Court of Criminal Appeals of Tennessee, Knoxville
Assigned on Briefs January 24, 2018
from the Criminal Court for Knox County No. 109716 Steven W.
Defendant, David Wayne Cupp, alias, appeals as of right from
the Knox County Criminal Court's denial of his request
for judicial diversion. On appeal, the Defendant contends
that the trial court abused its discretion by overvaluing
"the circumstances of the offense[s] to the exclusion of
the factors supporting diversion." Following our review,
we affirm the judgments of the trial court.
R. App. P. 3 Appeal as of Right; Judgments of the Criminal
E. Stephens, District Public Defender; Bridget Candace
McCullough (at trial); and Jonathan Harwell (on appeal),
Assistant District Public Defenders, for the appellant, David
Wayne Cupp, alias.
Herbert H. Slatery III, Attorney General and Reporter; Clark
B. Thornton, Senior Counsel; Charme P. Allen, District
Attorney General; and Willie Rena Lane, Assistant District
Attorney General, for the appellee, State of Tennessee.
Kelly Thomas, Jr., J., delivered the opinion of the court, in
which James Curwood Witt, Jr., and Robert H. Montgomery, Jr.,
KELLY THOMAS, JR., JUDGE
January 19, 2017, the Defendant pled guilty to aggravated
burglary and aggravated assault. See Tenn. Code Ann.
§§ 39-13-102, -14-403. The plea agreement included
an agreed-upon sentence of five years as a Range I, standard
offender, with the manner of service to be determined by the
trial court. Following a sentencing hearing, the trial court
denied the Defendant's request for judicial diversion.
However, the trial court suspended the Defendant's
sentence, placing him on enhanced supervised probation.
State provided the following factual basis for the
Defendant's guilty pleas: on October 5, 2016, the
Defendant's then-wife, Julia Burke, "was with a
family friend, " Michael Melton, who had taken her to
visit her father's grave. When they returned to Mr.
Melton's residence, the Defendant "came up [on Mr.
Melton and Ms. Burke] in his vehicle." The Defendant got
out of his car with a handgun. "An argument ensued,
" and the Defendant held the gun "to Mr.
Melton's chest." All of this occurred in front of
Mr. Melton's fifteen-year-old son.
following morning, October 6, 2016, the Knox County
Sheriff's Department was called to Ms. Burke's
residence. When officers arrived, Ms. Burke told officers
that she had been sleeping when the Defendant entered her
home through the back door, dressed in a skeleton costume.
Once inside, the Defendant immediately began to throw around
household items and flipped over the chair that Ms. Burke had
been seated in. She was able to call the police, and he ran
out the door. Furthermore, Ms. Burke told the officers that
the Defendant had at one point placed one of his hands over
her mouth in a threatening manner.
At the sentencing hearing, the Defendant's counsel argued
[The Defendant] has been in custody for a significant amount
of time for somebody that has never been in custody before.
He was taken in in October, and we're now in April. So
he's looking at about six months. In that six-month
period, your Honor, he successfully completed the Focus
Ministry Program at the jail. He took on leadership roles
within that program. He has a letter of recommendation from
Gary Burleson, who teaches the Jobs for Life class, and he
also completed the Inside Recovery Program while also in the
Focus Program. So he's taken significant steps while
he's been in custody….Additionally, Judge, [the
Defendant] has the ...