State v. Clinton E. Key

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
MARCH SESSION , 1999 April 20, 1999
Cecil W. Crowson
STATE OF TENNESSEE, ) Appellate Court Clerk
C.C.A. NO. 01C01-9805-CR-00229
)
Appellee, )
)
) DAVIDSON COUNTY
VS. )
) HON. SETH NORMAN,
CLINTON E. KEY, ) JUDGE
)
Appe llant. ) (Misdemeanor Sentencing)
ON APPEAL FROM THE JUDGMENT OF THE
CRIMINAL COURT OF DAVIDSON COUNTY
FOR THE APPELLANT: FOR THE APPELLEE:
MAR Y GR IFFIN JOHN KNOX WALKUP
Assistant Public Defender Attorney General and Reporter
1202 Stahlman Building
Nashville, TN 37201 CLINTON J. MORGAN
Assistant Attorney General
425 Fifth Avenu e North
Nashville, TN 37243
VICTOR S. JOHNSON
District Attorney General
PAMELA ANDERSON
Assistant District Attorney General
Washington Square, Suite 500
Nashville, TN 37201-1649
OPINION FILED ________________________
AFFIRMED
DAVID H. WELLES, JUDGE
OPINION
The Defendant, Clinton E. Key, appeals his sentences of thirty days for
disord erly condu ct; six mon ths for resis ting arrest; thirty days for criminal
trespass; and e leven m onths , twenty -nine d ays for assa ult. Follo wing a jury trial,
the trial court ordered Defendant to serve the sentences consecutively in the
county jail, with release eligibility at seventy-five percent. Defendant argues that
the trial court erred by imposing the maximum sentence on each conviction and
by orderin g the sen tences served c onsec utively.
Although the record do es not contain a transcript of the evidence
presented to the jury during the trial, the Defendant submitted a statement of the
evidence.1 These crimes were the result of two separate confrontations with
police officers—one in September of 1996 and the other in February of 1997. On
both occasions, the Defendant apparently resisted the efforts of police officers to
take him into cu stody.
Defen dant, a multiple m isdemea nant, is not entitled to the pre sumptive
minimum sentence. State v. Baker, 966 S.W.2d 429, 434 (Tenn. Crim. App.
1997); State v. Combs, 945 S.W.2d 770, 77 4 (Ten n. Crim. A pp. 199 6); State v.
1
The State argues that the Statement of Evidence filed by Defendant following his
Notice of Appeal is insufficient under Tennessee Rule of Appellate Procedure 24(c). We find
that the Statement was filed with the trial court within the 90-day period as required. Defendant
hand-delivered a copy of the Statement to the State. No objections by the State appear in the
record; and pursuant to Tennessee Rule of Appellate Procedure 24(f), the Statement became
final upon inaction by the trial court.
Although, as the State argues, the Statement has not been specifically “certified” by
Defendant or Defendant’s counsel, we find (1) that Defendant has substantially complied with
the requirements of Rule 24, and (2) that the proper place for the State’s objections was in the
trial court, as the trial court was the proper arbiter of any factual disputes between the State
and Defendant. We consider the Statement of Evidence in lieu of a transcript of the evidence.
-2-
Boyd, 925 S.W .2d 237 , 244 (T enn. C rim. App . 1995); State v. Seaton, 914
S.W.2d 129, 13 3 (Ten n. Crim. A pp. 199 5); State v. W illiams, 914 S.W.2d 940,
949 (Tenn . Crim. A pp. 199 5); State v. Creasy, 885 S.W.2d 829, 832 (Tenn. Crim.
App. 1994 ).
In misdemeanor sentencing, the trial cour t retains the authority to place the
defendant on probation either immediately or after a time of periodic or
continuous confinement. Tenn. Code Ann. § 40-35-302(e). Misdemeanor
sentencing is designed to provide the trial court with continuing jurisdiction and
a great deal of flexibility. Furthermore, our supreme court recently stated in State
v. Troutman, 979 S.W.2d 271 (Tenn. 1998), that the trial court’s findings on the
issue of incarceration need not appear in the record:
[W ]hile the better practice is to make findings on the record when
fixing a percentage of a defendant’s sentence to be served in
incarceration, a trial court need only consider the principles of
sentencing and enhancement and mitigating factors in order to
com ply with the legislative mandates of the misdemeanor
sentencing statute.
Id. at 274.
With respect to consecutive sentencing, Tennessee Code Annotated § 40-
35-115 provides that the trial court may order multiple sentences to run
cons ecutive ly if the “defendant is an offend er who se rec ord of c rimina l activity is
extensive.” Ten n. Code A nn. § 40-35-1 15(b)(2).
At the Defendant’s sentencing hearing, the only proffered mitigating proof
relevant to sentencing was Defendant’s testimony that he has “turned over a new
leaf” by committing misdemeanors rather than “grand felonies.” The trial court
-3-
commented on its co nside ration o f Defe ndan t’s prior re cord o f crimin al activ ity
contained in the presentence report, which includes two felony convictions,2
nineteen misdemeanor convictions,3 and arrests for twenty-eight additional
counts not resulting in convictions. T he report also reflects that a prior sentence
of probation for his first burglary wa s revoked. At the sentencing h earing, the
Defendant demonstrated neither remorse nor potential for rehabilitation, and he
in fact suggested the police officers should be reprimanded for bringing the
charges against him.
W e find the foregoing evidence sufficient to support both the length and
manner of service o f Defend ant’s sen tences for disorderly conduct, resisting
arrest, criminal trespass , and assau lt. We affirm the sentences ordered by the
trial court.
____________________________________
DAVID H. WELLES, JUDGE
2
Defendant was convicted twice for burglary, once in 1973 and once in 1985.
3
Defendant has been convicted twice for driving on a revoked or suspended license,
once for possession of stolen property, once for possession of drug paraphernalia, once for
disorderly conduct, once for resisting a stop and frisk, twice for traffic offenses, once for
criminal trespass, once for reckless endangerment, once for public intoxication, twice for
shoplifting, three times for possession of drugs, twice for disturbing the peace, and once for a
weapons offense.
-4-
CONCUR:
___________________________________
JOE G. RILEY, JUDGE
___________________________________
JOHN EVERETT WILLIAMS, JUDGE
-5-