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State v. Potter

Court of Criminal Appeals of Tennessee, Knoxville

August 14, 2017


          Session Assigned on Briefs July 25, 2017

         Appeal from the Circuit Court for Blount County No. C24205 Tammy M. Harrington, Judge

         The defendant, Lucas Potter, pled guilty to attempted aggravated robbery, attempted robbery, and theft of property under $500. Tenn. Code Ann. §§ 39-13-401, -402, 39-14-103. After a sentencing hearing, the trial court denied the defendant's request for judicial diversion and imposed an effective five-year sentence of split confinement with community corrections after 270 days of service. On appeal, the defendant argues the trial court failed to properly consider his request for judicial diversion and erred in allowing the State to present rebuttal proof at the sentencing hearing. Following our review of the briefs, the record, and the applicable law, we affirm the judgments of the trial court.

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

          Michael R. Tabler, Knoxville, Tennessee, for the appellant, Lucas Hubert Potter.

          Herbert H. Slatery III, Attorney General and Reporter; Ruth Anne Thompson, Assistant Attorney General; Mike L. Flynn, District Attorney General; and Matthew Dunn, Assistant District Attorney General, for the appellee, State of Tennessee.

          J. Ross Dyer, J., delivered the opinion of the court, in which Alan E. Glenn and Robert H. Montgomery, Jr., JJ., joined.


          J. ROSS DYER, JUDGE


         On March 24, 2016, the defendant, armed with a BB gun, stole gas and attempted to rob two convenience stores in Blount County, Tennessee. Upon arrest, the defendant confessed to the crimes and ultimately pled guilty to attempted aggravated robbery, attempted robbery, and theft of property less than $500.00. Tenn. Code Ann. §§ 39-13-401, -402, 39-14-103. As a condition of the guilty pleas, the defendant agreed to allow the trial court to determine the manner and method of service of the defendant's sentences. Accordingly, the trial court conducted a bifurcated sentencing hearing on August 11, 2016 and September 22, 2016. At the first hearing, the State offered the pre-sentence report as its proof, and then rested. The defendant then testified.

         The defendant, who was thirty-four years old at the time of the hearing, explained he was diagnosed with manic depressive and bipolar disorders during adolescence. The defendant openly discussed the alienation he felt from others, especially his family, upon his realization that he was gay, noting he relied primarily on his older sister for support. His mental health issues led to multiple suicide attempts, the first occurring at age fifteen. Though the defendant sought treatment for his mental health issues, he was unable to maintain consistent treatment due to lapses in insurance coverage. As a result, the defendant learned to mask his depression with work, holding three jobs at one point in order to stay busy. The defendant also admitted to self-medicating through the use of illegal drugs.

         The defendant provided a detailed explanation of his foray into drug use and dependency. Over ten years ago, the defendant met his current life partner who, at the time they began their relationship, was concealing a methadone addiction. His partner's addiction opened the door to the defendant's own six-year addiction to pain medication which he ultimately began satisfying intravenously. The defendant's addiction, fueled by his mental health issues, also led to an eight-month methamphetamine binge which coincided with the death of his sister on January 20, 2016. Subsequent to her death, the defendant found himself unemployed and at the height of his drug usage.

         On the night of March 24, 2016, the defendant was out of money and in need of drugs. He stated the idea to rob the first convenience store "was spur of the moment, " and it "just popped into [his] head." Upon entering the first convenience store, the defendant kept his BB gun concealed but presented the clerk with a note demanding money. According to the defendant, "I handed [the clerk] a note and she read it over, started laughing, started shaking her head, crumpled it up and threw it back at me and told me to get out of there. So, I did." However, he soon passed another convenience store and attempted a second robbery. This time, the defendant flashed the BB gun at his victim. The defendant stated he "verbally asked for the money this time, " but, "[i]t was the same reaction . . . and [he] left." The defendant then pulled into his third convenience store of the night. After filling his car with gas, the defendant attempted to pay for the gas with a check tied to an empty bank account. The clerk refused the check and called the police. The defendant "just drove away" knowing he was stealing gas. When the police pulled the defendant over later in the evening, the defendant admitted to the crimes, and he was arrested.

         The defendant explained that he has been incarcerated since his arrest on March 24, 2016, originally being housed in "D-pod" within the jail. However, after "disrespect[ing] a Vice Lord gang, " the defendant was moved to protective custody within the jail. The defendant also spent time in the medical division of the jail after contracting shingles and making three different suicide threats and/or attempts. The first suicide threat occurred upon his initial incarceration and resulted in the defendant being placed on suicide watch for a week. The defendant later made a serious suicide attempt when he used a razor to "slice[] [his] arms open." Subsequently, the defendant began taking Celexa which, according to the defendant, has "helped tremendously."

         Despite his improved condition on Celexa, the defendant again threatened to commit suicide on August 8, 2016, just three days prior to the sentencing hearing. The suicide threat came after the defendant believed he would be moved back to "D-pod" upon his release from the medical division.[1] The defendant explained the "threat" as follows:

It was not really that I was wanting to commit suicide. Last week, I was diagnosed with shingles and I was taken out of the cell that I was in and put in [m]edical until I got cleared of it. Whenever they took me back to [m]edical, they were trying to take me back to D-pod where I had threats against my life. And I told them if I was going to be housed in D-pod I was going to kill myself. Because I wouldn't want to get beat again.

         As of the sentencing hearing, however, the defendant had not been moved to "D-pod."

         At the conclusion of his testimony, the defendant expressed interest in a future career in law enforcement. He also stated: ". . . one of the reasons I wanted diversion is because I know you can't go into law enforcement if you have felonies on your record. And since being in the jail I have a new respect for officers and what they have to deal with . . . on a daily basis and what they have to put up with from inmates, gives you a new respect for people that do that line of work." ...

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