State v. Clinton E. Key

• Court: Court of Criminal Appeals of Tennessee
• Decided: April 20, 1999
• Docket: 01C01-9805-CR-00229
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE FILED MARCH SESSION , 1999 April 20, 1999

Cecil W. Crowson STATE OF TENNESSEE, ) Appellate Court Clerk C.C.A. NO. 01C01-9805-CR-00229 ) Appellee, ) ) ) DAVIDSON COUNTY VS. ) ) HON. SETH NORMAN, CLINTON E. KEY, ) JUDGE ) Appe llant. ) (Misdemeanor Sentencing)

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

FOR THE APPELLANT: FOR THE APPELLEE:

MAR Y GR IFFIN JOHN KNOX WALKUP Assistant Public Defender Attorney General and Reporter 1202 Stahlman Building Nashville, TN 37201 CLINTON J. MORGAN Assistant Attorney General 425 Fifth Avenu e North Nashville, TN 37243

VICTOR S. JOHNSON District Attorney General

PAMELA ANDERSON Assistant District Attorney General Washington Square, Suite 500 Nashville, TN 37201-1649

OPINION FILED ________________________

AFFIRMED

DAVID H. WELLES, JUDGE OPINION

The Defendant, Clinton E. Key, appeals his sentences of thirty days for

disord erly condu ct; six mon ths for resis ting arrest; thirty days for criminal

trespass; and e leven m onths , twenty -nine d ays for assa ult. Follo wing a jury trial,

the trial court ordered Defendant to serve the sentences consecutively in the

county jail, with release eligibility at seventy-five percent. Defendant argues that

the trial court erred by imposing the maximum sentence on each conviction and

by orderin g the sen tences served c onsec utively.

Although the record do es not contain a transcript of the evidence

presented to the jury during the trial, the Defendant submitted a statement of the

evidence.1 These crimes were the result of two separate confrontations with

police officers—one in September of 1996 and the other in February of 1997. On

both occasions, the Defendant apparently resisted the efforts of police officers to

take him into cu stody.

Defen dant, a multiple m isdemea nant, is not entitled to the pre sumptive

minimum sentence. State v. Baker, 966 S.W.2d 429, 434 (Tenn. Crim. App.

1997); State v. Combs, 945 S.W.2d 770, 77 4 (Ten n. Crim. A pp. 199 6); State v.

1 The State argues that the Statement of Evidence filed by Defendant following his Notice of Appeal is insufficient under Tennessee Rule of Appellate Procedure 24(c). We find that the Statement was filed with the trial court within the 90-day period as required. Defendant hand-delivered a copy of the Statement to the State. No objections by the State appear in the record; and pursuant to Tennessee Rule of Appellate Procedure 24(f), the Statement became final upon inaction by the trial court. Although, as the State argues, the Statement has not been specifically “certified” by Defendant or Defendant’s counsel, we find (1) that Defendant has substantially complied with the requirements of Rule 24, and (2) that the proper place for the State’s objections was in the trial court, as the trial court was the proper arbiter of any factual disputes between the State and Defendant. We consider the Statement of Evidence in lieu of a transcript of the evidence.

-2- Boyd, 925 S.W .2d 237 , 244 (T enn. C rim. App . 1995); State v. Seaton, 914

S.W.2d 129, 13 3 (Ten n. Crim. A pp. 199 5); State v. W illiams, 914 S.W.2d 940,

949 (Tenn . Crim. A pp. 199 5); State v. Creasy, 885 S.W.2d 829, 832 (Tenn. Crim.

App. 1994 ).

In misdemeanor sentencing, the trial cour t retains the authority to place the

defendant on probation either immediately or after a time of periodic or

continuous confinement. Tenn. Code Ann. § 40-35-302(e). Misdemeanor

sentencing is designed to provide the trial court with continuing jurisdiction and

a great deal of flexibility. Furthermore, our supreme court recently stated in State

v. Troutman, 979 S.W.2d 271 (Tenn. 1998), that the trial court’s findings on the

issue of incarceration need not appear in the record:

[W ]hile the better practice is to make findings on the record when fixing a percentage of a defendant’s sentence to be served in incarceration, a trial court need only consider the principles of sentencing and enhancement and mitigating factors in order to com ply with the legislative mandates of the misdemeanor sentencing statute.

Id. at 274.

With respect to consecutive sentencing, Tennessee Code Annotated § 40-

35-115 provides that the trial court may order multiple sentences to run

cons ecutive ly if the “defendant is an offend er who se rec ord of c rimina l activity is

extensive.” Ten n. Code A nn. § 40-35-1 15(b)(2).

At the Defendant’s sentencing hearing, the only proffered mitigating proof

relevant to sentencing was Defendant’s testimony that he has “turned over a new

leaf” by committing misdemeanors rather than “grand felonies.” The trial court

-3- commented on its co nside ration o f Defe ndan t’s prior re cord o f crimin al activ ity

contained in the presentence report, which includes two felony convictions,2

nineteen misdemeanor convictions,3 and arrests for twenty-eight additional

counts not resulting in convictions. T he report also reflects that a prior sentence

of probation for his first burglary wa s revoked. At the sentencing h earing, the

Defendant demonstrated neither remorse nor potential for rehabilitation, and he

in fact suggested the police officers should be reprimanded for bringing the

charges against him.

W e find the foregoing evidence sufficient to support both the length and

manner of service o f Defend ant’s sen tences for disorderly conduct, resisting

arrest, criminal trespass , and assau lt. We affirm the sentences ordered by the

trial court.

____________________________________ DAVID H. WELLES, JUDGE

2 Defendant was convicted twice for burglary, once in 1973 and once in 1985. 3 Defendant has been convicted twice for driving on a revoked or suspended license, once for possession of stolen property, once for possession of drug paraphernalia, once for disorderly conduct, once for resisting a stop and frisk, twice for traffic offenses, once for criminal trespass, once for reckless endangerment, once for public intoxication, twice for shoplifting, three times for possession of drugs, twice for disturbing the peace, and once for a weapons offense.

-4- CONCUR:

___________________________________ JOE G. RILEY, JUDGE

___________________________________ JOHN EVERETT WILLIAMS, JUDGE

-5-