State v. Clifton Wallen

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE FILED
OCTOBER 1998 SESSION
March 17, 1999

Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, * C.C.A. No. 03C01-9710-CC-00461

Appellee, * HAWKINS COUNTY

VS. * Honorable James E. Beckner, Judge

CLIFTON D. WALLEN, * (Violation of Motor Vehicle Habitual
Offender Act; felony evading arrest)
Appellant. *

For Appellant: For Appellee:

R. Russell Mattocks John Knox Walkup
Office of the Public Defender Attorney General and Reporter
Third Judicial District
1609 College Park Drive, Box 11 Clinton J. Morgan
Morristown, TN 37813-1618 Counsel for the State
(on appeal & elbow counsel at trial) 425 Fifth Avenue, North
Cordell Hull Building, Second Floor
Clifton D. Wallen, pro se Nashville, TN 37243-0493
P.O. Box 549
Whiteville, TN 38075 Michelle Green
(at trial) and
Doug Godbee
Assistant District Attorneys General
Hawkins County Courthouse
Rogersville, TN 37857

OPINION FILED:__________________

AFFIRMED

GARY R. WADE, PRESIDING JUDGE
 OPINION

The defendant, Clifton D. Wallen, who was convicted of violating an

order declaring him a motor vehicle habitual offender, was also convicted of evading

arrest while operating a motor vehicle. Both offenses are Class E felonies. Tenn.

Code Ann. §§ 55-10-616, 39-16-603(b)(1). The trial court imposed consecutive,

Range I sentences of two years for each offense. The defendant was fined

$750.00.

In this appeal of right, the defendant presents the following issues for

review:

(I) whether the evidence is sufficient to support the
convictions;

(II) whether the trial court erred by misapplying
enhancement factors, by failing to apply mitigating
factors, and by denying an alternative sentence;

(III) whether he was improperly deprived of appointed
counsel at the preliminary hearing;

(IV) whether the trial court improperly restricted cross-
examination of police officers during trial;

(V) whether the defendant was incompetent to represent
himself;

(VI) whether the defendant was prejudiced because the
trial court allowed only nineteen days to prepare for trial;
and

(VII) whether the district attorney hindered the
defendant's ability to represent himself by refusing to
provide information about jury selection and subpoenas.

We affirm the judgment of the trial court.

On January 28, 1997, Randy Collier of the Mount Carmel Police

Department observed the defendant driving a Ford Mustang in a parking lot. Officer

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Collier, who knew the defendant and suspected he had no driver's license, watched

as the defendant parked his vehicle and entered a drugstore. Within minutes, the

defendant left the drugstore, glanced at Officer Collier, and then entered an

adjoining grocery store. Meanwhile, Officer Collier had called dispatch and verified

that the defendant's license had been revoked. He also learned that the defendant

was classified a motor vehicle habitual offender. Approximately thirty to forty-five

minutes later, the defendant walked out of the grocery store, again glanced at the

officer, and then drove down Main Street. Officer Collier followed in his cruiser for a

short distance before activating the blue lights. When the defendant accelerated,

Officer Collier turned on his siren and chased the defendant at speeds of 30 m.p.h.

over the 20 m.p.h. speed limit. Several minutes later, the defendant stopped at his

residence. Officer Collier informed him of his arrest for driving without a license. At

that point, the defendant tossed his car keys into the bushes nearby and said, "I

[was not] driving." Officer Collier then handcuffed the defendant and transported

him to the Hawkins County Sheriff's Department. The defendant was belligerent

and informed the officer that the only reason he had driven was to get some

medication for his mother.

At trial, Officer Collier denied that he was stalking the defendant and

testified that the basis for the stop was that the defendant was driving on a revoked

license and was a motor vehicle habitual offender. Officer Travis Chapel of the

Mount Carmel Police Department was with Officer Collier on the date of the

offenses. He corroborated the testimony of Officer Collier. Holly Jaynes, the

Hawkins County Circuit Court Clerk, presented the original order, entered March 1,

1996, declaring the defendant a motor vehicle habitual offender and barring him

from driving for at least three years.

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 The defendant testified in his defense. He claimed that it was dark on

the evening in question and that the officers were stalking him.

I

Initially, the defendant challenges the sufficiency of the evidence as to

each conviction. On appeal, of course, the state is entitled to the strongest

legitimate view of the evidence and all reasonable inferences which might be drawn

therefrom. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). The credibility of

the witnesses, the weight to be given their testimony, and the reconciliation of

conflicts in the proof are matters entrusted to the jury as trier of fact. Byrge v. State,

575 S.W.2d 292, 295 (Tenn. Crim. App. 1978). When the sufficiency of the

evidence is challenged, the relevant question is whether, after reviewing the

evidence in the light most favorable to the state, any rational trier of fact could have

found the essential elements of the crime beyond a reasonable doubt. State v.

Williams, 657 S.W.2d 405, 410 (Tenn. 1983); Tenn. R. App. P. 13(e).

The applicable statute provides as follows:

(a) It is unlawful for any person to operate any
motor vehicle in this state while the judgment or order of
the court prohibiting the operation remains in effect.
(b) Any person found to be an habitual offender
under the provisions of this part who thereafter is
convicted of operating a motor vehicle in this state while
the judgment or order of the court prohibiting such
operation is in effect commits a Class E felony.

Tenn. Code Ann. § 55-10-616. At trial, the state introduced a certified copy of the

order declaring the defendant a motor vehicle habitual offender. Officer Collier and

Officer Chapel testified that they had witnessed the defendant driving a Ford

Mustang on January 28, 1997, less than one year after entry of the order barring

him from driving a motor vehicle. See Tenn. Code Ann. § 55-10-615(a). In our

view, the evidence is clearly sufficient to support his conviction for violating the

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motor vehicle habitual offender order.

Next, the defendant argues that the evidence is insufficient to support

his conviction for evading arrest by use of an automobile. "It is unlawful for any

person, while operating a motor vehicle on any street, road, alley or highway in this

state, to intentionally flee or attempt to elude any law enforcement officer, after

having received any signal from such officer to bring the vehicle to a stop." Tenn.

Code Ann. § 39-16-603(b)(1). A person acts intentionally, "when it is the person's

conscious objective or desire to engage in the conduct or cause the result." Tenn.

Code Ann. § 39-11-302(a). Here, Officer Collier activated his blue lights and siren

and chased for several minutes a vehicle operated by the defendant through the

streets of Mount Carmel. There was proof that the defendant accelerated rather

than yielding to blue lights. In our view, it was reasonable for the jury to conclude

that the defendant, who was driving in violation of a court order, was intentionally

attempting to elude Officer Collier. Thus, the evidence is sufficient.

II

Next, the defendant complains that the trial court erred by misapplying

enhancement factors, failing to apply mitigating factors, and refusing to grant an

alternative sentence.

When there is a challenge to the length, range, or manner of service of

a sentence, it is the duty of this court to conduct a de novo review with a

presumption that the determinations made by the trial court are correct. Tenn. Code

Ann. § 40-35-401(d). This presumption is "conditioned upon the affirmative showing

in the record that the trial court considered the sentencing principles and all relevant

facts and circumstances." State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991); see

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State v. Jones, 883 S.W.2d 597 (Tenn. 1994). The Sentencing Commission

Comments provide that the burden is on the defendant to show the impropriety of

the sentence.

Our review requires an analysis of (1) the evidence, if any, received at

the trial and sentencing hearing; (2) the presentence report; (3) the principles of

sentencing and the arguments of counsel relative to sentencing alternatives; (4) the

nature and characteristics of the offense; (5) any mitigating or enhancing factors; (6)

any statements made by the defendant in his own behalf; and (7) the defendant's

potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103, and

-210; State v. Smith, 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987).

At the time of this offense, the presumptive sentence was the

minimum in the range if there were no enhancement and mitigating factors. Tenn.

Code Ann. § 40-35-210. Should the trial court find mitigating and enhancement

factors, it must start at the minimum sentence in the range and enhance the

sentence based upon any applicable enhancement factors, and then reduce the

sentence based upon any appropriate mitigating factors. Tenn. Code Ann. § 40-35-

210(e). The weight given to each factor is within the trial court's discretion provided

that the record supports its findings and it complies with the Criminal Sentencing

Reform Act of 1989. See Ashby, 823 S.W.2d at 169. The trial court should,

however, make specific findings on the record which indicate its application of the

sentencing principles. Tenn. Code Ann. §§ 40-35-209, -210.

The fifty-one-year-old defendant obtained his GED while serving in the

army. He reported a history of alcohol abuse and illness, including hepatitis B, for

which he had been prescribed medication. He reported that he suffers from an

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anxiety and panic disorder and that he is disabled and unemployed.

At the sentencing hearing, the state introduced certified copies of

judgments showing a number of prior convictions and arrests. In 1997, the

defendant was charged but later acquitted of DUI; he was, however, convicted of a

violation of the implied consent law. In 1995, he was convicted of two counts of

felony reckless endangerment and felony possession of a prohibited weapon. In

1994, he was twice convicted of driving on a revoked license. In 1993, a jury

convicted the defendant of public intoxication, two counts of disorderly conduct, and

simple possession of marijuana. That same year the defendant was also convicted

of public intoxication and a reduced charge of simple possession of marijuana. In

1992, the defendant was convicted of driving without a license, DUI, and violation of

the implied consent law. He also pleaded nolo contendere to another instance of

driving without a license. In 1989, he was convicted of public intoxication and

driving without a license and in 1985, he was convicted of attempted aggravated

assault. In 1982, the defendant was convicted of public drunkenness and in 1980,

he was convicted of disorderly conduct and fined for violating his probation. In

1978, the defendant was convicted of possession of marijuana for resale and, in

1977, possession of an open beer. In 1976, he was convicted of disorderly conduct.

The defendant was convicted of public drunkenness in 1976 and in 1969, the

defendant was convicted of driving without a license and possession of whiskey.

After determining that the sentence for each offense ranged from one

to two years, the trial court applied two enhancement factors on each offense:

(1) that the defendant has a previous history of criminal
convictions or criminal behavior; and

(2) that the defendant has a history of unwillingness to
comply with conditions of a sentence involving release to
the community.

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Tenn. Code Ann. § 40-35-114(1), (8). The trial court determined that each

enhancement factor was "extremely weighty." No mitigating factors were identified.

The maximum sentence of two years was imposed on each conviction.

In our view, the imposition of the maximum sentences was warranted.

Because the defendant has failed to demonstrate that the trial court imposed an

improper sentence, the record fully supports the conclusion of the trial court. Both

the length and the nature of the consecutive sentences were entirely appropriate.

Especially mitigated or standard offenders convicted of Class C, D, or

E felonies are, of course, presumed to be favorable candidates "for alternative

sentencing options in the absence of evidence to the contrary." Tenn. Code Ann. §

40-35-102(6). With certain statutory exceptions, none of which apply here,

probation must be automatically considered by the trial court if the sentence

imposed is eight years or less. Tenn. Code Ann. § 40-35-303(b). Among the

factors applicable to probation consideration are the circumstances of the offense,

the defendant's criminal record, social history and present condition, and the

deterrent effect upon and best interest of the defendant and the public. State v.

Grear, 568 S.W.2d 285 (Tenn. 1978).

In denying probation, the trial court concluded that confinement was

required to protect society from the defendant who has a long history of criminal

conduct, to avoid depreciating the seriousness of the offense, and to serve as a

deterrent to others. Moreover, confinement was necessary because, in the past,

less restrictive measures had been unsuccessfully applied to the defendant. Finally,

the trial court concluded that the defendant's potential for rehabilitation was poor

and, in considering the principles of sentencing, determined that probation should

8
be denied. In our assessment, the trial court was warranted in denying probation.

Because the defendant has a history of criminal convictions and probation

violations, he is a poor candidate for a sentence involving release to the community.

The purpose of the Community Corrections Act of 1985 was to provide

an alternative means of punishment for "selected, nonviolent felony offenders in

front-end community based alternatives to incarceration." Tenn. Code Ann. §

40-36-103. The community corrections sentence provides a desired degree of

flexibility that may be both beneficial to the defendant yet serve legitimate societal

aims. State v. Griffith, 787 S.W.2d 340, 342 (Tenn. 1990). Even in cases where the

defendant meets the minimum requirements of the Community Corrections Act of

1985, the defendant is not necessarily entitled to be sentenced under the Act as a

matter of law or right. State v. Taylor, 744 S.W.2d 919 (Tenn. Crim. App. 1987).

The following offenders are eligible for community corrections:

(1) Persons who, without this option, would be
incarcerated in a correctional institution;

(2) Persons who are convicted of property-related, or
drug/alcohol-related felony offenses or other felony
offenses not involving crimes against the person as
provided in title 39, chapter 2 [repealed], parts 1-3 and
5-7 or title 39, chapter 13, parts 1-5;

(3) Persons who are convicted of nonviolent felony
offenses;

(4) Persons who are convicted of felony offenses in
which the use or possession of a weapon was not
involved;

(5) Persons who do not demonstrate a present or past
pattern of behavior indicating violence;

(6) Persons who do not demonstrate a pattern of
committing violent offenses; and

(7) Persons who are sentenced to incarceration or on
escape at the time of consideration will not be eligible.

Tenn. Code Ann. § 40-36-106(a).

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 The defendant is eligible for community corrections. In Ashby,

however, our supreme court encouraged the grant of considerable discretionary

authority to our trial courts in matters such as these. 823 S.W.2d at 171. See State

v. Moss, 727 S.W.2d 229, 235 (Tenn. 1986). In the words of the late Judge Joe B.

Jones, "each case must be bottomed upon its own facts." Taylor, 744 S.W.2d at

922. "It is not the policy or purpose of this court to place trial judges in a judicial

straight-jacket in this or any other area, and we are always reluctant to interfere with

their traditional discretionary powers." Ashby, 823 S.W.2d at 171. Here, the trial

court considered and rejected community corrections, citing the need for

incarceration to restrain the defendant, protect the public, and avoid depreciating the

seriousness of the offense. That the defendant had an extensive prior criminal

record and prior probation violations was also considered. As the trial court

observed, "there's an inability at this point to achieve any rehabilitation."

Incarceration was warranted.

III

The defendant also contends that he was improperly deprived of

appointed counsel at the preliminary hearing. The appellant's brief contains no

citation to legal authority nor references to the record. In such circumstances, the

issues may be treated as waived. Rule 10, Tenn. Ct. Crim. App. Moreover, the

record contains insufficient evidence to support the defendant's contention. There is

no transcript of the proceedings from general sessions court and, while included in

the record, the affidavit of complaint is not signed by the defendant. The warrant

does indicate that the matter was bound over to the grand jury. This is an

insufficient record for an in-depth analysis of the issue. The appellant has the duty

to prepare a record that conveys a fair, accurate, and complete account of what

transpired in the trial court with respect to the issues that form the basis for the

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appeal. Tenn. R. App. P. 24(b). State v. Cooper, 736 S.W.2d 125 (Tenn. Crim.

App. 1987). The issue has been waived.

IV

Next, the defendant argues that the trial court improperly restricted

cross-examination of police officers. At trial, the following exchange occurred:

Defendant: Okay, after the arrest, did I not request that
you get my heart medication from my
mother's house?
State: Object to the relevancy of this, your Honor.
The Court: Sustained. That's not a proper question.
***
Defendant: Well, I'm asking the question again. Did I
not ask you to find my medication?
State: Objection, your Honor.
The Court: I sustained that objection.
***
Witness: So I had you loaded in the back of my car
within eight minutes from the time the
whole thing started.
Defendant: Well, I just didn't want the jury to get the
wrong idea that maybe this had lasted
longer.
State: Objection to testifying.
The Court: Remember questions, questions.
Defendant: Well, evidently the Court is not going to let
me ask any questions of anything of that
nature. No more questions.

While the right of cross-examination is fundamental, its exercise is controlled by the

discretionary authority of the trial judge. Davis v. State, 212 S.W.2d 374 (Tenn.

1948); Hobbs v. State, 460 S.W.2d 377 (Tenn. Crim. App. 1970). Only a plain

abuse of that authority constitutes grounds for reversal. State v. Fowler, 373

S.W.2d 460 (Tenn. 1963); State v. Black, 618 S.W.2d 526, 528 (Tenn. Crim. App.

1981). The defendant did not explain the relevance of the question regarding his

medication nor has he cited legal authority to support his claim. Rule 10, Tenn. Ct.

Crim. App. The defendant has failed to demonstrate an abuse of discretion on the

part of the trial court. In consequence, this issue has no merit.

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 V

The defendant also complains that he was incompetent to represent

himself at trial because he suffers from a "50% brain condition that requires strong

medication." During the sentencing hearing, the defendant concluded in retrospect

that he had been incompetent to represent himself at trial because of his

prescription medication. The trial court observed as follows:

[The defendant] says he was drunk during the course of
the trial. ... The defendant did ask that Mr. Mattocks not
represent him although he could assist as elbow counsel,
and he asked that he represent himself. I asked the
defendant a lot of questions to determine his
competence. ... [The defendant] demonstrated at all
times a clear mind and ability to represent [him]self
during the trial of the cause.

Counsel representing the defendant in this appeal has conceded that the record

contains no evidence to support the "brain condition" alleged by the defendant. The

findings of the trial court also dispel the defendant's contention that he was under

the influence of medication. Thus, the issue has no merit.

VI

The defendant maintains that he was prejudiced because the trial

court permitted him only nineteen days to prepare for trial. Our legislature has

provided that "[e]very person accused of any crime ... shall be entitled to fourteen

(14) full days ... after arrest and the return of the indictment ... before being tried for

such offense." Tenn. Code Ann. § 40-14-105. That statutory requirement was met

in this case. The defendant did not request a continuance before trial and cannot

now complain that his rights were violated because the trial was commenced as

scheduled. See Tenn. R. App. P. 36(a). More importantly, the defendant has not

demonstrated how he was prejudiced by the relatively short duration between the

indictment and the trial.

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 VII

Lastly, the defendant argues that he was hampered in his defense

because the District Attorney General's office refused to provide him with

information on jury selection and subpoenas. This issue was not included in the

defendant's motion for new trial. Typically, an issue not included as a ground for

relief in the motion for new trial is considered waived. Tenn. R. App. P. 3(e).

Nevertheless, the defendant would not prevail on the merits of the claim. We are

aware of no duty on the part of the District Attorney General to provide jury selection

information or subpoena information to a pro se defendant. The defendant does not

allege any irregularities in the jury selection process at his trial nor does he indicate

that there were witnesses essential to his defense whose presence he was unable

to secure.

Accordingly, we affirm the judgment of the trial court.

__________________________________
Gary R. Wade, Presiding Judge

CONCUR:

________________________________
David H. Welles, Judge

________________________________
Thomas T. W oodall, Judge

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