Appellate panel weighs whether trial court adequately explained denial of judicial diversion

An appellate panel heard oral argument on an appeal by Aaron Kogiter challenging the trial court's denial of judicial diversion after his guilty plea to an aggravated statutory **** charge, defense attorney David Kemp told the court.

Kemp told the court the sentencing transcript shows the trial court's entire ruling on diversion was a seven-word statement: "I don't think diversion will be appropriate." He argued the trial court failed to explicitly weigh the applicable Parker and electroplating factors required for appellate review and asked the panel either to reverse and remand for further findings or to conduct a de novo review.

The question matters because judicial diversion would defer judgment and could limit the conviction's collateral consequences; the parties disputed whether the trial court's bundled sentencing comments suffice to support the denial. "This court should affirm the judgment to the trial court," the state's attorney, General May, told the panel, arguing that the record contains the facts necessary for review and that the seriousness of the offense and need for deterrence outweigh mitigating evidence.

Record details cited at argument: Kogiter was indicted on 04/29/2024 and pleaded guilty on 07/08/2024 to a single count listed in the record as an aggravated statutory ****, a class D felony with a sentencing exposure of about two to four years. Kemp said the TBI eligibility report admitted at the sentencing hearing shows Kogiter was eligible for judicial diversion under the applicable rules, and the pre-sentence report flagged him as a low risk for recidivism. The defense emphasized Kogiter's military service, honorable discharge, lack of prior criminal history, and letters in the record attesting to character.

The state and the panel pointed to victim impact evidence in the sentencing record. General May summarized portions of the pre-sentence report and the victim's statement describing grooming and harm, and said the trial court reasonably concluded those circumstances and the need for deterrence outweighed the factors favoring diversion.

Kemp also read an excerpt from a letter in the sentencing record in which the appellant expressed remorse: "I wanna start off by expressing my sincerest apologies to the minor and her family. I wanna apologize to my family. I've caused great pain to so many people and feel regret and shame for having caused this pain." Kemp said the record also contains testimony from family members, a pastor, and military colleagues supporting the appellant.

The parties disputed the proper appellate remedy if the panel finds the trial court's explanation inadequate. Kemp urged remand for specific findings or a de novo review; the state urged affirmance, citing overlapping factors in sentencing and diversion analysis and recent case law the state described as permitting the court to review the record without remand.

After questioning counsel, the appellate panel took the matter under advisement and did not issue an immediate ruling.

Votes at a glance: none (no vote was taken at oral argument).