                                                                                            03/27/2018
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                                February 27, 2018 Session

               STATE OF TENNESSEE v. DEREK CULLEN LEE

                  Appeal from the Criminal Court for Knox County
                      No. 109864     Steven W. Sword, Judge


                             No. E2017-01198-CCA-R3-CD


The Defendant, Derek Cullen Lee, appeals from the Knox County Criminal Court’s
denial of his request for judicial diversion. The Defendant contends (1) that the trial
court “did not sufficiently weigh all the [required] factors . . . in deciding suitability for
diversion”; and (2) that the trial court’s decision to deny his request for judicial diversion
was based on the offense that he was convicted of rather than the applicable factors.
Discerning no error, we affirm the judgment of the trial court.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which JAMES CURWOOD
WITT, JR., and ROBERT H. MONTGOMERY, JR., JJ., joined.

Donald A. Bosch (at sentencing hearing) and Douglas A. Trant (on appeal), Knoxville,
Tennessee, for the appellant, Derek Cullen Lee.

Herbert H. Slatery III, Attorney General and Reporter; M. Todd Ridley, Assistant
Attorney General; Charme P. Allen, District Attorney General; and Randall Jay Kilby,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                         OPINION

                              FACTUAL BACKGROUND

       The Defendant was indicted on February 1, 2017, on two counts of aggravated
assault, four counts of reckless endangerment, one count of attempted aggravated
burglary, and one count of vandalism. On March 24, 2017, the Defendant entered into a
plea agreement with the State. The Defendant agreed to plead guilty to one count of
reckless endangerment by discharging a firearm into an occupied habitation, a Class C
felony, in exchange for dismissal of the seven other charges. See Tenn. Code Ann. §
39-13-103. The Defendant and the State also agreed upon a three-year sentence to be
served on supervised probation. The sole issue remaining for the trial court was whether
the Defendant would be granted judicial diversion.

       A transcript of the Defendant’s guilty plea submission hearing was not included in
the appellate record. According to the Defendant’s presentence report, the factual bases
for the Defendant’s guilty plea was that on the evening of July 5, 2016, deputies from the
Knox County Sheriff’s Office “were dispatched to shots fired from” the Defendant’s
residence. The presentence report described what happened next as follows:

      The Defendant opened his front door and began screaming at [the] officers.
      [The] [o]fficers approached the Defendant, who pulled a gun out in a
      shooting position and pointed it at the officers. [The] [o]fficers fired
      several shots and retreated to cover. At some point during the incident, the
      Defendant fired a weapon at [his neighbor’s] residence . . . while they were
      inside. The round from the weapon went through a window and into a sofa.

       The presentence reported also contained the Defendant’s statement regarding the
incident. The Defendant described the incident as follows:

             I was involved in a verbal altercation with my neighbors, who called
      the police. The police came to my door cursing at me. I did not know who
      was at my door. I answered the door with my personal handgun at my side.
      Once I opened the door, I realized it was the police. Upon realizing this, I
      closed my front door. After I shut my door, the police fired four rounds
      into my front door directed at me. Thankfully, they did not hit me.
      Afterwards the police fired multiple rounds of tear gas into my house
      causing approximately [$5,000] in damages.

            I later learned that a round having been identified as coming from
      my handgun was found in the couch of my neighbors. . . . I never intended
      to cause [them] any harm. Any round that came from my firearm was
      accidental, and I am very sorry for any anxiety I caused my neighbors. I
      was not ever intending to fire at them or the police. To this day, I do not
      know how that round went into [their] home.

             I surrendered to the police after several hours, fearing for my life if I
      did not. Upon my surrender, I was severely beaten, taken to the hospital by
      ambulance, and then immediately placed into custody. . . . I am incredibly
      sorry for my neighbors, and neighborhood, for anything for which I may
      have been responsible. In an effort to alleviate their concerns, I sold my
      house and moved out of the neighborhood.
                                            -2-
        On May 21, 2017, the trial court held a sentencing hearing on this matter. The
State opposed granting judicial diversion “mainly because of the circumstances of the
offense” and because it felt that the Defendant “should not be allowed to have possession
of firearms.”

       The victim, Brad Lewis, provided a victim’s impact statement. Mr. Lewis stated
that on July 5, 2016, the Defendant “accosted [him] in [his] driveway,” “threatened to kill
[him],” “threatened to burn [his] house down,” and “threatened to kill the police.”
According to Mr. Lewis, the Defendant “tried to enter [his] house through a locked door”
at some point “[l]ater on that evening.” Mr. Lewis stated that the Defendant also “fired
into [his] house from [the Defendant’s] back deck, through a clear window, into [his]
family room, into [his] sofa” and that “[i]f someone had been at that location, someone
would have been killed.” Mr. Lewis opposed “any unsupervised probation” because
“there [had] to be consequences for an action.”

        Defense counsel took “exception with the belief that [the Defendant] intentionally
shot at [Mr. Lewis’s] house.” Defense counsel stated that he believed the gunshot was
“some sort of accidental or incorrect discharge.” Defense counsel told the trial court that
the Defendant “suffered from depression” and “at least a degree of” post-traumatic stress
disorder. Defense counsel noted that the Defendant had been in New York City on
September 11, 2001. Defense counsel then addressed the conduct of the deputies who
arrested the Defendant. Defense counsel stated that the Knox County Sheriff’s Office
was “interested in this entire case going away” because the Defendant “was severely
beaten and mocked after he was handcuffed” and because the deputies were not justified
in firing at the Defendant when he closed his front door.

       Defense counsel stated that the Defendant, since his arrest, had entered
psychological and substance abuse treatment, had dispossessed himself of his firearms,
and had sold his house “to great [financial] detriment.” According to defense counsel,
the Defendant was “a computer systems architect,” and he had been turned down “for
multiple jobs . . . because of [his] outstanding charges.” However, defense counsel stated
that the Defendant’s chances of employment would be improved if he was placed on
judicial diversion.

        In allocution, the Defendant stated that he was “very sorry” and could not “explain
exactly how shameful and regretful [he was] for [his] behavior that evening.” The
Defendant stated that he was “severely depressed” at the time of the incident and that
“alcohol combined with an antidepressant that [he] was taking” “may have contributed”
to the incident. According to the Defendant, he had “been turned down for four jobs”
since the incident. However, the Defendant stated that “for the first time in a long time[,
he was] starting to have a positive outlook [on his] future.” The Defendant assured the
trial court that it would “never see [him] or see that kind of behavior from [him] again.”
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The Defendant also stated “that regardless of whether or not it [was] lawful to discharge
weapons in a neighborhood, it would never happen again.”

      Addressing the Defendant’s request for judicial diversion, the trial court stated:

             There’s certain factors the [c]ourt has to consider in making [the]
      decision [on judicial diversion]. The first is the defendant’s amenability to
      correction. For the most part, I find that [the Defendant] is amenable to
      correction. He has taken steps already to address the underlying issues,
      including receiving therapy and moving out of the neighborhood to prevent
      any other further instances.

             There’s a couple of concerns on that point. One is, is that he is not
      able to explain how his weapon fired at the [neighbor’s] home. That’s
      concerning to me. I don’t know how you don’t know that. But in any
      event, I find [the Defendant] to be sincere in his -- in his remorse. So I
      think he is amenable to correction.

             The circumstances of the offense, I believe, weigh against diversion.
      I’m not talking about what happened when the sheriff[’s deputies] arrived
      there. That was bad enough. And I understand there -- there, obviously,
      are two sides to this story, because we don’t, as [defense counsel] pointed
      out, have other charges that he’s facing concerning the officers. So I have
      no doubt that the [S]heriff’s [Office] had some wrongdoing in the way they
      handled the situation.

             That’s not what I’m talking about, the circumstances of the offenses.
      The circumstances of the offense that I’m talking about that I hold [the
      Defendant] accountable for is what happened before the police arrived that
      -- his confrontation with [Mr. Lewis], at some point his weapon gets . . .
      discharged in their home. So you got somebody having a heated
      confrontation with a neighbor, has a weapon at his side when somebody
      knocks on his door[,] and that neighbor’s house gets shot up. That is
      something that’s incredibly serious. And Mr. Lewis is right, but for the
      grace of God, he, his wife, or one of his children would have been killed.

               We see that, unfortunately, happen here in Knoxville on occasions,
      happened fairly recently. People get struck by bullets that weren’t intended
      to kill them, but they’re just as dead. And so that’s incredibly serious. This
      is not some misdemeanor offense that [the Defendant] is seeking diversion
      for. This is reckless endangerment with a deadly weapon, involving a
      handgun. So I think that weighs against diversion.
                                            -4-
              His criminal record is clean. . . . There was . . . [a] citation. A
      citation in Georgia on a misdemeanor offense that was dismissed. So I
      don’t hold that against him. Otherwise, it’s completely clean.

            His social history is positive and weighs in favor of diversion. He is
      an accomplished person, has extensive education, has served the
      community through his employment at different times in the past. So that
      weighs in favor of diversion.

             His physical and mental health. Physical, I don’t have any proof one
      way or the other on. His mental health report, in the [presentence report]
      and his own statement today, that he suffers from depression, also, some
      [post-traumatic stress disorder], which he partially attributes to what
      happened in this incident here today.

             So I think that’s sort of a mixed bag. When you have a mental
      health issue, that’s something that can be dealt with through therapy, but it
      also gives the [c]ourt some concern, too, about the person’s ability to
      comply with the mandates of probation or diversion. So that’s sort of a
      mixed bag there.

             The deterrence value to others. The [c]ourt finds that that weighs
      against diversion in this case simply because what we’ve seen so much here
      in Knox County. He’s using a weapon . . . a handgun, where a
      neighbor[ing] house gets shot into. And I don’t think that granting
      diversion would be a deterrent to anybody, including the [D]efendant in this
      case. Although, I suspect the [D]efendant has learned his lesson, so to
      speak, from what he’s been through.

            So, really, the overriding issue on whether or not to grant diversion
      is, would the interest of justice be served both for the public and the
      [D]efendant by granting that diversion?

             In this case, I weigh heavily upon the circumstances, the fact this
      was a firearm that was used, shot into a neighbor’s home when he was
      having an angry dispute with [his neighbor], and find that the interest of
      justice would not be served in granting [the Defendant] diversion. So I’m
      going to deny his request for diversion, but I’m going to place him on
      probation.

The Defendant now appeals to this court.

                                           -5-
                                         ANALYSIS

        The Defendant contends that the trial court abused its discretion in denying his
request for judicial diversion. The Defendant argues that the trial court “did not
sufficiently weigh all the [required] factors . . . in deciding suitability for diversion.”
Specifically, the Defendant alleges that the trial court did not consider his attitude,
behavior since arrest, home environment, family responsibility, and general reputation.
The Defendant also argues that the trial court’s decision to deny his request for judicial
diversion was based on the offense that he was convicted of rather than the applicable
factors. The State responds that the trial court “considered all of the relevant factors and
explained on the record which factors it relied upon to deny diversion.” The State further
responds that the trial court did not abuse its discretion in denying the Defendant’s
request for judicial diversion.

       There is no dispute that the Defendant was eligible for judicial diversion. See
Tenn. Code Ann. § 40-35-313(a)(1)(B). The decision to grant judicial diversion lies
within the sound discretion of the trial court. State v. Parker, 932 S.W.2d 945, 958
(Tenn. Crim. App. 1996). When the trial court has placed “on the record its reasons for
granting or denying judicial diversion,” the determination should be given a presumption
of reasonableness on appeal and reviewed for an abuse of discretion. State v. King, 432
S.W.3d 316, 327 (Tenn. 2014). We may not revisit the issue so long as the record
contains any substantial evidence to support the trial court’s decision. Parker, 932
S.W.2d at 958.

       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; (6) the deterrent effect of
the sentencing decision to both the defendant and other similarly situated defendants; and
(7) whether judicial diversion will serve the interests of the public as well as the
defendant. State v. Electroplating, Inc., 990 S.W.2d 211, 229 (Tenn. Crim. App. 1998)
(citing Parker, 932 S.W.2d at 958); see also King, 432 S.W.3d at 326 (reaffirming that
the Electroplating requirements “are essential considerations for judicial diversion”).

         A trial court is “not required to recite all of the Parker and Electroplating factors
when justifying its decision on the record in order to obtain the presumption of
reasonableness.” King, 432 S.W.3d at 327. However, “the record should reflect that the
trial court considered the Parker and Electroplating factors in rendering its decision and
that it identified the specific factors applicable to the case before it.” Id. If the trial court
“fails to consider and weigh the applicable common law factors, the presumption of
reasonableness does not apply and the abuse of discretion standard . . . is not

                                               -6-
appropriate.” Id. “In those instances, the appellate courts may either conduct a de novo
review or . . . remand the issue for reconsideration.” Id. at 328.

       Here, the trial court considered all of the Parker and Electroplating factors and
explained on the record which factors it relied upon in denying the Defendant’s request
for judicial diversion. The Parker and Electroplating factors “are essential considerations
for judicial diversion.” King, 432 S.W.3d at 326. The factors that the Defendant
complains were not considered by the trial court, his attitude, behavior since arrest, home
environment, family responsibility, and general reputation, were not specifically
delineated in Parker or Electroplating. See Electroplating, Inc., 990 S.W.2d at 229;
Parker, 932 S.W.2d at 958.

       Rather, these factors have been listed as considerations a district attorney should
take into account in deciding whether to grant or deny pre-trial diversion. See State v.
Morgan, 934 S.W.2d 77, 81 (Tenn. Crim. App. 1996). But, these factors have never been
included as considerations for a trial court when addressing a request for judicial
diversion. As such, the trial court did not abuse its discretion by failing to address factors
that are not included in the Parker and Electroplating analysis. Furthermore, all of the
factors raised by the Defendant would fall under the factor of the Defendant’s social
history, which the trial court considered and found to be “positive and weigh[ed] in favor
of diversion.” Accordingly, we conclude that this issue is without merit.

       We also conclude that the record belies the Defendant’s claim that the trial court’s
decision to deny his request for judicial diversion was based solely on the offense that he
was convicted of rather than the applicable factors. Instead, the trial court placed great
weight on the circumstances of the offense. As the trial court stated, the Defendant had
“a heated confrontation with a neighbor, [had] a weapon at his side when somebody
knock[ed] on his door[,] and [then] that neighbor’s house [got] shot up.” The victim, Mr.
Lewis, stated that the Defendant “fired into [his] house from [the Defendant’s] back deck,
through a clear window, into [his] family room, [and] into [his] sofa.” The trial court
concluded that it was “but for the grace of God” that someone was not killed that
evening.

       Additionally, the trial court concluded that the deterrent effect of the sentencing
decision weighed against granting the Defendant judicial diversion. The trial court noted
that there had been a recent uptick in gun violence in Knox County and several cases
where “[p]eople [were] struck by bullets that weren’t intended to kill them, but they[
were] just as dead.” The trial court also noted that the Defendant’s mental health was
“sort of a mixed bag” neither weighing for nor against diversion. Also, while the trial
court did find that the Defendant was amenable to correction and that this weighed in
favor of granting diversion, it had “concerns” about the fact that the Defendant was “not
able to explain how his weapon fired at the [neighbor’s] home.” As such, we conclude
                                             -7-
that there was substantial evidence supporting the trial court’s denial of the Defendant’s
request for judicial diversion.

                                    CONCLUSION

        Upon consideration of the foregoing and the record as a whole, the judgment of
the trial court is affirmed.




                                                 _________________________________
                                                 D. KELLY THOMAS, JR., JUDGE




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