State v. Jeremy Winsett ( 1998 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON FILED
APRIL 1998 SESSION
September 17, 1998
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE )
) 02C01-9709-CR-00343
Appellee )
) SHELBY COUNTY
v. )
) Hon. W. Fred Axley
JEREMY A. WINSETT )
) (Vehicular Homicide)
Appellant. )
)
For the Appellant: For the Appellee:
Charles D. Wright John Knox Walkup
150 Court Avenue, 2nd Floor Attorney General & Reporter
Memphis, TN. 38103
Marvin E. Clements, Jr.
Assistant Attorney General
Cordell Hull Building, 2nd Floor
425 Fifth Avenue North
Nashville, TN. 37243-0493
William L. Gibbons
District Attorney General
Johnny R. McFarland
Assistant District Attorney
201 Poplar Ave., Ste. 301
Memphis, TN. 38103-1947
OPINION FILED:______________________
AFFIRMED
WILLIAM M. BARKER, SPECIAL JUDGE
OPINION
The appellant, Jeremy A. Winsett, appeals as of right the three (3) year
sentence of confinement he received following the entry of guilty pleas to two counts
of vehicular homicide in the Criminal Court of Shelby County. We affirm the judgment
of the trial court.
This protracted case originated in 1992, following a tragic automobile accident
which took the lives of Wymond Love, Sr., and Nicolette Amoroso. According to
eyewitness testimony, the appellant was driving at an excessive rate of speed on
James Road in Shelby County when his car suddenly made a “U-turn” and slammed
into an oncoming truck driven by Mr. Love. The streets were wet from rainy weather
on the day of the accident. The violent collision caused Mr. Love to be thrown from
his truck and he died almost instantly. One of appellant’s passengers, Ms. Amoroso,
also died as a result of the collision.
The Shelby County Grand Jury indicted the appellant on two counts of
vehicular homicide. Appellant initially pled not guilty and sought pre-trial diversion. He
submitted a written application for pre-trial diversion on February 24, 1993. The
District Attorney General denied the application and that denial was affirmed by the
trial court. Thereafter, the appellant filed a Rule 10 appeal to this Court.
This Court reversed and remanded the case to the trial court with instructions
on how to properly address pre-trial diversion under Tennessee Code Annotated
section 40-15-105 (1990). State v. Winsett, 882 S.W.2d 806 (Tenn. Crim. App. 1993),
perm. app. denied (June 13, 1994). Upon remand, the appellant resubmitted his
application for pre-trial diversion, which was again denied by the District Attorney. The
trial court affirmed the denial following an evidentiary hearing and granted permission
for the appellant to seek a Rule 9 interlocutory appeal to this Court.
Permission to file the interlocutory appeal was granted by this Court on October
13, 1994. In that appeal, a panel of this Court determined that the District Attorney
2
had abused his discretion in denying pre-trial diversion without considering the
appropriate factors and without articulating in a written report the reasons for the
denial. State v. Jeremy Winsett, No. 02C01-9409-CR-00223 (Tenn. Crim. App. at
Jackson, Feb. 29, 1996), perm. app. denied (Tenn. Mar. 3, 1997). According to the
Court, the evidence reflected that the appellant was amenable to correction and was
not likely to commit subsequent crimes. Slip op. at 2. The Court, therefore, reversed
and remanded the case to the trial court with instructions to grant pre-trial diversion.
Id.
The appellant was arrested for the theft of property under $500 while his
interlocutory appeal was pending before this Court.1 He pled guilty to the theft charge
and served two days in jail. Consequently, when his vehicular homicide case was
remanded to the trial court, the trial court determined that appellant was no longer
entitled to pre-trial diversion. The appellant, therefore, changed his pleas to guilty and
agreed to a three (3) year sentence, with the manner of service to be determined by
the trial court.
The trial court conducted a sentencing hearing at which the appellant requested
judicial diversion or in the alternative, probation. Based upon appellant’s criminal
history and the nature of the vehicular homicide offenses, the trial court denied his
request and ordered him to serve the entire three (3) year sentence in confinement.
The appellant contends on appeal that the sentence of confinement is contrary to the
evidence and that he is entitled to judicial diversion or a probationary sentence.2 We
disagree.
1
The appellant was arrested for shoplifting $36 worth of property from a W alMart in Shelby
Coun ty. At the sente ncing he aring in this c ase, he testified that h e did not ac tually steal the pr operty
from the store, but waited instead in a parked car while a young girl, Jean Gates, went into the store and
exited with a bag of goods. Appellant testified that Gates asked him to take the goods back inside the
store and obtain a cash refund. He entered the store with the goods, but decided not to refund them
because the return lines were too long. As he attempted to leave the store, a security guard approached
him and asked about the goods. The goods were determined to be stolen and the appellant was
arrested for shop lifting. Gates fled the sc ene wh en sec urity guards attem pted to qu estion he r.
2
The appellant mentions in his brief that the trial judge should have recused himself from the
senten cing proc eeding in th is case. H oweve r, he cites n o author ity or reason to suppo rt this propo sition.
W e conc lude that it is witho ut me rit.
3
The record reflects that the appellant has been arrested three times since the
automobile accident in 1992. Of those three arrests, he was convicted of theft under
$500, a Class A misdemeanor, for which he served two days incarceration.
We have conducted a de novo review of the record and conclude that the theft
conviction renders the appellant ineligible for judicial diversion. Tenn. Code Ann. §
40-35-313(a)(1) (Supp. 1992). Moreover, he has failed to carry his burden of
demonstrating suitability for any form of probation. Although he was a presumable
candidate for a probationary sentence 3, the trial court concluded that the presumption
was rebutted by appellant’s criminal record, the circumstances of the offense, and the
need to deter the appellant and others from similar reckless offenses. Stiller v. State,
516 S.W.2d 617, 620 (Tenn. 1974); State v. Bonestel, 871 S.W.2d 163, 169 (Tenn.
Crim. App. 1993).
We agree with the trial court’s finding that the sentence of confinement is
necessary to avoid depreciating the serious nature of the vehicular homicide offenses
and to deter the appellant from further criminal conduct. Tenn. Code Ann. § 40-35-
103 (Supp. 1992). The judgment of the trial court is affirmed.
_______________________________
WILLIAM M. BARKER, Special Judge
CONCUR:
____________________________
DAVID G. HAYES, JUDGE
____________________________
JOE G. RILEY, JUDGE
3
Tenn. Code A nn. §§ 40-35-102(6) & 40-3 5-303(a) (Supp. 1992).
4