Judicial diversion is a procedure by which a first-time offender who pleads guilty or is found guilty of a diversion eligible offense may still avoid the criminal conviction after complying with certain conditions during a probationary period, after which the charge is effectively dismissed if the conditions are met. Whether to grant judicial diversion to a diversion eligible offender is within the discretion of the sentencing court. In the recent Tennessee case of State v. Guilliams, E2013-0145-CCA-R3-CD (Tenn.Crim.App. 7-2-2014), the Court of Criminal Appeals affirmed the denial of judicial diversion to an offender who may have offended the sentencing court with a tattoo the court believed to resemble “the head of the devil.”

In the Guilliams case, the twenty-year old Defendant pled guilty to attempted aggravated assault arising out of an incident where he was accused of raping a fourteen-year old girl who was attending a party at the Defendant’s residence.

The sentencing court questioned the Defendant about a tattoo which was reported to be on the Defendant’s stomach, which had been characterized as “satanic.” The Defendant denied that the tattoo was satanic, and said he thought it was Wiccan or Pagan. Upon order by the sentencing court, the Defendant reluctantly displayed the tattoo, which apparently looked to the sentencing court like “the head of the devil.” The Defendant claimed to be an atheist. After a dialogue in which the sentencing court appeared to equate the Wiccan religion with satanism, the sentencing court denied judicial diversion, also noting the egregious nature and circumstances of the offense. The sentencing court’s order additionally concluded that atheists believe in Satan.

On direct appeal of the denial of diversion, the Court of Criminal Appeals found that the sentencing court erred in its remarks about the religious nature of the tattoo. However, the Court also agreed that the nature and circumstances of the offense merited the denial of judicial diversion, and so affirmed the ruling.

For more information regarding judicial diversion, contact Hindman & Associates.