IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
SEPTEMBER SESSION, 1996
STATE OF TENNESSEE, ) C.C.A. NO. 02C01-9510-CC-00324 ) Appellee, ) ) FILED ) HENRY COUNTY March 26, 2008 VS. ) ) HON. JULIAN P. GUINN Cecil Crowson, Jr. Appellate Court Clerk MICHAEL BELLEW, ) JUDGE ) Appellant. ) (Direct Appeal-Motor Vehicle Offender)
FOR THE APPELLANT: FOR THE APPELLEE:
GUY T. WILKINSON CHARLES W. BURSON District Public Defender Attorney General and Reporter 24th Judicial District P. O. Box 663 MARY ANNE QUEEN Camden, TN 38320 Legal Assistant
ELLEN H. POLLACK Assistant Attorney General 450 James Robertson Parkway Nashville, TN 37219
ROBERT RADFORD District Attorney General P. O. Box 686 Huntingdon, TN 38344
OPINION FILED ________________________
AFFIRMED
JERRY L. SMITH, JUDGE OPINION
Appellant Michael Bellew pled guilty in the Henry County Circuit Court to
operating a motor vehicle in violation of the Motor Vehicle Habitual Offenders Act. As
a Range I standard offender, Appellant received a sentence of two years in the
Tennessee Department of Correction. In this direct appeal, he presents the following
issue: whether his sentence is excessive
After a review of the record, we affirm the judgment of the trial court.
I. FACTUAL BACKGROUND
On November 7, 1994, a Henry County Grand Jury indicted Appellant for driving
on a revoked license in violation of Tennessee Code Annotated Section 55-50-504. He
was also indicted for failing to abide by the terms of his habitual offender status in
violation of Tennessee Code Annotated Section 55-10-616. On April 13, 1995,
Appellant pled guilty to violating the Motor Vehicle Habitual Offenders Act. The first
count of the indictment was dismissed. Following a sentencing hearing on May 22,
1995, the trial court imposed a sentence of two years.
II. SENTENCING
Appellant alleges that his sentence is excessive. He argues that the trial court
erred in determining the length of his sentence by failing to apply certain applicable
mitigating factors.
When an appeal challenges the length, range, or manner of service of a
sentence, this Court conducts a de novo review with a presumption that the
determination of the trial court was correct. Tenn. Code Ann. § 40-35-401(d) (1990).
However, this presumption of correctness is “conditioned upon the affirmative showing
-2- that the trial court in the record considered the sentencing principles and all relevant
facts and circumstances.” State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). In the
event that the record fails to demonstrate such consideration, review of the sentence
is purely de novo. Id. If appellate review reflects that the trial court properly considered
all relevant factors and its findings of fact are adequately supported by the record, this
Court must affirm the sentence, “even if we would have preferred a different result.”
State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991). In conducting a
review, this Court must consider the evidence, the presentence report, the sentencing
principles, the arguments of counsel, the nature and character of the offense, mitigating
and enhancement factors, any statements made by the defendant, and the potential
for rehabilitation or treatment. State v. Holland, 860 S.W.2d 53, 60 (Tenn. Crim. App.
1993). The defendant bears the burden of showing the impropriety of the sentence
imposed. State v. Gregory, 862 S.W.2d 574, 578 (Tenn. Crim. App. 1993).
We note initially that, because the record demonstrates that the trial court
adequately considered the sentencing principles and all relevant facts and
circumstances, our review of Appellant’s sentence will be de novo with a presumption
of correctness.
In the absence of enhancement and mitigating factors, the presumptive length
of sentence for a Class B, C, D, and E felony is the minimum sentence in the statutory
range while the presumptive length of sentence for a Class A felony is the midpoint in
the statutory range. Tenn. Code Ann. § 40-35-210(c) (Supp. 1995). Where one or
more enhancement factors apply but no mitigating factors exist, the trial court may
sentence above the presumptive sentence but still within the range. Id. § 40-35-210(d).
Where both enhancement and mitigating factors apply, the trial court must start at the
minimum sentence, enhance the sentence within the range as appropriate to the
enhancement factors, and then reduce the sentence within the range as appropriate
-3- to the mitigating factors. Id. § 40-35-210(e). The weight afforded an enhancement or
mitigating factor is left to the discretion of the trial court so long as the trial court
complies with the purposes and principles of the Tennessee Criminal Sentencing
Reform Act of 1989 and its findings are supported by the record. State v. Hayes, 899
S.W.2d 175, 185 (Tenn. Crim. App. 1995).
Appellant was convicted of violating the Motor Vehicle Habitual Offender Act, a
Class E felony. See Tenn. Code Ann. § 55-10-616. As a Range I standard offender
convicted of a Class E felony, Appellant’s statutory sentencing range was one to two
years. See id. § 40-35-112(a)(5). The trial court found the following enhancement
factors applicable to the sentence:
(1) the defendant has a previous history of criminal convictions or criminal behavior in addition to those necessary to establish the appropriate range; (2) the defendant has a previous history of unwillingness to comply with the conditions of a sentence involving release in the community; and (3) the felony was committed while on probation from a prior felony conviction.
Id. § 40-35-114(1), (8), (13). The trial court found no mitigating factors. At the
conclusion of the sentencing hearing, the trial court imposed a sentence of two years.
Appellant does not contest the application of the three enhancement factors but
maintains that the trial court failed to consider four applicable mitigating factors. We
will address each in turn.
1. NO THREAT OF SERIOUS BODILY INJURY
Appellant first contends that the trial court should have applied mitigating factor
(1), which states that “[t]he defendant’s criminal conduct neither caused nor threatened
serious bodily injury.” Tenn. Code Ann. § 40-35-113(1). Appellant points out that he
was not driving under the influence of an intoxicant at the time of his arrest and argues
that he created no greater threat than any other driver. However, as a habitual offender
-4- with an extensive record of driving-related offenses, Appellant has demonstrated that
he is indeed a greater threat than the average driver. By means of the Motor Vehicle
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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
SEPTEMBER SESSION, 1996
STATE OF TENNESSEE, ) C.C.A. NO. 02C01-9510-CC-00324 ) Appellee, ) ) FILED ) HENRY COUNTY March 26, 2008 VS. ) ) HON. JULIAN P. GUINN Cecil Crowson, Jr. Appellate Court Clerk MICHAEL BELLEW, ) JUDGE ) Appellant. ) (Direct Appeal-Motor Vehicle Offender)
FOR THE APPELLANT: FOR THE APPELLEE:
GUY T. WILKINSON CHARLES W. BURSON District Public Defender Attorney General and Reporter 24th Judicial District P. O. Box 663 MARY ANNE QUEEN Camden, TN 38320 Legal Assistant
ELLEN H. POLLACK Assistant Attorney General 450 James Robertson Parkway Nashville, TN 37219
ROBERT RADFORD District Attorney General P. O. Box 686 Huntingdon, TN 38344
OPINION FILED ________________________
AFFIRMED
JERRY L. SMITH, JUDGE OPINION
Appellant Michael Bellew pled guilty in the Henry County Circuit Court to
operating a motor vehicle in violation of the Motor Vehicle Habitual Offenders Act. As
a Range I standard offender, Appellant received a sentence of two years in the
Tennessee Department of Correction. In this direct appeal, he presents the following
issue: whether his sentence is excessive
After a review of the record, we affirm the judgment of the trial court.
I. FACTUAL BACKGROUND
On November 7, 1994, a Henry County Grand Jury indicted Appellant for driving
on a revoked license in violation of Tennessee Code Annotated Section 55-50-504. He
was also indicted for failing to abide by the terms of his habitual offender status in
violation of Tennessee Code Annotated Section 55-10-616. On April 13, 1995,
Appellant pled guilty to violating the Motor Vehicle Habitual Offenders Act. The first
count of the indictment was dismissed. Following a sentencing hearing on May 22,
1995, the trial court imposed a sentence of two years.
II. SENTENCING
Appellant alleges that his sentence is excessive. He argues that the trial court
erred in determining the length of his sentence by failing to apply certain applicable
mitigating factors.
When an appeal challenges the length, range, or manner of service of a
sentence, this Court conducts a de novo review with a presumption that the
determination of the trial court was correct. Tenn. Code Ann. § 40-35-401(d) (1990).
However, this presumption of correctness is “conditioned upon the affirmative showing
-2- that the trial court in the record considered the sentencing principles and all relevant
facts and circumstances.” State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). In the
event that the record fails to demonstrate such consideration, review of the sentence
is purely de novo. Id. If appellate review reflects that the trial court properly considered
all relevant factors and its findings of fact are adequately supported by the record, this
Court must affirm the sentence, “even if we would have preferred a different result.”
State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991). In conducting a
review, this Court must consider the evidence, the presentence report, the sentencing
principles, the arguments of counsel, the nature and character of the offense, mitigating
and enhancement factors, any statements made by the defendant, and the potential
for rehabilitation or treatment. State v. Holland, 860 S.W.2d 53, 60 (Tenn. Crim. App.
1993). The defendant bears the burden of showing the impropriety of the sentence
imposed. State v. Gregory, 862 S.W.2d 574, 578 (Tenn. Crim. App. 1993).
We note initially that, because the record demonstrates that the trial court
adequately considered the sentencing principles and all relevant facts and
circumstances, our review of Appellant’s sentence will be de novo with a presumption
of correctness.
In the absence of enhancement and mitigating factors, the presumptive length
of sentence for a Class B, C, D, and E felony is the minimum sentence in the statutory
range while the presumptive length of sentence for a Class A felony is the midpoint in
the statutory range. Tenn. Code Ann. § 40-35-210(c) (Supp. 1995). Where one or
more enhancement factors apply but no mitigating factors exist, the trial court may
sentence above the presumptive sentence but still within the range. Id. § 40-35-210(d).
Where both enhancement and mitigating factors apply, the trial court must start at the
minimum sentence, enhance the sentence within the range as appropriate to the
enhancement factors, and then reduce the sentence within the range as appropriate
-3- to the mitigating factors. Id. § 40-35-210(e). The weight afforded an enhancement or
mitigating factor is left to the discretion of the trial court so long as the trial court
complies with the purposes and principles of the Tennessee Criminal Sentencing
Reform Act of 1989 and its findings are supported by the record. State v. Hayes, 899
S.W.2d 175, 185 (Tenn. Crim. App. 1995).
Appellant was convicted of violating the Motor Vehicle Habitual Offender Act, a
Class E felony. See Tenn. Code Ann. § 55-10-616. As a Range I standard offender
convicted of a Class E felony, Appellant’s statutory sentencing range was one to two
years. See id. § 40-35-112(a)(5). The trial court found the following enhancement
factors applicable to the sentence:
(1) the defendant has a previous history of criminal convictions or criminal behavior in addition to those necessary to establish the appropriate range; (2) the defendant has a previous history of unwillingness to comply with the conditions of a sentence involving release in the community; and (3) the felony was committed while on probation from a prior felony conviction.
Id. § 40-35-114(1), (8), (13). The trial court found no mitigating factors. At the
conclusion of the sentencing hearing, the trial court imposed a sentence of two years.
Appellant does not contest the application of the three enhancement factors but
maintains that the trial court failed to consider four applicable mitigating factors. We
will address each in turn.
1. NO THREAT OF SERIOUS BODILY INJURY
Appellant first contends that the trial court should have applied mitigating factor
(1), which states that “[t]he defendant’s criminal conduct neither caused nor threatened
serious bodily injury.” Tenn. Code Ann. § 40-35-113(1). Appellant points out that he
was not driving under the influence of an intoxicant at the time of his arrest and argues
that he created no greater threat than any other driver. However, as a habitual offender
-4- with an extensive record of driving-related offenses, Appellant has demonstrated that
he is indeed a greater threat than the average driver. By means of the Motor Vehicle
Habitual Offenders Act, the General Assembly of Tennessee, as a matter of public
policy, has determined that certain drivers are such a threat that they should not be
allowed to operate a motor vehicle. Appellant is just such a driver, and his presence
behind the wheel, in and of itself, constitutes a threat of serious bodily injury to other
drivers. Thus, we conclude that mitigating factor (1) is inapplicable.
2. STRONG PROVOCATION
Appellant also asserts that the trial court should have applied mitigating factor
(2), which states that “[t]he defendant acted under strong provocation.” Tenn. Code
Ann. § 40-35-113(2). Appellant argues that, at the time of his arrest, he was en route
to Michigan to be with his family and to seek employment. He fails to explain why it
was necessary for him to drive himself cross-country, knowing full-well that any driving
was in direct violation of the terms of his habitual offender status. The circumstances
surrounding Appellant’s decision to drive to Michigan fall well short of the strong
provocation necessary to mitigate a sentence. Thus, mitigating factor (2) is
inapplicable.
3. SUBSTANTIAL GROUNDS TENDING TO EXCUSE OR JUSTIFY CRIMINAL
CONDUCT
Appellant next maintains that the trial court should have applied mitigating factor
(3), which states that “[s]ubstantial grounds exist tending to excuse or justify the
defendant’s conduct, though failing to establish a defense.” Tenn. Code Ann. § 40-35-
113(3). Appellant argues that his desire to find gainful employment in Michigan near
his family constitutes a substantial ground tending to excuse or justify his actions.
While we can appreciate the difficulties accompanied with the loss of driving privileges,
-5- we do not believe that Appellant’s interest in returning to Michigan, however admirable
his motivation may have been, rises to the level of excusing or justifying his actions.
Thus, mitigating factor (3) is inapplicable.
4. DESIRE TO PROVIDE NECESSITIES
Finally, Appellant insists that the trial court should have applied mitigating factor
(7), which states that “[t]he defendant was motivated by a desire to provide necessities
for his family or himself.” Tenn. Code Ann. § 40-35-113(7). In support of the
application of this factor, Appellant argues that his decision to violate the terms of his
habitual offender status was motivated by a desire to find employment in Michigan so
he could provide for his family. However, mitigating factor (7) is more properly
addressed to individuals who, because of their destitution, choose to steal bread, milk,
or other basic necessities for their children or themselves due to their dire
circumstances. See State v. Williamson, No. 03C01-9210-CR-00371, 1993 WL
335433, at *2 (Tenn. Crim. App. Sept. 1, 1993), perm. app. denied (Tenn. Mar. 7,
1994). We believe that, if Appellant had the means to put fuel in his car and to keep
it in good working order for the trip to Michigan, he had the means to arrange for some
other form of travel, whether with a friend or family member or on some form of public
transportation. Thus, mitigating factor (7) is inapplicable.
Even if one or all of these mitigating factors applied to Appellant’s sentence, the
extensiveness of his criminal history in the area of operating a motor vehicle and his
repeated willingness to disregard the terms of his punishment more than justify a
sentence of two years. Therefore, we conclude that the trial court acted within its
discretion in enhancing Appellant’s sentence to two years.
Accordingly, the judgment of the trial court is affirmed.
-6- ____________________________________ JERRY L. SMITH, JUDGE
CONCUR:
___________________________________ JOE B. JONES, PRESIDING JUDGE
___________________________________ DAVID H. W ELLES, JUDGE
-7-