Appellate panel hears challenge to denial of judicial diversion in Somerville aggravated-assault case

Josie Holland, attorney for appellant Mark Marcus Somerville, told the Tennessee Court of Criminal Appeals that the trial court “failed to conduct the individualized assessment of diversion eligibility that Tennessee law demands” and compounded that error by imposing a sentence without a clear, individualized guilty plea.

The appeal challenges the trial court’s denial of judicial diversion for Somerville, a first-time offender convicted of a Class C felony and sentenced to incarceration, and raises two main claims: (1) the record does not clearly show Somerville entered a knowing, voluntary guilty plea before sentencing, and (2) the trial court did not articulate the Parker/King factors on the record for an individualized diversion analysis. “It is a due process procedural failing,” Holland told the panel.

The issue over whether Somerville actually entered a guilty plea animated much of the argument. Judge Hixson asked directly, “Did the defendant plead guilty?” Holland replied that the record is unclear and that the advisement was given in a group setting rather than through a personal colloquy. She said the transcript and judgment sheets do not show an affirmative, individual waiver of rights required by Boykin v. Alabama and related authority.

Ray LaPone, arguing for the State, countered that the record contains a judgment sheet indicating a guilty plea and that the proceedings include a hearing in which the judge went over defendants’ rights. “The state's position is that this court should affirm the trial court's denial of diversion,” LaPone said, adding that when the court resets cases and conducts multiple proceedings “the defendant wanted to plead guilty” and the record, taken together, supports that view.

On the diversion claim, Holland told the panel Somerville is precisely the kind of defendant for whom judicial diversion was intended: no prior record, documented mental-health crisis tied to the charged conduct, stabilized medication, a treatment plan, and family support. She argued Tennessee law treats judicial diversion as a tool to promote rehabilitation and that the trial court’s focus on only the seriousness of the offense and speculative future risk (for example, whether Somerville might stop medication) was insufficient.

LaPone emphasized the facts the trial court confronted: a loaded firearm pointed at a mother and daughter on a public street and the defendant’s inconsistent testimony about recollection of events and the weapon’s origin. He argued that, even if Somerville were eligible for diversion, those facts and the absence of a credible plan weighed against diversion. “This is not a case, factually, where this defendant is [an] appropriate candidate for diversion,” LaPone said.

Counsel differed over the proper remedy. Holland asked the court either to place Somerville on judicial diversion or remand for a clear plea colloquy and a properly recorded diversion hearing; she emphasized the need for de novo appellate review of the diversion denial if the record remains unclear. The State asked the court to affirm the denial. After argument, the panel said it would take the matter under advisement.

The record discussed at argument includes multiple proceedings (the parties referenced hearings on June 17 and an August 8 proceeding and three volumes of transcripts) and a judgment sheet; counsel also noted that Somerville was placed on an appellate bond pending appeal. The appeal centers on whether appellate review should proceed where the plea and the trial court’s application of diversion factors are disputed.