State v. Pell ( 1998 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
JULY 1998 SESSION
STATE OF TENNESSEE, * C.C.A. # 03C01-9707-CC-00292
August 21, 1998
Appellee, * BLOUNT COUNTY
VS. * Hon. D. Kelly Thomas, Jr., Judge
Cecil Crowson, Jr.
GAIL PELL, * (DUI, Second Offense,
Appellate C ourt Clerk
Appellant. * Driving on Revoked License)
For Appellant: For Appellee:
Mack Garner John Knox Walkup
District Public Defender Attorney General and Reporter
419 High Street
Maryville, TN 37804 Ellen H. Pollack
(at trial) Assistant Attorney General
425 Fifth Avenue North
Julie A. Martin, Attorney Nashville, TN 37243
P.O. Box 426
Knoxville, TN 37901-0426 Philip Morton
(on appeal) Assistant District Attorney General
363 Court Street
Maryville, TN 37804
OPINION FILED:__________________________
AFFIRMED
GARY R. WADE, PRESIDING JUDGE
OPINION
The defendant, Gail Pell, 1 was convicted of driving while under the
influence of an intoxicant, second offense, and driving on a revoked license. The
trial court imposed a sentence of eleven months and twenty-nine days, suspending
all but one hundred twenty days, for driving under the influence and ordered a six-
month concurrent sentence, with all suspended except for two days, for driving on a
revoked license. The balance of each sentence was to be served on supervised
probation. Five months later, probation was revoked and the defendant was
ordered to serve her sentence in jail at seventy-five percent.
In this appeal of right, the defendant claims that the trial court erred by
requiring seventy-five percent of her sentence to be served.
We affirm the judgment of the trial court.
On February 5, 1997, the defendant entered guilty pleas on each of
the two charges. Later that same day, before she reported to jail to start serving the
sentence, the defendant drank six beers. Afterward, she was stopped by police as
she was driving from her boyfriend's residence. As the officer began his
investigation, the defendant, who had no operator's license, was "overwhelmed by
fright and drove off." The defendant had marijuana in her possession at the time
and had smoked marijuana while visiting her boyfriend. The defendant admitted
that she was intoxicated. Shortly thereafter, she entered a guilty plea in the Blount
County General Sessions Court and received an additional sentence of one
hundred twenty days. By the time of the probation revocation hearing on July 3,
1997, the defendant had been incarcerated almost five months.
1
The defendant's name is also spelled "Gale" Pell throughout the record.
2
The trial court concluded that the defendant had violated the terms of
her probation and ordered her to serve the eleven-month, twenty-nine-day sentence
with a seventy-five percent release eligibility, "which means basically nine months."
The defendant was given credit for the time she had served in jail and was declared
eligible to participate in work programs to earn sentence credits. Although it was
unknown whether inpatient treatment would be available, the trial judge indicated
that he would allow "some of this nine months in an inpatient treatment" program.
The sentence was allowed to be served concurrently with that ordered in the general
sessions court.
The defendant concedes that the trial court did not abuse its discretion
by revoking her probation but takes issue with the length of her jail sentence. She
argues that "doubling her actual time of incarceration as a result of her subsequent
conviction was excessive and erroneous." She contends that the nine-month
sentence "is not the least severe measure ... in order to achieve sentencing
purposes."
When a challenge is made 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
presumption that the determinations made by the court from which the appeal is
taken are correct." Tenn. Code Ann. § 40-35-401(d).
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
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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).
In misdemeanor sentencing, a separate sentencing hearing is not
mandatory but the court is required to provide the defendant with a reasonable
opportunity to be heard as to the length and manner of the sentence. Tenn. Code
Ann. § 40-35-302(a). Misdemeanor sentences must be specific and in accordance
with the principles, purposes, and goals of the Criminal Sentencing Reform Act of
1989. Tenn. Code Ann. §§ 40-35-104, -117, and -302; State v. Palmer, 902
S.W.2d 391, 393 (Tenn. 1995). The misdemeanor offender must be sentenced to
an authorized determinant sentence with a percentage of that sentence designated
for eligibility for rehabilitative programs. Generally, a percentage of not greater than
75% of the sentence should be fixed for a misdemeanor offender; however, a DUI
offender may be required to serve the full 100% of his sentence. Palmer, 902
S.W.2d at 393-94. In determining the percentage of the sentence, the court must
consider enhancement and mitigating factors as well as the legislative purposes and
principles related to sentencing. Id.
Upon service of that percentage, the administrative agency governing
the rehabilitative programs determines which among the lawful programs available is
appropriate. The trial court retains the authority to place the defendant on probation
either immediately or after a term of periodic or continuous confinement. Tenn.
Code Ann. § 40-35-302(e). The legislature has encouraged courts to consider
public or private agencies for probation supervision prior to directing supervision by
the Department of Correction. Tenn. Code Ann. § 40-35-302(f). The governing
statute is designed to provide the trial court with continuing jurisdiction in
misdemeanor cases and a wide latitude of flexibility. The misdemeanant, unlike the
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felon, is not entitled to the presumption of a minimum sentence. State v. Creasy,
885 S.W.2d 829, 832 (Tenn. Crim. App. 1994).
Obviously, the trial court did not abuse its discretion by revoking
probation. The minimum period of incarceration was one hundred twenty days; the
maximum possible sentence was eleven months, twenty-nine days. Tenn. Code
Ann. § 55-10-403(a)(1). In our view, an overriding sentencing consideration is that
confinement is necessary to avoid depreciating the seriousness of the offense;
moreover, other less restrictive measures have been unsuccessful. Tenn. Code
Ann. § 40-35-103(1)(B), and (C). Given the defendant's prior criminal history and
her failure to take advantage of opportunities at rehabilitation, a lengthy term in jail is
warranted. The sentence imposed by the trial court was more than fair to the
defendant under the entire circumstances of the case.
Accordingly, the judgment is affirmed.
________________________________
Gary R. Wade, Presiding Judge
CONCUR:
_____________________________
Joseph M. Tipton, Judge
_____________________________
David H. Welles, Judge
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