Assigned on Briefs September 7, 2017
from the Criminal Court for Shelby County No. 13-03425 Lee V.
pro se defendant, Calvin Watkins, appeals the
revocation of his judicial diversion by the Shelby County
Criminal Court. The defendant argues the trial court
improperly revoked his diversion based upon an unindicted
arrest. After our review, we affirm the trial court's
revocation pursuant to Rule 20 of the Rules of the Court of
R. App. P. 3 Appeal as of Right; Judgment of the Criminal
Court Affirmed Pursuant to Rule 20 of the Rules of the Court
of Criminal Appeals
Watkins, Munford, Tennessee, Pro Se.
Herbert H. Slatery III, Attorney General and Reporter; David
H. Findley, Assistant Attorney General; Amy P. Weirich,
District Attorney General; and Alanda Dwyer, Assistant
District Attorney, for the appellee, State of Tennessee.
Ross Dyer, J., delivered the opinion of the court, in which
Thomas T. Woodall, P.J., and Norma McGee Ogle, J., joined.
ROSS DYER, JUDGE
March 27, 2014, the defendant pled guilty to aggravated
assault and theft of property over $500. Tenn. Code Ann.
§§ 39-13-102; 39-14-103. The trial court sentenced
the defendant to concurrent terms of two and three years'
probation for his theft and aggravated assault convictions,
respectively. The trial court suspended the defendant's
sentence and placed him on judicial diversion. In doing so,
the defendant agreed to "obey the [l]aws of the United
States or any State" and report "all arrests"
to his probation officer. Further, the trial court imposed
several special conditions of diversion, requiring the
defendant to maintain employment or attend school, submit to
random drug screens, and complete 50 hours of community
April 21, 2015, the State filed a petition to terminate the
defendant's judicial diversion, citing three violations.
First, the State asserted the defendant violated diversion
after being arrested on January 7, 2015, for stalking.
Second, the defendant violated diversion by failing to report
the stalking arrest to his probation officer. Finally, the
State claimed the defendant failed to comply with the special
conditions of his diversion, thus violating the same. The
trial court terminated the defendant's diversion by order
on March 10, 2016, and subsequently imposed an effective
five-year suspended sentence of supervised probation for his
August 23, 2016, the defendant filed a pro se notice
of appeal alleging the trial court erred in revoking his
diversion because the January 7, 2015 arrest was dismissed
prior to indictment. In response, the State argues the
defendant has waived his appellate arguments as he has failed
to provide a complete record for our review. The State
further argues revocation was warranted because in addition
to the stalking arrest, the defendant also failed to report
the arrest to his probation officer and violated the special
conditions of his diversion. Upon our review of the record,
we agree with the State.
we agree with the State's assessment of the record before
us, it is incomplete. "It is the duty of the appellant to
prepare a record that conveys a fair, accurate, and complete
account of what transpired in the trial court with respect to
the issues that form the basis of the appeal." State
v. Robinson, 73 S.W.3d 136, 154 (Tenn. Crim. App. 2001)
(citing Tenn. R. App. P. 24(b); State v. Miller, 737
S.W.2d 556, 558 (Tenn. Crim. App. 1987); State v.
Rhoden, 739 S.W.2d 6 (Tenn. Crim. App. 1987)).
"Generally, this court is precluded from addressing an
issue on appeal when the record fails to include relevant
documents." Id. (citing Tenn. R. App. P. 24;
State v. Bennett, 798 S.W.2d 783 (Tenn. Crim. App.
1990)). By failing to include transcripts of the
defendant's guilty plea, sentencing, or revocation
hearings, the defendant has failed to provide an adequate
record for our review. As such, the defendant has waived his
arguments on appeal.
despite the waiver, the defendant still is not entitled to
relief. Judicial diversion is a statutorily prescribed
alternative to sentencing available to certain criminal
defendants "who have entered a guilty or nolo contendere
plea or have been found guilty of an offense without the
entry of a judgment of guilt." State v. King,
432 S.W.3d 316, 323 (Tenn. 2014). A trial court has statutory
authority to revoke a suspended sentence upon finding that
the defendant violated the conditions of the sentence by a
preponderance of the evidence. Tenn. Code Ann. §§
40-35-310, -311; see State v. Clyde Turner, No.
M2012-02405-CCA-R3-CD, 2013 WL 5436718, at *2 (Tenn. Crim.
App. Sept. 27, 2013). If it is alleged that a defendant on
judicial diversion has violated the terms and conditions of
diversionary probation, the trial court should follow the
same procedures as those used for ordinary probation
revocations. State v. Johnson, 15 S.W.3d 515, 519
(Tenn. Crim. App. 1999); Alder v. State, 108 S.W.3d
263, 266 (Tenn. Crim. App. 2002). To overturn the trial
court's revocation, the defendant must show the trial
court abused its discretion. State v. Shaffer, 45
S.W.3d 553, 554 (Tenn. 2001). "In order to find such an
abuse, there must be no substantial evidence to support the
conclusion of the trial court that a violation of the
conditions of probation has occurred." Id.
(citing State v. Harkins, 811 S.W.2d 79, 82 (Tenn.
the record supports the trial court's decision to revoke
diversion and impose a five-year sentence of supervised
probation. On March 27, 2014, the defendant pled guilty to
aggravated assault and theft of property over $500 and began
serving an effective three-year suspended sentence on
diversion. The terms of the defendant's diversion
specifically required him to comply with all state and
federal laws, report any new arrests, maintain employment or
school, comply with random drug tests, and complete 50 hours
of community service. In the State's revocation petition,
it asserts the defendant violated three conditions of
probation in that he was arrested on January 7, 2015 for
stalking, he failed to report the January 7, 2015 arrest to
his probation officer, and he failed to comply with the
special conditions of probation. As noted above, the fact
that the record is incomplete "requires us to presume
that had all of the evidence considered by the trial court
been included in the record on appeal, it would have
supported the imposition of [the trial court's
sentence]." State v. Keen, 996 S.W.2d 842, 844
(Tenn. Crim. App. 1999) (citing State v. Oody, 823
S.W.2d 554, 559 (Tenn. Crim. App. 1991) ("stating that
when necessary parts of the record are missing on appeal,
this Court must presume that the trial court's decision
was correct"); State v. Caudle, 388 S.W.3d 273,
279 (Tenn. 2012) (citing Oody, 823 S.W.2d at 559)
(explaining if this Court determines that the record is
sufficient for meaningful review, this Court "may review
the merits of the sentencing decision with a presumption that
the missing transcript would support the ruling ...