State of Tennessee v. Robert Thomas ( 2020 )

09/01/2020
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs July 8, 2020
STATE OF TENNESSEE v. ROBERT THOMAS
Appeal from the Criminal Court for Shelby County
No. 18-01851, 19-00442 Paula L. Skahan, Judge
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No. W2019-01697-CCA-R3-CD
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The Defendant, Robert Thomas, entered guilty pleas to facilitation of attempted
especially aggravated robbery and possession of marijuana with intent to sell. The
Defendant requested probation and judicial diversion. The trial court held a hearing and
sentenced the Defendant to concurrent sentences of six years of probation for the
facilitation of attempted especially aggravated robbery conviction and “one year and time
served” for the drug conviction. The trial court denied judicial diversion, and the
Defendant appeals. We conclude that the trial court did not abuse its discretion in
denying diversion, and we affirm the judgments and remand for correction of the various
judgment forms.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed;
Case Remanded
JOHN EVERETT WILLIAMS, P.J., delivered the opinion of the court, in which ROBERT W.
WEDEMEYER and J. ROSS DYER, JJ., joined.
Phyllis L. Aluko, Public Defender; Barry W. Kuhn (on appeal) and Nigel Lewis (at plea
hearing), Assistant Public Defenders, for the appellant, Robert Thomas.
Herbert H. Slatery III, Attorney General and Reporter; Katharine K. Decker, Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Danielle McCollum,
Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
FACTUAL AND PROCEDURAL HISTORY
The Defendant’s convictions stem from unrelated offenses committed
approximately one year apart. On May 24, 2017, the Defendant, a gang member, was
involved in a robbery-turned-shoot-out which left his own close friend dead and two
other participants seriously injured. The trial court observed that, due to an absence of
witnesses at the preliminary hearing, the Defendant was subsequently released for a
period of time. On April 12, 2018, however, a grand jury returned indictment number
18-01851, charging the Defendant and a co-defendant with attempted especially
aggravated robbery, attempted second degree murder, and employment of a firearm
during the commission of or attempted commission of the dangerous felony of attempted
second degree murder. The Defendant was arrested for possession of marijuana on May
9, 2018, and in indictment number 19-00442, he was charged with possession of
marijuana with intent to sell and possession of marijuana with intent to deliver.
The trial court held a hearing during which it accepted the guilty pleas and
determined the sentences. The parties agreed that the Defendant was entering a guilty
plea to the lesser-included offense of facilitation of attempted especially aggravated
robbery in Count 1 of indictment number 18-01851 and a guilty plea to possession of
marijuana with intent to sell in Count 1 of indictment number 19-00442. The remaining
charges were to be dismissed, and the parties had agreed that the minimum sentence for
the facilitation of attempted especially aggravated robbery conviction would be six years.
At the hearing, the Defendant agreed with the prosecutor’s recitation of the evidence that
would be presented at trial, and he also testified regarding the circumstances of the
offenses.
Regarding the shooting, the Defendant testified that Mr. Theodis Pitchford, who
was “like a big brother” to him, picked him up so that the two could attend a high school
graduation. As they were driving, Mr. Pitchford saw the co-defendant, Mr. Deairius
Nash, walking in the rain, accompanied by a juvenile. Mr. Nash and the juvenile
informed Mr. Pitchford and the Defendant that they were planning to rob someone by
offering a gun for sale and then taking both the gun and the payment. Mr. Pitchford, the
Defendant, and Mr. Nash were all members of the same gang, and Mr. Pitchford
indicated he would assist in the robbery. The Defendant asserted he did not intend to
participate in the robbery but did not want to leave the car because of the rain.
The four arrived at the pre-arranged location, and all the occupants of the car,
including the Defendant, got out. The men whom they were meeting all had weapons,
but Mr. Nash and the juvenile nevertheless proceeded with the robbery by drawing their
weapons, holding their weapons to a man’s head, and telling the man to “drop it off.”
Gunfire ensued. The Defendant returned to the vehicle to retrieve his own gun and began
to shoot. Mr. Pitchford was killed during the confrontation, and the Defendant fled in
Mr. Pitchford’s vehicle. According to the prosecutor, the Defendant gave a statement to
police acknowledging that he knew that Mr. Nash and the juvenile were planning a
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robbery and that he participated in the subsequent shoot-out initiated by Mr. Nash and the
juvenile.
The prosecutor’s recitation of facts included other witness statements. One of the
victims of the robbery had approached police at the scene and told officers that he, Mr.
Christian Smith, and another man were planning to purchase a cell phone when a group
of men began to fire on them. Officers were able to detain the vehicle occupied by Mr.
Smith, and Mr. Smith, who was the named victim of crimes charged in the indictment,
was transported to the hospital in critical condition, suffering from multiple gunshot
wounds. In a statement to police, Mr. Smith stated he was attempting to buy a gun when
the seller “pulled a gun on him and started to fire.” Mr. Smith was able to identify the
Defendant, Mr. Nash, and the juvenile from a photographic lineup.
At the hospital, the juvenile who had been involved in the crime was also being
treated and had been “downgraded to stable condition.” The juvenile gave a statement
acknowledging that he fired his weapon during the shooting.
Had the marijuana offense proceeded to trial, the State would have introduced
evidence that officers were responding to a narcotics complaint at an abandoned home
when they saw the Defendant counting money in a vehicle. The Defendant opened the
door, and they smelled marijuana. In the vehicle, they located two large jars containing
93.4 grams of marijuana, digital scales, and $662 in cash, mainly in small denominations,
including nineteen $1 bills and thirty-two $5 bills.
The Defendant, in his testimony, denied selling drugs and stated that the marijuana
was for his personal use, that he was never counting the cash, and that the money was
from a check he had gotten for work and had cashed. He stated he used the scales to see
how much marijuana he was consuming.
The Defendant attended school through the ninth grade and testified he was in
resource classes and had difficulty reading and writing. He stated he was bullied but was
never involved in fights in school. He acknowledged he was expelled from school. The
Defendant had been in custody approximately fifteen months, and his girlfriend and
mother could both help him abide by the conditions of any probationary sentence. He
affirmed he would attend anger management and other classes, and he stated that he
wanted to obtain his GED and go to trade school. He testified he was sorry for his
mistakes. He acknowledged that he used drugs, including marijuana and Xanax.
The Defendant’s girlfriend, Ms. Rashaundra Butler, testified that the Defendant
had “potential” but needed “guidance.” Ms. Butler was willing to allow the Defendant to
live with her and thought she could help him obtain employment. She said she had
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noticed a change in the Defendant and could help him stay away from his prior
associates.
Ms. Nakia Thomas, the Defendant’s mother, likewise stated that she could assist
the Defendant if he were given probation. She had consulted her supervisor about
rehiring the Defendant, who had briefly worked at her workplace of four years. She
stated the Defendant was a “good child” who was misled by the “wrong crowd” and that
he had changed “tremendously” since going to jail.
The presentence report is not part of the record on appeal, but the trial court
referred to it in finding that the Defendant had been expelled from school for fighting and
that he reported drug use. The court noted that the Defendant was criminally responsible
for the offenses associated with the robbery and that when he was released, he committed
another offense. The trial court sentenced the Defendant to six years of probation for the
facilitation of attempted especially aggravated robbery and to “one year and time served”
for the marijuana conviction. The trial court noted that the Defendant had been in jail for
over one year and that the court would not have sentenced him to probation for the
facilitation of attempted especially aggravated robbery if he had not already been
imprisoned for a significant time.
In denying diversion, the trial court examined the relevant common law factors.
Regarding the Defendant’s amenability to correction, the trial court found that the
Defendant’s arrest for the drug charges approximately one year after his release on the
shooting charges demonstrated he was not amenable to correction. Regarding the
circumstances of the offenses, the trial court found that the shooting was “very, very
serious” and had resulted in death and serious injuries to the participants. The
Defendant’s lack of a criminal record weighed in favor of diversion. The court noted that
the Defendant’s social history from the presentence report demonstrated a history of drug
and alcohol abuse and that the Defendant was expelled from school for fighting. The trial
court found that the Defendant’s physical health was “fine” and that his mental health
was “okay” but impaired by drug addiction. Regarding deterrence, the trial court noted
that the Defendant’s behavior should not be tolerated and that diversion “is not the
message we want to send.” The court also found that diversion would not serve the
interests of the public because the public should be warned about “this type of behavior,”
and the trial court denied diversion.
ANALYSIS
The Defendant appeals the denial of judicial diversion. When a qualified
defendant pleads guilty or nolo contendere to certain designated felonies, the trial court
may defer proceedings and place the defendant on probation without entering a judgment
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of guilt. T.C.A. § 40-35-313(a)(1)(A) (2012). Judicial diversion is a “‘legislative
largess,’” and eligibility for diversion does not give rise to entitlement to diversion. State
v. King, 432 S.W.3d 316, 323 (Tenn. 2014) (quoting State v. Schindler, 986 S.W.2d 209,
211 (Tenn. 1999)). “If the accused successfully completes the requisite probationary
period, the trial court is required to discharge the accused and dismiss the proceedings,”
and the offender’s record may be expunged. State v. Parker, 932 S.W.2d 945, 958 (Tenn.
Crim. App. 1996). The effect of expungement is to restore the defendant to the position
occupied prior to arrest or indictment or information. King, 432 S.W.3d at 323. If the
probationary period is not successfully completed, then judgment of guilt is entered and a
sentence is imposed. Id. The statute defines which defendants are qualified to apply for
diversion, and the parties here do not dispute that the Defendant was a qualified to be
considered for diversion. See T.C.A. § 40-35-313(a)(1)(B)(i).
Like other sentencing decisions, the decision to grant or deny diversion is
reviewed for an abuse of discretion. King, 432 S.W.3d at 324-25. “Reviewing courts
will find an abuse of discretion only when the trial court applied incorrect legal standards,
reached an illogical conclusion, based its decision on a clearly erroneous assessment of
the evidence, or employed reasoning that causes an injustice to the complaining party.”
State v. Banks, 271 S.W.3d 90, 116 (Tenn. 2008). Although the deferential standard of
review articulated in Bise applies to the decision to grant or deny diversion, the common
law factors which the trial court has long been required to consider in its decision have
not been abrogated. King, 432 S.W.3d at 326. Accordingly, in determining whether
judicial diversion is appropriate, a trial court must consider:
(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 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.
Parker, 932 S.W.2d at 958 (footnote omitted); see State v. Electroplating, Inc., 990
S.W.2d 211, 229 (Tenn. Crim. App. 1998). In addition to considering these factors, the
trial court must weigh them against one another and place an explanation of its ruling on
the record. King, 432 S.W.3d at 326 (citing Electroplating, Inc., 990 S.W.2d at 229).
If the trial court has adhered to these requirements, the reviewing court merely
looks to see whether “any substantial evidence” exists in the record to support the trial
court’s decision. Id. “Under the Bise standard of review, when the trial court considers
the Parker and Electroplating factors, specifically identifies the relevant factors, and
places on the record its reasons for granting or denying judicial diversion,” this court
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must apply a presumption of reasonableness and uphold the trial court’s decision so long
as there is any substantial evidence to support the decision. Id. at 327. The trial court
need not “recite” all of the factors, but the record must reflect that it considered each
factor, identified the specific factors applicable to the case, and addressed the relevant
factors. Id.
If the trial court does not consider the appropriate factors delineated in Parker and
Electroplating or does not place its reasons for granting or denying diversion on the
record, then “presumption of reasonableness does not apply and the abuse of discretion
standard, which merely looks for ‘any substantial evidence’ to support the trial court’s
decision, is not appropriate.” Id. Instead, the appellate court may, in its discretion, either
review de novo or remand for reconsideration. Id. at 328.
Here, the trial court addressed each of the Parker and Electroplating factors. The
trial court concluded that the Defendant’s lack of amenability to correction, the
circumstances of the offense, the Defendant’s social history, the deterrence value of the
punishment, and interests of the public weighed against diversion. The trial court found
that the Defendant’s commission of the drug crime after he had been released from
custody on the robbery charges demonstrated he was not amenable to correction; that the
circumstances of the shooting were serious in that they involved multiple participants
suffering either serious injury or death; that the Defendant’s social history was “not
good” because he had a history of drug abuse and had been expelled for fighting; and that
granting diversion would “send the wrong message” and work against the interests of the
public in maintaining awareness of crime.
The trial court appears to have found that the Defendant’s criminal history
weighed in favor of diversion, as he had never had a prior criminal charge. We read the
trial court’s findings regarding the Defendant’s physical and mental health as determining
that these factors were neutral. The trial court found that the Defendant’s physical health
was “fine” and that his mental health was “okay other than the problems with the drug
abuse.”
The trial court noted in denying diversion that the Defendant’s charges had already
been reduced for a crime that resulted in the death of one participant and the
hospitalization of two others with gunshot wounds. The trial court observed that the
Defendant was criminally responsible for the acts of the other robbery participants and
that the crime resulted in injury and death. The court also relied particularly on the
Defendant’s continued criminal activity after his release. The Defendant invites us to re-
evaluate the trial court’s determinations regarding each factor, but because the trial court
adhered to the requirements of Parker and Electroplating, our review is limited to
determining whether “any substantial evidence” exists in the record to support the trial
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court’s decision. King, 432 S.W.3d at 326. We conclude that the record supports the
trial court’s decision, and we accordingly affirm the judgments and the denial of
diversion.
The record includes a judgment form for the Defendant’s conviction for
facilitation of attempted especially aggravated robbery, and we discern no errors in this
form. As both parties observe, the judgment form dismissing Count 2 of indictment 18-
01851 incorrectly states that the charged offense was attempted especially aggravated
robbery rather than attempted second degree murder. There is no judgment form for
Count 3, employment of a firearm in the commission or attempt to commit second degree
murder, although a notation on Count 2 indicates that Count 3 is likewise dismissed.
The judgment form for the Defendant’s drug conviction likewise requires
correction. At the hearing, the trial court sentenced the Defendant to “one year and time
served” for possession of marijuana with intent to sell. The Defendant had apparently
been in jail for approximately fifteen months at the time. The judgment form for this
conviction sentences the Defendant to one day in the county jail, with a notation of “Time
Served” near the top of the form and in the “Special Conditions” section. The Defendant
was awarded pretrial jail credits of one day. Possession of between 14.175 and 4535
grams, inclusive, of marijuana is a Class E felony. T.C.A. § 39-17-417(g)(1). An
authorized sentence for a Class E felony is “not less than one (1) year nor more than six
(6) years.” T.C.A. § 40-35-111(b)(5); see also T.C.A. § 40-35-112(a)(5) (a Range I
sentence for a Class E felony is not less than one nor more than two years). Accordingly,
a single day is not an authorized sentence for the crime to which the Defendant pled
guilty. The transcript reflects that the trial court sentenced the Defendant to “time
served,” which was approximately fifteen months in jail. We remand for correction of
the judgment forms discussed above and for entry of a judgment form in Count 3 of
indictment number 18-01851.
CONCLUSION
Based on the foregoing, we affirm the trial court’s judgments but remand for
correction of the judgment forms and entry of a judgment in Count 3 of indictment 18-
01851.
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JOHN EVERETT WILLIAMS, PRESIDING JUDGE
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