State of Tennessee v. Olajowon D. Smith

06/16/2022
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
April 6, 2022 Session1
STATE OF TENNESSEE v. OLAJOWON D. SMITH
Appeal from the Circuit Court for Lauderdale County
No. 16-CR-2390 Joe H. Walker, III, Judge
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No. W2021-00730-CCA-R3-CD
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The Defendant, Olajowon D. Smith, entered guilty pleas to one count of possession of 0.5
ounces or more of marijuana with the intent to deliver, a Class E felony, and one count of
unlawful possession of a weapon, a Class C misdemeanor. Although the Tennessee
Bureau of Investigation (“TBI”) provided a certification that the Defendant had no prior
convictions disqualifying him from eligibility for diversion, the trial court found that he
had previously served time in confinement for a Class A misdemeanor and that he was
accordingly ineligible for diversion. The court sentenced the Defendant to an aggregate
eighteen-month sentence, with sixty days to be served in confinement and the remainder
on probation. The Defendant appeals, challenging the trial court’s determination that his
prior conviction was a Class A rather than a Class C misdemeanor and its failure to weigh
the appropriate diversionary factors. We conclude that the evidence does not
preponderate against the trial court’s findings and that the trial court was not required to
consider the diversionary factors once it determined the Defendant was ineligible for
diversion, and we affirm the judgment.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
JOHN EVERETT WILLIAMS, P.J., delivered the opinion of the court, in which CAMILLE R.
MCMULLEN and J. ROSS DYER, JJ., joined.
André C. Wharton, Memphis, Tennessee, for the appellant, Olajowon D. Smith.
Herbert H. Slatery III, Attorney General and Reporter; Katharine K. Decker, Assistant
Attorney General; Mark E. Davidson, District Attorney General; and Joni Glenn,
Assistant District Attorney General, for the appellee, State of Tennessee.
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Oral argument was heard at Union University in Jackson, Tennessee.
OPINION
FACTUAL AND PROCEDURAL HISTORY
According to the facts stipulated at the plea hearing, the United States Marshals
Service knocked on the door of an apartment on May 26, 2020, in an attemp to locate a
fugitive. The occupants opened the door, and law enforcement could smell marijuana
and see within plain view marijuana in sandwich bags on a countertop. In “clearing” the
apartment while searching for the fugitive, they further observed scales, packaging
materials, and “large bags of marijuana.” They obtained a search warrant and found, in
addition, multiple boxes of sandwich bags and an open safe with a loaded .40 caliber
handgun. The Defendant was initially charged with the possession of 0.5 ounces or more
of marijuana with the intent to deliver and possession of a firearm during the commission
of a dangerous felony. See T.C.A. §§ 39-17-417(g)(1); 39-17-1324(a). The prosecutor
stated at the plea hearing that the Defendant was pleading guilty to the Class E felony
drug offense as charged and to an “amended” charge of unlawful possession of a weapon,
a Class C misdemeanor. T.C.A. § 39-17-1307(a)(1), (a)(2)(A). The prosecutor noted that
the Defendant was requesting judicial diversion and had a certificate from the TBI
showing that he was eligible for diversion. The State submitted a presentence report
reflecting three prior convictions from Tipton County, and the court was provided copies
of the prior judgments from the Tipton County General Sessions Court.
The trial court determined that the Defendant had waived his right to a jury trial,
and it accepted the guilty pleas. The Defendant testified that he regretted the offenses,
that he hoped to be placed on diversion so that he could attend trucking school and start a
career in trucking, and that he would abide by any conditions of probation. He confirmed
on cross-examination that he had previous convictions for unlawful possession of a
weapon and possession of marijuana but explained that he had been in a car where all the
occupants were charged with the offenses. The Defendant was unemployed and lived
with his grandmother, but he had previously maintained full-time employment as an
“operator” at a company for two years, prior to the onset of a foot malady.
Attached to the presentence report was the Defendant’s “Application for
Certification of Eligibility for Diversion.” The box regarding the certification indicated
that “a query of the TBI Expunged Criminal Offender and Pretrial Diversion Database
has been conducted pursuant to the above authorized request, and based upon the results
of that query: The defendant has not had a prior disqualifying felony or misdemeanor
conviction.” (Emphasis added.) The certification was signed and dated. The certification
contained a statement noting,
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THIS DOES NOT CONSTITUTE A CERTIFICATION THAT THE
DEFENDANT IS ELIGIBLE O[R] INELIGIBLE FOR DIVERSION
UNDER TCA 40-35-313 OR TCA 40-15-105. THIS IS ONLY A
CERTIFICATION THAT A RECORDS CHECK OF THE TBI
EXPUNGED CRIMINAL OFFENDER AND PRETRIAL DIVERSION
DATABASE HAS REVEALED QUALIFYING OR DISQUALIFYING
INFORMATION UNDER THE CRITERIA SET OUT IN THE
DIVERSION STATUTES REFERENCED ABOVE.
The presentence report indicated that the Defendant was convicted of contributing
to the delinquency of a minor, simple possession of marijuana, and unlawful possession
of a weapon in Tipton County on December 5, 2016. He was given a sentence of eleven
months and twenty-nine days for each conviction, and the entry for the conviction for
unlawful possession of a weapon stated the following disposition: “11/29 ALL SUSP.
BUT 48 HRS. JAIL, FORFEIT HAND[]GUN; REPORT TO JAIL ON 2/10/17 AT 7
PM.” The presentence report indicated that the jail records show that the Defendant
served forty-eight hours in jail for this conviction. The trial court made an exhibit of the
general sessions judgment forms. The general sessions judgment of conviction for
unlawful possession of a handgun indicated that the Defendant pled guilty while
representing himself. The sentence was eleven months and twenty-nine days, and the
comments noted that all of the sentence but forty-eight hours was to be suspended and
that the Defendant was to go into custody on February 10, 2017. The attached affidavit
of complaint indicates that law enforcement initiated a traffic stop of a vehicle in which
the Defendant was a passenger. A small amount of marijuana was discovered. Both the
driver and a juvenile, who was the rear passenger, had guns in their pockets, and a
weapon was found between the console and the passenger’s seat, where the Defendant
had been seated.
The trial court concluded that the Defendant did not qualify for diversion. In
making its ruling, the trial court found that the Defendant had a conviction out of Tipton
County for a Class A misdemeanor for which he had served a sentence of confinement.
Defense counsel argued that the TBI had “cleared him” for eligibility and that the charge
for which the Defendant served time in confinement was the Class C misdemeanor of
unlawful possession of a weapon. The trial court responded that the “TBI doesn’t look at
the sessions matters,” and it noted that it was concluding the Defendant was ineligible
based on the judgment form. The trial court observed that the Defendant’s sentence in
the weapons conviction was for eleven months and twenty-nine days and found that, as
the sentence exceeded that authorized for a Class C misdemeanor, the record established
that the offense was a Class A misdemeanor. The court sentenced the Defendant to
eighteen months for the drug offense, to be suspended to supervised probation after the
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service of sixty days. It sentenced the Defendant to serve thirty days on probation and
pay a $50 fine for the weapons offense. The Defendant appeals.
ANALYSIS
The Defendant argues that the trial court erred in determining that he did not
qualify for judicial diversion and in failing to consider the factors relevant to diversion in
its denial. We conclude that the trial court did not err in its determination that the
Defendant was ineligible for diversion and that the court was not required to examine the
factors relevant to diversion once it had determined that the Defendant did not meet the
requirements for eligibility.
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 of guilt. T.C.A. § 40-35-313(a)(1)(A). “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. State v.
King, 432 S.W.3d 316, 323 (Tenn. 2014). If the probationary period is not successfully
completed, then judgment is entered and a sentence is imposed. Id. Judicial diversion is
a “legislative largess,” and eligibility for diversion does not give rise to entitlement to
diversion. Id.Like other sentencing decisions, the decision to grant or deny diversion is
reviewed for an abuse of discretion. Id. at 324-25. In this case, however, the issue raised
is whether the Defendant was eligible for diversion, which is a mixed question of fact and
law. The Defendant does not challenge the trial court’s legal conclusion that a prior
offense constituting a Class A misdemeanor for which he served time in confinement
would disqualify him. See Karen D. Brummitt v. State, No. C.C.A. 311, 1990 WL 72230,
at *1 (Tenn. Crim. App. June 4, 1990) (concluding on de novo review that the trial court
erred when it determined as a matter of law that the defendant was ineligible for pretrial
diversion based on the sentencing range); State v. Andrew E. Thornton, No. C.C.A. 830,
1989 WL 79987, at *1 (Tenn. Crim. App. July 21, 1989) (conducting a de novo review
and concluding that the trial court did not err in determining, as a matter of law, that the
defendant was ineligible for pretrial diversion based on the nature of the offense); but see
State v. Iris A. Jones, No. M2013-00938-CCA-R3-CD, 2014 WL 4101210, at *7 (Tenn.
Crim. App. Aug. 20, 2014) (concluding that the trial court abused its discretion by
applying an incorrect legal standard in determining whether an offense was eligible for
diversion). Instead, the Defendant challenges the trial court’s factual finding that the
prior offense was a Class A, rather than a Class C, misdemeanor. In general, a trial
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court’s factual findings are binding on the appellate court, so long as the evidence does
not preponderate against them. Kendrick v. State, 454 S.W.3d 450, 479 (Tenn. 2015).
The application of law to the facts is reviewed de novo. State v. Carter, 16 S.W.3d 762,
765 (Tenn. 2000).
The statute permits diversion for a “qualified defendant,” and it lists various
requirements for eligibility, including that the defendant “[h]as not previously been
convicted of a felony or a Class A misdemeanor for which a sentence of confinement is
served.” T.C.A. § 40-35-313(a)(1)(B)(i)(d). The Defendant asserts that the trial court
erred in finding that his prior weapons conviction, for which he served forty-eight hours
in jail, was a Class A misdemeanor. He argues that the record was not sufficient to
support that finding because the TBI certification indicated he was eligible for diversion,
because the Tipton County judgment form did not sufficiently rebut the TBI’s eligibility
determination, and because the trial court had a duty to inquire further.
Under Tennessee Code Annotated section 40-35-313, the trial court may not enter
an order granting diversion “unless there is attached to it a certificate from the Tennessee
bureau of investigation stating that the defendant does not have a prior felony or Class A
misdemeanor conviction.” T.C.A. § 40-35-313(a)(3)(A). Accordingly, the TBI
certificate is a necessary component of a grant of diversion. However, it is not, in itself,
sufficient to establish eligibility for diversion:
(B) The certificate provided by the bureau pursuant to subdivision (a)(3)(A)
is only a certification that according to its expunged criminal offender and
pretrial diversion database the defendant is not disqualified from deferral
and probation under this section by virtue of a prior felony or Class A
misdemeanor conviction. The certificate is not a certification that the
defendant is eligible for the deferral and probation, and it shall continue to
be the duty of the district attorney general, and judge to make sufficient
inquiry into the defendant’s background to determine eligibility.
T.C.A. § 40-35-313(a)(3)(B) (emphasis added).
The Defendant asserts that there was not sufficient evidence that the offense was a
Class A misdemeanor for which he served a sentence of confinement, citing the statute
under which he was convicted:
(a)(1) A person commits an offense who carries, with the intent to go
armed, a firearm or a club.
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(2)(A) The first violation of subdivision (a)(1) is a Class C
misdemeanor, and, in addition to possible imprisonment as provided
by law, may be punished by a fine not to exceed five hundred dollars
($500).
(B) A second or subsequent violation of subdivision (a)(1) is a Class
B misdemeanor.
(C) A violation of subdivision (a)(1) is a Class A misdemeanor if the
person’s carrying of a handgun occurred at a place open to the public
where one (1) or more persons were present.
T.C.A. § 39-17-1307(a)(1) (2016). Accordingly, unlawful possession of a firearm under
subsection (a) can be a Class A, B, or C misdemeanor, depending on the circumstances
under which it is committed.
Here, the TBI issued the certificate indicating that it did not find any disqualifying
convictions. The Defendant was previously convicted of three misdemeanor offenses,
including unlawful possession of a weapon. The trial court was provided with the
judgment forms from the Tipton County General Sessions Court and with a presentence
report, both of which indicated that the sentence imposed for the weapons offense was
eleven months and twenty-nine days. The trial court considered the TBI certificate,
which certified that the Defendant had no disqualifying convictions. However, it
properly determined that the certificate was not dispositive of eligibility and that the court
was required to “to make sufficient inquiry into the defendant’s background to determine
eligibility.” T.C.A. § 40-35-313(a)(3)(B). Both the presentence report and the judgment
sheet introduced into evidence indicated that the sentence imposed was a sentence of
eleven months and twenty-nine days, with forty-eight hours to be served in confinement.
The trial court noted that this sentence exceeded that authorized for a Class C
misdemeanor. Tennessee Code Annotated section 40-35-111 provides:
(e) The authorized terms of imprisonment and fines for
misdemeanors are:
(1) Class A misdemeanor, not greater than eleven (11)
months, twenty-nine (29) days or a fine not to exceed two thousand
five hundred dollars ($2,500), or both, unless otherwise provided by
statute;
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(2) Class B misdemeanor, not greater than six (6) months or a
fine not to exceed five hundred dollars ($500), or both, unless
otherwise provided by statute; and
(3) Class C misdemeanor, not greater than thirty (30) days or
a fine not to exceed fifty dollars ($50.00), or both, unless otherwise
provided by statute.
T.C.A. § 40-35-111(e). The trial court correctly determined that the sentence imposed
was not statutorily authorized for a Class B or Class C misdemeanor. Rather than
speculating that the sentence was illegal, see State v. Wooden, 478 S.W.3d 585, 594
(Tenn. 2015), the trial court concluded that the offense was a Class A misdemeanor. The
Defendant asserts that the sentence was not in itself sufficient proof of the Class of the
offense.
Generally, “those who are statutorily eligible are not presumptively entitled to
diversion; rather, it is extraordinary relief for which the defendant bears the burden of
proof.” State v. Faith Renea Irwin Gibson, No. E2007-01990-CCA-R3-CD, 2009 WL
1034770, at *4 (Tenn. Crim. App. Apr. 17, 2009) (citing State v. Curry, 988 S.W .2d 153,
157 (Tenn. 1999); State v. Baxter, 868 S.W.2d 679, 681 (Tenn. Crim. App. 1993)). In
particular, “a defendant seeking judicial diversion has ‘the burden of showing the trial
court that the defendant is in fact statutorily qualified for judicial diversion.’” See State
v. James R. Baysinger, No. E2018-02295-CCA-R3-CD, 2019 WL 7049684, at *6 (Tenn.
Crim. App. Dec. 23, 2019) (quoting State v. Jonathan Ray Sender, No. M2009-01713-
CCA-R3-CD, 2010 WL 4398720, at *4 (Tenn. Crim. App. Nov. 8, 2010)). We conclude
that the evidence does not preponderate against the trial court’s determination that the
offense was a Class A misdemeanor. Under statute, the prior offense was either a Class
A, B, or C misdemeanor, depending on the circumstances under which it was committed.
The sentence imposed exceeded that statutorily authorized for a Class B or C
misdemeanor but was within the range of sentences authorized for a Class A
misdemeanor. While the Defendant speculates that there was “some clerical error” in the
Tipton County General Sessions judgment, he bore the burden of establishing his
eligibility for diversion by showing that he had not previously been convicted of a Class
A misdemeanor for which he served time in confinement. The trial court, having been
presented with proof in the form of the TBI certificate and with proof of a prior
conviction with a Class A misdemeanor sentence, found that the prior conviction was a
Class A misdemeanor for which the Defendant served time in confinement, and it
determined that the Defendant was not eligible for diversion. We conclude that the
evidence does not preponderate against the trial court’s finding.
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The Defendant also asserts that the trial court committed error in failing to
consider the factors relevant to diversion on the record. Generally, 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). 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 State v. Electroplating, Inc., 990 S.W.2d
211, 229 (Tenn. Crim. App. 1998)).
However, the trial court in this case denied diversion based solely on the threshold
determination that the Defendant was ineligible. The consideration of the Parker and
Electroplating factors takes place “[a]fter a defendant is deemed ‘qualified,’ but prior to
the grant or denial of judicial diversion.” King, 432 S.W.3d at 326. This court has
previously rejected a contention that it was error for a trial court to refuse to consider the
relevant factors when eligibility for diversion was not established. James R. Baysinger,
2019 WL 7049684, at *6 (the trial court was not presented with a TBI certificate and was
not required to make findings on the factors). “Unless a defendant is qualified, further
determinations by the trial court on the issue of granting or denying judicial diversion
[are] pointless.” Jonathan Ray Sender, 2010 WL 4398720, at *4; see State v. Steven
Matthew Messer, No. E2013-00647-CCA-R3-CD, 2014 WL 259706, at *3 (Tenn. Crim.
App. Jan. 22, 2014). The trial court, having determined that the Defendant did not
establish his eligibility for diversion, was not required to examine the factors which
would have informed its decision to either grant or deny diversion to an eligible
candidate.
The Defendant does not challenge the trial court’s sentencing determination apart
from the contention that the court erred in denying diversion. Because we have
concluded that the trial court did not err, we affirm the judgments.
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CONCLUSION
Based on the foregoing, the judgments of the trial court are affirmed.
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JOHN EVERETT WILLIAMS, PRESIDING JUDGE
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