State v. Brewer

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
JULY SESSION, 1998 August 21, 1998
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9707-CC-00294
)
Appellee, )
)
) BLOUNT COUNTY
VS. )
) HON. D. KELLY THOMAS, JR.
TERRY JOE BREWER, ) JUDGE
)
Appe llant. ) (Sentencing)
ON APPEAL FROM THE JUDGMENT OF THE
CRIMINAL COURT OF BLOUNT COUNTY
FOR THE APPELLANT: FOR THE APPELLEE:
JULIE A. MAR TIN JOHN KNOX WALKUP
P.O. Box 426 Attorney General and Reporter
Knoxville, TN 37901-0426
TODD R. KELLEY
Assistant Attorney General
425 Fifth Avenu e North
Nashville, TN 37243
MIKE FLYNN
District Attorney General
PHILIP MORTON
Assistant District Attorney General
363 Court Street
Maryville, TN 37804
OPINION FILED ________________________
AFFIRMED
DAVID H. WELLES, JUDGE
OPINION
The Defendant, Terry Joe Brewer, appeals as of right pursuant to Rule 3
of the Tennessee Rules of Appellate P roced ure. H e was convic ted, up on his
pleas of guilty, of violating the Motor Ve hicle H abitua l Offen der’s A ct, driving while
under the influence of an intoxicant, Class E felony evading arrest, and unlawful
possession of drug paraphernalia.1 The agreed sentences for the two Class E
felonies were three years as a Multiple Range II offender. The agreed sentences
for the Class A misd eme anors were e leven m onths and tw enty-n ine da ys. All
sentences were to be served concurrently. The manner of service of the
sentences was left to the discretion of the trial judge. The judge ordered that nine
months of the felony sentences be served in the county jail, with the balan ce to
be served in the community corrections program. The Defendant appeals from
the trial judge’s order that nine months of the sentence be served in confine ment.
We affirm the ju dgme nt of the trial co urt.
At the sentencing hearing, the Defendant testified that he did not
remember much about the offenses to which h e plead ed guilty because he was
“drunk on moonshine.” He said that he and his brothe r had co nsum ed abo ut a
half-gallon of moons hine and the y “got to fighting.” He got into a truck to drive
away, shortly thereafter the police stopped him, and the ch arges which led to h is
guilty pleas followed.
1
Tenn. Code Ann. § 55-10-616; Tenn. Code Ann. § 55-10-401; Tenn. Code Ann. § 39-
16-603(b); and Tenn. Code Ann. § 39-17-425.
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When an accused challenges the length, range, o r mann er of service of a
sentence, this court has a duty to conduct a de novo review of th e sente nce with
a presumption that the determinations made by the trial court are correct. Tenn.
Code Ann. § 40-35-401(d). This presumption is ?conditioned u pon the affirma tive
showing in the record that the trial court considered the sentencing principles and
all relevant facts and circumstanc es.” State v. Ashby, 823 S.W.2d 166, 169
(Tenn. 19 91).
In conducting a de novo review of a senten ce, this court mu st consider: (a)
the evidence, if any, received at the trial and sentencing hearing; (b) the
presentence report; (c) the principles of senten cing and argum ents as to
sentencing alternatives; (d) the nature and characteristics of the criminal conduct
involved; (e) any statutory mitigating or enhancement factors; (f) any statement
that the defendant made on his own behalf; and (g) the potential or lack of
potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-1 02, -103 , -
210; State v. S mith, 735 S.W .2d 859, 863 (Tenn. Crim . App. 1987 ).
The presentence report reflects that at the time of the offense the
Defendant was thirty-four years of age, single, and had a ninth-grade education.
The Defendant has a rather lengthy history of criminal conduct spanning a fifteen-
year period. His convictions include two for larceny from the person, two for
assau lt, one for grand larceny, one for first degree burglary, two for receiving
stolen property and two for driving on a suspended license. He has served time
in the penite ntiary a t least o nce a nd ap paren tly his pa role has been revoked on
two occasio ns. He admitted to long-term use of marijuana and tested positive for
marijuana on a drug screen just a few days before his sentencing hearing.
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In this appeal, the Defendant concedes “that some period of confinement
would likely be wa rranted.” H e argue s, howe ver, that nine months of confinement
is excessive, and that two mon ths wo uld be more appropriate. T rial judges are
tradition ally vested with broad discretionary authority in sentencing matters.
Based on the Defe ndant’s lengthy c riminal record, the failure of les s restrictive
measures in the past, and the Defendant’s continued disregard for the laws of
this State, we are unable to conclu de tha t the trial ju dge e rred or abus ed his
discretion by ordering that nine months of the Defendant’s sentence be served
in the c ounty jail.
The judgment of the trial court is affirmed.
___________________________________
DAVID H. WELLES, JUDGE
CONCUR:
___________________________________
GARY R. WADE, PRESIDING JUDGE
___________________________________
JOSEPH M. TIPTON, JUDGE
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