State v. Cartwright

• Court: Court of Criminal Appeals of Tennessee
• Decided: December 1, 2010
• Docket: 03C01-9611-CR-00413
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE FILED NOVEMBER 1997 SESSION January 5, 1998

Cecil Crowson, Jr. Appellate C ourt Clerk

STATE OF TENNESSEE, ) ) APPELLEE, ) ) No 03-C-01-9611-CR-00413 ) ) Bradley County v. ) ) Mayo L. Mashburn, Judge ) ) (Sentencing) RAYMOND CARTWRIGHT, ) ) APPELLANT. )

FOR THE APPELLANT: FOR THE APPELLEE:

C. Richard Hughes, Jr. John Knox Walkup Assistant Public Defender Attorney General & Reporter P.O. Box 1453 500 Charlotte Avenue Cleveland, TN 37364-1453 Nashville, TN 37243-0497

OF COUNSEL: Ellen H. Pollack Assistant Attorney General Charles M. Corn 450 James Robertson Parkway District Public Defender Nashville, TN 37243-0493 P. O. Box 1453 Cleveland, TN 37364-1453 Jerry M. Estes District Attorney General P.O. Box 647 Athens, TN 37371

Carl F. Petty Assistant District Attorney General P.O. Box 1351 Cleveland, TN 37364-1351

OPINION FILED:________________________________

AFFIRMED

Joe B. Jones, Presiding Judge OPINION

The appellant, Raymond Cartwright (defendant), was convicted of evading arrest,

a Class A misdemeanor, by a jury of his peers. The trial court sentenced the defendant

to serve eleven months and twenty-nine days in the Bradley County Jail.1 The defendant

presents one issue for review. He contends the sentence imposed by the trial court was

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

the law governing the issue presented for review, it is the opinion of this court that the

judgment of the trial court should be affirmed.

The record in this case contains a transcript of the sentencing hearing and what was

formerly called the “technical record.” A transcript of the trial proceedings has not been

included in the record transmitted to this court. This omission prevents this court from

having access to all of the facts and circumstances considered by the trial court when

imposing the sentence challenged by the defendant. This is especially disadvantageous

when the parties referred to the facts adduced at the trial during the sentencing hearing.

It is the duty of the accused to prepare a record which conveys a fair, accurate and

complete account of what transpired with respect to the issues which form the basis of the

appeal. Tenn. R. App. P. 24(b).

This court has conducted a de novo review of the record before this court with a

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

Code Ann. § 40-35-401(d). Of course, the defendant, as the person challenging the length

of the sentence, has the burden of establishing that the sentence was erroneous.

Sentencing Commission Comments to Tenn. Code Ann. § 40-35-401 (1997 Repl.); State

v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).

The trial court found one mitigating factor, namely, the defendant’s conduct neither

caused nor threatened serious bodily injury. Tenn. Code Ann.§ 40-35-113(1). The court

found one enhancement factor, namely, the defendant has a previous history of criminal

convictions. Tenn. Code Ann. § 40-35-114(1).

The trial court found that the defendant has been previously convicted of three

1 The trial court did not assess a fine as part of the sentence.

2 counts of burglary: burglary first degree, burglary second degree, and burglary third

degree. He has also been convicted of grand larceny and petit larceny. The trial court

should have found that the defendant had a previous history of unwillingness to comply

with the conditions of a sentence involving release in the community. Tenn. Code Ann. §

40-35-114(8). The defendant was released on parole after serving a portion of a prior

felony sentence. His parole was revoked, and he remained in the Department of

Correction until the expiration of his sentence. This court may consider factor (8) in

determining the issue presented for review. State v. Loden, 920 S.W.2d 261, 266 (Tenn.

Crim. App. 1995); State v. Smith, 891 S.W.2d 922, 931 (Tenn. Crim. App. ), per. app.

denied (Tenn. 1994).

It is obvious the trial court afforded the mitigating factor little weight. The record

establishes the trial court afforded the defendant’s prior convictions great weight. This

court affords enhancement factor (8) great weight as well. The weight given mitigating and

enhancement factors rests within the sound discretion of the trial court. State v. Moss, 727

S.W.2d 229, 237 (Tenn. 1986); State v. Shelton, 854 S.W.2d 116, 123 (Tenn. Crim. App.

1992), per. app. denied (Tenn. 1993). The trial court did not abuse its discretion when

assessing the weight given to these two factors. The defendant was sentenced to the

Department of Correction in each prior conviction. The maximum sentence was justified

to avoid depreciating the seriousness of this offense, fleeing from a police officer.

Furthermore, the length of this sentence will serve to deter the defendant as well as others

from committing such an offense. The offense of evading a police officer can create

dangerous conditions which could result in serious bodily injury to the defendant as well

as the police officer.

____________________________________________ JOE B. JONES, PRESIDING JUDGE

3 CONCUR:

______________________________________ PAUL G. SUMMERS, JUDGE

______________________________________ CURWOOD WITT, JUDGE