State v. Killian ( 2010 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
NOVEMBER 1998 SESSION
January 6, 1999
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, )
) C.C.A. No. 03C01-9711-CC-00513
Appellee, )
) Blount County
v. )
) Honorable D. Kelly Thomas, Jr., Judge
WANDA KILLIAN, )
) (Denial of Judicial Diversion)
Appellant. )
FOR THE APPELLANT: FOR THE APPELLEE:
Gregory D. Smith John Knox Walkup
One Public Square Attorney General & Reporter
Suite 321 425 Fifth Avenue, North
Clarksville, TN 37040 Nashville, TN 37243-0493
(On Appeal)
Ellen H. Pollack
Raymond M. Garner Assistant Attorney General
District Public Defender 425 Fifth Avenue, North
419 High Street Nashville, TN 37243-0493
Maryville, TN 37804-4912
(At Trial and On Appeal) Michael L. Flynn
District Attorney General
363 Court Street
Maryville, TN 37804-5906
Philip H. Morton
Assistant District Attorney General
363 Court Street
Maryville, TN 37804-5906
OPINION FILED: ____________________________
AFFIRMED
L. T. LAFFERTY, SENIOR JUDGE
OPINION
The appellant, Wanda Killian, hereinafter referred to as the defendant, appeals as
of right from the judgment of the Blount County Criminal Court denying post-trial diversion.
The defendant entered an open plea of guilty to delivery of Clonazepam, a Schedule IV
controlled substance, a Class D felony. At the conclusion of the sentencing hearing, the
trial court imposed a fine of $2,000, a suspended sentence of two years, and two years of
immediate intensive probation. The defendant presents one appellate issue: whether the
trial court erred in denying the defendant post-trial diversion pursuant to Tenn. Code Ann.
§ 40-35-313.
After a review of the entire record, briefs of all parties, and applicable law, we affirm
the trial court’s judgment.
BACKGROUND
The Blount County grand jury indicted the defendant for the unlawful and knowing
delivery of a controlled substance, Clonazepam, on January 8, 1997. On January 8, 1997,
Agent Ron Tallott, Blount County Metro Narcotics, along with a confidential informant, went
to the home of the defendant where the undercover officer purchased ten Klonopin pills
from the defendant for the sum of $35.00. Klonopin is a Schedule IV controlled substance,
Clonazepam. The buy was monitored by a wire transmitter.
On September 19, 1997, the defendant entered an open plea of guilty to delivery
of a Schedule IV controlled substance, a Class D felony, with the trial court to determine
the length and manner of the sentence.
At the sentencing hearing, the defendant testified she was a divorcée with two
children, ages 18 and 23. The defendant has worked as a licensed life insurance agent
and as a dental surgical assistant. She also holds a license as a beautician. In 1980, the
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defendant was diagnosed with manic depression and has been on medication ever since.
The defendant was drawing a government disability check at the time of the sentencing
hearing.
At the time of the instant offense, the defendant was taking three Klonopin pills a
day as prescribed by her doctor. The defendant purchased the medication in monthly
distributions of ninety from a pharmacy. The defendant readily admitted to selling the pills
in order to help a friend, Chris Fields, the confidential informant. The defendant needed
the money to buy dog food, cat food, and cat litter.
The defendant related that in November, 1994, she wrote a check for $13.00 to a
pizza place which was returned to the payee by her financial institution. The defendant
testified she received six months unsupervised probation, paid a $250 fine, and made
restitution for the check. In addition to the worthless check charge, the defendant had a
prior public intoxication charge and a traffic violation offense.
In its ruling denying judicial diversion, the trial court found the defendant was not
eligible pursuant to Tenn. Code Ann. § 40-35-313. The trial court granted the defendant
immediate intensive probation for two years after determining the minimum sentence of
two years was appropriate.
LEGAL ANALYSIS
The defendant contends that the trial court erred in not placing her on judicial
diversion. The state disagrees.
When a defendant urges that a trial court committed error in denying judicial
diversion pursuant to Tenn. Code Ann. § 40-35-313, this Court must determine whether
the trial court abused its discretion in failing to sentence the defendant pursuant to the
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statute. State v. Bonestel, 871 S.W.2d 163, 167 (Tenn. Crim. App. 1993); State v.
Anderson, 857 S.W.2d 571, 572 (Tenn. Crim. App. 1992); State v. George, 830 S.W.2d
79, 80 (Tenn. Crim. App. 1992). Judicial diversion is similar to pretrial diversion; however,
judicial diversion follows a determination of guilt, and the decision to grant judicial diversion
rests with the trial court, not the prosecutor. Anderson, 857 S.W.2d at 572.
The criteria that must be considered in determining whether an eligible accused
should be granted judicial diversion include: (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. State v. Parker, 932 S.W.2d 945, 958 (Tenn. Crim. App.
1996). An additional consideration is whether judicial diversion will serve the ends of
justice, i.e., the interests of the public as well as the defendant. Id.; State v. Randy
Leming, No. 03C01-9709-CC-00426, 1998 LEXIS 731 (Tenn. Crim. App., Knoxville, July
16, 1998).
In order to be a candidate for judicial diversion, a defendant must be eligible under
Tenn. Code Ann. § 40-35-313(a)(1)(A) (1997) for such consideration. That statute states,
in pertinent part:
If any person who has not previously been convicted of a
felony or a Class A misdemeanor is found guilty or pleads
guilty to a misdemeanor which is punishable by imprisonment
or a Class C, D or E felony, the court may, without entering a
judgment of guilty and with the consent of such person, defer
further proceedings and place the person on probation upon
such reasonable conditions as it may require, and for a period
of time not less than the period of the maximum sentence for
the misdemeanor with which the person is charged. . . .
Based upon the defendant’s testimony and the presentence report in the record
concerning a worthless check offense, the trial court denied judicial diversion. The
defendant complains that since there is no official record in the Blount County General
Sessions Court of her past criminal charge of passing a worthless check, the trial court was
in error for denying judicial diversion. Further, the defendant urges the alleged sentence
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appears to be a Class B misdemeanor or a potential pretrial diversion. First, we must
determine the classification of a worthless check charge.
A person commits the offense of passing a worthless check when the person, with
fraudulent intent or knowingly, “issues or passes a check or similar sight order for the
payment of money for the purpose of paying any fee, fine, tax, license or obligation to any
governmental entity or for the purpose of obtaining money, services, labor, credit or any
article of value, knowing at the time there are not sufficient funds in or on deposit with the
bank or other drawee for the payment in full of the check or order, as well as all other
checks or orders outstanding at the time of issuance.” Tenn. Code Ann. § 39-14-121(a)(1).
The offense of issuing or passing worthless checks is punishable as theft pursuant to
Tenn. Code Ann. § 39-14-105. Value is determined by the amount appearing on the face
of the check on the date of issue. Tenn. Code Ann. § 39-14-121(f).
Theft of property or services is a Class A misdemeanor if the value of the property
or services obtained is five hundred dollars ($500) or less. Tenn. Code Ann. § 39-14-
105(1).
A person who is convicted of passing a worthless check with a value of $500 or less
is guilty of a Class A misdemeanor and not eligible for judicial diversion. Based on the
defendant’s testimony, the trial court could reasonably conclude the defendant was
convicted of a Class A misdemeanor when she passed a worthless check in 1994. Once
the defendant disclosed this information, the trial court could not place the defendant on
judicial diversion. We agree with the state that it is the conviction, and not the source of
the evidence, that determines whether the defendant is eligible for judicial diversion.1
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We note there are two inferences which may be drawn from the evidence in this
record. First, the defendant testified she was convicted of passing a worthless check in the
Blount County General Sessions Court for which she received six months unsupervised
probation and was fined $250. Second, since there is no record of the defendant’s charge
in the General Sessions Court, the defendant may have been granted pretrial diversion or
judicial diversion in that court. It is the duty and the burden of the defendant to perfect a
complete record for the trial court’s determination as to a proper sentence and manner of
service. Since the trial court had the benefit of viewing the witness and determining the
credibility of that witness, we assume the trial court was convinced the defendant was
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We find no error in the trial court’s denial of judicial diversion and affirm the
judgment.
________________________________________
L. T. LAFFERTY, SENIOR JUDGE
CONCUR:
___________________________________
DAVID H. WELLES, JUDGE
___________________________________
JAMES CURWOOD WITT, JR., JUDGE
convicted in the Blount County General Sessions Court in lieu of diversion.
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