State of Tennessee v. Christopher W. Norwood ( 2007 )


Menu:
  •          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
    AT NASHVILLE
    November 29, 2006 Session
    STATE OF TENNESSEE v. CHRISTOPHER W. NORWOOD
    Appeal from the Criminal Court for Williamson County
    No. II-01028-A   R.E. Lee Davies
    No. M2006-00145-CCA-R3-CD - Filed March 23, 2007
    The defendant, Christopher W. Norwood, was convicted by a Williamson County jury of conspiracy
    to commit aggravated robbery, a Class C felony, and evading arrest, a Class A misdemeanor. The
    trial court imposed a sentence of 2.7 years as a mitigated offender to be served on probation after the
    service of sixty days incarceration for the conspiracy offense and a concurrent sentence of eleven
    months and twenty-nine days for the evading arrest offense. The defendant argues on appeal that
    the trial court abused its discretion in denying him judicial diversion. Upon a full review of the
    record, arguments of counsel and applicable law, we affirm the judgments of the trial court.
    Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court are Affirmed
    D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which DAVID G. HAYES and NORMA
    MCGEE OGLE , JJ., joined.
    Tusca R.S. Alexis, for the appellant, Christopher Norwood.
    Robert E. Cooper, Jr., Attorney General and Reporter; Brent C. Cherry, Assistant Attorney General;
    Ronald L. Davis, District Attorney General; Braden H. Boucek and Mary Katherine White, Assistant
    District Attorneys General, for the appellee, State of Tennessee.
    OPINION
    The defendant, Christopher W. Norwood, appeals the trial court’s denial of judicial diversion.
    Although the trial transcript was not included in the record on appeal, we are able to determine from
    the sentencing hearing transcript and presentence report that the defendant was convicted after a jury
    trial of conspiracy to commit aggravated robbery and evading arrest based upon his involvement with
    another individual in a planned robbery outside a Pizza Hut restaurant. The plan was thwarted when
    an observant employee called 911to investigate two suspicious individuals parked in the restaurant
    parking lot after hours. When approached by the summoned officers, the defendant and codefendant
    fled on foot but were apprehended in a nearby parking lot. After executing a waiver of rights, the
    defendant gave a statement to authorities that he needed money for school and that he intended to
    rob someone who was walking through the parking lot. He admitted that he was armed with a pellet
    gun and intended to cover his face with a bandana to avoid identification by a potential victim.
    At the sentencing hearing, the state presented Joseph M. Thomas, the codefendant, who
    testified that he and the defendant were both students housed in the same dormitory at Tennessee
    State University at the time of the offenses. He recalled that they decided to rob someone because
    the defendant was “tired of being broke.” Within a month of formulating their plan, they were
    arrested for the convicted offenses. They had stolen two pellet guns at a Wal-Mart, acquired two
    bandanas and planned to rob any random person, but not a business. He also indicated that he and
    the defendant smoked marijuana about every day while in the dormitory together. The codefendant
    stated that he pled guilty to conspiracy to commit aggravated robbery and attempted aggravated
    robbery out of a desire to flatten his sentence along with his violation of probation stemming from
    a Davidson County conviction for aggravated burglary. He stated that he did not feel that he was
    actually guilty of the offenses.
    Dr. William Hytche, Dean of Students at Tennessee State University, testified that he was
    responsible for any disciplinary action taken regarding the defendant’s arrest. He stated that the
    defendant was placed on social probation which meant that he was restricted to only academic
    activities on campus and moved to an upperclass dormitory where he could be closely monitored.
    Dr. Hytche testified that the defendant performed well on probation and that he regarded the
    defendant as “worth saving.”
    Ada Norwood, the defendant’s mother, testified that, as a child, the defendant was active in
    church and was always a good student. She felt like he had gone astray while away from home for
    college. She said she was shocked at the charges against him and was relieved that nothing actually
    happened in reference to any actual culmination of a robbery. Since the offenses, the defendant
    expressed his remorse to her and she warned him to be careful of his associates. She asked that the
    court give consideration to him being a first time offender so that he could have “a second chance
    to restore himself to the way he was trained before he left to go away to college.” On cross-
    examination she acknowledged her concern that he never abandoned the plan to rob anyone until the
    police approached. She also acknowledged his lack of academic performance at certain times
    throughout college.
    The defendant testified that he is a very respectful person who tends to follow rules. He
    stated that the codefendant first mentioned robbing someone while they were smoking marijuana one
    evening. He stated that the bandanas belonged to his codefendant and denied stealing the pellet guns
    from Wal-Mart. He claimed that they had abandoned the plan to rob someone just before the police
    arrived and apprehended them. He stated that there was no excuse for his involvement in the
    offenses and that if he had it to do over, he would not involve himself again. On cross-examination,
    -2-
    he acknowledged that he had smoked marijuana. He also acknowledged arrests for possession of
    drug paraphernalia, disorderly conduct and resisting arrest. It appears from the presentence report
    that these arrests did not result in any convictions.
    The trial court found that the defendant should be sentenced to 2.7 years as an especially
    mitigated offender based upon his lack of history of criminal convictions, the absence of
    enhancement factors and the presence of two mitigating factors: (1) the defendant’s criminal conduct
    neither caused nor threatened serious bodily injury and (2) the defendant, because of his youth,
    lacked substantial judgment in committing the offense. Tenn. Code Ann. § 40-35-109, -113(1) and
    (6). However, the trial court denied full probation based upon its belief that “there needs to be a little
    time served here so that [the defendant] will really understand how serious this is.” Instead, the
    defendant was ordered to serve sixty days of his sentence over the summer and Christmas holidays
    so it would not interfere with his education, with four years of supervised probation to follow. The
    trial court denied the defendant’s request for judicial diversion. The defendant now appeals that
    denial.
    ANALYSIS
    Pursuant to Tenn. Code Ann. section 40-35-313(a)(1)(B), a defendant is eligible for judicial
    diversion when convicted of a Class C, D or E felony and has not been previously convicted of a
    felony or a Class A misdemeanor. The decision to grant judicial diversion lies within the discretion
    of the trial court and will not be disturbed on appeal unless it is shown that the trial court abused its
    discretion. State v. Parker, 
    932 S.W.2d 945
    , 958 (Tenn. Crim. App. 1996). A denial of judicial
    diversion will not be overturned if the record contains any substantial evidence to support the trial
    court’s action. 
    Id. When making
    a determination regarding judicial diversion, the trial court must consider the
    following factors: (1) the defendant’s amenability to correction, (2) the circumstances of the offense,
    (3) the defendant’s criminal record, (4) the defendant’s social history, (5) the defendant’s mental and
    physical health and (6) the deterrent effect of the sentencing decision to both the defendant and other
    similarly situated defendants. State v. Lewis, 
    978 S.W.2d 558
    , 566 (Tenn. Crim. App. 1997). The
    decision should be based on whether the grant of diversion will serve the ends of justice for both the
    public and the defendant. 
    Id. The record
    must reflect that the trial court considered and weighed all
    these factors in arriving at its decision. State v. Electroplating, Inc., 
    990 S.W.2d 211
    , 229 (Tenn.
    Crim. App. 1998).
    Initially, we note that the trial court did not make specific findings regarding its denial of
    judicial diversion. However, based upon the detailed discussion of its overall sentencing decision,
    we are able to determine that the required factors were considered and appropriately weighed.
    Furthermore, we find that there is substantial evidence to support the trial court’s denial of diversion.
    The defendant admitted to additional criminal behavior when he testified at the sentencing hearing
    regarding his marijuana use. The circumstances of the offense show a very dangerous plan that was
    only stopped by the intervention of authorities at the behest of an observant citizen. As testified to
    -3-
    by Dr. Hytche, the defendant seems to respond positively to supervision and should fare well with
    split confinement followed by four years of probation as ordered by the trial court. We also agree
    with the trial court’s concern that the defendant needs to appreciate the seriousness of the offense
    and that a lack of jail time would send the wrong message to the public. Most important to our
    consideration is our conclusion that the denial of diversion is necessary for the defendant to continue
    to improve academically and follow the path he is presently following. Thus, the denial of diversion
    will serve the ends of justice for both the defendant and the public.
    CONCLUSION
    We conclude that there is substantial evidence to support the trial court’s denial of judicial
    diversion. Therefore, the judgment of the trial court is affirmed.
    D. KELLY THOMAS, JR., JUDGE
    -4-
    

Document Info

Docket Number: M2006-00145-CCA-R3-CD

Judges: Judge D. Kelly Thomas, Jr.

Filed Date: 3/23/2007

Precedential Status: Precedential

Modified Date: 10/30/2014