State of Tennessee v. Nelson Edward Meeks

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs July 17, 2002
STATE OF TENNESSEE v. NELSON EDWARD MEEKS
Appeal from the Circuit Court for Marion County
No. 5439 Thomas W. Graham, Judge
No. M2001-03108-CCA-R3-CD - Filed October 15, 2002
Nelson Edward Meeks1 appeals the sentence imposed for three convictions for third offense driving
under the influence, reckless driving, and driving on a revoked license. He claims that the lower
court erred in (1) failing to consider the statutory sentencing principles and considerations, and (2)
imposing a sentence not authorized by law. Because we disagree in both respects, we affirm.
Tenn. R. App. P. 3; Judgment of the Circuit Court is Affirmed.
JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which THOMAS T. WOODA LL
and ALAN E. GLENN, JJ., joined.
Philip A. Condra, Jasper, Tennessee, for the Appellant, Nelson Edward Meeks.
Paul G. Summers, Attorney General & Reporter; Mark A. Fulks, Assistant Attorney General; James
Michael Taylor, District Attorney General; and Sherry Gouger, Assistant District Attorney General,
for the Appellee, State of Tennessee.
OPINION
Following the defendant’s jury trial and resultant convictions, the court held a
separate sentencing hearing. The state presented evidence that the defendant had numerous, prior
alcohol-related convictions, including at least six prior driving under the influence convictions and
three public intoxication convictions. The court characterized the defendant’s prior criminal history
as “a terrible, terrible record” and stated that it was disinclined to “just ignore . . . one of the worse
[sic] records I’ve ever seen of this kind of offense.” The court imposed an eleven month, 29 day jail
sentence for the DUI conviction and ordered that jail service would be reduced only by behavioral
credits earned and retained. For the other two convictions, the court imposed six month sentences
to be served in the county jail. All three sentences were to be served concurrently.
1
The defendant was charged by presentment under the name Nelson Edward Meeks. He testified at trial that
his given name is Nelso n Ed die M eeks. In acco rdance with court policy, we use the name emp loyed by the p resentment.
Before this court, the defendant complains that the lower court failed to entertain the
appropriate statutory principles and considerations and that the sentence ultimately imposed is not
a lawful one in that it did not specify a percentage of service of the sentence against which sentence
reduction credits could be applied.
In misdemeanor sentencing, the sentencing court is afforded considerable latitude.
See, e.g., State v. Johnson, 15 S.W.3d 515, 518 (Tenn. Crim. App. 1999), perm. app. denied (Tenn.
2000). A separate sentencing hearing is not mandatory in misdemeanor cases, 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. See Tenn. Code Ann. § 40-35-302(a) (Supp. 2001). Misdemeanor sentences
must be specific and in accordance with the principles, purpose, and goals of the Criminal
Sentencing Reform Act of 1989. Tenn. Code Ann. §§ 40-35-104 (1997), 40-35-302 (Supp. 2001);
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 percent of the sentence
should be fixed for a misdemeanor offender; however, a DUI offender may be required to serve 100
percent of his sentence. Palmer, 902 S.W.2d at 393-94. A convicted misdemeanant, unlike a
convicted Class B, C, D, or E felon, has no presumption of entitlement to a minimum sentence.
State v. Baker, 966 S.W.2d 429, 434 (Tenn. Crim. App. 1997); State v. Creasy, 885 S.W.2d 829, 832
(Tenn. Crim. App. 1994). The misdemeanor sentencing statute requires that the trial court consider
the enhancement and mitigating factors when calculating the percentage of the sentence to be served
"in actual confinement" prior to "consideration for work release, furlough, trusty status and related
rehabilitative programs." Tenn. Code Ann. § 40-35-302(d) (Supp. 2001); State v. Troutman, 979
S.W.2d 271, 274 (Tenn. 1998).
The defendant in this case takes issue with the trial court’s determination that the
defendant must serve his entire sentence in jail, to be reduced only by sentencing credits earned and
retained and suggests that the court failed to give proper consideration to the relevant statutory
principles and considerations relative to sentencing. He also complains that the sentence as
structured is not authorized by law.
We begin with an assessment of the adequacy of the lower court’s reliance on and
recitation of statutory principles and considerations of sentencing. The defendant points out that
the lower court did not make detailed, specific findings. However, a sentencing court is not required
to do so in a misdemeanor case. State v. Russell, 10 S.W.3d 270, 278 (Tenn. Crim. App. 1999).
Moreover, the court stated on the record that it had considered the appropriate statutory matters in
reaching its determination. The court specifically noted that due to the defendant’s abysmal prior
criminal record of alcohol-related offenses over a period of many years, “[h]e falls into almost
everyone [sic] of those considerations for purposes of . . . incarceration versus release . . . .” On
appeal, the defendant has not demonstrated error in the lower court’s finding in this regard.
With respect to the portion of the sentence to be served in confinement, the defendant
concedes that the record supports a sentence above the statutory minimum of 120 days confinement
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for third offense DUI. See Tenn. Code Ann. § 55-10-403(a)(1) (Supp. 2001). We wholeheartedly
agree. It bears repeating that even absent the egregious factual background regarding the defendant’s
prior criminal history, the defendant is not entitled to the presumption of entitlement to a minimum
sentence. Baker, 966 S.W.2d at 434; Creasy, 885 S.W.2d at 832. Moreover, this is clearly a case
in which the defendant has exhibited over a sustained period of time that he has no regard for the
rules of the road vis-a-vis drunken driving, despite prior convictions and sentences for DUI.
We will now consider the defendant’s somewhat abstruse argument that the sentence
imposed is illegal. His brief devotes one short paragraph to this argument. In it, he says
T.C.A. 41-21-236(f)(4) requires the Court to fix a percentage the misdemeanant shall
serve before release and the maximum reduction for sentence credits to be applied
to the percentage cannot exceed 25%. An order requiring service of the full 11
months 29 days reduced only by behavior credits is, therefore, a sentence not
authorized by law.
We begin by noting that there is nothing per se illegal about a DUI sentence which mandates 100
percent confinement. See Palmer, 902 S.W.2d at 393-94. Moreover, the trial court’s failure to
express the length of confinement in a percentage basis is not fatal where the intended term of
confinement is otherwise expressed in days, such as it is here. See State v. Van Ray McCracken, No.
E2000-1762-CCA-R3-CD, slip op. at 7 (Tenn. Crim. App., Knoxville, July 19, 2001) (noting
incongruity in sentencing statute’s requirement that period of confinement be expressed in
percentage terms, whereas DUI statute expresses mandatory minimum terms of confinement in
numbers of hours or days). The lower court, in effect, ordered that the defendant serve 100 percent
of his sentence in confinement, which term could be reduced by sentence reduction credits earned
and retained. Under Code section 41-21-236(f)(4), the defendant may accelerate his release by as
much as 25 percent of the entire sentence via utilization of such credits. We fail to fathom how this
sentence runs afoul of the law.
Thus, we affirm the lower court’s ruling that the defendant serve his entire sentence
in jail confinement.
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JAMES CURWOOD WITT, JR., JUDGE
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