State v. Brewer

• Court: Court of Criminal Appeals of Tennessee
• Decided: August 21, 1998
• Docket: 03C01-9707-CC-00294
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE FILED JULY SESSION, 1998 August 21, 1998

Cecil Crowson, Jr. Appellate C ourt Clerk STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9707-CC-00294 ) Appellee, ) ) ) BLOUNT COUNTY VS. ) ) HON. D. KELLY THOMAS, JR. TERRY JOE BREWER, ) JUDGE ) Appe llant. ) (Sentencing)

ON APPEAL FROM THE JUDGMENT OF THE CRIMINAL COURT OF BLOUNT COUNTY

FOR THE APPELLANT: FOR THE APPELLEE:

JULIE A. MAR TIN JOHN KNOX WALKUP P.O. Box 426 Attorney General and Reporter Knoxville, TN 37901-0426 TODD R. KELLEY Assistant Attorney General 425 Fifth Avenu e North Nashville, TN 37243

MIKE FLYNN District Attorney General

PHILIP MORTON Assistant District Attorney General 363 Court Street Maryville, TN 37804

OPINION FILED ________________________

AFFIRMED

DAVID H. WELLES, JUDGE OPINION

The Defendant, Terry Joe Brewer, appeals as of right pursuant to Rule 3

of the Tennessee Rules of Appellate P roced ure. H e was convic ted, up on his

pleas of guilty, of violating the Motor Ve hicle H abitua l Offen der’s A ct, driving while

under the influence of an intoxicant, Class E felony evading arrest, and unlawful

possession of drug paraphernalia.1 The agreed sentences for the two Class E

felonies were three years as a Multiple Range II offender. The agreed sentences

for the Class A misd eme anors were e leven m onths and tw enty-n ine da ys. All

sentences were to be served concurrently. The manner of service of the

sentences was left to the discretion of the trial judge. The judge ordered that nine

months of the felony sentences be served in the county jail, with the balan ce to

be served in the community corrections program. The Defendant appeals from

the trial judge’s order that nine months of the sentence be served in confine ment.

We affirm the ju dgme nt of the trial co urt.

At the sentencing hearing, the Defendant testified that he did not

remember much about the offenses to which h e plead ed guilty because he was

“drunk on moonshine.” He said that he and his brothe r had co nsum ed abo ut a

half-gallon of moons hine and the y “got to fighting.” He got into a truck to drive

away, shortly thereafter the police stopped him, and the ch arges which led to h is

guilty pleas followed.

1 Tenn. Code Ann. § 55-10-616; Tenn. Code Ann. § 55-10-401; Tenn. Code Ann. § 39- 16-603(b); and Tenn. Code Ann. § 39-17-425.

-2- When an accused challenges the length, range, o r mann er of service of a

sentence, this court has a duty to conduct a de novo review of th e sente nce with

a presumption that the determinations made by the trial court are correct. Tenn.

Code Ann. § 40-35-401(d). This presumption is ?conditioned u pon the affirma tive

showing in the record that the trial court considered the sentencing principles and

all relevant facts and circumstanc es.” State v. Ashby, 823 S.W.2d 166, 169

(Tenn. 19 91).

In conducting a de novo review of a senten ce, this court mu st consider: (a)

the evidence, if any, received at the trial and sentencing hearing; (b) the

presentence report; (c) the principles of senten cing and argum ents as to

sentencing alternatives; (d) the nature and characteristics of the criminal conduct

involved; (e) any statutory mitigating or enhancement factors; (f) any statement

that the defendant made on his own behalf; and (g) the potential or lack of

potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-1 02, -103 , -

210; State v. S mith, 735 S.W .2d 859, 863 (Tenn. Crim . App. 1987 ).

The presentence report reflects that at the time of the offense the

Defendant was thirty-four years of age, single, and had a ninth-grade education.

The Defendant has a rather lengthy history of criminal conduct spanning a fifteen-

year period. His convictions include two for larceny from the person, two for

assau lt, one for grand larceny, one for first degree burglary, two for receiving

stolen property and two for driving on a suspended license. He has served time

in the penite ntiary a t least o nce a nd ap paren tly his pa role has been revoked on

two occasio ns. He admitted to long-term use of marijuana and tested positive for

marijuana on a drug screen just a few days before his sentencing hearing.

-3- In this appeal, the Defendant concedes “that some period of confinement

would likely be wa rranted.” H e argue s, howe ver, that nine months of confinement

is excessive, and that two mon ths wo uld be more appropriate. T rial judges are

tradition ally vested with broad discretionary authority in sentencing matters.

Based on the Defe ndant’s lengthy c riminal record, the failure of les s restrictive

measures in the past, and the Defendant’s continued disregard for the laws of

this State, we are unable to conclu de tha t the trial ju dge e rred or abus ed his

discretion by ordering that nine months of the Defendant’s sentence be served

in the c ounty jail.

The judgment of the trial court is affirmed.

___________________________________ DAVID H. WELLES, JUDGE

CONCUR:

___________________________________ GARY R. WADE, PRESIDING JUDGE

___________________________________ JOSEPH M. TIPTON, JUDGE

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