IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON FILED FEBRUARY 1999 SESSION March 12, 1999
Cecil Crowson, Jr. Appellate C ourt Clerk STATE OF TENNESSEE, ) ) NO. 02C01-9803-CR-00063 Appellee, ) ) SHELBY COUNTY VS. ) ) HON. JOSEPH B. DAILEY, CLEM HENRY, ) JUDGE ) Appellant. ) (Motor Vehicle Habitual Offender)
FOR THE APPELLANT: FOR THE APPELLEE:
DANIEL A. SEWARD JOHN KNOX WALKUP One Memphis Place Attorney General and Reporter 200 Jefferson Avenue, Suite #210 Memphis, TN 38103 GEORGIA BLYTHE FELNER Assistant Attorney General Cordell Hull Building, 2nd Floor 425 Fifth Avenue North Nashville, TN 37243-0493
WILLIAM L. GIBBONS District Attorney General
DAVID C. HENRY Assistant District Attorney General Criminal Justice Center 201 Poplar Avenue, Suite 301 Memphis, TN 38103-1947
OPINION FILED:
AFFIRMED
JOE G. RILEY, JUDGE OPINION
A Shelby County Grand Jury indicted defendant, Clem Henry, in two
indictments for violations of the Motor Vehicle Habitual Offender’s Act, Class E
felonies. He pled guilty to both charges and submitted sentencing to the trial court.
The trial court sentenced defendant to two years in each case and ordered the
sentences to run consecutively to each other and another sentence imposed for an
earlier violation of the same law. The sole issue in this appeal as of right is whether
the trial court sentenced defendant properly. Upon a de novo review, this Court
agrees with the sentences imposed and AFFIRMS the judgments of the trial court.
FACTS
Defendant was declared a Motor Vehicle Habitual Offender (hereinafter
“MVHO”) in October 1994. In April 1996, he was caught driving while declared an
MVHO and charged with violation of the Motor Vehicle Habitual Offender’s Act. See
Tenn. Code Ann. § 55-10-616. While on bond for this Class E felony, he was
caught driving on September 8, 1996, and charged with driving without a license.1
On March 31, 1997, defendant drove again, was caught, and charged with a third
violation of the MVHO Act.
Defendant pled guilty to the September 1996 and March 1997 violations
without an agreement as to sentencing. The trial court held a sentencing hearing
and ordered defendant to serve two years as a Range I standard offender for each
violation. It further ordered the sentences to run consecutively to each other, and
consecutively to another two-year sentence not at issue in this appeal. In reaching
its decision, the trial court discussed many of the facts and circumstances
surrounding the commission of the offenses. It did not, however, make statutory
findings on applicable enhancement and mitigation factors or consecutive
sentencing.
1 Defendant testified he was aware of his habitual offender status at the time of this stop. The charge was ultimately indicted as driving while declared a motor vehicle habitual offender, a Class E felony.
2 SENTENCING
This Court’s review of the sentence imposed by the trial court is de novo with
a presumption of correctness, Tenn. Code Ann. § 40-35-401(d), provided there is
an affirmative showing in the record that the trial judge considered the sentencing
principles and all relevant facts and circumstances. State v. Ashby, 823 S.W.2d
166, 169 (Tenn. 1991). If the trial court fails to comply with the statutory directives,
there is no presumption of correctness and our review is de novo. State v. Poole,
945 S.W.2d 93, 96 (Tenn. 1997). The burden is upon the appealing party to show
that the sentence is improper. Tenn. Code Ann. § 40-35-401(d) Sentencing
Commission Comments. In this instance, the trial court failed to make the required
findings. Thus, our review of the sentences is de novo without the presumption of
correctness.
Length of Sentences
Defendant contends the trial court erred in setting his sentences at the top
of the applicable range. His testimony at sentencing revealed that he was fifty-
seven years old and a high school dropout with no employment background.
Defendant admitted the criminal history presented by the pre-sentence report.2 On
cross-examination by the state, defendant conceded violating the terms of probation
he received for one of the misdemeanor convictions. While admitting awareness
and understanding of the consequences attendant to MVHO status, defendant
expressed remorse for having driven on these occasions.
The state argued for the application of several enhancement factors in
defendant’s case: (1) a previous history of criminal convictions or criminal behavior
in addition to those necessary to establish the appropriate range; (2) a previous
unwillingness to comply with conditions of a sentence involving release into the
community; and (3) a felony committed while released on bail for another felony
charge. See Tenn. Code Ann. § 40-35-114(1), (8), and (13).
2 That history dates to pre-1960 and contains five convictions for driving on a suspended license, misdemeanor theft, assault, robbery, and a juvenile burglary adjudication.
3 We find the state’s argument for the application of three enhancement
factors meritorious. The trial court also found that defendant’s age of fifty-seven
was not a mitigating factor. We agree.
Finally, notwithstanding counsel’s argument to the contrary, we choose to
follow the trial court’s finding that defendant failed to display sufficient remorse for
his actions. The trial court was in a much better position than this Court to evaluate
the defendant’s credibility.
Defendant was convicted of driving on a suspended license five times before
being declared an MVHO in October 1994. He admits that he understood the
significance of that status, but chose to drive on at least three occasions.3 Based
upon the applicable enhancement factors, and the absence of mitigating factors, we
find two years to be the appropriate sentence in each case.
Consecutive Sentences
Defendant also contends that he should receive concurrent sentences. A
court may order sentences to run consecutively if the court finds by a
preponderance of the evidence that “[t]he defendant is an offender whose record
of criminal activity is extensive.” Tenn. Code Ann. § 40-35-115(b)(2); see also State
v. Black, 924 S.W.2d 912, 917 (Tenn. Crim. App. 1995). Furthermore, the court is
required to determine whether the consecutive sentences (1) are reasonably related
to the severity of the offenses committed; (2) serve to protect the public from further
criminal conduct by the offender; and (3) are congruent with general principles of
sentencing. State v. Wilkerson, 905 S.W.2d 933, 939 (Tenn. 1995). In the instant
case, defendant unquestionably has an extensive record of criminal activity. Thus,
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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON FILED FEBRUARY 1999 SESSION March 12, 1999
Cecil Crowson, Jr. Appellate C ourt Clerk STATE OF TENNESSEE, ) ) NO. 02C01-9803-CR-00063 Appellee, ) ) SHELBY COUNTY VS. ) ) HON. JOSEPH B. DAILEY, CLEM HENRY, ) JUDGE ) Appellant. ) (Motor Vehicle Habitual Offender)
FOR THE APPELLANT: FOR THE APPELLEE:
DANIEL A. SEWARD JOHN KNOX WALKUP One Memphis Place Attorney General and Reporter 200 Jefferson Avenue, Suite #210 Memphis, TN 38103 GEORGIA BLYTHE FELNER Assistant Attorney General Cordell Hull Building, 2nd Floor 425 Fifth Avenue North Nashville, TN 37243-0493
WILLIAM L. GIBBONS District Attorney General
DAVID C. HENRY Assistant District Attorney General Criminal Justice Center 201 Poplar Avenue, Suite 301 Memphis, TN 38103-1947
OPINION FILED:
AFFIRMED
JOE G. RILEY, JUDGE OPINION
A Shelby County Grand Jury indicted defendant, Clem Henry, in two
indictments for violations of the Motor Vehicle Habitual Offender’s Act, Class E
felonies. He pled guilty to both charges and submitted sentencing to the trial court.
The trial court sentenced defendant to two years in each case and ordered the
sentences to run consecutively to each other and another sentence imposed for an
earlier violation of the same law. The sole issue in this appeal as of right is whether
the trial court sentenced defendant properly. Upon a de novo review, this Court
agrees with the sentences imposed and AFFIRMS the judgments of the trial court.
FACTS
Defendant was declared a Motor Vehicle Habitual Offender (hereinafter
“MVHO”) in October 1994. In April 1996, he was caught driving while declared an
MVHO and charged with violation of the Motor Vehicle Habitual Offender’s Act. See
Tenn. Code Ann. § 55-10-616. While on bond for this Class E felony, he was
caught driving on September 8, 1996, and charged with driving without a license.1
On March 31, 1997, defendant drove again, was caught, and charged with a third
violation of the MVHO Act.
Defendant pled guilty to the September 1996 and March 1997 violations
without an agreement as to sentencing. The trial court held a sentencing hearing
and ordered defendant to serve two years as a Range I standard offender for each
violation. It further ordered the sentences to run consecutively to each other, and
consecutively to another two-year sentence not at issue in this appeal. In reaching
its decision, the trial court discussed many of the facts and circumstances
surrounding the commission of the offenses. It did not, however, make statutory
findings on applicable enhancement and mitigation factors or consecutive
sentencing.
1 Defendant testified he was aware of his habitual offender status at the time of this stop. The charge was ultimately indicted as driving while declared a motor vehicle habitual offender, a Class E felony.
2 SENTENCING
This Court’s review of the sentence imposed by the trial court is de novo with
a presumption of correctness, Tenn. Code Ann. § 40-35-401(d), provided there is
an affirmative showing in the record that the trial judge considered the sentencing
principles and all relevant facts and circumstances. State v. Ashby, 823 S.W.2d
166, 169 (Tenn. 1991). If the trial court fails to comply with the statutory directives,
there is no presumption of correctness and our review is de novo. State v. Poole,
945 S.W.2d 93, 96 (Tenn. 1997). The burden is upon the appealing party to show
that the sentence is improper. Tenn. Code Ann. § 40-35-401(d) Sentencing
Commission Comments. In this instance, the trial court failed to make the required
findings. Thus, our review of the sentences is de novo without the presumption of
correctness.
Length of Sentences
Defendant contends the trial court erred in setting his sentences at the top
of the applicable range. His testimony at sentencing revealed that he was fifty-
seven years old and a high school dropout with no employment background.
Defendant admitted the criminal history presented by the pre-sentence report.2 On
cross-examination by the state, defendant conceded violating the terms of probation
he received for one of the misdemeanor convictions. While admitting awareness
and understanding of the consequences attendant to MVHO status, defendant
expressed remorse for having driven on these occasions.
The state argued for the application of several enhancement factors in
defendant’s case: (1) a previous history of criminal convictions or criminal behavior
in addition to those necessary to establish the appropriate range; (2) a previous
unwillingness to comply with conditions of a sentence involving release into the
community; and (3) a felony committed while released on bail for another felony
charge. See Tenn. Code Ann. § 40-35-114(1), (8), and (13).
2 That history dates to pre-1960 and contains five convictions for driving on a suspended license, misdemeanor theft, assault, robbery, and a juvenile burglary adjudication.
3 We find the state’s argument for the application of three enhancement
factors meritorious. The trial court also found that defendant’s age of fifty-seven
was not a mitigating factor. We agree.
Finally, notwithstanding counsel’s argument to the contrary, we choose to
follow the trial court’s finding that defendant failed to display sufficient remorse for
his actions. The trial court was in a much better position than this Court to evaluate
the defendant’s credibility.
Defendant was convicted of driving on a suspended license five times before
being declared an MVHO in October 1994. He admits that he understood the
significance of that status, but chose to drive on at least three occasions.3 Based
upon the applicable enhancement factors, and the absence of mitigating factors, we
find two years to be the appropriate sentence in each case.
Consecutive Sentences
Defendant also contends that he should receive concurrent sentences. A
court may order sentences to run consecutively if the court finds by a
preponderance of the evidence that “[t]he defendant is an offender whose record
of criminal activity is extensive.” Tenn. Code Ann. § 40-35-115(b)(2); see also State
v. Black, 924 S.W.2d 912, 917 (Tenn. Crim. App. 1995). Furthermore, the court is
required to determine whether the consecutive sentences (1) are reasonably related
to the severity of the offenses committed; (2) serve to protect the public from further
criminal conduct by the offender; and (3) are congruent with general principles of
sentencing. State v. Wilkerson, 905 S.W.2d 933, 939 (Tenn. 1995). In the instant
case, defendant unquestionably has an extensive record of criminal activity. Thus,
it remains for us to consider the factors outlined by Wilkerson.
Defendant displays a blatant disregard for the laws of this state and the
orders of its courts as evidenced by his commission of three felony driving offenses
after he admittedly understood he was to cease getting behind the wheel of a car.
3 Defendant claimed at sentencing that he drove only three times after being declared an MVHO, and that he was caught all three times.
4 Additionally, the two present offenses were committed while defendant was on bond
for another felony driving offense. These actions exhibit a lack of recognition that
driving is, in fact, a privilege requiring responsibility in its exercise. This leads us to
believe that given the opportunity, defendant would not hesitate to drive again. As
such, consecutive two-year sentences, totaling six years, appear reasonably related
to the severity of defendant’s crimes and serve to protect the public from further
criminal conduct by defendant. Moreover, an effective six-year sentence is
congruent with general sentencing principles. In short, it appears the only way to
stop defendant from driving is by incarceration.
CONCLUSION
Defendant has failed to show that the nature and duration of these sentences
are improper. Therefore, the judgments of the trial court are AFFIRMED.
____________________________ JOE G. RILEY, JUDGE
CONCUR:
____________________________ JOHN H. PEAY, JUDGE
____________________________ JAMES C. BEASLEY, SR., SPECIAL JUDGE