State v. Thomas Lowery

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
FILED
DECEMBER 1997 SESSION
January 20, 1998
Cecil Crowson, Jr.
STATE OF TENNESSEE, ) Appellate C ourt Clerk
) NO. 02C01-9608-CC-00248
Appellee, )
) HENRY COUNTY
VS. )
) HON. JULIAN P. GUINN,
THOMAS BURLENE LOWERY, JR., ) JUDGE
)
Appellant. ) (Sentencing)
FOR THE APPELLANT: FOR THE APPELLEE:
VICKI H. HOOVER JOHN KNOX WALKUP
123 North Poplar Street Attorney General and Reporter
Paris, Tennessee 38242
SARAH M. BRANCH
Assistant Attorney General
Cordell Hull Building - 2nd Floor
425 Fifth Avenue North
Nashville, TN 37243-0493
G. ROBERT RADFORD
District Attorney General
VICKI S. SNYDER
Assistant District Attorney General
111 Church St., P. O. Box 686
Huntingdon, TN 38344-0686
OPINION FILED:
AFFIRMED
JOE G. RILEY,
JUDGE
OPINION
The appellant, Thomas Burlene Lowery, Jr., appeals from the sentence
imposed upon a jury verdict of driving under the influence, third offense, entered by
the Circuit Court of Henry County. The appellant contends the trial court erred in
imposing an excessive sentence and denying probation. We affirm the judgment
of the trial court.
FACTUAL BACKGROUND
Although sufficiency of the evidence is not at issue, some factual background
may prove instructive. On October 21, 1995, Henry County DUI Task Force Officer,
David Powell, arrested the appellant and charged him with DUI. Appellant was
subsequently indicted for DUI, third offense.
At trial, Officer Powell testified that appellant was driving in the wrong lane
of the roadway and crossed the center line a total of five times before he was
stopped. He also testified that appellant performed poorly during the roadside
sobriety tests and refused the breath test.
The appellant testified that he had been to a local nightclub, but that he had
only two beers from 8:00 p.m. until midnight. Appellant denied having driven on the
wrong side of the road and contended that he had performed as instructed on the
sobriety tests.
It is apparent the jury found appellant to be untruthful. The jury returned a
verdict of guilty. Shortly after the verdict, the trial court announced it would “hear
anything that you want me to hear before I impose sentence in this case.” Defense
counsel made a brief statement asking for leniency and placement in a “rehab
center.” There was no request for a continuance of the sentencing hearing nor an
objection to the court's proceeding. The court imposed a fine of $1,100 pursuant
to a pre-trial agreement between the state and appellant. The court also imposed
a sentence of eleven (11) months and twenty-nine (29) days and authorized
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rehabilitation for alcoholism after he had served 150 days. The court also stated
that if appellant successfully completed the alcohol program, the remainder of his
sentence would be suspended upon the appellant's motion.
SENTENCING
The standard of review for the sentence of a trial court is de novo with a
presumption of correctness. Tenn. Code Ann. § 40-35-401(d). This presumption
is conditioned upon an affirmative showing in the record that the trial judge
considered the sentencing principles of the Criminal Sentencing Reform Act and all
relevant facts and circumstances. State v. Ashby, 823 S.W.2d 166, 169 (Tenn.
1991). Misdemeanor sentencing must also be in accordance with the Criminal
Sentencing Reform Act. State v. Palmer, 902 S.W.2d 391, 393 (Tenn. 1995).
Appellant complains the trial court refused to allow counsel time to prepare
for a sentencing hearing. In imposing a sentence for a misdemeanor, the trial court
must either conduct a separate sentencing hearing or at least “allow the parties a
reasonable opportunity to be heard on the question of the length of any sentence
and the manner in which the sentence is to be served.” Tenn. Code Ann. § 40-35-
302(a). A pre-sentence report is optional for misdemeanors. Tenn. Code Ann. §
40-35-205(a).
There is nothing in the record to reflect that counsel requested a
continuance, or that the trial court would have refused such a request. This waives
any entitlement to relief. See Tenn. R. App. P. 36(a). Furthermore, there is nothing
in the record now before us to show that appellant was prejudiced by the immediacy
of the sentencing hearing.
Punishment for this offense is set out in Tenn. Code Ann. § 55-10-403(a)(1).
Probation for the entire sentence without confinement is not authorized by statute.
The statute requires a minimum of 120 days continuous incarceration for this
offense. Id. The court in this case sentenced appellant to an additional thirty (30)
days in confinement. The court made it clear that the remainder of appellant’s
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sentence would be spent on probation if appellant successfully completed alcohol
rehabilitation.
Our Supreme Court has recently held that “a DUI offender can be sentenced
to serve the entire eleven month and twenty-nine day sentence imposed as the
maximum punishment for DUI so long as the imposition of that sentence is in
accordance with the principles and purposes of the Criminal Sentencing Reform Act
of 1989.” State v. Palmer, 902 S.W.2d at 394.
The sentence in the case before us is not excessive. In our de novo review,
we find the sentence imposed is justified under the principles of the Tennessee
Criminal Sentencing Reform Act of 1989. The sentence will restrain the appellant
from driving while under the influence and being a danger to others and himself.
It also encourages voluntary participation in rehabilitation. The trial court has left
the ultimate length of incarceration up to the appellant, who has the option of
seeking rehabilitation to shorten his confinement from eleven (11) months, twenty-
nine (29) days to 150 days. In effect, the court has given appellant the keys to his
own jail cell after the mandated conditions are met.
This issue is without merit.
CONCLUSION
For the foregoing reasons, we affirm the judgment of the trial court.
JOE G. RILEY, JUDGE
CONCUR:
JERRY L. SMITH, JUDGE
CURWOOD WITT, JUDGE
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