State v. Carl Campen

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE FILED JANUARY SESSION, 1997

October 24, 1997

Cecil W. Crowson

STATE OF TENNESSEE, ) C.C.A. NO. 01C01-9512-CC-00433 Appellate Court Clerk

)

Appellee, )

)

) COFFEE COUNTY

VS. )

) HON. GERALD L. EWELL, SR.

CARL E. CAMPEN, ) JUDGE )

Appellant. ) (Direct Appeal-Sentencing)

FOR THE APPELLANT: FOR THE APPELLEE:

CHRISTOPHER VAN RIPER JOHN KNOX WALKUP Stuart & Van Riper Attorney General and Reporter 300 Market Street Clinton, TN 37716 KAREN M. YACUZZO Assistant Attorney General 450 James Robertson Parkway Nashville, TN 37243

MICKEY LAYNE

District Attorney General

STEPHEN E. WEITZMAN

Assistant District Attorney P. O. Box 147

Manchester, TN 37355

OPINION FILED ________________________ AFFIRMED JERRY L. SMITH, JUDGE

OPINION

A Coffee C ounty C ircuit Cou rt jury found Appella nt Carl E. Campen guilty of driving under the influence of an intoxicant (DUI), fourth offense, and driving on a revoked license. F or the DU I conviction , Appella nt received a sentence of eleven mon ths twe nty-nin e days in the county jail and a fine of seven thousand dollars. For the driving on a revoked license conviction, he received a sentence of one hund red eighty days in the county jail and a fine of five hundred dollars. The trial court ordered the sentence s served con secutively. In this dir ect ap peal, Appellant presents the follow ing issue for review: wheth er his s enten ce is excessive.

After a revie w of the re cord, we affirm the ju dgme nt of the trial co urt.

I. FACTUAL BACKGROUND

On Marc h 7, 19 95, the Coffe e Cou nty Gra nd Ju ry indicted Appellant for DUI, fourth offense, in violation of Tennessee Code Annotated Section 55-10-401 and for driving on a revoked license in violation of Tennessee Code Annotated Section 55-50-504.

Appellant originally expressed an interest in pleading guilty to the charges but, at the plea acceptance hearing on March 21, 1995, inexplicably pled not guilty. The trial court accepted the not gu ilty plea but found Appellant in contempt of court for represe nting to the court that h e would plea d guilty.

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In July of 1995, Appellant was tried before a jury in the Coffee Coun ty Circu it Court. At the conclusion of the trial, the jury found Appellant guilty of the offenses as set out in the indictm ent. The trial court im posed co nsecutive sentences of eleven months and twenty-nine days for the DUI offense and one hundred eighty days for the driving on a revo ked license o ffense. The trial cou rt ordered incarceration for seventy-five percent of the sentence.

II. SENTENCING

Appe llant alle ges th at his sentence is excessive. Specifically, he argues that the trial c ourt er red in d eterm ining th e leng th of his sente nces , in failing to impose some form of alternative sentence, and in ordering consecutive sentencing.

When an appeal challenges the length, range, or manner of service o f a sentence, this Court conducts a de novo review with a presumption that the determ ination 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 that the trial court in the record considered the sentencing principles and all relevant facts and circu mstance s.” State v. Ashby, 823 S.W.2d 166, 169 (T enn. 1 991). In the eve nt that th e reco rd fails to demonstrate such consideration, review of the sentenc e is purely de novo. Id. If appellate review reflects that the trial cour t properly c onside red all releva nt factors a nd its findings of fact are adequately supported by the record, this Court must affirm the senten ce. State v. Fletcher, 805 S.W .2d 785, 789 (Tenn. Crim . App. 1991 ). In conducting a review, th is Court m ust cons ider the ev idence , the presentence report, the sentencing principles, the arguments of counsel, the nature and

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character of the offense, mitigating and enhancement factors, any statements made by the de fendan t, and the potential fo r rehabilitation or treatm ent. State v. Holland, 860 S.W.2d 53, 60 (Tenn. Crim. App. 19 93). The defendant bears the burden of showing the improp riety of the se ntence impos ed. State v. Grego ry, 862 S.W .2d 574, 578 (Tenn. Crim . App. 1993 ).

The misdemeanant is not entitled to the presumption of a minimum sentence. State v. Creasy, 885 S.W.2d 829 (Ten n. Crim. App . 1994). Further, misdemeanor sentences do not contain ranges of punishments, and a misdemeanor defendant may be sentenced to the maximum term provided for the offense as long as the sentence imposed is consistent with the purposes of the sen tencing a ct. State v. Palmer, 902 S.W .2d 391 , 393 (T enn. 19 95).

In determ ining the p ercenta ge of the sentence that must be served, the court is required to consider enhancement and mitigating factors as well as the legislative purpos es and principles related to s entenc ing. Palmer, 902 S.W .2d at 393. Here Appellant does not challe nge th e perc entag e of se rvice of h is sentences. Rather, he argues only that the imposition of the maximum sentences are excessive.

The trial court, in sentencing Appellant, specifically set out the facts, circumstances and applicable portions of the Sentencing Reform Act of 198 9 in the record. A sep arate senten cing hearing w as held for which a pre-sentence report was ord ered. Appellant’s criminal record consists of three previous DUI

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convictions. In determining the s enten ce, the court c onsid ered A ppella nt’s previous criminal history and the fact that this conviction involved a crime in which the risk to h uman life was high . No mitig ating facto rs were fo und by th e court.

Appellant contests the first enhancement factor found by the court under Tenn. Code Ann. Section 40-35-114(10), that the defendant had no hesitation in committing a crime when the risk to human life was high. Specifically, the defendant argues that since he was not “driving” the vehicle, there was no risk posed to others’ health or safety. The affidavit of complaint in the arrest warrant described the defendant as “the subject of a complaint at ParMa rt on Hw y. 55.”

A transcript of the evidence presented at trial is not contained in the re cord and there is no proof showing whether the trial cour t found the defend ant guilty of “driving” of be ing in “phys ical contro l” of the vehic le at the tim e of his arre st. See Tenn. C ode Ann . Sec. 55-10-4 01. W hen the reco rd does n ot contain the proof presented on an issue, this Court is precluded from considering it and we must presume the trial court’s ruling is correct. State v. Benne tt, 798 S.W.2d 783 (Tenn. Crim. A pp. 199 0), cert. denied, 500 U.S. 915, 111 S.C t. 2009, 114 L.Ed.2d 98 (1991); State v. Matthews, 805 S.W .2d 776, 785 (Tenn. Crim . App. 1990 ). Since Appellant relies on alleged facts not included in the record, he has waived this issue.

The trial court also applied as an enhancement factor Tennessee Code Anno tated Se ction 40-3 5-114(1 ), that the de fendan t has a pre vious histo ry of

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criminal convictions or criminal behavior. The presentence report indicates the defendant has th ree prio r convic tions fo r driving unde r the influence. Under Tennessee Code A nnotated S ection 55-10-404, the punishment for driving under the influence is graded according to three categories; first conviction, second conviction and “third or subsequent conviction.” Although Appellant was charged with DU I, 4th offens e, only two previous conviction s are ne cessar y eleme nts to qualify for the maximum possible fine and punishment under the statute. Tenn. Code Ann. S ec. 55-1 0-403. Two of Ap pellant’s previous co nvictions were used to establish punishment under Tennessee Code Annotated Section 55-10- 403(a)(1), and the other was appropriately considered in imposing the maximum sentence.

Appellant further argues that because these convictions span a period of ten years, they do not indicate a period of consistent crim inal behavior. Ho wever, the record shows that Appellant has a history o f repea tedly committing the same crime. Appellant has not cited, and we are unawa re of, any au thority to support Appe llant’s position that, for the purposes of Tennessee Code Annotated Section 40-35-114 (1), all previous offenses must be within a specified period of time. Therefore, the application of Appellant’s prior criminal history in determining the length of the sentence was appropriate.

A. Alternative Sentencing

The trial court did not grant any for m of a lternativ e sen tencin g, altho ugh it recognized that alternatives to incarceration are encouraged under Tennessee

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Code Annotated Section 40-35-103(1)(C)(6). Confinement of Appellant was based, in part, on the fact that less restrictive measures had been used unsu cces sfully in the past. Tenn. Code Ann. § 40-35-103(1)(C). For each of Appe llant’s prior DUI convictions, probation had been im posed with only 48 hours to serve and a fine on each. Yet Appellant continued to drink and operate a vehicle while intoxicated even after his license had been revoked. Application of this enhancement factor was appropriate.

Additionally, the trial court’s refusal to suspend the sentence was based upon Appella nt’s lack of a mena bility to rehabilitation . Tenn. C ode An n. § 40-35- 103(1)(C)(5). The court noted at the s enten cing h earing that du ring the trial, Appellant “in effect, lied to the jury concern ing his prior record . . .” Appellant also exhibited “an arrogant uncooperative attitude” with the presentence officer. He showed no remorse for his crime and has, in the past, made similar promises not to drive under the influence which he has be en una ble to keep. Appellant has not taken respon sibility for his criminal conduct and the trial court properly denied alternative sentencing.1

Pointing to the number of DUI cases on its docket, the trial court also cited the need fo r deterren ce in den ying any fo rm of alter native sen tencing. In view of the discussion above, whether such judicial notice of the ubiq uity of a particular crime is sufficie nt evide nce to warra nt a de nial of alternative sentencing is an issue we need not address.

1 It should be noted that pursuant to Tennes see Code An notated Section 55-10-403(b)(1), App ellant is req uired to se rve th e m inim um sent enc e for four th off ens e DU I in incarceration before being eligible for probation. Thus, Appellant would have to serve 120 days in jail regardless of his suitability for probation.

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It is well-settled that whether sentences should be served conc urren tly or consecutively is a matter addressed to the sound discretion of the trial court. William s v. State, 520 S.W .2d 371 (Te nn. Crim. Ap p. 1974). Tennessee Code Annotated Section 40-35-115, provides for circumstances under which consecutive s entences m ay be impo sed. In pertinent pa rt it reads:

(a) If a defendant is convicted of more than one (1)

criminal offense, the court shall order sentences to run cons ecutive ly or concurre ntly as provided by the criteria in this section.

(b) The court may order sentences to run consecutively if the court finds by a preponderance of the evide nce tha t:

...

(2) The defendant is an offender whose record of criminal a ctivity is extensive . . . .

...

Tennessee Code Annotated Section 40-35-115.

The trial court found that Appellant “is an offender whose record of criminal activity is extensive.” Tenn. Code Ann. § 40-35-115(b)(2). When a defendant falls within the c lassification of an “offen der who se reco rd of crimin al activity is extensive,” the only remaining considerations are whether (1) the terms reasonab ly relate to the severity of the offen ses and (2) w hether the term s are necessa ry in order to protect the public from further misconduct by the de fendan t. State v. Wilkerson, 905 S.W .2d 933, 938 . (Tenn. 199 5).

Appellant has ove r a period of nine (9) ye ars repe atedly violated the prohibition concerning drunk driving. The instant case is his fourth DUI conviction and it is coupled with a driving on a revoked license conviction. Under these

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circumstances we agree that Appellant has an extensive record of criminal activity. In addition, Appellant may be properly classified as a “dangerous offender” for whom consecutive sentencing is appropriate. See State v. Anthony Raymond Bell, No. 03C01-9503-CR-00070 (Tenn. Crim. App. at Knoxville, March 11, 1996) perm. to appeal denied (Tenn. 1996); State v. Lonas Britt Dillard, No. 03C01-9311-CR-00386 (Tenn. Crim. App. at Knoxville, July 13, 1994) (classifying DUI offend er as a dang erous offend er). Fu rther, th e con secu tive sentences reaso nably relate to the s everity of the offense. T he cas e law of this State resounds with references to the seriousness of drunk driving. See e.g., State v. Cleavor, 691 S.W.2d 541, 543 (Tenn. 1985). Appellant is an individual who has repea tedly violated this criminal statute. Finally, we believe the trial judge was correct in his finding th at a length y term wa s nece ssary to protect the public from further misconduct by Appellant. Prior lenient punishments imposed on Appe llant have failed to deter his continued violation of the DU I law. In addition Appellant has shown no remorse, nor has he accepted any responsibility for his actions. W e are left to conclude that a lengthy period of incarc eration is the only w ay to protect the public from further instances of drunken driving on part of the Appe llant.

The judgment of the trial court is affirmed.

____________________________________

JERRY L. SMITH, JUDGE

CONCUR:

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___________________________________

JOHN H. PEAY, JUDGE

___________________________________

JOE G. RILEY, JUDGE