Former federal supervisory probation officer Dewayne Kelley accepted judicial diversion last week after being charged with criminally negligent homicide. In February Kelley crashed his car into the Tomato Head restaurant in Knoxville, killing a 58-year-old woman. Kelley was not under the influence of drugs or alcohol, but prosecutors considered his behavior “criminally negligent” because he knew his multiple sclerosis prevented him from driving safely. Kelley, who has an otherwise clean record, was granted judicial diversion by Judge Bob McGee; his case and all charges will be dismissed contingent upon completion of a two-year probation, including a suspended license. Understandably, the victim’s family members said Kelley deserved a harsher penalty. More details here.
Under Tennessee law, some first-time offenders are eligible for judicial diversion. Tenn. Code Ann. § 40-35-313 provides that a court may defer further proceedings against a “qualified defendant” and place them on probation upon such reasonable conditions as it may require without entering a judgment of guilty. A person who receives judicial diversion (a “qualified defendant”) essentially enters a conditional guilty plea and is placed on probation for a term of months or years, depending on the charge. Even though technically he has pled guilty to a crime, if he successfully completes probation, a judgment of guilty is never entered and the case is dismissed.
Judicial diversion eligibility is not automatic. The court must analyze each case according to seven factors also set out in Tenn. Code Ann. § 40-35-313:
-
The defendant’s amenability to correction— the court will normally consider whether the defendant is being forthright, accepts responsibility for their actions and is repentant.
-
The circumstances of the offense—this you might think of as the “reasonableness” catch-all; it provides discretion to assess the details, particulars and eccentricities of a given case.
-
The defendant’s criminal record—in addition to previous convictions and jail time, prior judicial diversions in Tennessee will render a defendant ineligible.
-
The defendant’s social history.
-
The defendant’s physical and mental health—not only does the defendant have to be willing to undergo the probation; he or she must be healthy and stable enough to fulfill it. (I know I wrote that part but I decided it was too clunky)
-
The deterrence effect on the defendant and others—judicial diversion should be a beneficial rehabilitative option—not only for the defendant, but for others who might be affected by the sentencing.
-
Whether a grant of judicial diversion will serve the interests of justice, including the interests of both the defendant and the public— “the interests of justice” is often used but seldom defined; the courts generally focus whether judicial diversion will deter the defendant from committing additional crimes while protecting the victims and the public.
The trial courts have a great deal of discretion in determining whether judicial diversion is appropriate in each particular case.
This case was tragic for all persons involved. However, after examining the above factors, the court ultimately determined that putting Mr. Kelley in jail for this criminally negligent homicide would not be justice. A civil case for damages is pending.
