State v. Carl Campen ( 1997 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
JANUARY SESSION, 1997
October 24, 1997
Cecil W. Crowson
STATE OF TENNESSEE, ) C.C.A. NO. 01C01-9512-CC-00433
Appellate Court Clerk
)
Appellee, )
)
) COFFEE COUNTY
VS. )
) HON. GERALD L. EWELL, SR.
CARL E. CAMPEN, ) JUDGE
)
Appellant. ) (Direct Appeal-Sentencing)
FOR THE APPELLANT: FOR THE APPELLEE:
CHRISTOPHER VAN RIPER JOHN KNOX WALKUP
Stuart & Van Riper Attorney General and Reporter
300 Market Street
Clinton, TN 37716 KAREN M. YACUZZO
Assistant Attorney General
450 James Robertson Parkway
Nashville, TN 37243
MICKEY LAYNE
District Attorney General
STEPHEN E. WEITZMAN
Assistant District Attorney
P. O. Box 147
Manchester, TN 37355
OPINION FILED ________________________
AFFIRMED
JERRY L. SMITH, JUDGE
OPINION
A Coffee C ounty C ircuit Cou rt jury found Appella nt Carl E. Campen guilty of
driving under the influence of an intoxicant (DUI), fourth offense, and driving on
a revoked license. F or the DU I conviction , Appella nt received a sentence of
eleven mon ths twe nty-nin e days in the county jail and a fine of seven thousand
dollars. For the driving on a revoked license conviction, he received a sentence
of one hund red eighty days in the county jail and a fine of five hundred dollars.
The trial court ordered the sentence s served con secutively. In this dir ect ap peal,
Appellant presents the follow ing issue for review: wheth er his s enten ce is
excessive.
After a revie w of the re cord, we affirm the ju dgme nt of the trial co urt.
I. FACTUAL BACKGROUND
On Marc h 7, 19 95, the Coffe e Cou nty Gra nd Ju ry indicted Appellant for
DUI, fourth offense, in violation of Tennessee Code Annotated Section 55-10-401
and for driving on a revoked license in violation of Tennessee Code Annotated
Section 55-50-504.
Appellant originally expressed an interest in pleading guilty to the charges
but, at the plea acceptance hearing on March 21, 1995, inexplicably pled not
guilty. The trial court accepted the not gu ilty plea but found Appellant in contempt
of court for represe nting to the court that h e would plea d guilty.
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In July of 1995, Appellant was tried before a jury in the Coffee Coun ty
Circu it Court. At the conclusion of the trial, the jury found Appellant guilty of the
offenses as set out in the indictm ent. The trial court im posed co nsecutive
sentences of eleven months and twenty-nine days for the DUI offense and one
hundred eighty days for the driving on a revo ked license o ffense. The trial cou rt
ordered incarceration for seventy-five percent of the sentence.
II. SENTENCING
Appe llant alle ges th at his sentence is excessive. Specifically, he argues
that the trial c ourt er red in d eterm ining th e leng th of his sente nces , in failing to
impose some form of alternative sentence, and in ordering consecutive
sentencing.
When an appeal challenges the length, range, or manner of service o f a
sentence, this Court conducts a de novo review with a presumption that the
determ ination of the trial court was correct. Tenn. Code Ann. § 40-35-401(d)
(1990). However, this presumption of correctness is “conditioned upon the
affirmative showing that the trial court in the record considered the sentencing
principles and all relevant facts and circu mstance s.” State v. Ashby, 823 S.W.2d
166, 169 (T enn. 1 991). In the eve nt that th e reco rd fails to demonstrate such
consideration, review of the sentenc e is purely de novo. Id. If appellate review
reflects that the trial cour t properly c onside red all releva nt factors a nd its findings
of fact are adequately supported by the record, this Court must affirm the
senten ce. State v. Fletcher, 805 S.W .2d 785, 789 (Tenn. Crim . App. 1991 ). In
conducting a review, th is Court m ust cons ider the ev idence , the presentence
report, the sentencing principles, the arguments of counsel, the nature and
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character of the offense, mitigating and enhancement factors, any statements
made by the de fendan t, and the potential fo r rehabilitation or treatm ent. State v.
Holland, 860 S.W.2d 53, 60 (Tenn. Crim. App. 19 93). The defendant bears the
burden of showing the improp riety of the se ntence impos ed. State v. Grego ry,
862 S.W .2d 574, 578 (Tenn. Crim . App. 1993 ).
The misdemeanant is not entitled to the presumption of a minimum
sentence. State v. Creasy, 885 S.W.2d 829 (Ten n. Crim. App . 1994). Further,
misdemeanor sentences do not contain ranges of punishments, and a
misdemeanor defendant may be sentenced to the maximum term provided for
the offense as long as the sentence imposed is consistent with the purposes of
the sen tencing a ct. State v. Palmer, 902 S.W .2d 391 , 393 (T enn. 19 95).
In determ ining the p ercenta ge of the sentence that must be served, the
court is required to consider enhancement and mitigating factors as well as the
legislative purpos es and principles related to s entenc ing. Palmer, 902 S.W .2d
at 393. Here Appellant does not challe nge th e perc entag e of se rvice of h is
sentences. Rather, he argues only that the imposition of the maximum
sentences are excessive.
The trial court, in sentencing Appellant, specifically set out the facts,
circumstances and applicable portions of the Sentencing Reform Act of 198 9 in
the record. A sep arate senten cing hearing w as held for which a pre-sentence
report was ord ered. Appellant’s criminal record consists of three previous DUI
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convictions. In determining the s enten ce, the court c onsid ered A ppella nt’s
previous criminal history and the fact that this conviction involved a crime in which
the risk to h uman life was high . No mitig ating facto rs were fo und by th e court.
Appellant contests the first enhancement factor found by the court under
Tenn. Code Ann. Section 40-35-114(10), that the defendant had no hesitation in
committing a crime when the risk to human life was high. Specifically, the
defendant argues that since he was not “driving” the vehicle, there was no risk
posed to others’ health or safety. The affidavit of complaint in the arrest warrant
described the defendant as “the subject of a complaint at ParMa rt on Hw y. 55.”
A transcript of the evidence presented at trial is not contained in the re cord
and there is no proof showing whether the trial cour t found the defend ant guilty
of “driving” of be ing in “phys ical contro l” of the vehic le at the tim e of his arre st.
See Tenn. C ode Ann . Sec. 55-10-4 01. W hen the reco rd does n ot contain the
proof presented on an issue, this Court is precluded from considering it and we
must presume the trial court’s ruling is correct. State v. Benne tt, 798 S.W.2d 783(Tenn. Crim. A pp. 199 0), cert. denied, 500 U.S. 915, 111 S.C t. 2009, 114 L.Ed.2d
98 (1991); State v. Matthews, 805 S.W .2d 776, 785 (Tenn. Crim . App. 1990 ).
Since Appellant relies on alleged facts not included in the record, he has waived
this issue.
The trial court also applied as an enhancement factor Tennessee Code
Anno tated Se ction 40-3 5-114(1 ), that the de fendan t has a pre vious histo ry of
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criminal convictions or criminal behavior. The presentence report indicates the
defendant has th ree prio r convic tions fo r driving unde r the influence. Under
Tennessee Code A nnotated S ection 55-10-404, the punishment for driving under
the influence is graded according to three categories; first conviction, second
conviction and “third or subsequent conviction.” Although Appellant was charged
with DU I, 4th offens e, only two previous conviction s are ne cessar y eleme nts to
qualify for the maximum possible fine and punishment under the statute. Tenn.
Code Ann. S ec. 55-1 0-403. Two of Ap pellant’s previous co nvictions were used
to establish punishment under Tennessee Code Annotated Section 55-10-
403(a)(1), and the other was appropriately considered in imposing the maximum
sentence.
Appellant further argues that because these convictions span a period of
ten years, they do not indicate a period of consistent crim inal behavior. Ho wever,
the record shows that Appellant has a history o f repea tedly committing the same
crime. Appellant has not cited, and we are unawa re of, any au thority to support
Appe llant’s position that, for the purposes of Tennessee Code Annotated Section
40-35-114 (1), all previous offenses must be within a specified period of time.
Therefore, the application of Appellant’s prior criminal history in determining the
length of the sentence was appropriate.
A. Alternative Sentencing
The trial court did not grant any for m of a lternativ e sen tencin g, altho ugh it
recognized that alternatives to incarceration are encouraged under Tennessee
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Code Annotated Section 40-35-103(1)(C)(6). Confinement of Appellant was
based, in part, on the fact that less restrictive measures had been used
unsu cces sfully in the past. Tenn. Code Ann. § 40-35-103(1)(C). For each of
Appe llant’s prior DUI convictions, probation had been im posed with only 48 hours
to serve and a fine on each. Yet Appellant continued to drink and operate a
vehicle while intoxicated even after his license had been revoked. Application of
this enhancement factor was appropriate.
Additionally, the trial court’s refusal to suspend the sentence was based
upon Appella nt’s lack of a mena bility to rehabilitation . Tenn. C ode An n. § 40-35-
103(1)(C)(5). The court noted at the s enten cing h earing that du ring the trial,
Appellant “in effect, lied to the jury concern ing his prior record . . .” Appellant also
exhibited “an arrogant uncooperative attitude” with the presentence officer. He
showed no remorse for his crime and has, in the past, made similar promises not
to drive under the influence which he has be en una ble to keep. Appellant has not
taken respon sibility for his criminal conduct and the trial court properly denied
alternative sentencing.1
Pointing to the number of DUI cases on its docket, the trial court also cited
the need fo r deterren ce in den ying any fo rm of alter native sen tencing. In view of
the discussion above, whether such judicial notice of the ubiq uity of a particular
crime is sufficie nt evide nce to warra nt a de nial of alternative sentencing is an
issue we need not address.
1
It should be noted that pursuant to Tennes see Code An notated Section 55-10-403(b)(1),
App ellant is req uired to se rve th e m inim um sent enc e for four th off ens e DU I in
incarceration before being eligible for probation. Thus, Appellant would have to serve 120
days in jail regardless of his suitability for probation.
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It is well-settled that whether sentences should be served
conc urren tly or consecutively is a matter addressed to the sound discretion of the
trial court. William s v. State, 520 S.W .2d 371 (Te nn. Crim. Ap p. 1974).
Tennessee Code Annotated Section 40-35-115, provides for circumstances
under which consecutive s entences m ay be impo sed. In pertinent pa rt it reads:
(a) If a defendant is convicted of more than one (1)
criminal offense, the court shall order sentences to run
cons ecutive ly or concurre ntly as provided by the
criteria in this section.
(b) The court may order sentences to run
consecutively if the court finds by a preponderance of
the evide nce tha t:
...
(2) The defendant is an offender whose record of
criminal a ctivity is extensive . . . .
...
Tennessee Code Annotated Section 40-35-115.
The trial court found that Appellant “is an offender whose record of criminal
activity is extensive.” Tenn. Code Ann. § 40-35-115(b)(2). When a defendant
falls within the c lassification of an “offen der who se reco rd of crimin al activity is
extensive,” the only remaining considerations are whether (1) the terms
reasonab ly relate to the severity of the offen ses and (2) w hether the term s are
necessa ry in order to protect the public from further misconduct by the de fendan t.
State v. Wilkerson, 905 S.W .2d 933, 938 . (Tenn. 199 5).
Appellant has ove r a period of nine (9) ye ars repe atedly violated the
prohibition concerning drunk driving. The instant case is his fourth DUI conviction
and it is coupled with a driving on a revoked license conviction. Under these
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circumstances we agree that Appellant has an extensive record of criminal
activity. In addition, Appellant may be properly classified as a “dangerous
offender” for whom consecutive sentencing is appropriate. See State v. Anthony
Raymond Bell, No. 03C01-9503-CR-00070 (Tenn. Crim. App. at Knoxville, March
11, 1996) perm. to appeal denied (Tenn. 1996); State v. Lonas Britt Dillard, No.
03C01-9311-CR-00386 (Tenn. Crim. App. at Knoxville, July 13, 1994) (classifying
DUI offend er as a dang erous offend er). Fu rther, th e con secu tive sentences
reaso nably relate to the s everity of the offense. T he cas e law of this State
resounds with references to the seriousness of drunk driving. See e.g., State v.
Cleavor, 691 S.W.2d 541, 543 (Tenn. 1985). Appellant is an individual who has
repea tedly violated this criminal statute. Finally, we believe the trial judge was
correct in his finding th at a length y term wa s nece ssary to protect the public from
further misconduct by Appellant. Prior lenient punishments imposed on Appe llant
have failed to deter his continued violation of the DU I law. In addition Appellant
has shown no remorse, nor has he accepted any responsibility for his actions.
W e are left to conclude that a lengthy period of incarc eration is the only w ay to
protect the public from further instances of drunken driving on part of the
Appe llant.
The judgment of the trial court is affirmed.
____________________________________
JERRY L. SMITH, JUDGE
CONCUR:
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___________________________________
JOHN H. PEAY, JUDGE
___________________________________
JOE G. RILEY, JUDGE
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