Court of Criminal Appeals of Tennessee, Knoxville
Assigned on Briefs May 20, 2015
Appeal from the Criminal Court for Knox County No. 103877 G. Scott Green, Judge
Mark E. Stephens, District Public Defender, and Jessica Green, Assistant Public Defender, Knoxville, Tennessee, for the Defendant-Appellant, Randy Shawn Moore.
Robert E. Cooper, Jr., Attorney General and Reporter; Ahmed A. Safeeullah, Assistant Attorney General; Charme Allen, District Attorney General; and Zane Scarlett, Assistant District Attorney General, for the Appellee, State of Tennessee.
Camille R. McMullen, J., delivered the opinion of the court, in which Thomas T. Woodall, P.J., and D. Kelly Thomas, Jr., J., joined.
CAMILLE R. McMULLEN, JUDGE
On July 14, 2014, the Defendant entered guilty pleas to two counts of aggravated assault against his then-wife, Alta Galloway, the victim in this case. The underlying facts, as summarized by the State at the plea submission hearing, are as follows:
[The victim] and the [D]efendant . . . . were separated [at the time of the offenses]. And on [April 12, 2014][, ] [the victim] went back over to the house to get some clothes, and she . . . went with a friend. When they arrived in the car, [the Defendant] . . . was visibly upset, started screaming at them. [The victim] and her friend both got out of the vehicle. But when they saw things were getting worse, they got back into the vehicle.
[The Defendant] went over to his vehicle and got a gun, came back over, and pointed i[t] right at [the victim] who was in . . . the passenger seat. [The Defendant] . . . put the gun to her throat . . . [and the victim] indicated that maybe she [did not] think the gun [was] loaded, so he fired the gun up into the air showing that it was loaded, then put it back to her forehead and fired up into the air again, and then put the gun back onto her. And finally he started shooting the gun several times. At that point[, ] [the victim and her friend] were able to leave that area before he could get the gun reloaded. But then he started shooting at them as they were going away.
He was arrested on that matter and bonded out. Apparently, things got better because on June 23[, 2014, ] . . . [the victim] and the [D]efendant . . . were together again. They got into another argument. This time [the Defendant] tried to strangle her. He put his hands around her neck, restricting her breathing. She was able to get free. He then put her in a chokehold to the point where she started losing her vision. She was able then to push him off and get free and leave the residence.
Pursuant to the negotiated plea agreement, the Defendant received a sentence of five years for count one and three years for count two, to be served consecutively for an effective sentence of eight years. The Defendant agreed to the length of the service but sought judicial diversion and probation.
At the September 3, 2014 sentencing hearing, the State introduced the Defendant's presentence report and argued that judicial diversion was not appropriate in this case given the violent nature of the offenses and the fact that the Defendant committed the second offense while on bond for the first offense. The victim testified and asked the trial court to have "mercy" on the Defendant. She stated that the Defendant is "a wonderful person" who "deserves rehabilitation." When the court explained that as a condition of probation or judicial diversion, the Defendant would not be allowed to have contact with her, she stated, "That's why I filed for divorce. . . . [H]e is to be out of my life and go on with his and be successful." The Defendant acknowledged that he "did something really stupid" and told the court that he did not want to go back into custody. He stated, "I love [the victim] with all my heart, but I had to let her go. That's all."
Following the hearing, the trial court denied the Defendant's application for judicial diversion and instead imposed a sentence of split confinement, suspended after the service of 90 days. Subsequently, the ...