Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs August 8, 2017
from the Criminal Court for Davidson County Nos. 2016-B-1146
& 2016-I-802 J. Randall Wyatt, Jr., Judge
Defendant, Edward Nolan Lee Thomas, pleaded guilty to
aggravated burglary and theft of property valued at less than
$500. By agreement, the Defendant's sentence was four
years for the burglary conviction, concurrent with a sentence
of eleven months, twenty-nine days for the theft conviction,
with the trial court to determine the manner of service. The
trial court subsequently ordered the Defendant to serve the
sentences in confinement. On appeal, the Defendant contends
that the trial court erred when it denied him judicial
diversion and imposed a sentence of continuous confinement.
After a thorough review of the record and applicable law, we
affirm the trial court's judgments.
Deaner, District Public Defender; Melissa K. Bourne (at
hearing) and Emma Rae Tennent (on appeal), Assistant District
Public Defenders, Nashville, Tennessee, for the appellant,
Edward Nolan Lee Thomas.
Herbert H. Slatery III, Attorney General and Reporter; Ruth
Anne Thompson, Senior Counsel; Glenn R. Funk, District
Attorney General; and Addie B. Askew, Assistant District
Attorney General, for the appellee, State of Tennessee.
W. Wedemeyer, J., delivered the opinion of the Court, in
which D. Kelly Thomas, Jr. and J. Ross Dyer, JJ., joined.
W. WEDEMEYER, JUDGE
Background and Facts
October 26, 2016, the Defendant pleaded guilty in separate
indictments to aggravated burglary and theft of property
valued at less than $500. By agreement, the trial court
imposed a sentence of four years for the burglary conviction
and eleven months and twenty-nine days for the theft
conviction. The trial court advised the Defendant that, in
accordance with the parties' agreement, it would
determine the manner of service of his sentence. The State
recited the following facts as the basis for the acceptance
of the Defendant's guilty pleas:
Your Honor, had this case gone to trial . . . the State's
proof would have shown that on April 8th of 2016 a
burglary occurred at a residence located at [ ] Summit Avenue
here in Davidson County. The victim Samuel Stratton was the
resident at that location. $3, 500 worth of personal property
was taken. The window showed signs of forced entry and a
latent print was recovered from that window seal and that
matched to [the Defendant.]
Had [the second case] gone to trial the State's proof
would have shown that on September 1, 2016 neighbors of [ ]
Waldkirch Avenue, here in Davidson County, saw two men in a
Dodge Intrepid going into a shed at their neighbor's
house taking items from the shed. Officers located the gold
Dodge Intrepid that the neighbors had described and the
[Defendant] was in that car. He stated under Miranda
that he had taken a trimmer, a work light, and a ladder from
the shed and that he did not know the owner and that he did
not have permission to take the items or be on the lot. The
victim, Ms. Smith, also stated that she had not given anyone
permission to go in the shed or take her belongings. The
amount of property that was taken was $130[.]
trial court subsequently held a sentencing hearing, during
which the following evidence was presented: Officer Jonathan
McGowan testified that he was employed by the Metropolitan
Police Department and that he investigated the burglary of
Samuel Stratton's home. Mr. Stratton told him that his
home had been broken into and that a firearm, automatic
rifle, electronics, and some shoes had been stolen. Officers
lifted fingerprints from a window at the home that was
identified as the point of forced entry. An analysis of the
fingerprint revealed that it matched the Defendant's
fingerprints in the police department crime lab's
computer system. The stolen property was estimated to be
valued at $3, 500. The Defendant was later arrested, given
his Miranda warnings, and gave a statement that he had
participated in the burglary as a "lookout" and was
inside the residence while the burglary was occurring.
Stratton testified that he was the victim of the burglary and
clarified that an Xbox gaming system, three pairs of shoes,
an AR-15 semiautomatic rifle, gun accessories, a laptop, and
over 240 rounds of ammunition were stolen from his home. Mr.
Stratton calculated the value of the items stolen at $5, 155.
Mr. Stratton testified that he worked at HCA and as a
security guard. Since the burglary, Mr. Stratton testified
that his daughters were afraid to sleep in their rooms, and
his wife was frightened when he was away. His wife changed
her work schedule to allow her to work from home, and his job
allowed him to do the same so that someone was present at the
home during the day, which made his family feel safer. Mr.
Stratton reduced his working hours at night so he could be
present to make sure his family was "okay." Mr.
Stratton asked that the Defendant be ordered to serve his
sentence in confinement.
Shedie Herbert testified that he responded to the scene at
Waldkirch Avenue after the victim's neighbors called
police and reported two men stealing from the residence's
shed. The stolen items were a ladder, a weed trimmer, and a
work light. He located the Defendant and spoke with him about
the missing items, and the Defendant stated that he had been
at the residence doing yard work. He later said that he did
not have permission to be at the residence and was not given
access to the shed but that he gained entry because of a
broken lock. He admitted that he did not have permission to
take the stolen items.
victim at the Waldkirch Avenue residence wrote a letter,
which the trial court admitted into evidence. She wrote that
she had been burglarized three separate times at the
Waldkirch Avenue residence and that her sense of security was
gone, and she could no longer live alone. She wrote ...