State v. Craig Hazlett ( 1998 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
APRIL 1998 SESSION
July 31, 1998
Cecil W. Crowson
STATE OF TENNESSEE, * C.C.A. # 01C01-9708-CC-00321 Clerk
Appellate Court
Appellee, * MARSHALL COUNTY
VS. * Hon. Charles Lee, Judge
CRAIG A. HAZLETT, * (Habitual Motor Vehicle Offender and
Appellant. * Driving on a Revoked License)
For Appellant: For Appellee:
Curtis H. Gann John Knox Walkup
Assistant Public Defender Attorney General and Reporter
Seventeenth Judicial District
105 South Main Georgia Blythe Felner
P.O. Box 1119 Counsel for the State
Fayetteville, TN 37334 Cordell Hull Building, Second Floor
(on appeal) 425 Fifth Avenue North
Nashville, TN 37243-0493
Michael D. Randles
Assistant Public Defender J. B. Cox
105 South Main and
P.O. Box 1119 Weakley E. Barnard
Fayetteville, TN 37334 Asst. District Attorneys General
(on trial) Room 407, Marshall County Courthouse
Lewisburg, TN 37091
OPINION FILED:__________________________
AFFIRMED
GARY R. WADE, JUDGE
OPINION
The defendant, Craig A. Hazlett, was found guilty of one count of
driving after being declared a Habitual Motor Vehicle Offender and one count of
driving on a revoked license. The trial court imposed a Range II sentence of three
years, four months in the Department of Correction. Fines totaled $350.00. The
trial court merged the driving on a revoked license count into the greater offense.
In addition to his challenge to the sufficiency of the evidence for driving
after being declared a Habitual Motor Vehicle Offender, the defendant contends that
the sentence is excessive. We find no error and affirm the judgment of the trial
court.
Near midnight on June 6, 1996, Deputy Phillip Klarer of the Marshall
County Sheriff's Department was on patrol on Farmington Belfast Road when he
noticed a car being driven by the defendant with a missing taillight and expired tags.
When the officer turned on his emergency lights, including "takedown" lights which
are designed to allow a view of the inside of the suspect vehicle, he observed the
driver move onto the lap of a passenger, later identified as Wysenita Hazlett. Officer
Klarer testified that a few seconds later, the passenger "got out from underneath
[the driver]" into the seat behind the steering wheel. The third person, who was in
the back seat, did not move. Officer Klarer identified the defendant as the driver.
When questioned, the defendant admitted that his driver's license had
been revoked. When asked why he had switched seats, the defendant merely
shrugged his shoulders. Ms. Hazlett, the defendant's wife, did not have a driver's
license. It was stipulated at trial that the defendant had been declared a Habitual
Motor Vehicle Offender.
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At trial, the defendant claimed that his wife had been driving the car.
He asserted that because the car was a compact with an automatic gear shift in the
console area, it was impossible for him to have switched places. The defendant
contended that he was teaching Ms. Hazlett how to drive. The defendant insisted
that he informed Officer Klarer at the scene that he was not the driver of the vehicle.
Ms. Hazlett testified that their vehicle, a Renault, had bucket seats with
an automatic shift in the console. She identified the third person in the car as a Mr.
Shelton, who was not called as a defense witness. Ms. Hazlett claimed that she had
been driving the vehicle at the time the officer turned on his blue lights. She
contended that she was a little larger at the time of the arrest and that it would have
been impossible for her to have exchanged seats with her husband at that time.
Initially, the defendant contends that no rational trier of fact could have
found the defendant guilty beyond a reasonable doubt. He insists that his testimony
and that of his wife was credible and consistent.
On appeal, the state is entitled to the strongest legitimate view of the
evidence and all reasonable inferences which might be drawn therefrom. State v.
Cabbage, 571 S.W.2d 832 (Tenn. 1978). The credibility of the witnesses, the
weight to be given their testimony, and the reconciliation of conflicts in the evidence
are matters entrusted exclusively to the jury as the trier of fact. Byrge v. State, 575
S.W.2d 292 (Tenn. Crim. App. 1978). A conviction can be set aside only when a
reviewing court finds that the evidence is insufficient to support the finding by the
trier of fact of guilt beyond a reasonable doubt. Tenn. R. App. P. 13(e). In a jury
trial, a guilty verdict, approved by the trial judge, accredits the testimony of the
state's witnesses. State v. Hatchett, 560 S.W.2d 627 (Tenn. 1978).
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Tennessee Code Annotated Section 55-10-616 prohibits one who has
been declared a Habitual Motor Vehicle Offender from operating a motor vehicle.
Here, the defendant stipulated that he had been declared a Habitual Motor Vehicle
Offender. The issue for the jury was whether to accredit the testimony of Officer
Klarer or that of the Hazletts. Because the officer claimed to have seen the
defendant driving the vehicle and, after it was stopped, observed him exchange
places with his wife, the jury acted within its prerogative in determining the presence
of the essential elements of the crime. In our view, their verdict satisfies the
standard described. Jackson v. Virginia, 443 U.S. 307 (1979).
The defendant, who qualified as a Range II offender, committed a
Class E felony. As his next issue, he argues that the three-year, four-month
sentence is disproportionate in comparison to the severity of the offense.
He also argues the trial court erred by ordering incarceration. He
contends that he is "not a threat to society and ... society needs no protection from
him." The defendant cites Tenn. Code Ann. § 40-35-103(1)(a) which governs when
a sentence "involving confinement" should be imposed. The defendant, thirty-eight
years of age at the time of sentencing, asserts that he has been employed by the
same company for twenty-four years, pays support for a child by a previous
marriage, and is now remarried. The record, however, demonstrates that the
defendant has been cited to court a number of times for failure to pay. At the time
of the sentencing, he earned approximately $300.00 per week. He asserts that his
crime was a non-violent offense and should not warrant such a lengthy term.
When there is a challenge to the length, range, or manner of service of
a sentence, it is the duty of this court to conduct a de novo review with a
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presumption that the determinations made by the trial court are correct. Tenn. Code
Ann. § 40-35-401(d). This presumption 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); see
State v. Jones, 883 S.W.2d 597 (Tenn. 1994). The Sentencing Commission
Comments provide that the burden is on the defendant to show the impropriety of
the sentence.
Our review requires an analysis of (1) the evidence, if any, received at
the trial and sentencing hearing; (2) the presentence report; (3) the principles of
sentencing and the arguments of counsel relative to sentencing alternatives; (4) the
nature and characteristics of the offense; (5) any mitigating or enhancing factors; (6)
any statements made by the defendant in his own behalf; and (7) the defendant's
potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103, and
-210; State v. Smith, 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987).
Among the factors applicable to the defendant's application for
probation are the circumstances of the offense, the defendant's criminal record,
social history, and present condition, and the deterrent effect upon and best interest
of the defendant and the public. State v. Grear, 568 S.W.2d 285, 286 (Tenn. 1978).
Especially mitigated or standard offenders convicted of Class C, D, or
E felonies are presumed to be favorable candidates "for alternative sentencing
options in the absence of evidence to the contrary." Tenn. Code Ann. § 40-35-
102(6). There is no such presumption for a Class B felon. Tenn. Code Ann. § 40-
35-102(6). With certain statutory exceptions, none of which apply here, probation
must be automatically considered by the trial court if the sentence for each
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conviction is eight years or less. Tenn. Code Ann. § 40-35-303(a), (b).
A sentence of split confinement involves the grant of probation after
the partial service of a sentence. Tenn. Code Ann. § 40-35-306. It may include a
jail or workhouse sentence of up to one year with the probationary term to extend for
any period thereafter up to the statutory maximum for the offense. Id.In calculating the sentence for Class B, C, D, or E felony convictions at
the time of these offenses, the presumptive sentence is the minimum within the
range if there are no enhancement or mitigating factors. Tenn. Code Ann. § 40-35-
210(c). If there are enhancement factors but no mitigating factors, the trial court
may set the sentence above the minimum. Tenn. Code Ann. § 40-35-210(d). A
sentence involving both enhancement and mitigating factors requires an assignment
of relative weight for the enhancement factors as a means of increasing the
sentence. Tenn. Code Ann. § 40-35-210(e). The sentence may then be reduced
within the range by any weight assigned to the mitigating factors present. Id.As a Range II offender, the defendant faced a possible sentence of
two to four years. Tenn. Code Ann. § 40-35-112(b)(5). His criminal history includes
thirty-eight prior arrests or convictions, twenty-nine of which are for traffic-related
crimes. His record includes several DUI's, several instances of driving on a revoked
license, reckless driving, and several instances of driving after having been declared
a Habitual Motor Vehicle Offender. On his first such offense, he received a one-
year sentence with all but seventy-five days suspended. On his second, the
defendant received a two-year sentence to Community Corrections, which was later
revoked.
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The trial court, which described the defendant as "likeable," concluded
that the defendant's conduct neither threatened nor caused serious bodily injury;
thus, a single mitigating factor applied. Tenn. Code Ann. § 40-35-113(1). Two
enhancement factors applied. The defendant had a previous history of criminal
convictions. Tenn. Code Ann. § 40-35-114(1). Also, the defendant had a previous
history of unwillingness to comply with sentences involving release in the
community. Tenn. Code Ann. § 40-35-114(8).
The record demonstrates that the trial court carefully considered the
good qualities of the defendant. Its primary concern was the defendant's continuing
unwillingness to abide by his terms of release. We agree. The number of driving
offenses the defendant has accumulated over the last fifteen years is incredible.
The lack of an operator's license has rarely been a deterrent to his inclination to
drive. Because the trial court considered the sentencing principles and all relevant
facts and circumstances, the Range II sentence of three years and four months is
entitled to the presumption of correctness. The defendant has failed to overcome
that presumption.
Nor can we conclude the trial court erred by denying an alternative
sentence. As a Range II offender, the defendant is not entitled to the presumption
in favor of an alternative sentence. See Tenn. Code Ann. § 40-35-102(b).
Moreover, the defendant's lengthy criminal history and his refusal to comply with
terms of a sentence involving release into the community fully warrants the denial of
an alternative sentence. See Tenn. Code Ann. § 40-35-103(1)(c).
Accordingly, the judgment is affirmed.
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________________________________
Gary R. Wade, Judge
CONCUR:
_____________________________
Thomas T. W oodall, Judge
_____________________________
L. T. Lafferty, Special Judge
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