State of Tennessee v. Kenneth Gaines

Appellant, Kenneth Gaines, was indicted by the Shelby County Grand Jury in September of 2009 with two counts of aggravated assault and one count of reckless endangerment. Appellant pled guilty to all three charges. Pursuant to an agreement with the State, Appellant was placed on judicial diversion for three years under the supervision of the department of probation. The State filed a petition for revocation of Appellant’s probation in March of 2011 after Appellant was charged with rape, failed to report the arrest, failed to pay court costs, and failed to pay probation fees. After a jury trial on the rape charge, Appellant was convicted of the lesser included offense of assault. The trial court approved the jury verdict, terminated Appellant’s judicial diversion, and set both matters for a sentencing hearing. At the sentencing hearing, the trial court sentenced Appellant to six years for each aggravated assault conviction and two years for the reckless endangerment conviction. The trial court ordered the sentences to run concurrently with each other but consecutively to the six-month sentence Appellant received for the assault conviction, for a total effective sentence of six years and six months. Appellant filed a timely notice of appeal. On appeal, he challenges the termination of judicial diversion without a formal hearing and insists that the trial court imposed an excessive sentence. After a review of the record, we conclude that Appellant’s rights to due process were not violated when the trial court made the determination that Appellant violated the terms of his judicial diversion contemporaneously with his trial on subsequent charges. Further, the trial court did not abuse its discretion in sentencing Appellant to an effective sentence of six years and six months. Accordingly, the judgments of the trial court are affirmed.