State of Tennessee v. Wayne Daryl Potee

02/23/2024

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs January 10, 2024

STATE OF TENNESSEE v. WAYNE DARYL POTEE

Appeal from the Circuit Court for Lincoln County

Nos. 15-CR-184, 15-CR-185, 15-CR-186, 15-CR-187, 16-CR-21

Forest A. Durard, Jr., Judge

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No. M2023-00179-CCA-R3-CD

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Defendant, Wayne Daryl Potee, pleaded guilty in case numbers 2015-CR-185 and 2015-

CR-186 to one count of selling 0.5 grams or more of methamphetamine in a Drug-Free

School Zone (“DFSZ”) and one count of selling less than 0.5 grams of methamphetamine

in a DFSZ. Defendant received an effective 15-year sentence to serve at 100 percent for

his convictions. Defendant subsequently filed a motion for resentencing pursuant to

Tennessee Code Annotated section 39-17-432(h)(1), which the trial court denied following

two evidentiary hearings. Defendant appealed the trial court’s decision. In his brief to this

Court, Defendant acknowledges that he has no right of appeal under Tennessee Rule of

Appellate Procedure 3, see State v. Bobo, 672 S.W.3d 299, 302 (Tenn. Crim. App. 2023).

He nonetheless asserts that the trial court’s ruling was fundamentally illegal and asks this

Court to grant a writ of certiorari. Following a thorough review of the record and applicable

law, we deny Defendant’s request for a writ of certiorari and affirm the judgment of the

trial court.

On Certiorari; Judgment of the Circuit Court Affirmed

TIMOTHY L. EASTER, J., delivered the opinion of the court, in which ROBERT L.

HOLLOWAY, JR., and JILL BARTEE AYERS, JJ., joined.

Daniel A. Horwitz, Lindsay Smith, and Melissa K. Dix, Nashville, Tennessee, for the

appellant, Wayne Daryl Potee.

Jonathan Skrmetti, Attorney General and Reporter; Benjamin A. Ball, Senior Assistant

Attorney General; Robert J. Carter, District Attorney General; and Amber Sandoval,

Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

Guilty Pleas

In February of 2016, Defendant pleaded guilty pursuant to a global plea agreement

to sale of 0.5 grams or more of methamphetamine in a DFSZ in case number 2015-CR-185

and sale of less than 0.5 grams of methamphetamine in a DFSZ in case number 2015-CR-

186.1 At the plea acceptance hearing, the prosecutor stated that Defendant was one of a

group of individuals being investigated between February and September 2015 for

trafficking methamphetamine. Defendant was a “secondary involved individual[] that did

some of the running and transporting” for others in the group. In case number 2015-CR-

185, Lincoln County Sheriff’s Office (“LCSO”) officers utilized a confidential informant

(“CI”) to make a controlled buy of crystal meth from Defendant on June 8, 2015.

Defendant arranged for the CI to make the purchase at Defendant’s auto repair shop, which

was located 350 feet away from the Ninth Grade Academy in Fayetteville. The CI paid

Defendant $300 in exchange for a small baggie containing 2.76 grams of

methamphetamine. In case number 2015-CR-186, Defendant arranged for the CI to make

another purchase at Defendant’s auto repair shop on July 8, 2015. The CI paid Defendant

$100 in exchange for a small baggie containing .45 grams of methamphetamine.

Defendant agreed that the State’s recitation of facts was accurate, and upon

Defendant’s acknowledgment that he understood his rights and agreed to waive them, the

trial court accepted Defendant’s guilty pleas. Defendant received an effective 15-year

sentence to be served at 100 percent pursuant to the plea agreement.

Petition for Resentencing

In May of 2022, Defendant filed a motion asking the trial court to resentence him

in accordance with the 2020 amendments to the Drug-Free Zone Act (“DFZA”).

Defendant’s motion asserted that the interests of justice supported his resentencing without

the DFZA enhancement. At a hearing on June 7, 2022, Defendant testified that he could

not recall if there was a school in sight of the location of the drug sales or who arranged

the location of the drug sales. He acknowledged that he received six write-ups while

incarcerated, which he stated all occurred in 2020 after his mother died and he “just kind

of gave up hope there for a little while.” Defendant said his last disciplinary write-up was

on December 28, 2020, and that he had been sober since February 7, 2021. Defendant

1

Defendant also pleaded guilty to conspiracy to sell 0.5 grams or more of methamphetamine in

case number 2015-CR-184, sale of less than 0.5 grams of methamphetamine in case number 2015-CR-187,

and conspiracy to introduce contraband into a penal institution in case number 2016-CR-21. Because

Defendant’s motion seeking resentencing relates only to these two cases, we will limit our summary of the

facts underlying Defendant’s guilty pleas to these charges.

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testified that he successfully completed the Cognitive Behavioral Intervention Program in

2017, but it consisted of “a bunch of repetitive stuff” and did not help with his sobriety.

Defendant also successfully completed a carpentry course in 2019. He testified that upon

his release, he planned to live with his father and work for A.J. Williams.

A.J. Williams testified that he owned a machine shop. He had known Defendant’s

family for 15 to 20 years and would be willing to hire Defendant to work full-time upon

his release.

Defendant’s father, Ronald Potee, testified that he would allow Defendant to live

with him at his house in Meridianville, Alabama, for “as long as it takes to get on his feet.”

Mr. Potee stated that he would provide Defendant transportation to and from work.

LCSO Sergeant Mike Pitts investigated Defendant’s case, which involved “a meth

conspiracy” between several individuals, some of whom were prosecuted federally.

Participants of the conspiracy transported “[m]ultiple ounces of methamphetamine” for

distribution in Lincoln County. Sergeant Pitts recalled that the two drug sales for which

Defendant was convicted that were not part of the conspiracy took place at Defendant’s

workplace, which was located within “387 or 397” feet of Ninth Grade Academy. Sergeant

Pitts stated that the school was visible from the side of Defendant’s shop. Sergeant Pitts

said that Defendant chose the location for the transactions and denied that he lured

Defendant into a school zone. Sergeant Pitts testified that while Defendant was

incarcerated, he arranged for drugs to be left at the courthouse where he attempted to

retrieve them on one of his court dates.

Vicky Farrar, a Court Specialist with the Tennessee Department of Correction,

testified that on February 5, 2020, Defendant tested positive for amphetamine,

buprenorphine, methamphetamine, and morphine. On May 18, 2020, he refused a drug

test. On December 14, 2020, Defendant tested positive for amphetamine and

methamphetamine. On May 25, 2021, he tested positive for amphetamine and

buprenorphine. Defendant received a write-up on December 4, 2020, for possession or use

of a cell phone or contraband. On December 22, 2020, Defendant had another positive

drug screen, and he received a write-up for tampering with security equipment on

December 26, 2020.

Defendant testified in rebuttal that the school was not visible from his shop and that

there was a “concrete wall . . . 20 feet high” which obstructed the view. He testified that

he “was aware” there was a school nearby, but he did not know the distance between the

school and his shop.

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In a written order entered on September 19, 2022, the trial court denied Defendant’s

motion for resentencing. The court found that Defendant failed to establish that he would

have received a shorter sentence under the 2020 amendments because the offenses occurred

within 500 feet of Ninth Grade Academy. The court also noted that Defendant’s

involvement in the conspiracy “spanned a number of months” and that he attempted to

introduce contraband into a penal facility after his arrest. Considering the “interest of

justice factors found in [subsection] (h)(1)(A) through (D)[,]” the trial court found that

Defendant’s criminal record and subsequent conviction, his behavior while incarcerated,

the location of the drug sales within 500 feet of a school zone, and the length of his sentence

pursuant to a plea agreement did not support resentencing.

The parties subsequently filed a joint motion to reopen the proof on Defendant’s

motion for resentencing,2 which the trial court granted. A new hearing was held on

December 6, 2022.

Dwight Williams testified that he had known Defendant for over 20 years and

“never kn[ew] him to do any drugs.” Mr. Williams testified that a “city building” was

located between Defendant’s shop and the school. He testified that “[t]he fence toward the

school is a chain l[in]k fence,” and there was “a block building in there, a block fence.”

Defendant’s sister, Kelly Bishop, testified she had a good relationship with

Defendant before he started using drugs. She began to suspect he was using drugs about a

year before his arrest, but she never suspected that he was selling drugs. Ms. Bishop

maintained contact with Defendant while he was incarcerated. She testified that Defendant

was in “a really bad depression” following their mother’s death, but he had since become

more hopeful. Ms. Bishop believed Defendant’s punishment was “overkill,” and she was

willing to be a source of support for him upon his release.

Dakota Burchard was Defendant’s cellmate at the Trousdale Turner Correctional

Complex from June to November of 2022. Mr. Burchard testified that he had been “locked

up the majority of [his] life” and had “never seen the stuff that [he saw] go on, the violence

and drugs and overdoses” to the degree he saw happen there. He testified that murders and

overdoses were common and drugs were easy to access in the prison. He believed

Defendant was a good person.

2

The joint motion indicates that there was a “miscommunication” about whether the State would

oppose Defendant’s motion for resentencing. In his brief to this Court, Defendant states that the “Assistant

District Attorney lied about whether the Government would oppose [Defendant]’s motion before the first

hearing.” However, to support this claim, Defendant cites only to the trial court’s second order denying his

motion for resentencing, which makes no such finding.

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Defense counsel called Sergeant Pitts to testify that he was not able to identify a

specific vulnerable person who was harmed by Defendant’s drug sales. He also agreed

that a paid informant was involved in the transactions. Sergeant Pitts could not recall

whether Defendant had other convictions or whether he was ever asked if he had an opinion

about whether Defendant should be resentenced. Sergeant Pitts identified several

photographs of the locations of the drug transactions that were admitted as a collective

exhibit. Ms. Farrar also testified for the defense that Defendant had not acquired any

additional write-ups since the first hearing.

The trial court again denied Defendant’s motion in a written order entered on

February 7, 2023. The order states that the court heard no additional proof that would

persuade it to reach a different result from its first order denying resentencing. The court

reiterated,

[Defendant] was involved in drug trafficking over a number of months and

was finally incarcerated for his activities; however, this did not stop him.

While awaiting disposition of his cases he was charged and later convicted

of conspiracy to introduce contraband into a penal institution. While

imprisoned he has had a number of disciplinary infractions which preclude

application for commutation by the Governor’s criteria on two of the four

qualifying questions (See Exhibit 8) with the most recent being in December

2020. The one factor weighing in [Defendant]’s favor is there were no actual

vulnerable persons present. Given the circumstances, [Defendant] is not a

candidate for resentencing.

Defendant filed a “Notice of Appeal” in this Court on the same day the trial court’s

order was entered.

Analysis

Defendant acknowledges that he has no right of appeal under Tennessee Rule of

Appellate Procedure 3. In the recently published State v. Bobo, 672 S.W.3d 299, 302

(Tenn. Crim. App. 2023), this Court held that neither Tennessee Rule of Appellate

Procedure 3 nor the recent amendments to Tennessee Code Annotated section 39-17-

432(h) provides for an appeal as of right from the denial of a motion seeking resentencing

under the DFZA. See also State v. Billingsley, No. E2022-01419-CCA-R3-CD, 2023 WL

4417531, at *6 (Tenn. Crim. App. July 10, 2023) (adopting Bobo and “similarly

conclud[ing] that the [d]efendant in this case does not have a right to an appeal on this

issue”), perm. app. denied (Tenn. Nov. 20, 2023); cf. State v. Watson, No. E2022-01321-

CCA-R3-CD, 2023 WL 5925717, at *7 (Tenn. Crim. App. Sept. 12, 2023) (holding, by

contrast, that Rule 3(b) allows an appeal when a defendant is granted a resentencing

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because the resentencing will produce a new sentence with an amended final judgment),

no perm. app. filed.

Anticipating that the State would argue this Court lacks jurisdiction under

Tennessee Rule of Appellate Procedure 3(b), Defendant urges this Court to treat his notice

of appeal as a petition for writ of certiorari. The State opposes a grant of certiorari, arguing

that the trial court’s ruling was not fundamentally illegal and that Defendant has not shown

that the proceedings were inconsistent with essential legal requirements.

Although Defendant filed a uniform “Notice of Appeal” rather than a petition for

writ of certiorari, both parties address the issue in their briefs to this Court. Therefore, we

will treat Defendant’s notice of appeal as a petition for writ of certiorari. See

Abdur’Rahman v. State, 648 S.W.3d 178, 190 (Tenn. Crim. App. 2020) (“[E]ven if we

were to determine that the State does not have an appeal as of right under [Tennessee] Rule

[of Appellate Procedure] 3(c), this Court has the authority to treat the State’s notice of

appeal as a petition for a writ of certiorari.”) (citing State v. Adler, 92 S.W.3d 397, 401

(Tenn. 2002), superseded on other grounds by statute, as recognized in State v. Rowland,

520 S.W.3d 542, 545 (Tenn. 2017); State v. L.W., 350 S.W.3d 911, 916 (Tenn. 2011)

(holding that “the failure to follow the procedural requirements of [T.C.A. §] 27-8-106 for

petitions for writ of certiorari in civil cases did not deprive the Court of Criminal Appeals

of jurisdiction to hear these appeals”)).

The common law writ of certiorari lies “[w]here no appeal is given[.]” T.C.A. § 27-

8-102(a)(2) (2023). The General Assembly codified the common law writ of certiorari in

Tennessee Code Annotated section 27-8-101 (2000). Adler, 92 S.W.3d at 401. Section

27-8-101 provides:

The writ of certiorari may be granted whenever authorized by law,

and also in all cases where an inferior tribunal, board, or officer exercising

judicial functions has exceeded the jurisdiction conferred, or is acting

illegally, when, in the judgment of the court, there is no other plain, speedy,

or adequate remedy.

The common law writ of certiorari is an “extraordinary judicial remedy,” State v.

Lane, 254 S.W.3d 349, 355 (Tenn. 2008), and may not be used “to inquire into the

correctness of a judgment issued by a court with jurisdiction.” Adler, 92 S.W.3d at 401

(citing State v. Johnson, 569 S.W.2d 808, 815 (Tenn. 1978)). Instead, the writ of certiorari

is available “to correct ‘(1) fundamentally illegal rulings; (2) proceedings inconsistent with

essential legal requirements; (3) proceedings that effectively deny a party his or her day in

court; (4) decisions beyond the lower tribunal’s authority; and (5) plain and palpable abuses

of discretion.’” Lane, 254 S.W.3d at 355 (citation omitted). As our supreme court decided

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in Adler, where there is “an allegation that the trial court acted without legal authority and

because ‘there is no other plain, speedy, or adequate remedy,’” certiorari review may be

warranted. Adler, 92 S.W.3d at 401.

Defendant complains that the trial court misconstrued section 39-17-432(h)(1) and

“failed to make a necessary finding ‘that resentencing the defendant would not be in the

interests of justice.’” T.C.A. § 39-17-432(h)(1). Defendant asserts that the trial court’s

“application [of the statute] to the facts of [Defendant]’s case” was fundamentally illegal

and “demonstrated the trial court’s ‘failure to proceed according to the essential

requirements of the law.’” (citing State v. Johnson, 569 S.W.2d 808, 815 (Tenn. 1978)).

In 2020, the General Assembly amended the DFZA to reduce the drug-free zone

radius from 1,000 feet to 500 feet. See T.C.A. § 39-17-432(b)(1)(B) (2020). Additionally,

the previous DFZA’s requirements that a defendant be punished one classification higher,

pay additional fines, and serve at least the minimum sentence for the defendant’s

appropriate range of sentence became discretionary. See T.C.A. § 39-17-432(b)(1), (b)(2),

(c)(1) (2020). Finally, the 2020 amendments to the DFZA created a rebuttable presumption

that a defendant was not required to serve the minimum sentence for the defendant’s

appropriate range of sentence at one hundred percent but provided that the presumption

was overcome if the trial court found that the defendant’s conduct “exposed vulnerable

persons to the distractions and dangers that are incident to the occurrence of illegal drug

activity.” T.C.A. § 39-17-432(c)(2) (2020).

The 2020 amendments to the DFZA applied to offenses committed on or after

September 1, 2020. Because the amendments were not retroactive, our legislature enacted

Tennessee Code Annotated section 39-17-432(h). The new subsection (h), which became

effective April 29, 2022, allows defendants sentenced for offenses committed before

September 1, 2020, to file a motion for resentencing under the amended version of the

DFZA. The new provision reads:

[T]he court that imposed a sentence for an offense committed under this

section that occurred prior to September 1, 2020, may, upon motion of the

defendant or the district attorney general or the court’s own motion,

resentence the defendant pursuant to subsections (a)-(g). The court shall hold

an evidentiary hearing on the motion, at which the defendant and district

attorney general may present evidence. The defendant shall bear the burden

of proof to show that the defendant would be sentenced to a shorter period of

confinement under this section if the defendant’s offense had occurred on or

after September 1, 2020. The court shall not resentence the defendant if the

new sentence would be greater than the sentence originally imposed or if the

court finds that resentencing the defendant would not be in the interests of

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justice. In determining whether a new sentence would be in the interests of

justice, the court may consider:

(A) The defendant’s criminal record, including subsequent criminal

convictions;

(B) The defendant’s behavior while incarcerated;

(C) The circumstances surrounding the offense, including, but not limited to,

whether the conviction was entered into pursuant to a plea deal; and

(D) Any other factors the court deems relevant.

T.C.A. § 39-17-432(h)(1) (2022). The final section of the DFZA makes it clear that

“subsection (h) does not require a court to reduce any sentence pursuant to this section.”

T.C.A. § 39-17-432(h)(4) (2022).

Despite Defendant’s assertions that the trial court misapplied the revised statute to

the facts of his case, the record does not reflect that the trial court’s ruling was

fundamentally illegal, that the proceedings were inconsistent with essential legal

requirements, that Defendant was denied his day in court, that the trial court acted without

authority, or that the trial court demonstrated a plain and palpable abuse of discretion. See

Lane, 254 S.W.3d at 355. Defendant was afforded two evidentiary hearings, after which

the trial court considered and weighed the statutory factors and determined that the interests

of justice did not support resentencing Defendant. We, therefore, decline to extend the

“extraordinary judicial remedy” of a writ of certiorari, see id., and we again emphasize that

the writ may not be used “to inquire into the correctness of a judgment issued by a court

with jurisdiction.” Adler, 92 S.W.3d at 401 (citing Johnson, 569 S.W.2d at 815).

Subsection (h)(4) explicitly provides that the revised statute “does not require a court to

reduce any sentence pursuant to this section.” T.C.A. § 39-17-432 (h)(4) (2022).

CONCLUSION

We deny the writ of certiorari and affirm the trial court’s judgment.

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TIMOTHY L. EASTER, JUDGE

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