State of Tennessee v. Charlene Hardison ( 1998 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
APRIL 1998 SESSION
FILED
August 7, 1998
Cecil W. Crowson
Appellate Court Clerk
STATE OF TENNESSEE , §
APPELLEE
§
VS. C.C.A. No. 01C01-9705-CC-00196
§ Williamso n Coun ty
Honora ble Henr y Denmar k Bell
CHARLENE HARDISON, §
APPELLANT (SENTENCING)
FOR THE APPELLANT FOR THE APPELLEE
Lionel Barrett, Jr. John Knox Walkup
Washington Square Two - Suite 417 Attorney General and Reporter
222 Sec ond Av enue, No rth 425 Fifth Avenu e, North
Nashville, TN 37201 Nashville, TN 37243
–––––
Lisa A. Naylor
Assistant Attorney General
425 Fifth Avenu e, North
Nashville, TN 378243
Derek S mith
Assistant District Attorney General
P. O. Box 937
Franklin, TN 37065-0937
OPINION FILED: _______________________
AFFIRMED AS MODIFIED
L. T. LAFFERTY, SPECIAL JUDGE
OPINION
The defendant, Charlene Hardison, appeals of right from a ruling of the
Williamson County Criminal Court in which the trial court imposed a sentence
of six (6) months confinement in the Williamson County Jail for the offense of
driving on a revoke d license. Also, the Williamso n County Criminal C ourt
consolidated an appeal of the defendant for violation of probation from the
Williamson County General Sessions Court. After a sentencing hearing, the
trial court upheld the judgment of the General Sessions Court and ordered the
defendant to serve six (6) months, less forty-five (45) days credit, as per her
plea of guilty, to run concurrently with the sentence for driving on a revoked
license. Af ter a review of the entire r ecord, brief s of the par ties and app licable
law, we affirm the trial court’s judgment as to the revocation of probation, but
remand the sentences as modified.
Background
The record reveals that the Williamson County Grand Jury, on July 8,
1996, indicted the defendant for driving on revoked license on March 30,
1996. On January 21, 1997, the defendant entered a plea of guilty to driving on
a revoked sentence b efore the W illiamson C ounty Crimin al Court w ith all
issues to be d etermined at a sentenc ing hearing . The defe ndant nor the State
submitted a transcript of guilty plea proceedings for driving on a revoked
license. The trial court set a sentencing hearing for March 17, 1997. Also, the
trial court consolidated an appeal in which the Williamson County General
Sessions revoked a period of probation granted to the defendant for the
convic tion of d riving u nder th e influe nce of alcoho l on Feb ruary 9, 19 94.
As to the facts surroun ding the appeal of the General Sessions C ourt
revoking the defendant’s probation, the record establishes that on February 9,
1994, the defendant entered a negotiated reduced plea of guilty to driving under
the influence of alcohol as a first offender, from an orginial charge for a second
offense. The General Sessions Court imposed a fine of $1,000, six (6) months
confinement, at 75%, in the Williamson County jail, the defendant to serve
forty-five (45) days, given jail credit for eighteen (18) days treatment and serve
the balance of twenty-seven (27) days on weekends, and probation for eleven
(11) months, twenty-nine (29) days to expire February 9, 1995. On October 31,
1994, an amended probation order was entered incorporating the special
conditions of February 9th and adjustment of probation fees. The expiration
date was extended from February 9, 1995, to February 9th, 1996. On May 31,
1995, the General Sessions Court issued an arrest warrant for the defendant for
a violation of probation. The defendant was alleged to have not paid any
probation fees, nor completed the balance of her jail time on weekends. On
June 11, 1996, the General Sessions Court revoked the defendant’s probation
and she was ordered to serve the balance of her six (6) month sentence, less
credits. This ju dgment th e defend ant appea led to the W illiamson C ounty
Crimin al Cou rt.
At the sentencing hearing, the trial court rejected the defendant’s request
for an alternative sentence, such as probation, and follow ed the State’s
recommendation that the defendant’s two six (6) month sentences run
concu rrent, less credit fo r forty-fiv e (45) d ays in the v iolation of pro bation.
The trial cou rt stated: “that’s f air, I approve -- I sentence h er in accord ance with
that.”
From a re view of th is record, it is som ewhat dif ficult for this C ourt to
determine exactly what the trial court ruled as to the request for
probation/alternative sentences for the conviction of driving on a revoked
license. A re asonable in terpretation, fro m a review of the judg ment orde r, is
the trial court denied any alternative relief. Collaterally, what is the standard of
review for a criminal court when a defendant appeals the judgment of a general
sessions court revoking probation?
In State v Cunningham No. 02C 01-9709 -CC-00 336, at Jack son, April
21, 1998, Judge Joe Riley, author, held that the standard of review for the
criminal court is de novo in appeals of revocation of probation by a general
session s court o r munic ipal cou rt. TCA 27-5-1 08 (c).
Although the trial court did not conduct a de novo hearing in the appeal
of revocation of pro bation, the defendant in h er testimony admitted there were
grounds for the general sessions court to revoke her probation. We will now
move to th e questions of a prop er sentence for the def endant.
Sentencing Considerations
When a defenda nt compla ins of his or h er sentence , we mus t conduct a
de novo review with a presumption of correctness. Tenn. Code Ann. § 4-0-35-
401(d). The burden of showing that the sentence is improper is upon the
appealing party. Tenn. Code Ann. § 40-35-401(d). This presumption,
however, is conditioned upon an affirmative showing in the record that the trial
court considered the sentencing principles and all relevant facts and
circum stances . State v A shby, 823 S.W.2d 1 66 (Tenn 199 1).
In arriving at a proper sen tence, the trial co urt must co nsider the sp ecific
proc edures o f Te nn. C ode Ann . § 40 -35- 210. (1) T he ev iden ce, if any,
received at trial and the sentencing hearing; (2) the presentence report; (3) the
principles of sentencing and arguments as to sentencing alternatives; (4) the
nature and characteristics of the criminal conduct involved; (5) evidence and
information offered by the parties on enhancement and mitigating factors in §§
40-35-113 and 40-35-114; and (6) any statement the defendant wishes to make
in his or her own behalf about sentencing.
In misdemeanor sentencing, a separate sentencing hearing is not
mandato ry, but the trial court is re quired to allo w the par ties a reasona ble
opportunity to be heard on the question of the length of the sentence and the
manner in which it is to be served. Tenn. Code Ann. § 40-35-302 (a). The
sentence must be specific and consistent with the purpose and principles of the
Crimin al Sente ncing R eform Act of 1989. T enn. C ode A nn. § 40 -35-30 2(b).
The misdemeanant, unlike the felon, is not entitled to the presumption of
a minim um sen tence. State v D avis, No. 01C01-9202-CC-00062, Williamson
County (Tenn. Crim App. Filed March 17, 1193 at Nashville). In addition, the
trial court is required to fix the sentence at not greater than 75% so the
defendant may be considered for “work release, furlough, and related
rehabili tative pr ogram s.” Ten n. Cod e Ann . § 40-3 5-302 (d).
In the case u nder review , the trial court did not design ate a percen tage in
the sentence for driving on a revoked license, but did in the appeal of the
violation of probation at 75%. Since the sentences were ordered to be served
concu rrently, we will assu me the percen tage of 75% applies to both senten ces.
Sentencing Hearing
Since the trial court was somewhat limited in its ruling as to alternative
sentences, we will conduct a de novo review without a presumption of
correctness. Based on the evidence at the sentence hearing and the pre-
sentence report the defendant has had a rather disruptive life beginning in 1991,
primarily due to alcohol abuse. The pre-sentence report indicates the defendant
has severa l arrests for ass aults, public into xication an d maliciou s mischief, a ll
of which were retired or dismissed. The defendant admitted to being arrested
four (4) times for driving u nder the influence of alcohol; (1) convicted for D UI,
September 9, 1992; (2) convicted for DUI, February 9, 1994 (this case) (3) an
arrest for DUI January 29, 1992 reduced to reckless driving and (4) a pending
DUI and driving on revoked license offenses pending for a sentencing hearing
in the Prob ate Court o f Davids on Cou nty, March 3 1, 1997. A pparently, wh ile
on proba tion from th e convictio n of driving under the in fluence o f alcohol in
February, 1994, the defendant committed the offense of driving on a revoked
license on March 31, 1996, leading to her conviction. Unfortunately, the
defendant was arrested May 17, 1996, in Davidson County for driving under
the influen ce of alcoh ol.
As to the revocation of probation, the defendant admitted that she failed
to comple te her wee kend days a s ordered b y the court. She failed to com plete
this confinement period due to being scared about being confronted with the
possibility of homosexual threats. Th e defendant adm itted she failed to report
to her prob ation office r as directed, b ut was un aware sh e had to rep ort in
person .
To resolve her problem with alcohol, the pre-sentence report reveals the
defendant entered an alcohol treatment program in 1994 at Cumberland
Heights in Nashville. Also, the defendant since her arrest in May, 1996, re-
entered , in Sept embe r, 1996 , an alco hol treat ment a t Cum berland Heigh ts.
Apparently, this treatment center did not recommend in-patient treatment by
them, but suggested extensive out-patient treatment. Whereupon, the defendant
entered a program sponsored by Tennessee Christian Center. The defendant
was in an in-patien t program for f ourteen ( 14) d ays. A s par t of h er recovery,
the defendant attends AA meetings on a regular basis, and has not consumed
any alcohol since June, 1996.
The defendant accounts her turn-around on a conversation with an
inmate in the Williamson County jail. The inmate was incarcerated for killing
a person in an accident involving alcohol. According to the defendant this had
a profound aff ect on her, she must co ntrol this problem or she w ould hurt
herself or others. The def endant’s boyfriend, Dav id Moneypacke r,
corroborated the defendant’s testimony about her not drinking since June, 1996
and her endeavors to face her alcohol problems.
The defendant would urge this Court that some conditions, in its de novo
review, would satisfy probation. The State counters that the defendant is not
entitled to any consideration of probation. The power to suspend a sentence
and im position of a sen tence is w ithin the sole disc retion o f the trial court.
Stiller v S tate, S. W.2d 617 (Tenn. 1974). Probation is a privilege to be
conferred after a determination of the circumstances of the offense, the
defendant’s criminal reco rd, his social history, his present condition, and wh ere
approp riate, his m ental an d physica l conditi on. Id. This criteria must, also, be
consid ered w ithin the require ments o f the Se ntencin g Act o f 1989 .
After a careful review of the evidence in this cause, we find the trial
court was correct in finding the defendant violated her conditions of probation
imposed by the William son Gen eral Session s Court. H oweve r, we wo uld
remand the causes to the Williamson Criminal Court for orders to be entered
reflecting that the defendant be confined for six (6) months for the offenses of
driving on a revoked license and driving under the influence of alcohol
(General Sessions judgment), payment of a fine $1,000, the defendant to serve
ninety (90) days, continuous confinement, less appropriate credits, and placed
on proba tion for e leve n (11 ) months , twe nty-nine (29) d ays co ncurren tly,
subjec ted to w hateve r condi tions the trial cou rt deem s reason able.
___________________________
L. T. Lafferty, Special Judge
CON CUR :
__________________________
Gary R. Wade, Presiding Judge
__________________________
Thomas T. Woodall, Judge