State vs. James Wright

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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE AUGUST SESSION, 1999 FILED October 29, 1999 STATE OF TENNESSEE, Appellee, V. JAMES CLIFFORD WRIGHT, Appe llant. ) ) ) ) ) ) ) ) ) ) Cecil Crowson, Jr. Appellate Court Clerk C.C.A. NO. 01C01-9811-CC-00476 COFFEE COUNTY HON. JOHN W. ROLLINS, JUDGE (DUI) FOR THE APPELLANT: FOR THE APPELLEE: JERRY SCOTT Coun sel for Ap pellant PAUL G. SUMMERS Attorney General & Reporter JOHN KEA Coun sel for Ap pellant Scott and Kea 110 City Center Building 100 Ea st Vine S treet P.O. Box 1216 Murfreesboro, TN 37133-1216 LUCIAN D. GEISE Assistant Attorney General 2nd Floor, Cordell Hull Building 425 Fifth Avenue North Nashville, TN 37243 C. MICHAEL LAYNE District Attorn ey Ge neral STEPHEN E. WEITZMAN Assistant District Attorney General P.O. Box 147 Manchester, TN 37355 OPINION FILED ________________________ AFFIRMED THOMAS T. WOODALL, JUDGE OPINION The Defendant, James Clifford Wright, pled guilty to second offense DUI relating to an incident which occurred in February, 1997. Two months later, he was convicted of second offense DUI following a jury trial for an offense which occurred in December, 1996. After the guilty plea and the jury trial, but prior to sentencing, his presen t counse l on appe al was allo wed to be substituted for his retained trial counsel on the two cases. There was a consolidated sentencing hearing on October 30, 1998, and the trial court imposed a sentence of eleven (11) months and twentynine (29) days on each conviction, with ninety (90) days incarceration on each conviction followed by the ba lance of th e sente nce on probatio n. Also, the trial court ordered the sentences to be served consecutively. Defendant appeals, raising the following issues: 1) whether the length of each sentence is excessive; and 2) whether consecutive sentencing is appropriate. After a revie w of the re cord, we affirm the ju dgme nt of the trial co urt. I. FACTS W e note initially that while there is a transcript of the sentencing hearing in the record, there is no trial transcript or statement of the evidence regarding either the trial on the December, 1996 offense or the guilty plea hearing regarding the February, 1997 incident. A complete record on appeal is necessary for adequate appellate review of sentences imposed by the trial co urt. State v. Troutman, 979 S.W .2d 271, 2 74 (T enn. 1 998). T he trial c ourt s ru ling is pr esum ed co rrect in the absen ce of a co mplete record o n appe al. Id. In consideration of the above constraints, we will nevertheless review this case with the information available in the record. -2- On December 1, 1996, law enforcement officers discovered Defe ndan t in control of a vehicle while he had slurred speech and the odor of an intoxicant on his breath. Defendant subsequently failed a field so briety te st and he refu sed to subm it to an intoxim eter test. On Februa ry 2, 1997 , law enforc emen t officers discovered Defendant standing next to his vehicle that was parked in a highway m edian. The officers also observed that Defendant smelled of alcohol, had slurred speech, had bloodshot eyes, and was unsteady on his feet. Defendant subsequently submitted to an intoximeter test and the results indicated that Defendant had a blood alcohol level of .16%. II. LENGTH OF SENTENCES Defendant contends that the trial court imposed sentences of excessive length. We disagree. The burden is upon the appealing party to show that the sentence is im proper. Tenn. Code A nn. § 40-35-4 01(d) (1997) (Sentencing Comm ission Com ments). Ordinarily, a trial court is re quired to mak e spe cific findings on the rec ord with regard to senten cing dete rminatio ns. See Tenn. Code Ann. §§ 40-35-209(c), -210(f) (1997 & Supp. 1998). However, the Tennessee Supreme Court has stated that review of misdemeanor sentencing is de novo with a presumption of correctness even if the trial court did not make specific findings of fact on the record be cause a trial court need only consider the principles of sentencing and enhancement and mitigating factors in order to comply with the legislative mandates of the misdemeanor sentencing statute. Troutman, 979 S.W .2d 274 . Misdemeanor sentencing is controlled by Tennessee Code Annotated section 40-35-302, which provides that the trial court shall impose a specific sentence consistent with the purposes and principles of the 1989 Criminal Sentencing Reform -3- Act. See State v. Palmer, 902 S.W.2d 391, 392 (Tenn. 1995). A defendant convicted of a misdemeanor, unlike a defendant convicted of a felony, is not entitled to a presu mption of a minim um se ntence . State v. Creasy, 885 S.W.2d 829, 832 (Tenn. Crim. App. 1994). 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 purpos es of the s entenc ing act. Palmer, 902 S.W.2d at 393. In this case, Defendant received two conviction s for seco nd offen se DU I, which is a Class A misd emea nor. See Tenn. C ode Ann . § 55-10-403 (m) (1998). Under the applicable statute, a defendant convicted of second offense DUI is to be confined for not less than forty-five (45) days nor more than eleven (11) months and twenty-nine (29) days. Tenn. Code Ann. § 55-10-403(a)(1) (1998). Furthermore, all persons sentenced under subsection (a) shall, in addition to the service of at least the minimum sentence, be required to serve the difference between the time actua lly served and the maximum senten ce on p robation . Tenn . Code Ann. § 55-10-403(c) (1998). In effect, the DUI statute mandates a maximum sentence for a DUI conviction with the only function o f the trial court being to determine what period above the m inimu m pe riod of in carce ration e stablis hed b y statute , if any, is to be serve d in confin emen t. See Troutman, 979 S.W .2d at 273 ; State v. Combs, 945 S.W .2d 770, 774 (Tenn. Crim . App. 1996 ). In determining that Defe ndan t shou ld serve 90 da ys of his sente nces in jail, the trial court did not expressly identify the specific factors upon which it was basing its decision . Howeve r, the reco rd indicate s that the tria l court bas ed its determination at least partially on Defendant s record of DUI offenses. We conclude that, in observance of the less stringent standa rds attach ed to misdemeanor sentencing, and also in light of the requirement that we must presume the sentence to be correct when the transcript of a trial or guilty plea hearing is not -4- included, the trial cour t s order tha t Defend ant serve 90 days of his sentences by incarceration was neither arb itrary nor an abuse of discretion. The record indicates that in addition to the previous DUI conviction from 1990 that was u sed a s the b asis for enhan cing De fendant s convictions in this case to second offense DUIs, Defendant was also convicted of DUI in 1 984. Further, Defendant also has a previous conviction for driving on a suspended license. In addition, Defendant admitted during the sentencing hearing that when he was approached by police officers on Februa ry 2, 1997, he w as comb ative and he attempted to flee the scene. Finally, we note that Defendant committed the two offenses in this case within a relatively short time period. Under these circumstances, we conclude that the sentences which include 9 0 days inc arceratio n in jail are en tirely appro priate in this case. Defendant is not entitled to relief on this issue. III. CONSECUTIVE SENTENCING Defendant contends tha t the trial court erred whe n it imposed c onsecutive sentencing. We disagree. Consec utive sentencing is governed by Tennessee Code Annotated section 40-35-115. The trial court has the discretion to order consecutive sentencing if it finds that one o r more o f the requ ired statutory criteria exist. State v. Black, 924 S.W .2d 912 , 917 (T enn. C rim. App . 1995). In imposing consecutive sentences, the trial court made no express finding as to which of section 40-35-115 s factors applied. Ho wever, we find from the record that is available that consecutive sentencing is appropriate as Defendant is an offender whose record of criminal activity is extensive. Tenn. Code Ann. § 40-35115(b)(2) (1997). Defendan t was co nvicted of DU I in Jun e, 198 4, and again convicted of DUI in September, 1990 in another county. He was convicted of driving while his license was su spend ed in Jun e, 1992 , and ha d a con viction of speeding -5- (50 miles per hour in a 30 mile pe r hour z one) in May, 1 996. T hese prece ded h is two convictions for DUI second offense which are the subject of this appeal, for one offense occurring in December, 1996, and another offense occurring two months later in Feb ruary, 199 7. From a review of the a pplica ble law and th e reco rd on a ppea l, we affirm the judgm ent of the tria l court. ____________________________________ THOMAS T. W OODALL, Judge CONCUR: ___________________________________ JOE G. RILEY, JR., Judge ___________________________________ L.T. LAFFERTY, Judge -6-

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