State v. Banner

• Court: Court of Criminal Appeals of Tennessee
• Decided: December 23, 1997
• Docket: 03C01-9701-CR-00039
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE FILED NOVEMBER 1997 SESSION December 23, 1997

Cecil Crowson, Jr. Appellate C ourt Clerk

STATE OF TENNESSEE, ) ) APPELLEE, ) ) No. 03-C-01-9701-CR-00039 ) ) Unicoi County v. ) ) Lynn W. Brown, Judge ) ) (Sentencing) KEITH BANNER, ) ) APPELLANT. )

FOR THE APPELLANT: FOR THE APPELLEE:

Frederick M. Lance John Knox Walkup Attorney at Law Attorney General & Reporter 804 West Market Street 500 Charlotte Avenue Johnson City, TN 37501 Nashville, TN 37243-0497

Timothy F. Behan Assistant Attorney General 450 James Robertson Parkway Nashville, TN 37243-0493

David E. Crockett District Attorney General Route 19, Box 99 Johnson City, TN 37601

Lisa D. Rice Assistant District Attorney General Unicoi County Courthouse Erwin, TN 37650

OPINION FILED:_______________________________

AFFIRMED

Joe B. Jones, Presiding Judge OPINION

The appellant, Keith Banner1 (defendant), was convicted of driving under the

influence of alcohol, third offense, a Class A misdemeanor; driving while license revoked,

third offense, a Class A misdemeanor; escape, a Class A misdemeanor; and a violation

of the implied consent law following his pleas of guilty to these offenses. There was no

agreement regarding the punishment to be imposed by the trial court. The trial court

imposed the following sentences at the conclusion of the sentencing hearing: (a) a fine of

$1,100 and confinement for eleven months and twenty-nine days at 100 percent for driving

while under the influence of alcohol, third offense, (b) eleven months and twenty-nine days

at 75 percent for driving while his license was revoked, third offense, (c) eleven months

and twenty-nine days at 75 percent for escape, and (d) revocation of the defendant’s

privilege to operate a motor vehicle for six (6) months for violation of implied consent.2 The

trial court ordered all of the sentences to be served consecutively. The defendant presents

two issues for review. He contends (a) the trial court failed to follow the Criminal

Sentencing Reform Act of 1989 and evaluate the enhancement or mitigating factors, and

(b) the trial court abused its discretion by requiring the sentences to be served

consecutively. In short, the defendant contends the sentences imposed by the trial court

were excessive. After a thorough review of the record, the briefs submitted by the parties,

and the law governing these issues, it is this court’s opinion the judgment of the trial court

should be affirmed.

A presentence report was prepared, and it was considered by the trial court. The

parties referred to the presentence report during the hearing. However, the presentence

report was not made a part of the record transmitted to this court. A transcript of the

submission hearing was apparently not memorialized as the record does not contain a

transcription of this hearing. A transcript of the sentencing hearing is contained in the

1 This court uses the name of the defendant alleged in the indictment. The indictment alleges the name of “Keith Banner.” The face of the technical record states the defendant’s name is “Edward Keith Banner.” The defendant testified his name is “Edward Keith Banner.” These names refer to the same person. 2 The trial court revoked the defendant’s privilege to operate a motor vehicle for ten (10) years incident to the conviction for driving while under the influence.

2 record.

The failure to place the presentence report in the record prevents this court from

reviewing sentencing issues. State v. Wayne Eugene Boring, Knox County No. 03-C-01-

9307-00244, 1994 WL 41331 (Tenn. Crim. App., Knoxville, February 9, 1994). See State

v. Beech, 744 S.W.2d 585, 588 (Tenn. Crim. App.), per. app. denied (Tenn. 1987); State

v. Ronnie Gordon, Davidson County No. 01-C-01-9507-CR-00231, 1996 WL 465518

(Tenn. Crim. App., Nashville, August 16, 1996). Also, the failure to include a transcript of

the submission hearing prevents this court from reviewing sentencing issues. State v.

Jennifer Ann King, Madison County No. 02-C-01-9510-CC-00327, 1996 WL 551756 (Tenn.

Crim. App., Jackson, September 30, 1996); State v. Ollie G. Garrett, Shelby County No.

02-C-01-9404-CR-00057, 1994 WL 568417 (Tenn. Crim. App., Jackson, October 19,

1994). See State v. Bunch, 646 S.W.2d 158, 160 (Tenn. 1983); State v. Garvin Shepherd,

Davidson County No. 01-C-01-9409-CC-00322, 1995 WL 256677 (Tenn. Crim. App.,

Nashville, May 4, 1995). The absence of these matters prevents this court from conducting

a de novo review of the record pursuant to Tenn. Code Ann. § 40-35-401(d). It is important

that this court have and consider all of the facts and circumstances considered by the trial

court in reaching its decision.

This court has reviewed the sentencing hearing transcript to determine if the trial

court abused its discretion by imposing excessive sentences. Based upon the content of

the transcript, the trial court did not abuse its discretion. The appellant has a lengthy

record of misdemeanor and felony convictions. He was afforded probation on two

occasions and a community corrections sentence on another occasion. All three

sentences were revoked due to violations committed by the defendant after being released

into the community. He candidly admitted most of his adult life has been spent in jail

awaiting trial or serving the sentences imposed by the trial courts. This includes being

sentenced to the Department of Correction while he was a juvenile. Unfortunately, the

defendant is beyond rehabilitation. His continuing to drive a motor vehicle in a highly

intoxicated state after his license was revoked will eventually result in a collision and either

serious bodily injury or the death of another. Thus, the trial court properly sentenced the

defendant to serve the maximum sentence in each case and to serve the sentences

3 consecutively.

___________________________________________ JOE B. JONES, PRESIDING JUDGE

CONCUR:

______________________________________ PAUL G. SUMMERS, JUDGE

______________________________________ CURWOOD WITT, JUDGE