State v. Clay Dean ( 1999 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
OCTOBER 1999 SESSION FILED
December 17, 1999
STATE OF TENNESSEE, ) Cecil Crowson, Jr.
) Appellate Court Clerk
C.C.A. No. W1999-01757-CCA-R3-CD
Appellee, )
) Shelby County
v. )
) Honorable Carolyn Wade Blackett, Judge
CLAY F. DEAN, )
) (Denial of Judicial Diversion)
Appellant. )
FOR THE APPELLANT: FOR THE APPELLEE:
ROBERT M. BRANNON, JR. PAUL G. SUMMERS
296 Washington Avenue, Suite 3 Attorney General & Reporter
Memphis, TN 38103
R. STEPHEN JOBE
Assistant Attorney General
425 Fifth Avenue North
Nashville, TN 37243-0493
WILLIAM L. GIBBONS
District Attorney General
JANET L. SHIPMAN
Assistant District Attorney General
201 Poplar Avenue, Suite 301
Memphis, TN 38103-1947
OPINION FILED: __________________________________________
REMANDED
ALAN E. GLENN, JUDGE
OPINION
The defendant, Clay F. Dean, was indicted by the Shelby County Grand Jury for the
offenses of driving under the influence of an intoxicant and reckless driving. He entered
a guilty plea in the Shelby County Criminal Court to reckless driving and was sentenced
to thirty days confinement. The sentence was suspended except for the time the
defendant had served, with the defendant to then be placed on probation for five months
and twenty-nine days. He then asked that the trial court place him on diversion, the trial
court denying this request after a hearing. The defendant filed a timely appeal of this
denial. Based upon our review of the matter, we remand it to the trial court for
supplementation of the record.
FACTS
On May 19, 1998, the defendant was indicted by the Shelby County Grand Jury in
a two-count indictment for driving under the influence of an intoxicant and reckless driving.
He submitted to the trial court, on October 16, 1998, his petition for waiver of trial by jury
and request for acceptance of plea of guilty. According to that petition, the defendant was
entering a plea of guilty to reckless driving, in violation of Tenn. Code Ann. § 55-10-205,
and receiving as punishment confinement for thirty days, with twenty-nine days suspended
and credit for one day in jail. Additionally, according to the petition, the matter was reset
for November 17, 1998, for a hearing on the defendant’s request for diversion. Also on
October 16, 1998, the defendant executed, and his counsel filed with the court, a
negotiated plea agreement, which stated that the defendant was entering a plea of guilty
to reckless driving, for which he was receiving as punishment confinement for thirty days,
with twenty-nine days suspended and credit for one day served. Additionally, a $500 fine
was imposed.
A presentence report was submitted to the trial court by the Justice Network. The
conclusion of that report is as follows:
The above named defendant appears eligible for a suspended
sentence or diversion. No record of any prior convictions for
felonies or Class A misdemeanors exists. It is recommended
that the defendant attends and completes Alcohol Safety
School.
According to the Justice Network report, the defendant had received his high school
diploma in 1996 and was attending the University of Memphis. He had been employed
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from January 1996, until August 1996, at Tiger Cleaners in Memphis. From 1996 until the
time of the report, he had been employed at U.S. Male, also in Memphis.
On November 17, 1998, a hearing was held on the defendant’s request that he be
put into the diversion program. At this hearing, the defendant, who was the only witness,
testified that, subsequent to the reckless driving charge for which he was then seeking
diversion, he had entered a guilty plea in Division 12 of the Shelby County General
Sessions Court to reckless driving. As explanation for this later offense, the defendant
stated that he “was immature and didn’t fully understand the consequences” of what he
had done. He testified that his plans for the future were to continue with his job, pay the
court costs and fines, and continue attending college. The defendant was employed as
a warehouse worker at U.S. Male, and his duties required that he make deliveries to his
employer’s four locations in the City of Memphis. Apparently, there was no accident
involved in either of the reckless driving incidents. However, no additional information
regarding the facts of either matter was presented, other than the fact the defendant
submitted to a field sobriety test but refused an intoximeter test following one of the arrests.
The State of Tennessee opposed the defendant’s request for judicial diversion.
Following this proof, the trial court took the matter under advisement until November
23, 1998, at which time the court imposed upon the defendant the previously agreed upon
sentence, but denied, without additional explanation, his request for judicial diversion. The
defendant timely appealed that denial.
ANALYSIS
It is within the sound discretion of the trial court as to whether a defendant should
be placed on judicial diversion. State v. Harris, 953 S.W.2d 701, 705 (Tenn. Crim. App.
1996). In reviewing a refusal to grant judicial diversion, the appellate court must uphold
the decision of the trial court if “any substantial evidence [exists in the record] to support
the refusal.” State v. Hammersley, 650 S.W.2d 352, 356 (Tenn. 1983). The trial court
must consider a number of factors in determining whether to grant judicial diversion:
(a) the accused’s amenability to correction, (b) the
circumstances of the offense, (c) the accused’s criminal
record, (d) the accused’s social history, (e) the status of the
accused’s physical and mental health, and (f) the deterrence
value to the accused as well as others. The trial court should
also consider whether judicial diversion will serve the ends of
justice – the interests of the public as well as the accused.
State v. Lewis, 978 S.W.2d 558, 566 (Tenn. Crim. App. 1997), perm. app. denied (Tenn.
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1998) (citing State v. Bonestel, 871 S.W.2d 163, 168 (Tenn. Crim. App. 1993)).
It does not appear that all of these matters were considered and, as did the court
in Lewis, we do not find the record to be sufficiently complete to “allow appropriate
appellate review.” Lewis, 978 S.W.2d at 567. Accordingly, we remand the matter to the
trial court to reconsider the defendant’s request for judicial diversion.
_____________________________________
ALAN E. GLENN, JUDGE
CONCUR:
__________________________________
JOHN H. PEAY, JUDGE
__________________________________
NORMA McGEE OGLE, JUDGE
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