State v. Castle ( 1997 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
MAY 1997 SESSION
July 30, 1997
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, )
)
Appellee, ) No. 03C01-9608-CR-00318
)
) Hawkins County
v. )
) Honorable James E. Beckner, Judge
)
TIMMY LYNN CASTLE, ) (Sentencing)
)
Appellant. )
For the Appellant: For the Appellee:
Greg W. Eichelman Charles W. Burson
District Public Defender Attorney General of Tennessee
and and
R. Russell Mattocks Georgia Blythe Felner
Assistant Public Defender Assistant Attorney General of Tennessee
1609 College Park Drive, Box 11 450 James Robertson Parkway
Morristown, TN 37813-1618 Nashville, TN 37243-0493
C. Berkeley Bell, Jr.
District Attorney General
113J W. Church Street
Greeneville, TN 37743
and
Douglas Godbee
Assistant District Attorney General
Hawkins County Courthouse
Rogersville, TN 37857
OPINION FILED:____________________
AFFIRMED
Joseph M. Tipton
Judge
OPINION
The defendant, Timmy Lynn Castle, was convicted by a jury in the Hawkins
County Criminal Court for driving without a valid driver’s license, a Class B misdemeanor.
The trial court sentenced the defendant to six months in the county jail to serve seventy-
five percent before being eligible for release. The trial court also imposed a fine of five
hundred dollars. In this appeal as of right, the defendant contends that the trial court
improperly considered enhancement and mitigating factors in sentencing him to the
maximum sentence. We disagree and affirm the trial court’s judgment of conviction.
The proof at trial showed that the defendant was stopped by Officer Chris
Jones of the Mount Carmel Police Department on November 3, 1995, for speeding. The
defendant was driving sixty-one miles per hour in a forty-five-miles-per-hour speed zone.
The defendant did not have a driver’s license in his possession. Officer Jones’ check of
the defendant’s driving history revealed that the defendant did not have a valid driver’s
license. The defendant admitted at trial that he understood that it was against the law to
drive without a driver’s license but that he never took the test to obtain a license and drove
anyway.
The specific data report reflects that the defendant has six prior convictions
for offenses including driving on a revoked or suspended license and driving without a valid
driver’s licence. The defendant’s prior criminal history also includes convictions for public
intoxication, possession of marijuana, driving under the influence, leaving the scene of an
accident, several traffic violations, and seven counts of burglary. The defendant also has
convictions as a juvenile for criminal trespass. The report also shows that, while on
probation, the defendant committed the offenses of speeding and driving on a suspended
license in April 1992 and the offenses of failing to yield and driving on a revoked license
in November 1994. Also, the defendant was charged and convicted of driving on a
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revoked license while on bond for the present case. The report further states that the
defendant has a history of alcohol abuse.
In sentencing the defendant to the maximum sentence of six months in the
county jail with a seventy-five percent release eligibility, the trial court considered three
enhancement factors and determined that each should be given great weight:
(1) the defendant has a previous history of criminal convictions
or criminal behavior;
(2) the defendant has a previous history of unwillingness to
comply with the conditions of a sentence involving release in
the community; and
(3) the crime was committed under circumstances under which
the potential for bodily injury to a victim was great.
See T.C.A. § 40-35-114(1), (8) and (16). In applying factor (16), the trial court stated:
Certainly you can drive without a valid license, without
speeding; but when you add speeding to it, it certainly creates
a danger to people on the highway. And speeding is probably
one of the greatest cause[s] of death and injury that we have
in this country . . . .
The trial court found that no mitigating factors applied. In its decision, the trial court
stated that it considered the sentencing purposes and principles under the act and
found the defendant’s lack of potential for rehabilitation to be a significant factor in its
decision to deny alternative sentencing and to impose the maximum sentence. The
court stated that it denied probation because of the defendant’s prior criminal record,
his inability to abide by conditions of release, and his commission of offenses while on
bond for the present offense. It also noted that the defendant had been given many
opportunities to change but had continued to violate the law.
Appellate review of sentencing is de novo on the record with a
presumption that the trial court's determinations are correct. T.C.A. §§ 40-35-401(d)
and -402(d). As the Sentencing Commission Comments to these sections note, the
burden is now on the appealing party to show that the sentencing is improper. This
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means that if the trial court followed the statutory sentencing procedure, made findings
of fact that are adequately supported in the record, and gave due consideration and
proper weight to the factors and principles that are relevant to sentencing under the
1989 Sentencing Act, we may not disturb the sentence even if a different result were
preferred. State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).
However, "the presumption of correctness which accompanies the trial
court's action 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). In this respect, for the purpose of
meaningful appellate review,
the trial court must place on the record its reasons for arriving
at the final sentencing decision, identify the mitigating and
enhancement factors found, state the specific facts supporting
each enhancement factor found, and articulate how the
mitigating and enhancement factors have been evaluated and
balanced in determining the sentence. T.C.A. §§ 40-35-210(f)
(1990).
State v. Jones, 883 S.W.2d 597, 599 (Tenn. 1995).
Also, in conducting a de novo review, we must consider (1) the evidence,
if any, received at the trial and 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, (5) any mitigating or statutory enhancement
factors, (6) any statement that the defendant made on his own behalf and (7) the
potential for rehabilitation or treatment. T.C.A. §§ 40-35-102, -103 and -210; see
Ashby, 823 S.W.2d at 168; State v. Moss, 727 S.W.2d 229 (Tenn. 1986).
In misdemeanor sentencing, a separate sentencing hearing is not
mandatory, but the trial court is required to allow the parties a reasonable opportunity to
be heard on the question of length of the sentence and the manner in which it is to be
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served. T.C.A. § 40-35-302(a); State v. Palmer, 902 S.W.2d 391, 393 (Tenn. 1995).
The sentence must be specific and consistent with the purposes and principles of the
Criminal Sentencing Reform Act of 1989. T.C.A. § 40-35-302(b); Palmer, 902 S.W.2d
at 393. A percentage of not greater than seventy-five percent of the sentence should
be fixed for service, after which the defendant becomes eligible for “work release,
furlough, trusty status and related rehabilitative programs.” T.C.A. § 40-35-302(b).
The misdemeanant, unlike the felon, is not entitled to the presumption of
a minimum sentence, State v. Creasy, 885 S.W.2d 829, 832 (Tenn. Crim. App. 1994),
although the sentence imposed should be the least severe measure necessary to
achieve the sentencing purpose. See T.C.A. § 40-35-103(4). However, in determining
the percentage of the sentence to be served in actual confinement, the court must
consider enhancement and mitigating factors as well as the purposes and principles of
the Criminal Sentencing Reform Act of 1989. T.C.A. § 40-35-302(d); Palmer, 902
S.W.2d at 393. The court should not impose such percentages arbitrarily. T.C.A. § 40-
35-302(d).
On appeal, the defendant asserts that the trial court erroneously applied
enhancement factors in its sentencing decision. Although he admits that factor (1)
applies to some degree, he contends that the extent of the convictions and the nature
of the offenses do not warrant the weight given to the factor by the trial court. However,
the weight to be afforded an existing factor is left to the trial court’s discretion as long as
it complies with the purposes and principles of the 1989 Sentencing Act and its findings
are adequately supported by the record. T.C.A. § 40-35-210, Sentencing Commission
Comments; Ashby, 823 S.W.2d at 169; Moss, 727 S.W.2d at 237. The proof shows
that the defendant has at least six convictions relating to his driving without a license.
He also has several other convictions for driving-related offenses as well as felony
convictions for seven counts of burglary. The trial court’s application of the factor and
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its decision to give it great weight are overwhelmingly supported by the record in this
case.
The defendant also claims that the trial court erred by considering factor
(8), a previous history of unwillingness to comply with conditions of a sentence involving
release into the community. We disagree. The evidence shows that the defendant
committed at least four driving-related offenses while on probation. Moreover, a thirty-
day sentence imposed in 1991 was suspended upon condition that he apply for a
driver’s license. However, the defendant testified at the trial that he had never taken
the test for his driver’s license. Under these circumstances, we hold that factor (8)
applied and that the trial court was entitled to give it substantial weight.
Next, the defendant contends that the record does not support the
application of factor (16), the commission of the crime under circumstances under
which the potential for bodily injury to a victim is great. We are inclined to agree under
the circumstances in this case. Officer Jones testified that he observed the defendant
driving sixteen miles over a forty-five mile speed limit. However, he admitted that he did
not observe any other problem with the defendant’s driving. Also, there was no
evidence that there were any other cars on the road at the time of the offense. We do
not believe that speeding, alone, warrants the factor’s application in the context of this
case. Other than through mere speculation, there are insufficient facts to demonstrate
that a great potential for bodily injury to a “victim” resulted from the defendant’s driving
without a license. Therefore, the trial court should not have considered factor (16) in its
sentencing decision.
The defendant also claims that the trial court should have considered his
cooperation and admission of guilt as an applicable mitigating factor. See T.C.A. § 40-
35-113(13). As the state correctly points out, though, the defendant pled not guilty to
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the crime and demanded a jury trial. In any event, the fact that he admitted in his
testimony that he drove without a license is insignificant in the context of his testimony
that he never applied for, or had, a driver’s license.
Despite the trial court’s inappropriate use of factor (16), the other
applicable enhancement factors justify the sentence imposed by the trial court under
the circumstances presented in this case. In fact, the record indicates that the
defendant’s low potential for rehabilitation borders on incorrigibility. For these reasons,
we hold that the defendant has failed to establish that the sentence imposed by the trial
court was improper.
In consideration of the foregoing and the record as a whole, the judgment
of conviction of the trial court is affirmed.
Joseph M. Tipton, Judge
CONCUR:
Joe B. Jones, Presiding Judge
Curwood Witt, Judge
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