IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
DECEMB ER SESSION, 1998 January 15, 1999
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9801-CC-00556
)
Appellee, )
)
) BLOUNT COUNTY
VS. )
) HON . D. KELL Y THO MAS
ROBERT STRICKLAND, ) JUDGE
)
Appe llant. ) (Dire ct Ap pea l - Cla ss E Felo ny)
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
CLINTON J. MORGAN
Coun sel for the S tate
425 Fifth Avenu e North
Nashville, TN 37243-0493
MIKE FLYNN
District Attorney General
PHILIP MORTON
Assistant District Attorney
363 Court Street
Maryville, TN 37804
OPINION FILED ________________________
AFFIRMED
JERRY L. SMITH, JUDGE
OPINION
The appellan t, Robert B. Strickland, pled guilty to two (2) counts of violating
the Habitual Motor Vehicle Offender Act (“HMVO Act”), a Class E felony. The
trial court sentenced him as a Range II offender to consecu tive sentences of
three (3) years and six (6) month s on ea ch cou nt. On appeal, Appellant claims
that the trial court imposed excessive sentences. After a thorough review of the
record, w e affirm the judgm ent of the tria l court.
I.
Appellant was adjudicated an habitu al offender under the HMVO Act on
May 7, 1993. Thereafter, on April 19 and May 16, 1997, Appellant was arrested
for driving in vio lation of that Act. Appellant pled guilty to the offenses, and a
sentencing hearing was he ld to determine the length and m anne r of Ap pellan t’s
sentences.
At the sentencing hearing, Appe llant testified that he was fifty-one (51)
years old and in poor health . Appe llant wa s suffe ring from cirrhos is of the liver,
asthma, a hernia, arthritis and a b ack injury. He stated that he was taking several
medications as a result of his health problem s and was en route to the d rugstore
when he was arrested on both occasions. Although he knew that it was illegal
for him to drive, Appellant insisted that he only drove in emergency situations.
He testified that if he did not tak e his me dicine at th e appro priate time , his
“stomach would blow up.” He had no other means of transportation to the
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drugstore on the occasions when he dro ve and he wa s not p hysica lly able to walk
to get his m edication s.
In imposing Appellant’s sentence, the trial court found three enhancement
factors to be applicable, namely: (1) that Appellant had a prior history of criminal
convictions in addition to those necessary to establish the appropriate range,
Tenn. Code Ann. § 40-35-114(1); (2) that Appellant has a previous history of
unwillingness to comply with the conditions of a senten ce involving release in to
the comm unity, Ten n. Cod e Ann. § 40-35-114(8); and (3) that the present
offenses were committed while Appellant was on bail for a felony which he was
ultima tely convicted of, Tenn. Code An n. § 40-35-11 4(13)(A). Th e trial court
found no applicable mitigating factors. The trial court then sentenced Appellant
as a Range II offender to consecutive terms of three (3) years and six (6) months
for each offense. The trial court further ordered that the sentences run
cons ecutive ly to a prio r felony sente nce. A ppella nt now brings this ap peal,
challeng ing the len gth of his s entenc es imp osed b y the trial cou rt.
II.
This Court's review of the sentence imposed by the trial court is de novo
with a presumption of correctness. Tenn. Code Ann. § 40-35-401(d). T his
presumption is conditioned upon an affirmative showing in the record that the trial
judge considered the sentencing principles and all relevant facts and
circumstances. State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). If the trial
court fails to comply with the statutory directives, there is no presumption of
correctness and our review is de novo. State v. Poo le, 945 S.W.2d 93, 96 (Tenn.
1997).
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The burden is upon the appealing party to show that the sentenc e is
improper. Tenn . Code Ann. § 40-35-401(d) Sentencing Commission Comme nts;
State v. Gregory, 862 S.W.2d 574, 578 (Tenn . Crim. A pp. 199 3). In conducting
our review, we are required, pursuant to Tenn. Code Ann. § 40-35-210, to
consider the following factors in sentencing:
(1) [t]he eviden ce, if any, rec eived at the trial a nd the sentencing
hearing;
(2) [t]he pre senten ce repo rt;
(3) [t]he principles of sentencing and arguments as to sentencing
alternatives;
(4) [t]he nature and characteristics of the criminal conduct involved;
(5) [e]vidence and information offered by the parties on the
enhancement and mitigating factors in §§ 40-35-113 and 40-35-114;
and
(6) [a]ny statement the defendant wishes to make in the de fenda nt's
own behalf about sentencing.
Under the 1989 Sentencing Act, the presumptive sentence for a Class B,
C, D or E felony is the m inimu m with in the a pplica ble ran ge if no mitiga ting or
enhancement factors for sentencing are p resent. T enn. C ode An n. §
40-35-210 (c); State v. Fletcher, 805 S.W .2d 785, 788 (Tenn. Crim . App. 1991 ).
Howeve r, if such factors do exist, a trial court should start at the minimum
sentence, enhance the minimum sentence within the range for enhancement
factors and then reduce the sentence within the range for the mitigating factors.
Tenn. Code Ann. § 40-35-210(e). Where one or more enhancement factors
apply but no mitigating factors exist, the trial court may sentence above the
minimum sentence within the range. Tenn. Code Ann. § 40-35-210(d). No
particular weight for each factor is prescribed by the statute, as the weight given
to each factor is left to the disc retion of the trial court as long as its findings are
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suppo rted by the record. State v. Santiago, 914 S.W.2d 116, 125 (Tenn. Crim.
App. 1995); see Tenn. Code Ann. § 40-35-210 Sentencing Commission
Commen ts.
III.
Appellant contends that the trial court erred in failing to consider several
statutory mitigating factors. Although he does not challenge the applicability of
the enhance ment factors conside red by the trial court, 1 Appellant argues that had
the trial court properly applied the mitigating factors, he would have re ceived a
sentence closer to the minimum for each conviction.
A.
Appellant first conte nds th at the tria l court s hould have c onsid ered th at his
conduct neithe r caus ed no r threa tened seriou s bod ily injury. Tenn. Code Ann.
§ 40-35-113(1). H e claims that there is no evide nce in the record th at he was
impaired at the time he was driving nor that he threatened harm to any person.
Howeve r, Appe llant is an habitu al offender with a lengthy record of driving
offenses, including driving und er the influence of an intoxicant. This Court has
previously held,
[b]y mea ns of th e Mot or Ve hicle Habitual Offenders Act, the General
Asse mbly of Tennessee, as a matter of public policy, has
determined that certain drivers are such a threat that they should not
be allowed to operate a motor vehicle. Appellant is just such a
driver, and h is pres ence behin d the w heel, in and of itself,
constitutes a threat of serious bodily injury to other drivers.
State v. Michael Bellew, C.C.A. No. 02C01-9510-CC-00324, 1997 WL 81656 at
*2, Henry Co unty (Tenn . Crim. App. filed Fe bruary 27, 199 7, at Jackson ).
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Additionally, Appellant does not challenge the trial court’s imposition of consecutive sentences.
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The trial court did no t err in failing to apply this mitigating factor.
B.
Appellant next argues that the trial court should have considered that
Appellant was acting under strong provoc ation when the offenses we re
committed. Tenn . Code Ann. § 4 0-35-11 3(2). He claims that he “was facing a
medical emergency which could threaten his life and put him in to the h ospita l if
he did not obtain his medication.” Appellant claims that although he knew he
could not drive, his medication was vital to his he alth. However, he does not
explain why he did no t mak e prior arrangements to receive his medication.
Certainly , the medicine could have b een delivered, o r Appellant cou ld have
arranged for transportation to the drugstore before his health was endangered.
This would have been a m ore pruden t course o f condu ct, rather than c onsc iously
choosing to drive a car and knowingly violate the law. There was not sufficient
provocation to mitigate Appellant’s sentence under Tenn. Code Ann. § 40-35-
113(2).
C.
Appellant further contends that his “medical emergency” constituted a
substantial reason excusing or justifying his behavior under Tenn. Code Ann. §
40-35-113 (3). However, as we have previously stated, Appellant had other, legal
options for receiving his medication before his circumstances became critical.
This mitigating factor is not applicable.
D.
Appellant asserts that by d riving his car to get his required medication, he
was motivated by a desire to provide necessities for himself, Tenn. Code Ann. §
40-35-113 (7). However, this factor “is more properly addressed to individuals
who, beca use o f their de stitution , may c hoos e to ste al brea d or m ilk for the ir
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children or themselves due to their dire circumsta nces.” State v. Martie Lane
Williamson, C.C.A. No. 03C01-9210-CR-00371, 1993 WL 335433 at *2, Knox
Coun ty (Tenn. Crim. App. filed September 1, 19 93, at K noxville ). Thu s, this
factor is inapplicable.
E.
Finally, Appellant insists th at bec ause he is in c onsta nt pain due to his
health proble ms a nd he drove his vehicle to get medications to alleviate his pain,
the trial court should have found that he acted under duress at the time the
offenses were committed. Tenn. Code Ann. § 40-35-113(12). Duress has been
defined by courts of this state as a “threat of ‘such a character as to overcome
the mind and w ill and d estroy the free agen cy of a p erson of ordin ary firm ness .’”
State v. Jerry Taylor, C.C.A. No. 0 1C01-9 612-CC-00499, 1998 WL 424570 at
*11, Williamson County (Tenn. Crim. App. filed July 29, 1998, at Nashville)
(quoting Johnson v. Roland, 61 Tenn. (2 Baxt.) 203, 206 (1872)). Once again,
Appellant had oth er legal m eans fo r obtaining his med ication prio r to the onset
of the pain for which he is com plaining. A lthough this Cou rt sympa thizes with
Appe llant’s medical difficulties, we do not find Appellant’s pain to be within the
meaning of “duress” as contemplated by Tenn. Code Ann. § 40-35 -113( 12). T his
factor is inapplicable.
F.
Finally, this Court notes that Appellant has an extensive history of criminal
convictions. Appellant, in his brief, acknowledges that he has over 48
misdemeanor convictions and arre sts in Tennessee. In addition, Appellant has
enough felony convictions to qualify as a Range II offender. Moreover, the
present offenses were committed while Appellant was on bail for another felony
offense for whic h he w as ultim ately co nvicted . Appe llant insists tha t his
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sentences should b e reduc ed due to his spe cial circum stance s, i.e., his nee d to
receive the required medication as a result of his numerous illnesses. However,
even if this Court were to find Appellant’s proposed mitigating factors to be
applicable, those factors would be greatly outwe ighed by the a pplica ble
enhancement factors.
Furtherm ore, Appellant’s prior criminal record indicates that he has a
sustained intent to violate the law. As such, his criminal record negates
Appe llant’s assertion that he violated the law only as a matter of medical
emerge ncy.
W e , therefore, conclud e that the tria l court imp osed a n appro priate
sentence of three (3) years an d six (6) months for each offense of violating the
HMVO Act. Accordingly, the judgment of the trial court is affirmed.
____________________________________
JERRY L. SMITH, JUDGE
CONCUR:
___________________________________
DAVID G. HAYES, JUDGE
___________________________________
JAMES CURWOOD WITT, JR., JUDGE
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