive effect in this case.

Although the Albright court speaks in terms of the preclusive effect of an Alford plea, other parts of the opinion make clear that the focus is on the conviction, not simply the plea. Indeed, the Supreme Court made clear that one basis for its ruling was that no matter how it was arrived at—either by plea or by a trial on the merits—a conviction resulted: "We emphasize that the methodology utilized for arriving at a conviction, whether it be upon a trial after a plea of not guilty, upon an Alford plea accompanied by a protestation of actual innocence, upon a plea of nolo contendere, or upon a 'straight' plea of guilty, does not alter the legal fact of conviction for sentencing purposes." Id. at 820.⁵ Even more importantly, the Albright court indicated that it was the conviction that had preclusive effect in subsequent civil actions, not merely the plea, explaining that the difference between an Alford plea and a nolo contendere plea was that a "conviction following the entry of a plea of nolo contendere cannot be used against the accused as an admission in any civil suit for the same act." Albright, 564 S.W.3d at 817-18 (emphasis added). Thus, in the absence of a conviction, there is nothing that precludes a defendantfrom denying guilt in a subsequent civil action. And because of Mother's diversion, she was not convicted of child endangerment. Indeed, the trial court's oral findings suggest its belief that Mother successfully completed her diverted sentence, resulting in dismissal of the charge.

The majority makes much of the fact that the trial court did not include this finding regarding Mother's successful completion of her diverted sentence in its written order. I concede that the trial court's oral findings on this issue were not included in the trial court's written order. In many cases, however, we have looked to a trial court's oral rulings to inform its decision.⁶ See, e.g., In re Riannah M.F.

, No. W2013-02057-COA-R3-PT, 2014 WL 806136, at *3 (Tenn. Ct. App. Feb. 28, 2014); State v. Freeman, 402 S.W.3d 643, 651 (Tenn. Ct. App. 2012). Regardless, I conclude that Mother was not required to show that her diversion was successfully completed, as DCS failed to present sufficient proof that a conviction ever existed, regardless of dismissal or expunction.

Here, the burden was on DCS to prove that Mother committed severe abuse by clear and convincing proof. In re S.J., 387 S.W.3d 576, 591 (Tenn. Ct. App. 2012). DCS attempted to meet this burden by establishing the necessary "knowing" element through Mother's purported child endangerment conviction. The only documentary proof presented by DCS to establish the "conviction" for child endangerment was a plea form in which Mother was granted judicial diversion.

The Tennessee Supreme Court has made clear, however, that the judicial diversion "statute forecloses the entry of a judgment of conviction unless the defendant violates the terms of his diversion[.]" Rodriguez, 437 S.W.3d at 457 (emphasis added). Under this law, a diversion is not a conviction unless and until the defendant violates its terms. The mere fact that Mother entered into a plea and received diversion therefore does not establish a conviction. Given that the plea document alone does not establish a conviction, it was not Mother's burden to prove that her charges had been dismissed through the successful completion of her diverted sentence, but DCS's burden to present sufficient proof that her diverted sentence was in fact converted into a conviction through non-compliance with the terms of her diversion.

Even setting aside the trial court's oral finding that Mother did successfully complete the diverted sentence and reviewing the record de novo, I cannot conclude that DCS met its burden to show that Mother's diversion was revoked due to non-compliance. See Crabtree v. Crabtree

, 16 S.W.3d 356, 360 (Tenn. 2000) (citing Brooks v. Brooks, 992 S.W.2d 403, 405 (Tenn. 1999)) (holding that when the trial court fails to make a finding of fact on any issue, the appellate court must conduct its "own independent review of the record to determine where the preponderance of the evidence lies"). Mother testified without contradiction that she completed the requirements of her...