State v. Strickland

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE FILED DECEMB ER SESSION, 1998 January 15, 1999

Cecil Crowson, Jr.

Appellate C ourt Clerk

STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9801-CC-00556 )

Appellee, )

)

) BLOUNT COUNTY

VS. )

) HON . D. KELL Y THO MAS ROBERT STRICKLAND, ) JUDGE )

Appe llant. ) (Dire ct Ap pea l - Cla ss E Felo ny)

FOR THE APPELLANT: FOR THE APPELLEE:

JULIE A. MAR TIN JOHN KNOX WALKUP P. O. Box 426 Attorney General and Reporter Knoxville, TN 37901-0426 CLINTON J. MORGAN

Coun sel for the S tate

425 Fifth Avenu e North

Nashville, TN 37243-0493

MIKE FLYNN

District Attorney General

PHILIP MORTON

Assistant District Attorney 363 Court Street

Maryville, TN 37804

OPINION FILED ________________________ AFFIRMED JERRY L. SMITH, JUDGE

OPINION

The appellan t, Robert B. Strickland, pled guilty to two (2) counts of violating the Habitual Motor Vehicle Offender Act (“HMVO Act”), a Class E felony. The trial court sentenced him as a Range II offender to consecu tive sentences of three (3) years and six (6) month s on ea ch cou nt. On appeal, Appellant claims that the trial court imposed excessive sentences. After a thorough review of the record, w e affirm the judgm ent of the tria l court.

I.

Appellant was adjudicated an habitu al offender under the HMVO Act on May 7, 1993. Thereafter, on April 19 and May 16, 1997, Appellant was arrested for driving in vio lation of that Act. Appellant pled guilty to the offenses, and a sentencing hearing was he ld to determine the length and m anne r of Ap pellan t’s sentences.

At the sentencing hearing, Appe llant testified that he was fifty-one (51)

years old and in poor health . Appe llant wa s suffe ring from cirrhos is of the liver, asthma, a hernia, arthritis and a b ack injury. He stated that he was taking several medications as a result of his health problem s and was en route to the d rugstore when he was arrested on both occasions. Although he knew that it was illegal for him to drive, Appellant insisted that he only drove in emergency situations. He testified that if he did not tak e his me dicine at th e appro priate time , his “stomach would blow up.” He had no other means of transportation to the

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drugstore on the occasions when he dro ve and he wa s not p hysica lly able to walk to get his m edication s.

In imposing Appellant’s sentence, the trial court found three enhancement factors to be applicable, namely: (1) that Appellant had a prior history of criminal convictions in addition to those necessary to establish the appropriate range, Tenn. Code Ann. § 40-35-114(1); (2) that Appellant has a previous history of unwillingness to comply with the conditions of a senten ce involving release in to the comm unity, Ten n. Cod e Ann. § 40-35-114(8); and (3) that the present offenses were committed while Appellant was on bail for a felony which he was ultima tely convicted of, Tenn. Code An n. § 40-35-11 4(13)(A). Th e trial court found no applicable mitigating factors. The trial court then sentenced Appellant as a Range II offender to consecutive terms of three (3) years and six (6) months for each offense. The trial court further ordered that the sentences run cons ecutive ly to a prio r felony sente nce. A ppella nt now brings this ap peal, challeng ing the len gth of his s entenc es imp osed b y the trial cou rt.

II.

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). T his presumption is conditioned upon 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. Poo le, 945 S.W.2d 93, 96 (Tenn. 1997).

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The burden is upon the appealing party to show that the sentenc e is improper. Tenn . Code Ann. § 40-35-401(d) Sentencing Commission Comme nts; State v. Gregory, 862 S.W.2d 574, 578 (Tenn . Crim. A pp. 199 3). In conducting our review, we are required, pursuant to Tenn. Code Ann. § 40-35-210, to consider the following factors in sentencing:

(1) [t]he eviden ce, if any, rec eived at the trial a nd the sentencing hearing;

(2) [t]he pre senten ce repo rt;

(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 the de fenda nt's own behalf about sentencing.

Under the 1989 Sentencing Act, the presumptive sentence for a Class B, C, D or E felony is the m inimu m with in the a pplica ble ran ge if no mitiga ting or enhancement factors for sentencing are p resent. T enn. C ode An n. § 40-35-210 (c); State v. Fletcher, 805 S.W .2d 785, 788 (Tenn. Crim . App. 1991 ). Howeve r, if such factors do exist, a trial court should start at the minimum sentence, enhance the minimum sentence within the range for enhancement factors and then reduce the sentence within the range for the mitigating factors. Tenn. Code Ann. § 40-35-210(e). Where one or more enhancement factors apply but no mitigating factors exist, the trial court may sentence above the minimum sentence within the range. Tenn. Code Ann. § 40-35-210(d). No particular weight for each factor is prescribed by the statute, as the weight given to each factor is left to the disc retion of the trial court as long as its findings are

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suppo rted by the record. State v. Santiago, 914 S.W.2d 116, 125 (Tenn. Crim. App. 1995); see Tenn. Code Ann. § 40-35-210 Sentencing Commission Commen ts.

III.

Appellant contends that the trial court erred in failing to consider several statutory mitigating factors. Although he does not challenge the applicability of the enhance ment factors conside red by the trial court, 1 Appellant argues that had the trial court properly applied the mitigating factors, he would have re ceived a sentence closer to the minimum for each conviction.

A.

Appellant first conte nds th at the tria l court s hould have c onsid ered th at his conduct neithe r caus ed no r threa tened seriou s bod ily injury. Tenn. Code Ann. § 40-35-113(1). H e claims that there is no evide nce in the record th at he was impaired at the time he was driving nor that he threatened harm to any person. Howeve r, Appe llant is an habitu al offender with a lengthy record of driving offenses, including driving und er the influence of an intoxicant. This Court has previously held,

[b]y mea ns of th e Mot or Ve hicle Habitual Offenders Act, the General Asse mbly of Tennessee, as a matter of public policy, has determined that certain drivers are such a threat that they should not be allowed to operate a motor vehicle. Appellant is just such a driver, and h is pres ence behin d the w heel, in and of itself, constitutes a threat of serious bodily injury to other drivers.

State v. Michael Bellew, C.C.A. No. 02C01-9510-CC-00324, 1997 WL 81656 at *2, Henry Co unty (Tenn . Crim. App. filed Fe bruary 27, 199 7, at Jackson ).

1 Additionally, Appellant does not challenge the trial court’s imposition of consecutive sentences.

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The trial court did no t err in failing to apply this mitigating factor.

B.

Appellant next argues that the trial court should have considered that Appellant was acting under strong provoc ation when the offenses we re committed. Tenn . Code Ann. § 4 0-35-11 3(2). He claims that he “was facing a medical emergency which could threaten his life and put him in to the h ospita l if he did not obtain his medication.” Appellant claims that although he knew he could not drive, his medication was vital to his he alth. However, he does not explain why he did no t mak e prior arrangements to receive his medication. Certainly , the medicine could have b een delivered, o r Appellant cou ld have arranged for transportation to the drugstore before his health was endangered. This would have been a m ore pruden t course o f condu ct, rather than c onsc iously choosing to drive a car and knowingly violate the law. There was not sufficient provocation to mitigate Appellant’s sentence under Tenn. Code Ann. § 40-35- 113(2).

C.

Appellant further contends that his “medical emergency” constituted a substantial reason excusing or justifying his behavior under Tenn. Code Ann. § 40-35-113 (3). However, as we have previously stated, Appellant had other, legal options for receiving his medication before his circumstances became critical. This mitigating factor is not applicable.

D.

Appellant asserts that by d riving his car to get his required medication, he was motivated by a desire to provide necessities for himself, Tenn. Code Ann. § 40-35-113 (7). However, this factor “is more properly addressed to individuals who, beca use o f their de stitution , may c hoos e to ste al brea d or m ilk for the ir

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children or themselves due to their dire circumsta nces.” State v. Martie Lane Williamson, C.C.A. No. 03C01-9210-CR-00371, 1993 WL 335433 at *2, Knox Coun ty (Tenn. Crim. App. filed September 1, 19 93, at K noxville ). Thu s, this factor is inapplicable.

E.

Finally, Appellant insists th at bec ause he is in c onsta nt pain due to his health proble ms a nd he drove his vehicle to get medications to alleviate his pain, the trial court should have found that he acted under duress at the time the offenses were committed. Tenn. Code Ann. § 40-35-113(12). Duress has been defined by courts of this state as a “threat of ‘such a character as to overcome the mind and w ill and d estroy the free agen cy of a p erson of ordin ary firm ness .’” State v. Jerry Taylor, C.C.A. No. 0 1C01-9 612-CC-00499, 1998 WL 424570 at *11, Williamson County (Tenn. Crim. App. filed July 29, 1998, at Nashville) (quoting Johnson v. Roland, 61 Tenn. (2 Baxt.) 203, 206 (1872)). Once again, Appellant had oth er legal m eans fo r obtaining his med ication prio r to the onset of the pain for which he is com plaining. A lthough this Cou rt sympa thizes with Appe llant’s medical difficulties, we do not find Appellant’s pain to be within the meaning of “duress” as contemplated by Tenn. Code Ann. § 40-35 -113( 12). T his factor is inapplicable.

F.

Finally, this Court notes that Appellant has an extensive history of criminal convictions. Appellant, in his brief, acknowledges that he has over 48 misdemeanor convictions and arre sts in Tennessee. In addition, Appellant has enough felony convictions to qualify as a Range II offender. Moreover, the present offenses were committed while Appellant was on bail for another felony offense for whic h he w as ultim ately co nvicted . Appe llant insists tha t his

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sentences should b e reduc ed due to his spe cial circum stance s, i.e., his nee d to receive the required medication as a result of his numerous illnesses. However, even if this Court were to find Appellant’s proposed mitigating factors to be applicable, those factors would be greatly outwe ighed by the a pplica ble enhancement factors.

Furtherm ore, Appellant’s prior criminal record indicates that he has a sustained intent to violate the law. As such, his criminal record negates Appe llant’s assertion that he violated the law only as a matter of medical emerge ncy.

W e , therefore, conclud e that the tria l court imp osed a n appro priate sentence of three (3) years an d six (6) months for each offense of violating the HMVO Act. Accordingly, the judgment of the trial court is affirmed.

____________________________________

JERRY L. SMITH, JUDGE

CONCUR:

___________________________________

DAVID G. HAYES, JUDGE

___________________________________

JAMES CURWOOD WITT, JR., JUDGE