State of Tennessee v. Charles Rankin Zemp ( 2015 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs May 19, 2015
STATE OF TENNESSEE v. CHARLES RANKIN ZEMP
Appeal from the Criminal Court for Knox County
No. 102768 Steven W. Sword, Judge
No. E2014-01712-CCA-R3-CD – Filed June 10, 2015
The Defendant, Charles Rankin Zemp, pled guilty to one count of driving under the
influence (DUI), fourth or subsequent offense, a Class E felony, and one count of
operating a motor vehicle after being declared a motor vehicle habitual offender
(MVHO), a Class E felony. See Tenn. Code Ann. §§ 55-10-401, -402(a)(4), -616. The
Defendant was sentenced as a Range III, persistent offender to four years for each count.
The trial court ordered the Defendant’s sentences to be served consecutively, for a total
effective sentence of eight years. In this appeal as of right, the Defendant contends that
the trial court abused its discretion in ordering him to serve his sentences consecutively.
Discerning no error, we affirm the judgments of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed
D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which THOMAS T.
WOODALL, P.J., and CAMILLE R. MCMULLEN, J., joined.
Mark E. Stephens, District Public Defender; and David Gall, Assistant Public Defender,
for the Appellant, Charles Rankin Zemp.
Herbert H. Slatery III, Attorney General and Reporter; Clarence E. Lutz, Senior Counsel;
Charme P. Allen, District Attorney General; and Jamie Leanne Carter, Assistant District
Attorney General, for the Appellee, State of Tennessee.
OPINION
On May 21, 2014, the Defendant pled guilty to one count of DUI, fourth or
subsequent offense, and one count of operating a motor vehicle after having been
declared a MVHO, with his sentences to be determined by the trial court. The Defendant
has failed to include a transcript of the guilty plea submission hearing in the appellate
record to provide the factual bases for his pleas.
The warrant for his arrest states that on the afternoon of June 23, 2013, police
were contacted by “concerned citizens” who complained that the Defendant was driving
“all over the road.” The Defendant pulled into a gas station, where officers found him
asleep at the wheel. There was an open, half-empty bottle of beer sitting in the cup
holder next to the Defendant, and four empty beer cans were in the back seat. The
warrant stated that the Defendant “had a strong odor of alcohol on his breath and body,
slurred speech, and [was] unsteady on his feet.” The Defendant refused to submit to field
sobriety tests or a blood draw. After his arrest, four hydrocodone pills were found in the
Defendant’s pocket. In his application for an alternative sentence, the Defendant stated
that he was driving and “about to pass out” when he pulled “into the gas pump and
passed out.”
At the sentencing hearing, the Defendant’s presentence report revealed that the
Defendant had five prior felony DUI convictions, six prior felony MVHO convictions,
twelve misdemeanor DUI convictions, twenty-six misdemeanor convictions for driving
with a revoked license, two misdemeanor assault convictions, two misdemeanor public
intoxication convictions, and misdemeanor convictions for criminal impersonation,
reckless driving, vandalism, resisting arrest, failure to stop at the scene of an accident
involving injury or death, disorderly conduct, passing worthless checks, evading arrest,
and criminal trespass. The Defendant also had violated release on parole or probation on
at least two prior occasions. When arrested, the Defendant was wanted in Florida and
Arkansas on DUI charges in those states.
The Defendant presented no evidence at the sentencing hearing but told the trial
court that he believed “that there’s something else going on there that’s making [him]
want to drink, some kind of psychosis or something that’s making [him] want to drink so
damn much.” Defense counsel argued that the Defendant should receive the minimum
sentences and be released on alternative sentences because none of the Defendant’s
arrests “involved wrecks, people injured, anything along those lines” and because the
Defendant was “a very careful drunk driver.”
The trial court sentenced the Defendant to the minimum in each count and denied
his request for alternative sentencing.1 The trial court ordered the Defendant’s sentences
to be served consecutively, finding that the Defendant was an offender with an extensive
record of criminal activity. See Tenn. Code Ann. § 40-35-115(b)(2). The trial court
stated that the Defendant had “continued to engage in the same behavior over and over
again” and “just thumbed his nose at the Court and continued to” drink and drive even
after being declared a MVHO and having his driving privileges revoked. The Defendant
now appeals.
1
The Defendant does not challenge the trial court’s denial of alternative sentencing on appeal.
-2-
On appeal, the Defendant contends that the trial court abused its discretion in
ordering his sentences to be served consecutively. The Defendant argues that his record
of criminal activity is not actually extensive because it “consists almost entirely of motor
vehicle offenses.” The Defendant further argues that the total effective length of his
sentences is greater than what is deserved for the offenses he committed. The State
responds that the trial court did not abuse its discretion in ordering the Defendant to serve
his sentences consecutively.
When reviewing a trial court’s imposition of consecutive sentences, “the
presumption of reasonableness applies” and gives “deference to the trial court’s exercise
of its discretionary authority to impose consecutive sentences if it has provided reasons
on the record establishing at least one of the seven grounds listed in Tennessee Code
Annotated section 40-35-115(b).” State v. Pollard, 432 S.W.3d 851, 861 (Tenn. 2013).
“Any one of [the] grounds [listed in section 40-35-115(b)] is a sufficient basis for the
imposition of consecutive sentences.” Id. at 862 (citing State v. Dickson, 413 S.W.3d
735 (Tenn. 2013)).
Here, the trial court concluded that the Defendant was an offender whose record of
criminal activity was extensive. See Tenn. Code Ann. § 40-35-115(b). “Extensive
criminal history alone will support consecutive sentencing.” State v. Adams, 973 S.W.2d
224, 231 (Tenn. Crim. App. 1997). Even though the majority of the Defendant’s prior
convictions are for driving offenses, “they indicate a consistent pattern of operating
outside the confines of lawful behavior.” Dickson, 413 S.W.3d at 748. The Defendant
had eleven prior felony convictions, twelve misdemeanor DUI convictions, twenty-six
misdemeanor convictions for driving on a revoked license, and thirteen other
misdemeanor convictions. As such, the trial court did not abuse its discretion in
determining that the Defendant’s record of criminal activity was excessive.
We also reject the Defendant’s argument that the total effective length of his
sentence is greater than what is deserved for the offenses committed. Prior to this
incident, the Defendant was convicted thirty-two times for driving after having his
driving privileges revoked in addition to seventeen DUI convictions. The trial court was
correct in stating that the Defendant has “continued to engage in the same behavior over
and over again” and “just thumbed his nose at” the consequences. The fact that no one
was injured on this occasion, or the seventeen other times the Defendant drove while
intoxicated, has more to do with providence than with the Defendant’s alleged
carefulness as a drunk driver. Accordingly, we conclude that the Defendant has not
overcome the presumption of reasonableness and that the trial court did not abuse its
discretion in imposing consecutive sentences.
-3-
Upon consideration of the foregoing and the record as a whole, the judgments of
the trial court are affirmed.
_________________________________
D. KELLY THOMAS, JR., JUDGE
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