State v. King

• Decision Date: 23 April 2014
• Docket Number: No. M2012–00236–SC–R11–CD.,M2012–00236–SC–R11–CD.
• Citation: 432 S.W.3d 316
• Parties: STATE of Tennessee v. Kiara Tashawn KING.
• Court: Tennessee Supreme Court

432 S.W.3d 316

STATE of Tennessee

v.Kiara Tashawn KING.

No. M2012–00236–SC–R11–CD.

Supreme Court of Tennessee,

at Nashville.

Feb. 6, 2014 Session.

April 23, 2014.

Hershell Koger (on appeal), Pulaski, Tennessee, and Forest A. Durard, Jr. (at trial and on appeal), Shelbyville, Tennessee, for the appellant, Kiara Tashawn King.

Robert E. Cooper, Jr., Attorney General and Reporter; William E. Young, Solicitor General; Clarence E. Lutz, Assistant Attorney General; Mark A. Fulks and Rachel E. Willis, Senior Counsel; Robert Carter, District Attorney General; and Weakley E. Barnard, Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

GARY R. WADE, C.J., delivered the opinion of the Court, in which JANICE M. HOLDER, CORNELIA A. CLARK, WILLIAM C. KOCH, JR., and SHARON G. LEE, JJ., joined.

GARY R. WADE, C.J.

The defendant pled guilty to aggravated burglary and theft of property over five hundred dollars. The trial court imposed concurrent, Range I sentences of five years and one year and six months, respectively, all to be served on probation. On appeal, the defendant contended that the trial court erred by imposing excessive sentences and by denying her application for judicial diversion. The Court of Criminal Appeals affirmed. We granted the application for permission to appeal in order to clarify the appropriate standard of appellate review for the grant or denial of judicial diversion. We hold that when the trial court places on the record its considerations for the grant or denial of judicial diversion, the determination should be given a presumption of reasonableness on appeal and reviewed for an abuse of discretion. In the absence of appropriate considerations on the record, the appellate court should either remand for reconsideration or perform a de novo review. After our own de novo review of this record, we hold that the defendant is not entitled to judicial diversion.

I. Facts and Procedural History

On October 5, 2011, nineteen-year-old Kiara Tashawn King (the “Defendant”) pled guilty to aggravated burglary, a Class C felony, and theft of property having a value in excess of $500 but less than $1000, a Class E felony. ¹ The underlying facts which led to the convictions are not in material dispute.

At approximately 7:30 p.m. on May 8, 2011, Laura Watt (the “victim”) sat on her neighbor's front porch in Marshall County when a vehicle entered the driveway of her residence. The driver of the vehicle remained behind the wheel while a female and two male passengers stepped out of the vehicle and entered the victim's residence. As the victim proceeded toward her residence in order to investigate, she encountered the three burglars. One of the male burglars was carrying the victim's television. The female burglar, who was later identified as Mariah Janee McCutcheon, drew a gun, and one of the two males urged her to shoot the victim. When the victim's father, Jerry Watt, arrived at the residence, McCutcheon pointed her weapon in his direction. The same male burglar urged her to shoot. At that point, the other male burglar dropped the television, and all three burglars hurriedly entered their vehicle and were driven away. Marshall County Deputy Drew Binkley received the license plate number of the getaway vehicle and was dispatched to the scene. The Defendant was identified as the owner of the vehicle. Later, the police arrested the Defendant, McCutcheon, and Jacobi Domonique Vaughn Moore. The fourth individual involved in the burglary was a juvenile.

At the sentencing hearing, Crystal Gray, the probation officer who prepared the pre-sentence report, testified that the Defendant had made conflicting statements during the police investigation. In her first statement to Detective Jimmy Oliver, the Defendant claimed that Moore called to ask for a ride to a friend's house and that upon her arrival Moore, the juvenile, and a female entered her vehicle. Moore then directed her to drive to the victim's residence. According to Gray, the Defendant informed the detective that she remained in the vehicle during the burglary and also claimed she was unaware that her passengers intended to burglarize the victim's residence. Gray testified that the Defendant acknowledged to the detective that, as she returned to Rutherford County with the three individuals, she received a call from her brother, who informed her that the police were looking for her.

In a second statement, made a day later to Detective Oliver, the Defendant recalled that the incident was initiated by McCutcheon, who had sent her a text message asking her to act as a getaway driver so they could “hit a lick”—meaning “break into a house or something like that.” According to Gray, the Defendant also admitted her participation as the getaway driver for Moore and McCutcheon in a prior burglary and theft, which had taken place one or two weeks earlier. Gray further testified that when she questioned the Defendant directly for purposes of the pre-sentence report, the Defendant gave a third inconsistent statement, denying that her companions had informed her that they needed her assistance with a burglary, insisting that she had no knowledge that McCutcheon carried a firearm, and denying her involvement in the earlier burglary.

The pre-sentence report indicated that the Defendant graduated from Smyrna High School in 2010 with a grade point average of 1.86. Her ACT score was twenty-three. The Defendant's disciplinary record in school included ten incidents of tardy attendance. Although unemployed at the time of the sentencing hearing, the Defendant had worked with a temporary employment agency after her graduation.² She also reported that she had been accepted to an educational program for radiologic technology.

Pamela King, the Defendant's mother, testified that the Defendant had never been in trouble. She confirmed that during high school the Defendant had served as the football manager and had participated in track and field. According to King, the Defendant also performed volunteer work, organizing sporting events for young men throughout Rutherford County. She stated that she was shocked to learn of her daughter's involvement in this incident and indicated that she would assist her during a conditional period of release. Rickie King, the Defendant's father, also testified that he would assist the Defendant in complying with any court-ordered guidelines.

At the conclusion of the sentencing hearing, the Defendant requested judicial diversion on each of the two charges. The trial court acknowledged that, unlike the Defendant, her two co-defendants had prior records and serious disciplinary issues and that McCutcheon had employed a firearm. Further, the trial court described the Defendant as a follower and not a leader, observing that “[e]ven though she drove the car, ... if it hadn't been for the other one [s,] she never would have been involved in this.” Nevertheless, the trial court denied the Defendant's request for judicial diversion and sentenced her as a Range I, standard offender, imposing a five-year sentence for the aggravated burglary charge (two years above the minimum)³ and a concurrent sentence of one year and six months for the theft charge (six months above the minimum),⁴ all to be served on probation. As a condition of her probation, the trial court ordered the Defendant to complete victim impact classes, maintain gainful employment, and pay court fees and restitution.

On direct appeal, the Court of Criminal Appeals affirmed, upholding the sentences and ruling that the trial court had properly denied the application for judicial diversion. State v. King, No. M2012–00236–CCA–R3–CD, 2013 WL 793588, at *5, *8 (Tenn.Crim.App. Mar. 4, 2013). In reaching this conclusion, the Court of Criminal Appeals observed that although the trial court had failed to expressly consider and weigh all seven of the common law factors that govern the judicial diversion process, see State v. Electroplating, Inc., 990 S.W.2d 211 (Tenn.Crim.App.1998); State v. Parker, 932 S.W.2d 945 (Tenn.Crim.App.1996), the “stringent procedural requirements” set forth in Parker and Electroplating “can no longer be considered governing law” in light of this Court's recent rulings in State v. Bise, 380 S.W.3d 682 (Tenn.2012), and State v. Caudle, 388 S.W.3d 273 (Tenn.2012). King, 2013 WL 793588, at *6–8. Citing the “sea [ ] change in the legal landscape concerning appellate review of virtually every aspect of sentencing,” id. at *6, the Court of Criminal Appeals determined that it was no longer required to “reverse[ ] a trial court's decision to deny judicial diversion merely because the trial court failed to expressly consider one or more of the seven legally-relevant factors (or merely because it failed to specify why some factors outweighed others),” id. at *7.

This Court granted the Defendant's application for permission to appeal to determine (1) whether the trial court abused its discretion by imposing excessive sentences; (2) whether the standard of appellate review articulated in Bise, Caudle, and State v. Pollard, No. M2011–00332–SC–R11–CD, 2013 WL 6732667 (Tenn. Dec. 20, 2013), applies to judicial diversion; (3) if so, whether the abuse of discretion standard of review accompanied by a presumption of reasonableness abrogates the common law requirement to consider the factors set forth in Parker and Electroplating; and (4) whether, under the appropriate standard of review, the trial court erred by denying judicial diversion.

II. Analysis

A. Length of Sentence

Although the Defendant concedes that the trial court imposed sentences that are within the appropriate sentencing ranges, she argues that she is entitled to the minimum sentences because the trial court abused its discretion by failing to adhere to the purposes and principles of our sentencing act. The crux of her argument is that the record inadequately demonstrates the reasons for the length...