State v. Trampas Sweeney

• Court: Court of Criminal Appeals of Tennessee
• Decided: February 27, 1998
• Docket: 01C01-9702-CC-00053
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE FILED DECEMBER 1997 SESSION February 27, 1998

Cecil W. Crowson Appellate Court Clerk STATE OF TENNESSEE ) ) NO. 01C01-9702-CC-00053 Appellee, ) ) WILLIAMSON COUNTY v. ) ) Hon. Donald P. Harris TRAMPAS DALE SWEENEY ) ) (Sentencing) Appellant ) )

For the Appellant For the Appellee

C. Diane Crosier John Knox Walkup Assistant Public Defender Attorney General & Reporter P.O. Box 68 Franklin, TN. 37065 Sarah M. Branch Assistant Attorney General 2nd Floor Cordell Hull Building 425 Fifth Avenue North Nashville, TN. 37243-0943

Joseph D. Baugh, Jr. District Attorney General Williamson County Cthse. Ste. G-6 P.O. Box 937 Franklin, TN. 37065-0937

Jeff Burks Assistant District Attorney General P.O. Box 937 Franklin, TN. 37065-0937

OPINION FILED:____________________

AFFIRMED PURSUANT TO RULE 20

WILLIAM M. BARKER, JUDGE OPINION

The appellant, Trampas Dale Sweeney, appeals as of right the sentences he

received following guilty pleas in the Circuit Court of Williamson County to the

offenses of evading arrest and driving a motor vehicle while classified as an habitual

motor vehicle offender (“HMVO”). 1 The trial court sentenced the appellant as a Range

III persistent offender and ordered him to serve five (5) years in the Tennessee

Department of Correction for driving a motor vehicle while declared an HMVO, a Class

E felony; and eleven (11) months and twenty-nine (29) days in the Williamson County

Jail for evading arrest, a Class A misdemeanor. The sentences were ordered to run

concurrently for a total effective sentence of five (5) years.

On appeal, the appellant contends that the trial court failed to properly consider

probation for the offense of driving while declared an HMVO. He further contends that

he should have been placed on community corrections. We affirm the judgment of the

trial court pursuant to Rule 20 of the Tennessee Court of Criminal Appeals.

The appellant in this case is no stranger to the criminal justice system in

Tennessee. He was originally declared an habitual motor vehicle offender on June 2,

1989, based upon his four (4) prior convictions for driving with a revoked license and

one (1) prior conviction for driving while under the influence of an intoxicant. Since

1989, the appellant has received six (6) convictions for operating a motor vehicle while

declared an HMVO, two (2) convictions for driving with a revoked license, two (2)

convictions for driving while under the influence of an intoxicant, one (1) conviction for

marijuana possession, and one (1) conviction for evading arrest.2

1 The appe llant w as ind icted on th e follo wing char ges : (1) O pera ting a mo tor ve hicle in W illiam son Cou nty, T enn ess ee w hile cla ssifie d as a n HM VO ; (2) D riving a m otor v ehic le upo n a pu blic highway in Williamson County, Tennessee when his privilege to do so was canceled, suspended, or revoked; (3) Evading arrest; and (4) Possessing a controlled substance, to-wit: diazepam, being classified as a Schedule IV controlled substance. Pursuant to a plea agreement, the appellant pled guilty to evading arrest and operating a motor vehicle while declared an HMVO, and the State entered nolle prosequi on the rem aining co unts.

2 One of the HMVO violations, committed on March 19, 1994, occurred while the appellant was free on bo nd fr om a 199 3 off ens e. Ad dition ally, the offe nse s at is sue in this c ase were com mitte d wh ile the appe llant was on probation from conviction s in 1994 .

2 In the present case, appellant challenges his sentences on the ground that he

is somehow suitable for probation or community corrections.

This issue is without merit.

When an appellant challenges his sentence, we must conduct a de novo review

of the record. See Tenn. Code Ann. § 40-35-401(d) (Supp.1996). The sentence

imposed by the trial court is accompanied by a presumption of correctness and the

appealing party has the burden of showing that the sentence is improper. See Tenn.

Code Ann. § 40-35-401 (Sentencing Commission Comments). That presumption,

however, is conditioned upon an affirmative showing in the record that the trial court

considered the sentencing principles and all relevant facts and circumstances. See

State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).

Tennessee Code Annotated section 40-35-103 sets out the sentencing

considerations for courts to follow when determining whether a defendant should be

incarcerated. Those factors include: whether confinement is necessary to protect

society or to avoid depreciating the seriousness of the offense, whether “confinement

is particularly suited to provide an effective deterrence to others likely to commit

similar offenses,” and whether “measures less restrictive than confinement have

frequently been applied unsuccessfully to the defendant.” See Tenn. Code Ann. § 40-

35-103(1) (Supp. 1996).

The trial court gave full consideration to the relevant evidence and

circumstances before ordering the appellant’s sentences. As the trial court found, the

appellant has a criminal record of over fifteen (15) convictions and has demonstrated

an unwillingness to comply with the conditions of probation and community release.

Nevertheless, the appellant argues that the trial court should have considered

probation for the HMVO offense in light of this Court’s previous decision in State v.

Ricky Fife, No. 03C01-9401-CR-0036 (Tenn. Crim. App. at Knoxville, June 15, 1995).

The appellant’s reliance on Fife is without merit. In Fife, a panel of this Court

3 acknowledged that the 1989 Sentencing Reform Act supersedes Tennessee Code

Annotated section 55-10-616(c), so that trial courts may now suspend all or part of a

habitual motor vehicle offender’s sentence. See slip op. at 2, n.2.3 However, trial

courts maintain full discretion to determine the appropriate sentence under the

Sentencing Reform Act of 1989, and nothing in that Act supports appellant’s

contention that he is suitable for alternative sentencing.

To the contrary, from our de novo review, we conclude that appellant’s

sentences, as set under Range III, are clearly justified in light of his criminal history

and his persistent disregard for the laws of this State. The appellant has failed to

carry his burden of showing that his sentences are improper.

Pursuant to Rule 20 of the Tennessee Court of Criminal Appeals, the judgment

of the trial court is affirmed.

___________________________ WILLIAM M. BARKER, JUDGE

CONCUR:

__________________________ JOE B. JONES, Presiding Judge

__________________________ PAUL G. SUMMERS, JUDGE

3 Prior to the Sentencing Reform Act of 1989, Tennessee Code Annotated section 55-10-616© preclud ed trial cour ts from suspe nding an y portion of a habitual m otor vehic le offend er’s sen tence.