IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
JULY SESSION, 1997 October 28, 1997
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9610-CC-00381
)
Appellee, )
)
) COCKE COUNTY
VS. )
) HON. WILLIAM R. HOLT, JR.
TERESA FITHIAM, ) JUDGE
)
Appe llant. ) (DUI & Child En dange rment)
ON APPEAL FROM THE JUDGMENT OF THE
CIRCUIT COURT OF COCKE COUN TY
FOR THE APPELLANT: FOR THE APPELLEE:
SUSANNA L. THOMAS JOHN KNOX WALKUP
Assistant Public Defender Attorney General and Reporter
102 Mims Avenue
Newport, TN 37821 MARVIN E. CLEMENTS, JR.
Assistant Attorney General
425 5th Avenu e North
Nashville, TN 37243
AL SCHUMTZER, JR.
District Attorney General
JAMES B. DUNN
Assistant District Attorney General
339A East Main Street
Newport, TN 37821
OPINION FILED ________________________
APPEAL DISMISSED; JUDGMENT AFFIRMED
DAVID H. WELLES, JUDGE
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OPINION
This is a direct appeal from a guilty plea pursuant to Rule 37(b)(2)(ii) of the
Tennessee Rules o f Criminal Procedure. Pursuant to a plea agreement, the
Defendant plead ed gu ilty to one coun t of DU I and o ne co unt of c hild
endan germe nt. 1 Both o ffense s are C lass A misdemeanors. As part of the
agreem ent, she was sentenced to a forty-eight (48) hour mandatory incarceration
plus eleven (11) months and twenty-seven (27) days of probation for the DUI
conviction and a m andato ry thirty (30) day incarceration plus ten (10) months and
twenty-nine (29) days of probation for the child endangerment conviction. Also,
the Defen dant res erved the right to app eal the “leg ality” of her se ntence . In this
appe al, she arg ues tha t the statute imposing a mandatory thirty-day incarceration
period for child endangerment is unconstitutional as cruel and unusual
punishment violative of the Eighth and Fourteenth Amendments to the United
States Constitu tion. W e dismiss the appeal and affirm the judgment of the trial
court.
On October 13, 1995, the Defendant, Teresa Fithiam, was arrested after
she lost control of the vehicle she was d riving no rthbou nd on Highw ay 321 in
Cocke County. The car left the roadway and overturned. Two of her four
children, ages 23 months and 11 months, were in the vehicle and received minor
injuries. Only th e youn ger ch ild was restrain ed. The Defendant suffered head
1
Tenn. Code Ann. §§ 55-10-401, -414.
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injuries for which she w as hospitalized fo r three days. A blood alcohol test
measured the Defendant’s blood alcohol level at .13%.
The Defen dant testified at the guilty plea hearing that she came home from
work, had two or three beers, cooked dinner and bathed the children. Her
husband, who had been drinking all day, became abusive and she left with the
children. It is uncle ar whe ther he r husb and w as ch asing her in the car, but he
was p resen t after the accide nt and transp orted th e child ren to th e hos pital.
The Defendant was indicted on one coun t of DU I and tw o cou nts of c hild
endan germe nt. She entered into a plea agreement with the district attorney for
the minimum man datory sente nce fo r DUI o f forty-eig ht hou rs in confinement and
the minimum manda tory sentence fo r child endang erment of thirty days
incarceration. The remainder of each sentence was to be suspended and the
Defendant placed on probation. The Defendant was also required to pay the
minimum $350 fine for the DUI conviction and the minimum $1000 imposed for
the child endangerment conviction. The plea agreement and the transcript of the
guilty plea hearing reflect that the State agreed that the Defendant “reserves right
to appeal legality of sentence and merger of counts of child endangerment.” The
judgment forms d o not m ention a re servation of a review of the sentence in an
appe al, however, in an order on May 16, 1996, the trial court approved the plea
agreement reach ed by th e partie s. At the hearin g on th e guilty plea, the trial
court dismissed the second count of child endangerment, finding that it merged
into the first count as one offense for both children. The Defendant requested
work release, which the trial court denied because o f the man datory
incarceration. The trial court did not rule on the legality or constitutionality of the
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thirty-day incarceration mandated by Tennessee Code Annotated section 55-10-
414.
The Defen dant arg ues tha t the manda tory incarceration required by section
55-10-414 unconstitutionally denied her the granting of work release. We note
initially that the Defendant has not properly reserved the issue for the purposes
of this appeal. The notice of appeal reflects that the issue is being appealed
pursuant to Rule 37(b)(2)(ii) of the Tenn essee R ules of Crimina l Procedure which
states in pertinen t part that: “An appeal lies . . . from any judgment of conviction:
(2) upon a plea of guilty or nolo conten dere if: (ii) defendant seeks review of the
sentence set and there was no plea agreement under Rule 11(e).” (em phas is
added). A guilty p lea co nstitute s a wa iver of all nonjurisdictional and procedural
defects or constitu tional infirmitie s, State v. Bilbrey, 816 S.W.2d 71, 75 (Tenn.
Crim. App. 1991), and Rule 37 provides limited exceptions for an appeal following
a guilty plea . State v. Pendergrass, 937 S.W .2d 834 , 837 (T enn. 19 96).
Here, although the Defendant purported to reserve review of her sentence
as reflected in the plea a greem ent and the hea ring transc ript, the reco rd reflects
that the Defendant entered into a neg otiated ple a agree ment th at com ports with
Rule 11(e). The particular posture in which this case has been presented does
not fit squarely within any of the enumerated exceptions under Rule 37. The
record reflects that a plea agreement was reached and thus, the Defendant has
waived appellate review of her sentence because she has not met the
requirem ents of Rule 37 (b)(2)(ii). See State v. McKissack, 917 S.W.2d 714, 716
(Tenn. Crim. A pp. 199 5). In order to obtain appellate review of her sentence, the
Defendant could ha ve chos en to plea d guilty witho ut a negotiated agreement and
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left sente ncing to the trial court and pursued the issue in a direct appeal under
Rule 3.
The judgment entered reflects that the trial judge accepted and approved
the reco mm ended senten ce. The trial court did n ot rule on th e cons titutionality
of the mandatory sentence because the issue was not presented. There is no
procedural vehicle under Rule 37 for a hybrid plea agreement that reserves a
portion of the sentence purportedly not agree d to for a ppella te revie w. Th ere is
no right to appeal from an agre ed sen tence. McKissack, Id. Therefore, because
it is not properly before us, we believe this appeal should be dismissed.
In consideration of the foregoing, even if th e Def enda nt had prope rly
reserved the issue for appeal, we would conclude that it is without merit. The
Defendant contends that the mandatory thirty-da y sente nce u ncon stitution ally
deprives her of probation or the possibility of work release in her case. She
argues that it is cruel and unusual punishment violative of the Eighth and
Fourtee nth Ame ndme nts to the U nited Sta tes Con stitution. The Eighth
Amendment applied to the states thro ugh the Fourtee nth Ame ndme nt prohibits
cruel and unusual punishment and requires that the punishment imposed must
be proportioned to the severity of the offens e in the ca pital case context. See
State v. Harris , 844 S.W .2d 601 , 602 (Tenn. 1992)(citing Weems v. United
States, 217 U .S. 349, 3 67, 30 S .Ct. 544, 549, 54 L .Ed. 836 (1910)). Y et,
“[r]eviewing courts sh ould gra nt substantial defe rence to the broa d autho rity
legislatures possess in determining punishments for particular crimes, ‘[o]utside
the context of capital punishm ent, successful challeng es to the proportionality of
particular sentences [will be] exceedingly rare.’” Harris , 844 S.W.2d at 602
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(quoting Solem v. Helm, 463 U.S. 277, 289-90, 103 S.Ct. 3001, 3009, 77 L.Ed.2d
637, 649 (1983)) (emphasis in original). The mandatory nature of a sentence,
even if it appears to be cruel, is not otherwise unusual and does not ren der it
violative of the Eigh th Ame ndme nt. Harmelin v. Michigan, 501 U .S. 991, 996,
111 S. Ct. 2680, 2701, 115 L.Ed.2d 836 (1991)(life without parole for conviction
for possessing 672 grams of cocaine constitutional); State v. Hinsley, 627 S.W.2d
351, 355 (Ten n. 1982)( sentencing provisions of the habitual drug offender act
constitutional); State v. Dann y Lee Holder, C.C.A. 01C01-9501-CC-00015,
Linco ln County (Tenn. Crim. App., Nashville, Mar. 22, 1996) (mandatory service
of the entire sentence for defend ants convicted of rape of a child constitutional).
Nor does the mandatory sentence violate the more expansive application
to non-capital sen tencing by our supreme court of Article I, Section 16 of the
Tennessee Constitu tion. If we con sider the m andato ry senten ce und er the state
constitution, this require s that the s entenc e initially be co mpare d to the crime
committed. Harris , 844 S.W.2d at 603. “Unless this threshold comparison leads
to an inference of gros s dispr oportio nality, the inquiry e nds--t he se ntenc e is
constitution al.” Id. However, in the few cases when the inference arises, we
must compare the sentence as applied to other criminals in the jurisdiction, and
sentences for the s ame crime in other ju risdictions. Id. Here, we cannot
conclude that the im position of a mandato ry thirty-d ay sen tence is
disprop ortionate to the crime o n its face. Obviously, the general assembly has
determined that the seriousness of the offense of driving while under the
influence with children in the vehicle warran ts a more se vere punishment. The
legislature has also graded the offense with reference to more serious
consequences to a child, i.e. serious bodily injury and death. Tenn. Code Ann.
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§ 55-10-4 14(2), (3). The legislature has bro ad powe r to determine th e nature
and length of punishments for crimes and we shou ld gene rally defer to its
authority.
The appeal is dismissed and the judgment of the trial court is affirmed.
____________________________________
DAVID H. WELLES, JUDGE
CONCUR:
___________________________________
THOMAS T. WOODALL, JUDGE
___________________________________
JOHN K. BYERS, SENIOR JUDGE
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