Court of Criminal Appeals of Tennessee, Knoxville
Assigned on Briefs April 28, 2015
Appeal from the Criminal Court for Campbell County No. 16202 E. Shayne Sexton, Judge
Martha Yoakum, District Public Defender; Tina L. Sloan (on appeal) and William Jones (at hearing), Assistant District Public Defenders, LaFollette, Tennessee, for the appellant, William Brian Brown.
Herbert H. Slatery III, Attorney General and Reporter; Lacy Wilber, Senior Counsel; Jared R. Effler, District Attorney General; and Michael O. Ripley, Assistant District Attorney General, for the appellee, State of Tennessee.
Robert W. Wedemeyer, J., delivered the opinion of the Court, in which D. Kelly Thomas, Jr., and Timothy L. Easter, JJ., joined.
ROBERT W. WEDEMEYER, JUDGE
This case arises from the Defendant's stealing of metal items, which he sold for scrap. On May 8, 2013, the Defendant was indicted by criminal information for one count of theft of property valued over $10, 000, and one count of vandalism valued over $1, 000. The Defendant pleaded guilty to both offenses. A transcript of the guilty plea is not included in the record. The affidavit of complaint contained in the record on appeal indicates that:
[The police officer] investigated the theft of the victim's property from Lamb Mountain Road in Newcomb, TN on or about 03-04-2013. The victim's property was valued at over $19, 000. During the theft, an access gate was cut causing approximately $750.00 worth of damage.
During the investigation, the [police officer] learned that the above Defendant took the victim's commercial metal gates, metal tank stairways, metal suction headers, metal balon ball valve, and 100 feet of 6 inch metal pipe on or about [03-04-2013] without permission. The above Defendant then took the property to scrap yards in Kentucky, including Pleasant View Recycling, and sold it for scrap metal value.
During an interview with the Defendant, he stated that he knowingly trespassed on the victim's property, caused vandalism by cutting the access gate to the property with a concrete saw, and took (without the victim's permission) the victim's property. He further stated that he sold the items as scrap and used the money to purchase illegal narcotics.
The judgments indicate that the trial court agreed to defer the convictions by judicial diversion pending the Defendant's successful completion of six years of supervised probation. It also ordered the Defendant to repay the victims $9, 625 and $600, respectively, at a minimum of $250 per month beginning June 1, 2013.
On March 10, 2014, the State moved the trial court to set aside and terminate its order of judicial diversion. On May 27, 2014, the trial court held a hearing on the motion. At that hearing, the State informed the trial court that the Defendant had not repaid his ordered restitution. The Defendant's attorney conceded that the Defendant was "significantly behind" on his repayment but stated that he had "routinely paid, " just not in the amount that was ordered in the plea agreement. The Defendant's counsel stated that the Defendant does not have the ability to pay $250 per month but had paid $50 per month. The parties stipulated that the Defendant had only paid $50 per month and not the $250 he was ordered to pay.
The Defendant testified that he had achieved the 12th grade in his schooling but that he had been in a special education program at that school. He said that he had "problems functioning right" and that it took him "a while . . . to learn stuff." The Defendant said that he did read and write. He said that he did ...