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State v. Diggs

Court of Criminal Appeals of Tennessee, Knoxville

August 20, 2019

STATE OF TENNESSEE
v.
ROBERT DIGGS

          May 30, 2019 Session

          Appeal from the Criminal Court for Sullivan County No. S66031 James F. Goodwin, Jr., Judge

         Robert Diggs, Defendant, pled guilty to two counts of sale of a Schedule III controlled substance within a drug-free zone (counts one and five), two counts of delivery of a Schedule III controlled substance within a drug-free zone (counts two and six), and one count of maintaining a dwelling where a controlled substance was kept or sold (count seven). The trial court ordered Defendant to serve concurrent sentences of two years in the Tennessee Department of Correction for the convictions in counts one and five. No sentence was imposed in counts two and six. On appeal, Defendant argues that the trial court erred by ordering him to serve his sentence in the Tennessee Department of Correction because the trial court incorrectly determined that his convictions under the Drug-Free School Zone Act ("DFSZ Act") made him ineligible for community corrections. After a thorough review of the facts and applicable case law, we conclude that the trial court properly determined that Defendant was not eligible for community corrections because Defendant was convicted under the DFSZ Act and we affirm the convictions.

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

          Todd East, Kingsport, Tennessee, for the appellant, Robert Lee Diggs.

          Herbert H. Slatery III, Attorney General and Reporter; Garrett D. Ward, Assistant Attorney General; Barry P. Staubus, District Attorney General; and Peter Filetti, Assistant District Attorney General, for the appellee, State of Tennessee.

          Robert L. Holloway, Jr., J., delivered the opinion of the court, in which John Everett Williams, P.J., and Robert W. Wedemeyer, J., joined.

          OPINION

          ROBERT L. HOLLOWAY, JR., JUDGE

         Factual and Procedural Background

         On January 27, 2016, the Sullivan County Grand Jury indicted Defendant and Co-defendant, Mimi Barrett, on three counts of sale of a Schedule III controlled substance within a drug-free zone (counts one, three, and five), three counts of delivery of a Schedule III controlled substance within a drug-free zone (counts two, four, and six), and one count of maintaining a dwelling where a controlled substance was kept or sold (count seven).

         On February 2, 2018, Defendant entered an open plea of no contest to counts one, two, five, six, and seven.[1] Count two merged with count one and count six merged with count five. Defendant requested judicial diversion. After a guilty plea colloquy, the trial court accepted Defendant's guilty plea.

         At the sentencing hearing on August 24, 2018, Defendant testified that he formerly worked for DC and R Construction for over ten years. He explained that he currently worked for Dollar Tree. Defendant said he regretted his actions that led to his convictions for the current offenses and explained that, when the offenses occurred, he was "around the wrong people at the wrong time[.]" Defendant asserted that he could successfully complete a drug screen and could complete the requirements of a diverted sentence. On cross-examination, Defendant agreed that he had a criminal history of misdemeanor convictions. Defendant also agreed that he had received a probated sentence for prior convictions, including a theft conviction, and that he had violated his probation on the theft conviction for failing to pay fines. The trial court deferred its decision on Defendant's manner of service.

         On August 31, 2018, the trial court addressed Defendant's request for diversion. The trial court found that Defendant was eligible for diversion. Defendant had been previously convicted for possessing drug paraphernalia; he received a probated sentence for this conviction but violated his probation by failing to report, ignoring correspondence, and failing to register for an alcohol and drug evaluation. Defendant also previously pled guilty to petty larceny in Virginia; he received a probated sentence for this conviction, but his probation was revoked and later reinstated. Additionally, in 2016, Defendant was convicted of misdemeanor theft and received a suspended sentence. Defendant violated the terms of this probation by failing to register for a class. Defendant also had two prior convictions for driving on a suspended license.

         The trial court noted that Defendant admitted in the presentence report that he continued to use marijuana until February 2018. Defendant also admitted to purchasing Lortab "off the street[.]" The trial court addressed the factors set out in State v. Electroplating, Inc., 990 S.W.2d 211, 229 (Tenn. Crim. App. 1998), and concluded that ...


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