Preview:

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE DECEMBER SESSION, 1998

FILED
February 18, 1999
Appellate C ourt Clerk

STATE OF TENNESSEE, Appellee vs. JAMES C. WOLFORD, Appellant

) ) ) ) ) ) ) ) )

Cecil Crowson, Jr. No. 03C01-9708-CR-00319 HAMILTON COUNTY Hon. Stephen M. Bevil, Judge (Probation Revocation)

For the Appellant: Don W. Poole Poole, Thornbury, Morgan & Richardson 732 Cherry Street Chattanooga, TN 37402

For the Appellee: John Knox Walkup Attorney General and Reporter R. Stephen Jobe Assistant Attorney General Criminal Justice Division 425 Fifth Avenue North 2d Floor, Cordell Hull Building Nashville, TN 37243-0493

William H. Cox III District Attorney General Bates William Bryan, Jr. Asst. District Attorney General 600 Market Street Third Floor, Court Building Chattanooga, TN 37402

OPINION FILED: AFFIRMED

David G. Hayes Judge

OPINION

The appellant, James C. Wolford, appeals the revocation of his sentence of periodic confinement by the Hamilton County Criminal Court resulting in the reinstatement of his original sentence of four years in the Department of Correction.

The decision of the trial court revoking the appellant from his probationary status and reinstating the appellant's four year sentence is affirmed. However, this cause is remanded to the trial court for modification of the judgment to reflect suspension of the appellant's driver's license for a period of four years as authorized by law.

Background

At some time during the early morning hours of September 30, 1992, the appellant, a twenty-two year old Chattanooga entrepreneur, struck a pedestrian, Rodney Walker, with his BMW automobile, resulting in Walker's death. The appellant fled from the scene of the accident to the apartment of his girlfriend. He then returned home where he informed his father of the incident. His father escorted him back to the crime scene where the appellant admitted his involvement to law enforcement officers. Tests subsequently performed on both the deceased and the appellant revealed that both men were legally intoxicated at the time of the offense.

On December 10, 1996, the appellant pled guilty to one count of vehicular homicide as a result of intoxication, a class C felony, in the Hamilton County

2

Criminal Court. 1 As provided in the negotiated plea agreement, the trial court imposed a sentence of four years in the Department of Correction. The court suspended this sentence and imposed a sentence of periodic confinement, ordering the appellant to serve six months on work release at the Hamilton County Workhouse 2 followed by six years probation. In pronouncing sentence, the court deferred entry of the judgment until December 10, 1997, at which time the court would determine whether the conviction should be diverted.

On June 4, 1997, the trial judge contacted the appellant's counsel, informing him that he was aware that the appellant had participated in a Muscular Dystrophy golf tournament3 sponsored by Golden Gallon convenience stores and that he would conduct a hearing on the following day to determine whether the appellant had violated the terms of his work release. The judge informed counsel that, if the appellant did not appear in court the next day, a warrant would issue for the violation. The following day, June 5, the appellant, accompanied by counsel, appeared before the court. The court informed the appellant of its knowledge of the appellant's participation in the golf tournament. The appellant apologized and explained that his participation was for "business relations only." The trial court then questioned the appellant as to "[h]ow many other times have you played golf since you have been on work release?" The appellant responded that the Muscular Dystrophy tournament was the only time that he had played golf while on work release. He stated that he is in the beverage distribution business and that Golden
The appellant was previously granted pretrial diversion on the charge of leaving the scene of the ac cident aris ing from this sam e inciden t. At the time of the app ellant's guilty plea to vehicular homicide, the appellant had successfully completed his two year diversionary period, the charge was dismissed, and the records relative to this charge were ordered expunged. Specifically, the appellant was ordered to report to the Hamilton County Workhouse by 7:00 p.m . on Dec emb er 26, 19 96. "From Mond ay through Friday of ea ch wee k, the [ap pellant] shall be released from the . . . Penal Farm at 6:30 a.m. in order that he may report to his business . . . ." "No later than 8:00 p.m. on ea ch day the appellant shall report back . . for his incarceration." "On Saturday of each we ek, the said Defendant sha ll be released from 6:30 am to 6:00 p.m." "During the appe llant's work release s tatus from Mond ay through Saturda y, he shall not be anyw here othe r than at his busin ess or an y locat ion w here his bu sine ss ta kes him ." (Em pha sis added). Appar ently, the trial judge noticed th e appe llant's nam e in an article relating the c harity golfing event in the local newspaper.
3 2 1

3

Gallon is his "biggest" account. Accordingly, he maintained that his participation in this golf tournament was "very much in association with his business." The trial court concluded that the appellant had violated the court's order and revoked the appellant's work release. The court also determined that the judgment should be entered at this time, concluding that there "were sufficient reasons why the court would not consider a deferred judgment even at a future date."

On June 9, 1997, the trial judge again summoned the appellant before the court to inform the appellant that it had come to the court's attention that the appellant may have made false statements to the court on June 5. The court advised the appellant and his counsel that the appellant was facing a revocation hearing for perpetrating a fraud upon the court by making false representations at the June 5th proceeding. Specifically, the trial court informed the appellant that, since the June 5th hearing, it had come to the attention of the court that the appellant had played in at least two other golf tournaments4 despite the appellant's denial of such activity at the prior hearing. Accordingly, the trial court set a revocation hearing to be held on June 20th.5

On June 30, 1997, a revocation hearing was held. The appellant, now the twenty-seven year old president of a beverage distributing company, admitted that he had indeed played in two additional golf tournaments, the Moc Docs tournament for the University of Tennessee at Chattanooga and the Fellowship of Christian Athletes tournament. He explained that he had interpreted the conditions of his work release to permit him to go where his business carried him, which included places out of the ordinary due to his position as president of the company. Indeed, he stated that he played in the tournaments because no other individual in the company could effectively replace him and he needed to foster good relations with
4

The court informed the appellant that the tournaments took place on April 30th and May

16th.
5

This hearing was subsequently continued to June 30, 1997.

4

his clients. The appellant admitted that, after his release every day from the workhouse, he would travel home to shower and dress before going to work. He also confessed that he had attended marriage counseling sessions with his fiancee while on work release and he had, on occasion, gone to the driving range to hit practice golf balls.

At the conclusion of the hearing but before making his ruling, the trial judge appropriately observed: . . .Justice is supposed to treat everyone who comes before this Court the same. It doesn't matter what your financial situation, it doesn't matter what your race, your creed or religion, your sexual preference, it doesn't matter. This Court has to consider every one the same if justice is to be blind. . . .[T]he longer I'm a judge I find out that there are people who want justice to be blind unless it affects them . . . then let's lift the blindfold just a little bit, Judge, because this is a different situation. The Court can't do that. Whether Mr. Wolford comes from an affluent family or whether he comes from skid row makes no difference to this Court. I have to look at the facts and circumstances in Mr. Wolford's case the same as I would anyone here. . . . I have to look not only at what's best for Clinton W olford, I have to look to see what's best for society, what's best for the community in its entirety because I'm held accountable not only for Mr. Wolford, but for everybody else in Hamilton County . . . . The court then made its findings and entered its ruling in the present matter:

I find. . . ample evidence to have set aside his work release. . . . Mr. Wolford has never . . . been willing to stand up and accept accountability and the responsibility for what he did beginning that very night when he started drinking and he ran over and hit Rodney Walker .... ... Then he was placed on work release. Now, there's some as he says confusion in his mind as to whether or not he was allowed to play golf, but this Court finds that Mr. Wolford never really -- his lifestyle was never really altered while he was on work release. He left the workhouse. He went home. He showered. He changed clothes. He went to work when he wanted to. If he wanted to play golf, he played golf. If he wanted to go to business luncheons with clients, he went to business luncheons with clients. He went to marriage counseling sessions. In the afternoon before he went back to the workhouse he dropped by his house, took a shower, cleaned up. There has not been anything to indicate his lifestyle is any different because he was on work release. He was not being punished by his actions. He indicated by his conduct that he wasn't being punished.

5

It's been shown to the Court and . . . it's clear that he did not have to play in these golf tournaments. He played in them because he wanted to and not only did he play in these golf tournaments, but even if I granted him the benefit of the doubt and said, okay, Mr. Wolford, you played in these for business relationships, how in the world that justifies going to Moccasin Bend and hitting golf balls when he's supposed to be at work or in the workhouse? . . . It just shows me that he has not yet willing to have been able to stand up and accept the responsibility and accountability for what he did. And then when confronted by that, and I asked him, "Mr. Wolford, have you played golf any other time other than . . . this tournament?" And he said, "No, I have not." Very emphatic, and Mr. Wolford's not a neophyte. He's 27 years old. He's a businessman that deals with presidents of companies. . . . He's got 10 to 12 employees. He meets with these business presidents so I don't find that he's naive as far as those types of things, and then when asked again today, "Why did you lie?" And he said, "I didn't have an opportunity to consult with anybody else. I didn't have an opportunity to talk to anybody." Again, he's not willing to accept the accountability and responsibility. you either tell the truth or you tell a lie. . . . A very simple question, "Mr. Wolford, did you play golf any other time?" All he had to say was, yes, sir, I did, and we probably wouldn't be here today, but once again, not wanting to stand up and accept the responsibility and the accountability, he said, "No, that's the only time." And then it was only today in his testimony when the Court quizzed him and I asked him, "Have there been other times that you played?" "Oh, you mean played in golf tournaments?" "No, have you played golf at any other time?" "Well, I did hit range balls over at Moccasin Bend." Mr. Wolford intentionally, deliberately lied to this Court. He misrepresented the facts as he's done so many times by his conduct to do what's in the best interest of Clint Wolford. It was in his best interest to lie to the Court and he did. You don't need time to consult with counsel when a question is asked of you and the answer is either yes or no and you tell the truth or tell a lie. ... Mr. Wolford, you put me in a position where I can do nothing else. If there's going to be justice in this courtroom and that justice is going to apply across the board to each and every individual that comes before it, you've put me in a position by your actions, by your refusal to accept accountability and responsibility, by deliberately lying to this courtroom, to this Court other than to revoke your probation and order that your sentence be served.

6

I. Nature of Sentence Imposed by Trial Court

Before addressing the merits of the appellant's issue, we are constrained to determine the exact nature of the sentence imposed by the trial court. As previously noted, the appellant, at the time of his revocation hearing, was serving a sentence of periodic confinement although no judgment had been entered in this case imposing any form of a sentence. The trial court's order specifically provided that entry of judgment was deferred for one year "at which time the court will review this matter." Moreover, the appellant, as required by the judicial diversion statute, Tenn. Code Ann.

Download wolfordj.pdf

Tennessee Law