IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED NOVEMB ER SESSION, 1998 February 18, 1999
Cecil Crowson, Jr. Appellate C ourt Clerk STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9710-CC-00436 ) Appellee, ) ) ) BLOUNT COUNTY VS. ) ) HON. D. KELLY THOMAS, JR. JIMMY LEE NOAH, ) JUDGE ) Appe llant. ) (Sentencing)
ON APPEAL FROM THE JUDGMENT OF THE CRIMINAL COURT OF BLOUNT COUNTY
FOR THE APPELLANT: FOR THE APPELLEE:
MACK GARNER JOHN KNOX WALKUP Public Defender Attorney General and Reporter
GERALD L. GULLEY, JR. TODD R. KELLEY P.O. Box 1708 Assistant Attorney General Knoxville, TN 37901-1708 425 Fifth Avenu e North Nashville, TN 37243
MIKE FLYNN District Attorney General
PHILIP MORTON Assistant District Attorney General 363 Court Street Maryville, TN 37804
OPINION FILED ________________________
AFFIRMED
DAVID H. WELLES, JUDGE OPINION
The Defendant, Jimmy Lee Noah, appeals as of right pursuant to Rule 3
of the Tennessee Rules of Appellate P roced ure. H e was convic ted, up on his
pleas of guilty, of driving on a revoked license, reckless driving, reckless
endan germe nt, and felony evading arrest. 1 The agreed sentences for the two
Class E felonies were two years as a Range I standard offender. The agreed
sentences for the Class B misdem eanors we re six months . All sentences w ere
to be served concurrently. The manner of service of the sentences was left to the
discretion of the trial judge. The judge ordered that the felony sentences be
served in the Department of Correction, with the misde mean or jail senten ces to
be served concurrently. The Defendant appeals from the trial judge’s order that
the sentences be served in confinement. We affirm the judgment of the trial
court.
When an accused challenges the length, range, or manner of service o f a
sentence, this Court has a duty to conduct a de novo review of th e sente nce with
a presumption that the determin ations mad e by the trial court are correct. Tenn.
Code Ann. § 40-35-401(d). This presumption is ?conditioned u pon the affirma tive
showing in the record that the trial court considered the sentencing principles and
all relevant facts and circumstanc es.” State v. Ashby, 823 S.W.2d 166, 169
(Tenn. 19 91).
1 Tenn. Code Ann. §§ 55-50-504; 55-10-205; 39-13-103; 39-16-603(b).
-2- When conducting a de novo review of a senten ce, this Co urt must
consider: (a) the evidence , if any, received at the trial and sentencing hearing; (b)
the presentence report; (c) the principles of senten cing and argum ents as to
sentencing alternatives; (d) the nature and characteristics of the criminal conduct
involved; (e) any statutory mitigating or enhancement factors; (f) any statement
made by the defendant regarding sentencing; and (g) the potential or lack of
potential for rehab ilitation or treatm ent. State v. Smith, 735 S.W.2d 859, 863
(Tenn . Crim. A pp. 198 7); Ten n. Cod e Ann. §§ 40-35-102, -103, -210.
A defen dant w ho “is an especially mitigated or standard offender convicted
of a Class C, D or E felony is presumed to be a favorable candidate for
alternative sentencing options in the absence of evidence to the contrary.” Tenn.
Code Ann. § 40-35-102(6). Our sentencing law also provides that “convicted
felons committing the most severe offenses, possessing criminal histories
evincing a clear disregard for the laws and morals of society, and evincing failure
of past e fforts at r ehab ilitation s hall be given first priority regarding sentencing
involving incarceration.” Id. § 40-35 -102(5). T hus, a de fendan t sentenc ed to
eight years or less who is not an offend er for w hom incarc eration is a priority is
presumed eligible for alternative sentencing unless sufficient evidence rebuts the
presumption. However, the act does not provide that all offende rs who meet the
criteria are entitled to such relief; rather, it requires that sentencing issues be
determined by the facts and circumstances presen ted in eac h case . See State
v. Taylor, 744 S.W.2d 919, 922 (Tenn. Crim. App. 1987) (citing State v. Moss,
727 S.W .2d 229 , 235 (T enn. 19 86)).
-3- Additionally, the principles of sentencing reflect that the se ntenc e sho uld
be no greater than that deserved for the offense committed and should be the
least severe me asure necessary to achieve the purposes for which the sentence
is imposed . Tenn. Co de Ann. § 4 0-35-103(3 )-(4). The cou rt should also consider
the potential for rehabilitation or treatment of the defendant in determining the
senten ce alterna tive. Id. § 40-35-10 3(5).
About 1:30 one morning, a Blount County deputy sheriff observed a
vehicle, driven by th e Defe ndant, cross the center line a couple of times and
noted that the vehicle wa s not pro perly displa ying a licen se plate. T he dep uty
initiated a stop of the ve hicle b ut the d river refu sed to stop. A length y pursu it
followed, during which two other law enforcement vehicles eventually joined the
pursuit. At some point the D efenda nt stoppe d the veh icle and a ttempte d to flee
on foot. The officers were able to catch and tackle the Defendant, and the
charges which led to his guilty pleas followed.
The presen tence re port reflects that at the time of sentencing the
Defendant was thirty-one years old, single, and employed as a concre te finisher.
He testified that h e com pleted the eleventh grade. The Defendant has a rather
lengthy history of criminal conduct spanning a ten-yea r period. His convictions
include possession of marijuana, two DUIs, three convictions for driving on a
revoked license, and tw o felon y habitu al traffic o ffende r convic tions in Georgia.
He had violated probation in Georgia and subsequently had served time in the
Geo rgia penitentiary. In addition, while he was out on bond awaiting disposition
of the charges in the case sub judice, he was aga in arrested for driving on a
revoked license and was convicted of that offense in the Blount County General
-4- Sessions Court. He was sentenced to ten days in jail and six months probation
for that offense.
The Defe ndan t testified that on the m orning in question, when the o fficers
turned on their blue lights, “it scared me and I run.” He testified that he fled from
the officers because he was afraid of being shot or beaten. He never gave a
rational or reasonable explanation of why he was afraid of being shot or beaten
by the Blount County deputy sheriffs who pursued him. He admitted that at the
time the officers attempted to stop him, he had been drinking and smoking
marijuana. He admitted that he had been a regular user of ma rijuana on a d aily
basis for several years, but he stated he had recently quit. A drug screen
administered in conjunction with the preparation of the presentenc e report was
negative. He testified that he stopped smoking marijuana at the time he was
arrested for the cha rges disc ussed herein.
At the conclusion of the sentencing hearing, the trial judge stated that he
Free access — add to your briefcase to read the full text and ask questions with AI
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED NOVEMB ER SESSION, 1998 February 18, 1999
Cecil Crowson, Jr. Appellate C ourt Clerk STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9710-CC-00436 ) Appellee, ) ) ) BLOUNT COUNTY VS. ) ) HON. D. KELLY THOMAS, JR. JIMMY LEE NOAH, ) JUDGE ) Appe llant. ) (Sentencing)
ON APPEAL FROM THE JUDGMENT OF THE CRIMINAL COURT OF BLOUNT COUNTY
FOR THE APPELLANT: FOR THE APPELLEE:
MACK GARNER JOHN KNOX WALKUP Public Defender Attorney General and Reporter
GERALD L. GULLEY, JR. TODD R. KELLEY P.O. Box 1708 Assistant Attorney General Knoxville, TN 37901-1708 425 Fifth Avenu e North Nashville, TN 37243
MIKE FLYNN District Attorney General
PHILIP MORTON Assistant District Attorney General 363 Court Street Maryville, TN 37804
OPINION FILED ________________________
AFFIRMED
DAVID H. WELLES, JUDGE OPINION
The Defendant, Jimmy Lee Noah, appeals as of right pursuant to Rule 3
of the Tennessee Rules of Appellate P roced ure. H e was convic ted, up on his
pleas of guilty, of driving on a revoked license, reckless driving, reckless
endan germe nt, and felony evading arrest. 1 The agreed sentences for the two
Class E felonies were two years as a Range I standard offender. The agreed
sentences for the Class B misdem eanors we re six months . All sentences w ere
to be served concurrently. The manner of service of the sentences was left to the
discretion of the trial judge. The judge ordered that the felony sentences be
served in the Department of Correction, with the misde mean or jail senten ces to
be served concurrently. The Defendant appeals from the trial judge’s order that
the sentences be served in confinement. We affirm the judgment of the trial
court.
When an accused challenges the length, range, or manner of service o f a
sentence, this Court has a duty to conduct a de novo review of th e sente nce with
a presumption that the determin ations mad e by the trial court are correct. Tenn.
Code Ann. § 40-35-401(d). This presumption is ?conditioned u pon the affirma tive
showing in the record that the trial court considered the sentencing principles and
all relevant facts and circumstanc es.” State v. Ashby, 823 S.W.2d 166, 169
(Tenn. 19 91).
1 Tenn. Code Ann. §§ 55-50-504; 55-10-205; 39-13-103; 39-16-603(b).
-2- When conducting a de novo review of a senten ce, this Co urt must
consider: (a) the evidence , if any, received at the trial and sentencing hearing; (b)
the presentence report; (c) the principles of senten cing and argum ents as to
sentencing alternatives; (d) the nature and characteristics of the criminal conduct
involved; (e) any statutory mitigating or enhancement factors; (f) any statement
made by the defendant regarding sentencing; and (g) the potential or lack of
potential for rehab ilitation or treatm ent. State v. Smith, 735 S.W.2d 859, 863
(Tenn . Crim. A pp. 198 7); Ten n. Cod e Ann. §§ 40-35-102, -103, -210.
A defen dant w ho “is an especially mitigated or standard offender convicted
of a Class C, D or E felony is presumed to be a favorable candidate for
alternative sentencing options in the absence of evidence to the contrary.” Tenn.
Code Ann. § 40-35-102(6). Our sentencing law also provides that “convicted
felons committing the most severe offenses, possessing criminal histories
evincing a clear disregard for the laws and morals of society, and evincing failure
of past e fforts at r ehab ilitation s hall be given first priority regarding sentencing
involving incarceration.” Id. § 40-35 -102(5). T hus, a de fendan t sentenc ed to
eight years or less who is not an offend er for w hom incarc eration is a priority is
presumed eligible for alternative sentencing unless sufficient evidence rebuts the
presumption. However, the act does not provide that all offende rs who meet the
criteria are entitled to such relief; rather, it requires that sentencing issues be
determined by the facts and circumstances presen ted in eac h case . See State
v. Taylor, 744 S.W.2d 919, 922 (Tenn. Crim. App. 1987) (citing State v. Moss,
727 S.W .2d 229 , 235 (T enn. 19 86)).
-3- Additionally, the principles of sentencing reflect that the se ntenc e sho uld
be no greater than that deserved for the offense committed and should be the
least severe me asure necessary to achieve the purposes for which the sentence
is imposed . Tenn. Co de Ann. § 4 0-35-103(3 )-(4). The cou rt should also consider
the potential for rehabilitation or treatment of the defendant in determining the
senten ce alterna tive. Id. § 40-35-10 3(5).
About 1:30 one morning, a Blount County deputy sheriff observed a
vehicle, driven by th e Defe ndant, cross the center line a couple of times and
noted that the vehicle wa s not pro perly displa ying a licen se plate. T he dep uty
initiated a stop of the ve hicle b ut the d river refu sed to stop. A length y pursu it
followed, during which two other law enforcement vehicles eventually joined the
pursuit. At some point the D efenda nt stoppe d the veh icle and a ttempte d to flee
on foot. The officers were able to catch and tackle the Defendant, and the
charges which led to his guilty pleas followed.
The presen tence re port reflects that at the time of sentencing the
Defendant was thirty-one years old, single, and employed as a concre te finisher.
He testified that h e com pleted the eleventh grade. The Defendant has a rather
lengthy history of criminal conduct spanning a ten-yea r period. His convictions
include possession of marijuana, two DUIs, three convictions for driving on a
revoked license, and tw o felon y habitu al traffic o ffende r convic tions in Georgia.
He had violated probation in Georgia and subsequently had served time in the
Geo rgia penitentiary. In addition, while he was out on bond awaiting disposition
of the charges in the case sub judice, he was aga in arrested for driving on a
revoked license and was convicted of that offense in the Blount County General
-4- Sessions Court. He was sentenced to ten days in jail and six months probation
for that offense.
The Defe ndan t testified that on the m orning in question, when the o fficers
turned on their blue lights, “it scared me and I run.” He testified that he fled from
the officers because he was afraid of being shot or beaten. He never gave a
rational or reasonable explanation of why he was afraid of being shot or beaten
by the Blount County deputy sheriffs who pursued him. He admitted that at the
time the officers attempted to stop him, he had been drinking and smoking
marijuana. He admitted that he had been a regular user of ma rijuana on a d aily
basis for several years, but he stated he had recently quit. A drug screen
administered in conjunction with the preparation of the presentenc e report was
negative. He testified that he stopped smoking marijuana at the time he was
arrested for the cha rges disc ussed herein.
At the conclusion of the sentencing hearing, the trial judge stated that he
was denying any senten ce alte rnative to con finem ent be caus e of the Defe ndan t’s
lengthy criminal re cord, his decision to continue driving on a revoked license even
after being charged in these cases, the circumstances surrounding the offense,
and the De fenda nt’s len gthy his tory of m arijuan a use . The ju dge s pecific ally
found that the Defendant failed to demonstrate any potential for rehabilitation.
In this appeal, the D efendant as ks this Court to reverse the judgment of the
trial court and remand this case for an alternative sentence such as split
confinement, work release, or full probation. We decline to do so. Trial judges
are traditionally vested with broad discretionary authority in sentencing matters.
-5- Based on the Defe ndan t’s leng thy crim inal rec ord for offens es sim ilar to these,
the failure of less restrictive measures and past attempts at rehabilitation, and the
Defe ndan t’s continued disre gard for the laws of this state, w e are un able to
conclude that the trial judge erred or abused his discretion by ordering that the
Defen dant’s se ntence s be serv ed in con fineme nt.
The judgment of the trial court is affirmed.
____________________________________ DAVID H. WELLES, JUDGE
CONCUR:
___________________________________ JAMES CURWOOD WITT, JR., JUDGE
___________________________________ L.T. LAFFERTY, SENIOR JUDGE
-6-