Court of Criminal Appeals of Tennessee, Knoxville
Session Assigned on Briefs July 25, 2017
from the Circuit Court for Blount County No. C24205 Tammy M.
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.
R. App. P. 3 Appeal as of Right; Judgments of the Circuit
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
Ross Dyer, J., delivered the opinion of the court, in which
Alan E. Glenn and Robert H. Montgomery, Jr., JJ., joined.
ROSS DYER, JUDGE
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.
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.
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.
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.
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."
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. 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.
the sentencing hearing, however, the defendant had not been
moved to "D-pod."
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." ...