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State v. Cupp

Court of Criminal Appeals of Tennessee, Knoxville

March 21, 2018

STATE OF TENNESSEE
v.
DAVID WAYNE CUPP, ALIAS

          Assigned on Briefs January 24, 2018

          Appeal from the Criminal Court for Knox County No. 109716 Steven W. Sword, Judge

          The 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.

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

          Mark 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.

          D. Kelly Thomas, Jr., J., delivered the opinion of the court, in which James Curwood Witt, Jr., and Robert H. Montgomery, Jr., JJ., joined.

          OPINION

          D. KELLY THOMAS, JR., JUDGE

         FACTUAL BACKGROUND

         On 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.

         The 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.

         The 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 following:
[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 ...

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