IN THE CRIMINAL COURT OF HAMILTON COUNTY, TENNESSEE STATE OF TENNESSEE, Plaintiff, CASENO: 302476 vs. DIVISION: II JOHNTHONY K. WALKER Defendant, MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT’S MOTION FOR DETERMINATION OF JUDICIAL DIVERSION ‘Comes now the defendant, by and through counsel of record, pursuant to 7:C.A. $40-35- 313, and files this Memorandum of Law in Support of his Motion for Determination of Judicial Diversion, 1. MR. WALKER QUALIFIES FOR JUDICIAL DIVERSION PURSUANT TO TCA. $40-35-313 Judicial diversion is a legislative creation that effectively allows the court to defer further proceedings against a qualified defendant and place the defendant on probation without entering a judgment of guilty. 1.C.A. $40-35-313(a)(1)(A). A qualified defendant is defined as a defendant who is found guilty or pleads guilty or nolo contendere to the offense for which deferral is sought; is not secking deferral of one of the offenses specifically enumerated in the statute; has not previously been convicted of a felony or Class A misdemeanor for which a sentence of confinement is served; and has npt preyjously been granted judicial or pretrialdiversion. 7.C.A, §40-35-313(B)(i)." In the present matter, Defendant Walker would show that he is a “qualified defendant” for the foregoing reasons: (1) Mr. Walker has never been convicted of any crime, specifically including a disqualifying felony or Class A misdemeanor. (See Exhibit 1), (2) The indicted offenses, including Vehicular Homicide, Reckless Aggravated Assault, and Simple Assault, are not specifically disqualified under the terms of T:C.A. §$40- 35-313(B)()(C) and (ii) (G.)Mr. Walker has never sought or been granted judicial diversion previously. As of the filing of this motion, Mr. Walker has not entered a plea. However, Defendant would show the Court that it is both appropriate and lawful for this Court to consider his request for judicial diversion contingent upon a plea of guilty or nolo contendere. To begin, itis judicially economical for the Court to undertake this decision-making process now so as to encourage open plea negotiations between the party and perhaps bring this matter to a resolution without the expense of trial. Further, it is Mr. Walker's position that the technical language of the statute conflicts with case law regarding the necessity of entry of plea before considering an application for judicial diversion, While 7.C.A, §40-35-313 states that a qualifying defendant means a defendant who “is found guilty of or pleads guilty or nolo contendere to the offense for which deferral of further proceedings is sought,” there is no question that Mr. Walker cannot be found guilty and then receive judicial diversion consideration. This issue was explored in great detail in State v, Soller, * A qualified defendant, pursuant (othe terms ofthe statute, is also someone who is not secking deferral of further proceedings for any offense committed by any elected or appointed person in the exceutive, legislative or judicial branch ofthe state or any subdivision thereof. Such allegations are not contained in the indictment, and therefore this application will not address this aspect of the qualifications, 2181 S.W.3d 645 (Tenn, 2005). In that matter, Mr. Soller entered into a plea agreement to plead guilty to aggravated burglary, one count of aggravated assault, and resisting arrest in exchange for an effective six-year sentence, to be suspended after serving thirty days. Id, at 647, During the plea hearing, counsel for the defendant requested judicial diversion. The trial court stated that it would allow the defendant to file a motion for diversion, and the motion would be considered at a later hearing. Id. The State opposed judicial diversion as it was not part of the plea agreement, and the trial judge accepted the defendant’s guilty plea, ‘The defendant subsequently filed a motion for judicial diversion, which was not addressed by the trial judge prior to entry of the judgment. Thereafter, the trial court ruled that Mr. Soller was statutorily ineligible for judicial diversion because of a prior diversion in another state. Id, On appeal, the Court of Criminal Appeals held that prior diversion in other states to not serve to disqualify a defendant from judicial diversion under T:C.A. §40-35-313. However, judicial diversion could not be granted because the trial court was without authority to alter the terms of the plea agreement, Soller, 181 $.W.3d at 647. ‘The Supreme Court of Tennessee agreed that the terms of the plea agreement were not alterable under Tenn, R. Crim, P.11. More importantly, however, judicial diversion could not be granted to someone once a guilty plea had been accepted and a judgment of guilt entered upon the record. Id. at 649. See also State v, ‘Turco, 108 $.W.3d 244, 246 (Tenn, 2003) (holding that acceptance of a plea and entry of a judgment of guilt precluded the trial court from granting judicial diversion when reducing a sentence pursuant to Tenn, R. Crim, P. 35(b)). As such, in such cases where a plea agreement has already been reached, a trial court may entertain the issue of judicial diversion only when the Court rejects a plea agreement or when such an option is reflected in the 11(e\(1(C) pleaagreement, Id, at 650. Additionally, once a judgment of guilty has been entered, the trial court is precluding from granting judicial diversion. Id tis based upon these principles that Mr. Walker has filed his motion for determination of Judicial diversion and ask this Court to grant him judicial diversion prior to the entry of a plea agreement. While this procedure may seem unusual, Defendant avers that pre-plea consideration is prudent under the present circumstances, and will allow this case to take a more direct route to resolution ~ either by plea or by trial. Further, Mr. Walker asserts that the final determination ‘would necessarily require his acceptance of responsibility in the form of a plea of guilty or nolo contendere. Further, Mr. Walker would show the Court that the number of counts with which he is charged does not preclude a determination that judicial diversion is appropriate. The Court of Criminal Appeals in Knoxville previously addressed this issue in State v, Harris, 953 S.W.2d 701, 704 (Tenn, Crim. App. 1996), wherein the State argued that the language of 7:C.A. $40-35- 3/3 limits the availability of judicial diversion to a single offense. The appellate court made clear that a sentencing court may grant diversion for multiple offenses, so long as each individual diverted offense before the court is either a misdemeanor or a class C, D, or E felony offense, Id Inits opinion, the Court noted that the purpose of judicial diversion is to avoid placing the stigma and collateral consequences of a criminal conviction on an offender, and instead providing them ‘@ means to be restored fully to usefial and productive citizenship. “This purpose would be thwarted if judicial diversion was denied to those defendants who had never received the opportunity to reform yet were charged with multiple offenses.” Id. at 705I, MR. WALKER SHOULD BE GRANTED JUDICIAL DIVERSION UPON CONSIDERATION OF THE FACTORS SET FORTH IN STATE V. =EROPLATING, INC, In determining whether to grant judicial diversion, the trial court must consider the following factors: (1) The accused's amenability to correction; (2) The circumstances of the offense; (3) The accused's criminal record; (4) The accused’s social history; (3) The accused's physical and mental health; (© The deterrence value to the accused as well as others, and (7) Whether judicial diversion will serve the interests of the public as well as the accused, State v. Electroplating, Inc,, 990 S.W.2d 211, 229 (Tenn.Crim. App. 1998) (abrogated on other grounds), Defendant intends to put on proof relating directly to all of these factors at the hearing of this matter. However, he will briefly address each ground listed to provide the Court with appropriate notice of the arguments to be made. 1. The Accused’s Amenability to Correction Evidence that will be utilized at the hearing of this matter will establish that Mr. Walker has a spotless criminal record. He has never been arrested prior to November 21, 2016, either as an adult or as a juvenile, Mr. Walker has never had to report to a probation officer. However,there is no reason to believe that this Defendant would be anything other than compliant with the terms of any probationary sentence put forward by this Court, Typically, this factor asks the Court to look at the Defendant's history of complying with the law, regulatory agencies, or authority in general. For instance, in the Electroplating matter, the criminal defendant was charged with violating the Tennessee Water Control Act of 1977 by discharging chromium in the water system, a class E felony. Id, at 215. In assessing the defendant's amenability to correction, the Court of Criminal Appeals considered his past disregard for water regulations, particularly that the defendant had been cautioned and fined on several previous occasions for improperly discharging contaminated liquids into the street. Id, at 230. Additionally, the defendant had been unwilling to accept responsibility and made efforts to disguise his assets, all of which reflected negatively on his amenability to correction. Id In the instant matter, there is no evidence that Mr. Walker has a history of disregarding the law or making efforts to deny his responsibility in this case. To the contrary, this Defendant has always shown himself to be a productive member of society who follows the rules. In some ways, this particular factor is difficult to apply to Mr, Walker because there is no allegation that he engaged in any intentional conduct whatsoever. In reviewing the cases relating to the application of judicial diversion at the appellate level, itis often the case that individuals receiving consideration for judicial diversion have engaged in conduct that requires a specific ‘mens rea, which is not present in this matter. See State v. King, 432 S.W.3d 316 (Tenn, 2014) (considering the diversion application of an individual pleading guilty to aggravated burglary and theft of property); State v. Harris, 953 $.W.2d 701 (Tenn.Crim.App. 1996) (upholding judicial diversion for an individual pleading to multiple counts of drug possession and possession for resale). Mr, Walker’s case is atypical in many respects. Nonetheless, Defendant avers that thereis no evidence from which the Court could make a finding that he will be anything less than amenable to correction, 2. The Circumstances of the Offense Clearly, there is some dispute as to the circumstances of the offense, particularly including the speed at which Mr. Walker was travelling at the time this accident occurred. Despite this dispute, it is irrefutable that Mr. Walker was operating Bus 366 when this accident occurred. It is indisputable that the vehicle left the roadway on the right shoulder, crossing a driveway, striking a mailbox, and ultimately crossing the roadway before coming to rest on its side in a residential yard, It is further indisputable that the consequences of this accident were tragic for everyone involved. The loss of life, the extent of injuries suffered by some of the children on the bus, and the inevitable grief suffered by their families is immeasurable. However, the ultimate consequences of this accident should not form the basis of the Court's decision as to the application of judicial diversion, nor its consideration of the “circumstances of the offense.” Mr. Walker would show this Court that there is evidence he encountered another large vehicle, similar to vehicles who transport the elderly or physically disabled, in the roadway as he approached a turn in Talley Road. There was insufficient room in the roadway for these two vehicles to pass safely, and Mr. Walker steered the bus to the right to avoid a collision with the other vehicle in question. Furthermore, the existence of this white transport vehicle is confirmed not only by video footage that will be shown at the hearing of this ‘matter, but also by an eye witness who reported seeing this vehicle to officers with the Chattanooga Police Department, It should also be noted that Mr. Walker submitted to a blood draw and the T-B.1. laboratories found that Defendant was negative for both alcohol and drugs within 2 hours of the accident. (See Exhibits 2 and 3).3. The Accused’s Criminal Record The Tennessee Bureau of Investigation has confirmed that Mr. Walker has no disqualifying misdemeanor of felony convictions. (See Exhibit 1). Defendant would show that he has never even been arrested prior to November 21, 2016, nor has he ever been convicted of any offense as an adult or a juvenile. 4. The Accused’s Social History Johnthony Walker was twenty-four (24) years old at the time of this offense. He was living with his child and girlffiend at the time this event occurred, Defendant had been employed by Durham Schools, Inc. as a driver since April of 2016, and was also working at ‘Amazon beginning in May of 2015. Each day, Mr. Walker rode his skateboard to and from his two jobs so he could support his young family. He is a graduate of Brainerd High School, and briefly attended Chattanooga State Technical College before lack of transportation and funds forced him to withdraw, Witnesses will testify that Mr, Walker was known in his neighborhood for being a quiet boy who frequently rode his skateboard in the neighborhood. Unlike many of his peers, Mr. Walker completely avoided the gang culture that was prevalent in the area where he grew up, and instead focused on his artistic endeavors, Defendant will rely upon the proof at the hearing of this matter to supplement his social history, but would show the Court that prior to the accident of November 21, 2106 there were no incidents of negative behaviors on his part that should negatively impact his social history in any respect.5. The Accused’s Physical and Mental Health Defendant is not suffering from any physical health issues that would impact the Court’s evaluation of this factor. Counsel for Mr. Walker would show the Court she believes that her client is currently suffering from Post-Traumatic Stress Disorder. He is in great need of counselling and a mental health evaluation solely as it relates to the circumstances of this accident, and has been unable to obtain these needed services because he is held in isolation at the Hamilton County Jail, primarily for his own protection. There is no question that Mr. Walker is continuing to come to grips with the consequences of this accident, and that his mental health going forward should be considered by this Court. 6. The Deterrence Value to the Accused as Well as Others As noted above, Mr. Walker’s case is somewhat unusual as it does not involve intentional ‘criminal acts designed to harm others. This is not a case where Mr. Walker needs to be deterred from future criminal conduct because he acted with specific criminal intent, While deterrence is always part of the assessment of appropriate criminal punishment, counsel for the Defendant asserts that this factor should be less of a consideration for the Court than it may be in other cases where the accused engaged in a course of conduct to knowingly violate the law or bring harm to victims. 7. Whether Judicial Diversion Will Serve the Interests of the Public as well as the Accused The denial of judicial diversion in Mr. Walker’ s case serves no public interest, nor any interest to this Defendant. It is clear from the media coverage and statements made by some of the victim’s families that there is an outcry for “justice” in this case, Counsel avers that it would be a failure of the criminal justice system to deny diversion in this case simply based upon thepublic perception of facts, or the grief suffered by many in our community. There is absolutely no public or private interest to be served by incarcerating a young man who has never violated the law and who sought to provide for his family by working two jobs, and instead creating a permanent record of multiple felonies that will inevitably foreclose the possibility of future employment at a livable wage for the rest of his life. A permanent criminal record and possible incarceration of a young man who has always been a productive member of society does nothing but make Johnthony Walker a statistic, despite the fact that the allegations in this case pale in comparison to other felonies such as Aggravated Assault and Robbery, both of which qualify for judicial diversion under 7:C.A $40-35-313 and encompass horrible, intentional conduct that is entirely absent in this case. CONCLUSION For the reasons stated herein and based upon the proof to be adduced at a hearing of this matter, Defendant respectfully requests that this Court enter an order finding that he shall be granted judicial diversion in the event of a guilty or nolo contendere plea. Respectfully submitted, LUTHER™\ANDERSON, PLLP MANDA B. DUNN|BPR #23523 Attorney for Defendant 100 W, MLL. King, Jr. Blvd, Suite 700 P.O. Box 151 Chattanooga, Tennessee 37401-0151 (423) 756-5034 10CERTIFICATE OF SERVICE This is to certify that I have this day served the following named persons with a true and exact copy of this pleading by placing same in the United States Mail, addressed to said counsel at his/her offices, with sufficient postage thereupon to carry the same to its destination at the following addresses: ‘Neal Pinkston, Esq. Office of the District Atorney 600 Market Street, Suite 310 Chattanooga, TN 37402 (423) 209-7400 ale ) Thi 25 day of sf 5 2017. LUTHER - ANDERSON, PLLP rant bn wilgue 408/02/2017 weo 15103 Pax Qoor/o02 . 17011854 © APPLICATION FOR CERTIFICATION OF ELIGIBILITY FOR DIVERSION S feouy [cour pwviow [once Hamilton [CRIMINAL Eleven |DON POOLE [oerewoanrs Nave booker COURT DATE JOHNTHONY K WALKER 302476 [08/10/2017 DATE OF aa enace social secon NoMaeR rive oF DveRSION 07/28/1992, M/8 }415711310 Judicial [OFFENSES TO BE DIVERTED vehicular homicide x6 - DOA: 11/24/2016. Felony reckless aggraveted assault x18 - DOA: 11/21/2016 - Felony lassautt x7 - DOA: 11/21/2016 - Misdemeanor reckless endangerment - DOA: 11/21/2016 - Felony reckless driving - DOA: 11/21/2016 - Misdemesnor use of portabla slactranic device by school bus driver - DOA: 11/21/2016 - Misdemeanor at ANS PHONE HUMBER OF OSTHICT ATTORNEY OR ASSTANT DSTRICTATTORNEY TO WINOM RESPONSE SHOULD BESENT |AMANDA DUNN: 4237565034 Fax wunanen 4282659903 i AND PHONE NDMBER OF DEFENSE ATTORNEY Ox PAO SE OEFENDANT TO WHOM RESPONSE SVOULD BESET Fax NUMBER. [aDoness CERTIFICATION OF ELIGIBILITY FOR DIVERSION. thereby cera that, rar to Tenn. Code Aon 38-6218), 3 cube f the Te Expunged Cina Ofeader and Prot Oberon Databats hasbeen esnducted pursuant othe shove uthorze equ, and based upon he ress of ha Query ‘The defendant has not had a prior disqualifying felony or misdemeanor conviction ' a 08/02/2017 ew ning nT cone [PERSE NOTE THAT Ts DOES WOT CONSTITUTE A CERTINEATON THAT THE DEFENGANT W FUGUE OF NEUGILE FOROVERSION UNDER TEASDISTIG OF rca o.1-t05, Tvs ONLY A CERTIFICATION THAT A RECORGS CHECK OFTHE TO\EXPUNGED CRIMINAL OFFENDCR AND PRETRIAL DIVERSION DATABASE [As REVEALED QUALIFYING On OISQUALIYING INFORMATION UNDERTHE CRITERIA SET OUT INTHE VERSION STATUTES REFERENCED ABOVE, JUDGEMENT OF PRETRIAL DIVERSION OR JUDICIAL DIVERSION. ‘Comes now the District attorney General for the State and Defendant with counsel of record for entry oF udgement. onthe pot = = [OFFENSE INDICTED [OFFENSE CLASS [OFFENSE oWvenTED [OFFENSE class [Tre defendane i sentencedto [] prota dvarion [Tjuclca diversion forthe folowing period yews, months, ays, efecive j1v0GE (Printed) TUDGE Signature) ENTRY OF JUDGEMENT DATE [APPROVED FOR ENTRY DISTRICT ATTORNEY [ATTORNEY FOR DE 200 Rev 0a/PTENNESSEE BUREAU OF INVESTIGATION [NASIIVILLI CRIME LABORATORY 901 R.S. Gas Boulevard ‘Nashville, Tennessee 37216-2639 BILLBASLAM MARK GWYN OFFICIAL ALCOHOL REPORT TO: T. Seiter DATEISSUED, 11/22/16 Chattanooga PD. LABCASENO: 161021600 AGENCY CASE NO: 16120837 ‘COUNTY: Hamiten| SUBJECT(S) ieris) JOHNTHONY KENTON WALKER Received From: Kenneth Burnette Date Received: 11722118 Received By: Rucle MeGowen Time Received: 10:20 am EXHIBITS) 01 Blood sample Collected: ‘1124116 05:32 PM Results: ‘Substance Type Amount Date Time Analyzes 01 Ethyl Alohol (Gram %) Negative wens 1247 pm DISEOSITION: Reports on additional toxicology analyses wil fellow. Mah, Bwwias Dawn K Swiney Special Agent / Forensic Scientist The above represen th ioretators and opnons of he arahat certily snd attest tnat this document is the proper record & purports to be. EXHIBIT Ageyehand foes Deagated Reprtarae TOTSGaTE TOR SOS ana SS TOOT Page tof‘TENNESSEE BUREAU OF INVESTIGATION NASHVILLE CRIME LABORATORY ‘901 RS, Gass Roulevard Nashville, Tennessee 37216-2639 BILL HASLAM MARK GWYN OFFICIAL TOXICOLOGY REPORT 70: T. Selter DATEISSUED, 11/29/16 CChattanooge PD. LABCASENO: 161021600 AGENCY CASE NO: 16120837 COUNTY: Harton SUBJECTS) icTIMS) JOHNTHONY KENTON WALKER Received From: Kenneth Surette Dete Received: 11/22/16 Received By: Rudie MeGowen Time Received: 10:20 am EXHIBITIS) 01 Blood sample Collects: ‘weve 05:32PM RESULTS: Substance Amount ‘01 Opiates presumptively not detected. ‘Buprenorphine and buprenorphine metabolites presumptively not detected Cannabinoids presumptively not detected Cocaine and cocaine metabolites presumptively not detected, Batiturates presumptively not detected, Benzodiazepines presumptively not det No basic drugs detected ed DisPosirion: Respectiully Submitted, Metso. ke Qe Malinda Quinn ‘Special Agent Forensic Scientist ‘The atove apresentsnertepeatonsandopeion the nat Teccal ne and daa supporing i corelusonefndigs inv ep ate mained wi te barry cate ecards certty and sttest that this document is the proper record i purports to be. EXHIBIT Agrttoodaod y 3 Degated ereaarave oT DrecoN TEN TOR SEO arse TTT, Page 1 of