State v. Fithiam

• Court: Court of Criminal Appeals of Tennessee
• Decided: October 28, 1997
• Docket: 03C01-9610-CC-00381
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE FILED JULY SESSION, 1997 October 28, 1997

Cecil Crowson, Jr. Appellate C ourt Clerk STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9610-CC-00381 ) Appellee, ) ) ) COCKE COUNTY VS. ) ) HON. WILLIAM R. HOLT, JR. TERESA FITHIAM, ) JUDGE ) Appe llant. ) (DUI & Child En dange rment)

ON APPEAL FROM THE JUDGMENT OF THE CIRCUIT COURT OF COCKE COUN TY

FOR THE APPELLANT: FOR THE APPELLEE:

SUSANNA L. THOMAS JOHN KNOX WALKUP Assistant Public Defender Attorney General and Reporter 102 Mims Avenue Newport, TN 37821 MARVIN E. CLEMENTS, JR. Assistant Attorney General 425 5th Avenu e North Nashville, TN 37243

AL SCHUMTZER, JR. District Attorney General

JAMES B. DUNN Assistant District Attorney General 339A East Main Street Newport, TN 37821

OPINION FILED ________________________

APPEAL DISMISSED; JUDGMENT AFFIRMED

DAVID H. WELLES, JUDGE

fithiamt.opn OPINION

This is a direct appeal from a guilty plea pursuant to Rule 37(b)(2)(ii) of the

Tennessee Rules o f Criminal Procedure. Pursuant to a plea agreement, the

Defendant plead ed gu ilty to one coun t of DU I and o ne co unt of c hild

endan germe nt. 1 Both o ffense s are C lass A misdemeanors. As part of the

agreem ent, she was sentenced to a forty-eight (48) hour mandatory incarceration

plus eleven (11) months and twenty-seven (27) days of probation for the DUI

conviction and a m andato ry thirty (30) day incarceration plus ten (10) months and

twenty-nine (29) days of probation for the child endangerment conviction. Also,

the Defen dant res erved the right to app eal the “leg ality” of her se ntence . In this

appe al, she arg ues tha t the statute imposing a mandatory thirty-day incarceration

period for child endangerment is unconstitutional as cruel and unusual

punishment violative of the Eighth and Fourteenth Amendments to the United

States Constitu tion. W e dismiss the appeal and affirm the judgment of the trial

court.

On October 13, 1995, the Defendant, Teresa Fithiam, was arrested after

she lost control of the vehicle she was d riving no rthbou nd on Highw ay 321 in

Cocke County. The car left the roadway and overturned. Two of her four

children, ages 23 months and 11 months, were in the vehicle and received minor

injuries. Only th e youn ger ch ild was restrain ed. The Defendant suffered head

1 Tenn. Code Ann. §§ 55-10-401, -414.

fithiamt.opn -2- injuries for which she w as hospitalized fo r three days. A blood alcohol test

measured the Defendant’s blood alcohol level at .13%.

The Defen dant testified at the guilty plea hearing that she came home from

work, had two or three beers, cooked dinner and bathed the children. Her

husband, who had been drinking all day, became abusive and she left with the

children. It is uncle ar whe ther he r husb and w as ch asing her in the car, but he

was p resen t after the accide nt and transp orted th e child ren to th e hos pital.

The Defendant was indicted on one coun t of DU I and tw o cou nts of c hild

endan germe nt. She entered into a plea agreement with the district attorney for

the minimum man datory sente nce fo r DUI o f forty-eig ht hou rs in confinement and

the minimum manda tory sentence fo r child endang erment of thirty days

incarceration. The remainder of each sentence was to be suspended and the

Defendant placed on probation. The Defendant was also required to pay the

minimum $350 fine for the DUI conviction and the minimum $1000 imposed for

the child endangerment conviction. The plea agreement and the transcript of the

guilty plea hearing reflect that the State agreed that the Defendant “reserves right

to appeal legality of sentence and merger of counts of child endangerment.” The

judgment forms d o not m ention a re servation of a review of the sentence in an

appe al, however, in an order on May 16, 1996, the trial court approved the plea

agreement reach ed by th e partie s. At the hearin g on th e guilty plea, the trial

court dismissed the second count of child endangerment, finding that it merged

into the first count as one offense for both children. The Defendant requested

work release, which the trial court denied because o f the man datory

incarceration. The trial court did not rule on the legality or constitutionality of the

fithiamt.opn -3- thirty-day incarceration mandated by Tennessee Code Annotated section 55-10-

414.

The Defen dant arg ues tha t the manda tory incarceration required by section

55-10-414 unconstitutionally denied her the granting of work release. We note

initially that the Defendant has not properly reserved the issue for the purposes

of this appeal. The notice of appeal reflects that the issue is being appealed

pursuant to Rule 37(b)(2)(ii) of the Tenn essee R ules of Crimina l Procedure which

states in pertinen t part that: “An appeal lies . . . from any judgment of conviction:

(2) upon a plea of guilty or nolo conten dere if: (ii) defendant seeks review of the

sentence set and there was no plea agreement under Rule 11(e).” (em phas is

added). A guilty p lea co nstitute s a wa iver of all nonjurisdictional and procedural

defects or constitu tional infirmitie s, State v. Bilbrey, 816 S.W.2d 71, 75 (Tenn.

Crim. App. 1991), and Rule 37 provides limited exceptions for an appeal following

a guilty plea . State v. Pendergrass, 937 S.W .2d 834 , 837 (T enn. 19 96).

Here, although the Defendant purported to reserve review of her sentence

as reflected in the plea a greem ent and the hea ring transc ript, the reco rd reflects

that the Defendant entered into a neg otiated ple a agree ment th at com ports with

Rule 11(e). The particular posture in which this case has been presented does

not fit squarely within any of the enumerated exceptions under Rule 37. The

record reflects that a plea agreement was reached and thus, the Defendant has

waived appellate review of her sentence because she has not met the

requirem ents of Rule 37 (b)(2)(ii). See State v. McKissack, 917 S.W.2d 714, 716

(Tenn. Crim. A pp. 199 5). In order to obtain appellate review of her sentence, the

Defendant could ha ve chos en to plea d guilty witho ut a negotiated agreement and

fithiamt.opn -4- left sente ncing to the trial court and pursued the issue in a direct appeal under

Rule 3.

The judgment entered reflects that the trial judge accepted and approved

the reco mm ended senten ce. The trial court did n ot rule on th e cons titutionality

of the mandatory sentence because the issue was not presented. There is no

procedural vehicle under Rule 37 for a hybrid plea agreement that reserves a

portion of the sentence purportedly not agree d to for a ppella te revie w. Th ere is

no right to appeal from an agre ed sen tence. McKissack, Id. Therefore, because

it is not properly before us, we believe this appeal should be dismissed.

In consideration of the foregoing, even if th e Def enda nt had prope rly

reserved the issue for appeal, we would conclude that it is without merit. The

Defendant contends that the mandatory thirty-da y sente nce u ncon stitution ally

deprives her of probation or the possibility of work release in her case. She

argues that it is cruel and unusual punishment violative of the Eighth and

Fourtee nth Ame ndme nts to the U nited Sta tes Con stitution. The Eighth

Amendment applied to the states thro ugh the Fourtee nth Ame ndme nt prohibits

cruel and unusual punishment and requires that the punishment imposed must

be proportioned to the severity of the offens e in the ca pital case context. See

State v. Harris , 844 S.W .2d 601 , 602 (Tenn. 1992)(citing Weems v. United

States, 217 U .S. 349, 3 67, 30 S .Ct. 544, 549, 54 L .Ed. 836 (1910)). Y et,

“[r]eviewing courts sh ould gra nt substantial defe rence to the broa d autho rity

legislatures possess in determining punishments for particular crimes, ‘[o]utside

the context of capital punishm ent, successful challeng es to the proportionality of

particular sentences [will be] exceedingly rare.’” Harris , 844 S.W.2d at 602

fithiamt.opn -5- (quoting Solem v. Helm, 463 U.S. 277, 289-90, 103 S.Ct. 3001, 3009, 77 L.Ed.2d

637, 649 (1983)) (emphasis in original). The mandatory nature of a sentence,

even if it appears to be cruel, is not otherwise unusual and does not ren der it

violative of the Eigh th Ame ndme nt. Harmelin v. Michigan, 501 U .S. 991, 996,

111 S. Ct. 2680, 2701, 115 L.Ed.2d 836 (1991)(life without parole for conviction

for possessing 672 grams of cocaine constitutional); State v. Hinsley, 627 S.W.2d

351, 355 (Ten n. 1982)( sentencing provisions of the habitual drug offender act

constitutional); State v. Dann y Lee Holder, C.C.A. 01C01-9501-CC-00015,

Linco ln County (Tenn. Crim. App., Nashville, Mar. 22, 1996) (mandatory service

of the entire sentence for defend ants convicted of rape of a child constitutional).

Nor does the mandatory sentence violate the more expansive application

to non-capital sen tencing by our supreme court of Article I, Section 16 of the

Tennessee Constitu tion. If we con sider the m andato ry senten ce und er the state

constitution, this require s that the s entenc e initially be co mpare d to the crime

committed. Harris , 844 S.W.2d at 603. “Unless this threshold comparison leads

to an inference of gros s dispr oportio nality, the inquiry e nds--t he se ntenc e is

constitution al.” Id. However, in the few cases when the inference arises, we

must compare the sentence as applied to other criminals in the jurisdiction, and

sentences for the s ame crime in other ju risdictions. Id. Here, we cannot

conclude that the im position of a mandato ry thirty-d ay sen tence is

disprop ortionate to the crime o n its face. Obviously, the general assembly has

determined that the seriousness of the offense of driving while under the

influence with children in the vehicle warran ts a more se vere punishment. The

legislature has also graded the offense with reference to more serious

consequences to a child, i.e. serious bodily injury and death. Tenn. Code Ann.

fithiamt.opn -6- § 55-10-4 14(2), (3). The legislature has bro ad powe r to determine th e nature

and length of punishments for crimes and we shou ld gene rally defer to its

authority.

The appeal is dismissed and the judgment of the trial court is affirmed.

____________________________________ DAVID H. WELLES, JUDGE

CONCUR:

___________________________________ THOMAS T. WOODALL, JUDGE

___________________________________ JOHN K. BYERS, SENIOR JUDGE

fithiamt.opn -7-