             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                              AT NASHVILLE
                                        December 17, 2008 Session

                    STATE OF TENNESSEE v. DWIGHT WOODLEE

                           Appeal from the Circuit Court for Warren County
                               No. F-10399     Larry B. Stanley, Judge



                         No. M2008-01301-CCA-R3-CD - Filed June 10, 2009


The defendant, Dwight Woodlee,1 appeals as of right his guilty plea convictions for vandalism and
civil rights intimidation, both Class D felonies, for which the trial court imposed concurrent four-
year sentences to be served on probation. He contends that the trial court erred in denying his
application for judicial diversion. Following our review, we affirm the judgment of the trial court.

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

D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which JERRY L. SMITH and ALAN
E. GLENN , JJ., joined.

David H. Veile and Jack D. Lowery, Lebanon, Tennessee, attorneys for appellant, Dwight Woodlee.

Robert E. Cooper, Jr., Attorney General and Reporter; Matthew Bryant Haskell, Assistant Attorney
General; Lisa Zavagiannis, District Attorney General; and Mark E. Tribble, Assistant District
Attorney General, attorneys for appellee, State of Tennessee.

                                                     OPINION

        The record reflects that the defendant was indicted for two counts of vandalism of separate
station-houses of the Collins River Volunteer Fire Department and one count of civil rights
intimidation, all Class D felonies. The offenses arose from the March 2005 late-night shooting of
his former place of employment, from which he had been ousted recently as fire chief. On May 6,
2008, the defendant pled guilty to one count of vandalism and one count of civil rights intimidation
with an agreed sentence of four years for each count to be served concurrently on probation. Also
on May 6, the trial court took the defendant’s application for judicial diversion under advisement and
denied diversion by written order on May 12, 2008.


         1
             The defendant’s pleadings reflect the spelling of his name as Dewite W oodlee. However, the indictment,
orders of the trial court, and judgments reflect the spelling as Dwight W oodlee. For purposes of this opinion, we adhere
to the spelling as listed in the indictment.
        On appeal the defendant contends that the trial court erred in denying him judicial diversion
by failing to consider and weigh appropriately the required factors and by considering evidence that
was not part of the record. The State asserts that the trial court’s denial of judicial diversion was
appropriate. Based upon our review of the record, arguments of counsel, and applicable authority,
we conclude that the record supports the trial court’s denial of judicial diversion.

                                             ANALYSIS

         Pursuant to Tennessee Code Annotated 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). Furthermore, “[t]he court must explain on the record why the defendant does not
qualify under its analysis, and if the court has based its determination on only some of the factors,
it must explain why these factors outweigh the others.” Id. (citing State v. Bonestel, 871 S.W.2d
163, 168 (Tenn. Crim. App. 1993)).

        At the May 6, 2008, guilty plea submission hearing, the trial court accepted the defendant’s
guilty pleas and sentenced the defendant to the agreed sentence of concurrent four year sentences on
probation. Following the imposition of sentence, the trial court asked if the defendant wanted “to
say anything about judicial diversion.” The defendant argued that he had been with the volunteer
fire department for thirty-seven years; after his ouster as chief, he began drinking heavily and was
drinking on the day of the offenses. The defendant had since completed treatment for alcohol abuse.
In support of his request for judicial diversion, the defendant argued that he was a life-long resident
of the area with no prior record and that this was an isolated incident.

        The trial court took the matter under advisement, judgments were entered on May 6, and the
trial court denied diversion six days later on May 12. In its order denying diversion, the trial court
found “troublesome” that the intoxicated defendant went to his former place of employment with
a loaded firearm in retaliation for his ouster as fire chief. The trial court found the defendant’s



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actions to be “extremely reckless.” Regarding the deterrent effect of the trial court’s sentencing
decision, the court noted that:

        this act appears to be an act of retribution for the lawful vote taken regarding the
        Defendant and his position at the fire hall. Anyone who engages in the civil process
        of law, whether it be a vote to elect a fire chief or President of the United States,
        should feel safe to vote one’s conscience and participate in the administration of
        government. There should be a severe deterrent to the Defendant’s actions and
        others who might desire to make such violent demonstrations in the future.

The trial court found that the use of a weapon while under the influence of alcohol was unacceptable.
In arriving at its determination regarding the suitability of judicial diversion, the trial court noted that
after considering the principles announced in Electroplating, it found that these considerations
outweighed the defendant’s arguments for judicial diversion and denied judicial diversion.

        Initially, we note that the trial court should not have entered the judgments of conviction on
May 6 pending its consideration of the defendant’s application for judicial diversion. Pursuant to
Tennessee Code Annotated section 40-35-313(a)(1)(A) (emphasis added), the trial court “may defer
further proceedings against a qualified defendant and place the defendant on probation upon such
reasonable conditions as it may require without entering a judgment of guilty and with the consent
of the qualified defendant.” However, it is apparent from the record that all of the parties
contemplated the consideration of judicial diversion by the trial court following the entry of the
defendant’s guilty pleas. We conclude that there is substantial evidence to support the trial court’s
denial of diversion in this case based upon the circumstances of the offense, the need for deterrence,
and whether judicial diversion would serve the interests of 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




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