State v. Connors

924 S.W.2d 362, 1996 Tenn. Crim. App. LEXIS 21
CourtCourt of Criminal Appeals of Tennessee
DecidedJanuary 17, 1996
StatusPublished
Cited by14 cases

This text of 924 S.W.2d 362 (State v. Connors) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Tennessee primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Connors, 924 S.W.2d 362, 1996 Tenn. Crim. App. LEXIS 21 (Tenn. Ct. App. 1996).

Opinion

[363]*363 OPINION

PEAY, Judge.

The defendant was charged with driving under the influence, fifth offense; driving on a revoked license, second offense; and reckless endangerment with a deadly weapon. He pled guilty to driving under the influence, second offense (“DUI”); driving on a revoked license (“DORL”); and reckless endangerment.

The defendant waived preparation of a presentence report and a sentencing hearing was held. The lower court sentenced the defendant to eleven months, twenty-nine days on the DUI conviction, all suspended except 120 days and followed by eleven months, twenty-nine days probation; to eleven months, twenty-nine days on the reckless endangerment conviction, all suspended except 120 days and followed by eleven months, twenty-nine days probation; and to six months on the DORL conviction, all suspended except 120 days and followed by six months probation. The periods of incarceration were to run concurrently, while the periods of probation were to run consecutively.

The defendant has appealed, alleging that the sentence is excessive. The defendant asks this Court to reduce his incarceration from 120 to 45 days, and to modify his probation so that it runs concurrently rather than consecutively. Because the lower court failed to follow the procedures required by the Sentencing Reform Act of 1989 (“the Act”), we remand this matter for further proceedings consistent with the Act and this opinion.

When a defendant complains of his or her sentence, we must conduct a de novo review with a presumption of correctness. T.C.A. § 40-35-401(d). The burden of showing that the sentence is improper is upon the appealing party. T.C.A. § 40-35-401(d) Sentencing Commission Comments. This presumption, however, “is conditioned upon the affirmative showing in the record that the trial court considered the sentencing principles and all relevant facts and circumstances.” State v. Ashby, 823 S.W.2d 166, 169 (Tenn.1991).

In this case, the record fails to show that the lower court considered the sentencing principles and all relevant facts and circumstances. Therefore, we conduct our review de novo without a presumption of correctness. State v. Shelton, 854 S.W.2d 116, 123 (Tenn.Crim.App.1992).

A portion of the Sentencing Reform Act of 1989, codified at T.C.A. § 40-35-210, established a number of specific procedures to be followed in sentencing. This section mandates the court’s consideration of the following:

(1) The evidence, if any, received at the trial and the sentencing hearing; (2) [t]he presentence report; (3) [t]he principles of sentencing and arguments as to sentencing alternatives; (4) [t]he nature and characteristics of the criminal conduct involved; (5) [e]vidence and information offered by the parties on the enhancement and mitigating factors in §§ 40-35-113 and 40-35-114; and (6) [a]ny statement the defendant wishes to make in his own behalf about sentencing.

T.C.A. § 40-35-210.

“The misdemeanant, unlike the felon, is not entitled to the presumption of a minimum sentence.” State v. Creasy, 885 S.W.2d 829, 832 (Tenn.Crim.App.1994). However, in determining the percentage of the sentence to be served in actual confinement, the court must consider enhancement and mitigating factors as well as the purposes and principles of the Criminal Sentencing Reform Act of 1989, and the court should not impose such percentages arbitrarily. T.C.A. § 40-35-302(d).

The Act further provides that “[w]henever the court imposes a sentence, it shall place on the record either orally or in writing, what enhancement or mitigating factors it found, if any, as well as findings of fact as required by § 40-35-209.” T.C.A. § 40-35-210(f) (emphasis added). Because of the importance of enhancing and mitigating factors under the sentencing guidelines, even the absence of these factors must be recorded if none are found. T.C.A. § 40-35-210 comment. These findings by the trial judge must be recorded in order to allow an adequate review on appeal.

[364]*364In misdemeanor sentencing, a separate sentencing hearing is not mandatory, but the trial court is required to allow the parties a reasonable opportunity to be heard on the question of the length of the sentence and the manner in which it is to be served. T.C.A. § 40-35-302(a). The sentence must be specific and consistent with the purpose and principles of the Criminal Sentencing Reform Act of 1989. T.C.A. § 40-35-302(b). A percentage of not greater than 75% of the sentence should be fixed for service, after which the defendant becomes eligible for “work release, furlough, trusty status and related rehabilitative programs.” T.C.A. § 40-35-302(d).

In this ease, the defendant did have a sentencing hearing. The defendant waived a presentence report “[i]n light of the fact that [the sentencing court was] familiar with [the defendant] and ... with this case.” At the hearing, the Court heard testimony from Nick Johnson, the president of an organization for which the defendant was doing extensive volunteer work as chief financial officer; testimony from the defendant; considered a letter from Johnson about the defendant; and heard argument from counsel. The testimony and argument contained references to the defendant’s prior criminal record; however, no specific proof as to the defendant’s prior convictions was before the court other than the charge against the defendant reciting four previous DUI convictions. During the course of the defendant’s testimony, the court stated “you are a good person” and concluded that he had “broken the law because of the disease [alcoholism] that you have, but it has nothing to do — character is not an issue.”

In imposing sentence on the defendant, the court observed “[t]his is your fifth offense DUI” and further noted that, “I had read all the warrants when I was still in General Sessions, and I’m just very concerned.” The court also expressed concern over the defendant repeatedly endangering himself and others by driving under the influence, and noted that the defendant had already been through one treatment program and relapsed.

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Cite This Page — Counsel Stack

Bluebook (online)
924 S.W.2d 362, 1996 Tenn. Crim. App. LEXIS 21, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-connors-tenncrimapp-1996.