Advocacy In DUI Cases – 4

The defendant, Kelly Lewis, asserts that the trial judge should have placed him on judicial diversion pursuant to T.C.A. §40-35-313 on the conviction for Simple Possession of Marijuana. The defense does not raise the issue of judicial diversion with respect to the convictions for evading arrest or reckless endangerment.The granting of judicial diversion rests within the discretion of the trial court. State v. Beverly, 894 S.W. 2d 292, 293 (Tenn. Crim. App. 1994). The trial judge’s discretion is subject only to the same constraints applicable to prosecutors in applying pre-trial diversion. State v. Anderson, 857 S.W. 2d 571, 572 (Tenn. Crim. App. 1992). For this Court to find that the trial judge abused his or her discretion in refusing to grant judicial diversion, this Court must find that there exists no substantial evidence to support the denial of judicial diversion. When reviewing a request for judicial diversion, this Court will utilize the same factors as used by the district attorney when considering pre-trial diversion. State v. Bonestell, 871 S.W. 2d, 163, 168 (Tenn. Crim. App. 1993). See also State v. George, 830 S.W. 2d 79, 80 (Tenn. Crim. App. 1992). It is apparent that the trial judge denied diversion because of the defendant’s failure to “accept responsibility” for this offense. As noted in the above cases, judicial diversion utilizes the same standards as pre-trial diversion. With respect to pre-trial diversion, this Court has held that “an admission of guilt is not a valid prerequisite to the granting of pre-trial diversion.” State v. Anderson, 645 S.W. 2d 251, 253 (Tenn. Crim. App. 1982). In State v. Maynard, Tenn Crim. App. at Nashville filed February 24, 1994 (unpublished), Judge Peay found that “it would be deceitful and thereby unworthy of diversion to admit to a crime and claim that you have been rehabilitated when you did not commit the crime in the first place.” Slip Opinion, at page 3.

The judicial diversion statute does not require that one plead guilty to the crime to be considered for this program. T.C.A. §40-35-313 provides, in part, that a person may be placed on judicial diversion if the person is “found guilty or pleads guilty.” Obviously, this statute contemplates relief where a jury finds a person guilty of a crime even though they may have pled not guilty to the offense.The fact that Kelly Lewis did not “accept responsibility” for the simple possession of marijuana does not preclude judicial diversion. At trial, he testified that he did not know that the film canister contained any marijuana. He stated that he had purchased some photography equipment and a camera bag at a pawn shop in Nashville. The film canisters were among those items contained in the camera equipment. (A. 386-387). The record also reflects that Kelly Lewis advised the judge that he had smoked marijuana in two occasions back when he was in college. (A. 387). Most significantly, the record is undisputed that the amount of marijuana was 0.5 grams which is one-half of a gram. (A. 212).Simple Possession of Marijuana is defined under T.C.A. §39-17-418 and does not contain any limit on the amount of marijuana provided it is not otherwise sold, distributed or exchanged. T.C.A. §39-17-418 provides that even the distribution of 14.175 grams of marijuana is a misdemeanor. The amount of marijuana involved in this case is one-half of a gram which is 1/56th of an ounce.The defendant, Kelly Lewis, asserts that the simple possession of this tiny amount of marijuana should not subject him to a conviction which he will have to carry around for the rest of his life! The trial judge abused her discretion in failing to place him in judicial diversion for this offense so that, upon successful completion of probation, he would be eligible to have this conviction expunged. Accordingly, this Court should direct that, on remand, the trial judge should place him on judicial diversion for the offense of simple possession of marijuana.

Also with respect to the conviction for simple possession of marijuana, the defendant, Kelly Lewis, asserts that the trial court imposed an excessive fine in the amount of $2,000.00 against him. The mandatory minimum fine for simple possession of marijuana is $250.00 pursuant to T.C.A. §39-17-428(b)(1). This Court should reduce the amount of fine to that amount. The standard of review as to the fine issue is different from that regarding judicial diversion discussed above. In State v. Bryant, 805 S.W. 2d 762 (Tenn. 1991), the Court found that a fine is as much of a “sentence” as confinement and therefore the normal standard of appellate review would apply. According to T.C.A. §40-35-401(b), this Court may determine whether the sentence is excessive. This review is de novo with a presumption that the determination made by the trial court was correct. T.C.A. §40-35-401(d).

With respect to the amount of fines, the trial judge simply “adopted” the fine imposed by the jury. (A. 631). This represents a fundamental misunderstanding of how fines are assessed. T.C.A. §40-35-301(b) provides that the jury initially fixes the fine if it is in excess of $50.00. However, when imposing sentence, after the sentencing hearing, the court shall impose a fine, if any, not to exceed the fine fixed by the jury.

Obviously, under our current sentencing scheme, the jury’s “fine” sets the outer limits within which the judge is to set the actual fine. In Bryant, the Court observed that, when the fine is imposed, the trial judge, unlike the jury, knows more about the facts of the case, and considers the mitigating and aggravating circumstances and other matters relevant to an appropriate sentence. (805 S.W. 2d at 766). Further, “at that stage, an informed judgment can be made as to the sentence, including the amount of fine, confinement or any other sentencing alternative offered by the Reform Act.” Id.

Quite simply, the trial judge determines the appropriate amount of fine just like the trial judge determines the appropriate number of days, months or years that a defendant is supposed to serve. This is based on the sentencing considerations, as well as aggravating and mitigating circumstances present in the sentencing statutes. To say that a trial judge will just simply “adopt” the fine assessed by the jury means that the judge abdicates his or her role in making a sentencing determination. As has been noted, the judge found that Kelly Lewis demonstrated a host of mitigating factors and no ..

ANOTHER SENTENCING BRIEF

ARGUMENT

THE TRIAL COURT ERRONEOUSLY RELIED UPON INAPPROPRIATE ENHANCEMENT FACTORS AND THUS THE SENTENCE OF TWELVE YEARS IS EXCESSIVE.

There is no dispute as to the facts here. Mr. Daniel was driving down the road in his truck. He was intoxicated. The test results established that his blood-alcohol level was 0.18%.

Mr. Daniel’s vehicle collided head-on with the vehicle occupied by the victims’. All three of them had been drinking themselves. Mr. Smith registered 0.09%. (Exhibit 16 C). Mr. Lucas registered 0.047%. (Exhibit 16 B). The driver of the car, Mr. Ones Polk registered 0.083%. (Exhibit 16 A). The defendant’s vehicle “veered” into the lane occupied by the victims’ car as opposed to having traveled in the lane for a long period of time. (Testimony of Mr. Chris Polk, Vol. IV, page 7, lines 17-21). The probation report appears in the record as Exhibit 14 A. This document reflects that Mr. Daniel was born on February 10, 1959. Mr. Daniel graduated from high school and completed Nashville Tech. He had attended Tennessee Tech as well.

Mr. Daniel has been gainfully employed for 20 years. He worked for Nissan for 13 years and prior to that was with Aladdin Industries for seven years. Mr. Daniel has a wife, Marquinta, and two young children. In addition to a mother and father, who are both living, he has five siblings. Mr. Daniel expressed remorse in the pre-sentence report when in testifying in open court. (Vol. IV, pages 90-92). The record reflects that Mr. Daniel had no prior felony arrests or convictions. He had been arrested for driving under the influence six years earlier in 1991. (Vol. III, page 35). The conviction document was introduced as Exhibit 15 in the record.

The defense does not contend that Mr. Daniel should be granted probation or even split-confinement. Where multiple victims are killed or injured, probation is inappropriate. See , State v. Housewright, 982 S.W.2d 354 (Tenn. Crim. App. 1997) (multiple victims were involved and three of those persons were thrown from their vehicle). While the defense does not contest the issue of incarceration, it is the length of that incarceration which is at issue in this appeal. Pursuant to T.C.A. §40-35-401 (b) the defendant asserts that the sentence was not imposed in accordance with the sentencing statute and the enhancement and mitigating factors were not weighed properly and thus the sentence is excessive.

In this case the trial judge relied upon three factors in imposing the absolute maximum sentence of 12 years. The trial judge relied upon T.C.A. §40-35-114, factor (1) dealing with a “previous history of criminal convictions”, factor (3) that the offense involved “more than one victim,” and factor (10) that the defendant “has no hesitation about committing a crime when the risk to human life was high.”Taking these in reverse order, it is apparent that the judge erroneously imposed the “high risk” enhancement factor. The judge said that factor (10) applied because the crime was drinking and then driving and that it was a dangerous thing to do. Clearly these “facts” upon which this judge relied were inherent in the offense itself and could not be used to further enhance the sentence.The prosecutor argued that factor (10) applied because of the “risk” to the people in the vehicle adjacent to the victims’ automobile, citing State v. Bingham, 910 S.W.2d. 448 (Tenn. Crim. App. 1995). See Vol. IV, page 102.

In Bingham the defendant was driving the wrong way on a four lane divided highway for over 30 minutes at speeds of up to 100 mph. In light of the significant danger to other motorists coming in the other direction for this extended period of time, the Court found that factor (10) would apply. Bingham cited State v. Lambert, 741 S.W.2d 127 (Tenn. Crim. App. 1987) where the defendant recklessly drove through streets and sidewalks crowded with people prior to striking the victims who were actually killed. While there might be some loose language in cases suggesting that virtually any risk to third persons is sufficient, Lambert and Bingham are illustrative of the serious risk which must be present before this factor can apply. Indeed, one need go no further than the language of the enhancement factor itself to see that it requires not only a risk to human life but that that risk be “high.” Driving through a number of pedestrians in a crowded street and sidewalk is clearly the type of thing contemplated by this enhancement factor. Driving for 30 minutes on the wrong side of a divided highway at speeds up to 100 mph clearly places oncoming traffic at a high risk of death of significant injury. Were those factors present here?The only testimony concerning enhancement factor (10) was that of Mr. Chris Polk who was in the vehicle adjacent to that of the victims at the time of the collision. Essentially he and the victims were driving next to one another when the defendant’s vehicle suddenly veered into the lane of traffic occupied by the victims striking their car head-on. Since the State here will undoubtedly seize upon this morsel of proof as justification for the enhancement factor Mr. Polk’s direct testimony is reproduced in full:

Q. We are talking about the collision that happened on November 23rd, 1997; do you remember that?

A. Yes.

Q. Can you tell Judge Clement what you remember as being a witness to this crash?

A. Okay. We were traveling down Donelson Pike and they were actually behind me when we started down Donelson Pike. Then, when they realized where they were, they pulled up beside me. We were going down a two-lane. As they got beside me, I left my window down to wave to tell them I would see them later. As soon as that happened, a truck veered in their lane. It kind of scared me and I turned, but I saw the truck hit the Volkswagen.

Q. So the truck that struck the Volkswagon, they were in the left-hand lane; is that correct?

A. Right.

Q. And the truck was in their lane and hit them head on?

A. Yes.

Q. You said that you had to swerve?

A. Right. It just startled me because all of a sudden, you know, I just saw the truck. It wasn’t like it was there for awhile or anything like that, just all of a sudden it was there.

Q. But fortunately you weren’t injured?

A. No, sir.

Q. Please tell Judge Clement about your relationship or your friendship with Mr. Smith, Mr. Polk, and Mr. Lucas; how you knew them and what you knew about them?

A. Actually I had met them that night. I played cards with Tavio and Ones most of the night, so I had known them for maybe about four hours. They talked a lot about the things that they liked. Tavio talked about his kids back at his school. Ones talked about when he got his law degree going overseas to help the unfortunate. It was kind of just a – I told them I was getting married next year. We had made plans to get back together and play a little basketball and some different things. It was like you meet somebody and you like them. We kind of developed a friendship the time that we were there together.

Q. So it was almost an instantaneous relationship?

A. Yes, sir.

GENERAL RYAN: That is all, Your Honor. (Vol. IV, pp. 4-6).

It is apparent from this testimony that Mr. Pope was adjacent to or just ahead of the victims’ car when the victims’ vehicle was struck. There is no proof that his car was in any significant danger of being hit. Certainly he “swerved” but all of the testimony is to the effect that the defendant simply entered into the victims’ lane momentarily and there was a crash. The facts here are nothing like those in the reported decisions cited above where the enhancement factor was appropriately applied. The brief invasion of the victims’ lane of traffic did not cause a “high risk” to anybody else for any significant time. Simple physics tells us that. Although the State below cited Bingham and argued for the full application of this factor, the trial judge made absolutely no finding that the State’s argument was persuasive in any way. Rather, the judge simply discussed the dangers of drinking and driving and relied upon these facts in imposing the maximum sentence. Here, the judge was clearly in error. First, there are no factual findings supporting the application of the enhancement factor and, in any event, there is no proof that this enhancement factor is even applicable here. Accordingly, the trial judge should not have used this factor to impose to the maximum sentence. The trial judge also found that the maximum sentence was appropriate because the “crime involved more than one victim.” Here the three victims were all killed and there was a conviction for each offense. It is elementary that enhancement factor (3) cannot apply where there are separate convictions for the several victims. State v. Lambert, 741 S.W.2d 127 (Tenn. Crim. App. 1987), and State v. Williamson, 919 S.W.2d 69, 82 (Tenn. Crim. App. 1995). Thus, the second of the three factors is not proper.Lastly, the trial judge relied upon Mr. Daniel’s prior conviction for DUI:

“That very much works against Mr. Daniel. As the old saying goes, we build our own record. For Mr. Daniel, while I am very pleased to say, the only spot on his record, prior to that day, is one thing and that is very important for him. It was a very serious spot because it dealt with drinking and driving under the influence, which is what all this is about (Vol. IV, pp. 115-116).”

There is no question but that a prior conviction for DUI occurring six years before this offense should be considered in the balance. However, the defense asserts that the trial judge was not justified in imposing the maximum sentence based on this prior misdemeanor conviction. In short, the weight given to this factor was grossly out of proportion. T.C.A. §40-35-210 (c) provides that the presumptive minimum sentence must be imposed in the absence of enhancement or mitigating factors. Essentially a judge increases the sentence based on the number and severity of the enhancement factors. Admittedly this sentencing process is somewhat subjective but the weight to be accorded the enhancement factors must bear some rational relationship to the sentence imposed. While the prior conviction here did involve drinking and driving it was, after all, a misdemeanor occurring six years before this offense.

Undoubtedly, this Court should give some weight to the prior misdemeanor conviction. However, it is also clear that two of the three enhancement factors which this judge utilized were not proper. Thus it would require a great deal of speculation to conclude that the trial judge here would or should have imposed the same maximum sentence had he relied upon the one remaining valid factor. A remand is unnecessary. This Court can correct the problem very easily by reducing the length of the sentence to that appropriate for the crime considering that there is but a single enhancement factor: the six-year-old misdemeanor. In this case the defense concedes that probation is inappropriate. Even if this Court were to reduce the sentence to the statutory minimum of eight years probation should be denied “to avoid depreciating the seriousness of the offense.” T.C.A. §40-35-103 (1) (B). That there should be confinement is not the issue. Rather, it is the length of that confinement which is contested in this appeal.As demonstrated, the maximum sentence of twelve years was improper under the guidelines. Yet, how does one account for the tragic loss of three lives? The answer to this question is in the parole statutes enacted as part of the Criminal Sentencing Reform Act of 1989. T.C.A. §40-35-503 (b) provides that the parole board may deny parole if the “release from custody at the time would depreciate the seriousness of the crime of which the defendant stands convicted.” The parole board will deny his parole based on this factor alone. It requires no speculation to come to the conclusion that Mr. Daniel will have to serve his full sentence. The fact that there are three deaths here is exactly the type of circumstance that our sentencing statutes were designed to cover but not with respect to the length of that sentence under the facts here but rather, whether Mr. Daniel should be serving a sentence in confinement (he should) and whether he should ever be released on parole (he will not).

The same factors which prohibit probation also prohibit parole. But, as noted, these are separate questions from the appropriate length of the sentence. In this case the judge relied upon three factors to impose the maximum sentence. Two of those factors cannot apply a matter of law. The remaining factor – the prior DUI conviction – is inadequate to justify the maximum sentence. Here, the sentence “spread” was from eight to twelve years. By imposing the maximum twelve-year sentence this judge, in effect, increased the presumptive minimum sentence length by 50% based on a single prior misdemeanor conviction! This was wrong and was in violation of our sentencing scheme. Accordingly, this Court should reduce the length of the sentence to the statutory minimum or perhaps as much as nine years.

CONCLUSION

Our sentencing statutes have recently been amended to increase the punishment for vehicular homicide by intoxication from three to six years, to eight to twelve years. Mr. Daniel fell within the new statutory increase. While it is within the discretion of the Legislature to set the new sentencing span the Legislature also set forth criteria for how the sentence was to be imposed within that span. This judge applied inappropriate criteria. This Court should remedy that judgment and give but limited value to the remaining valid enhancement factor. Accordingly, this Court should reduce the sentence to not more than nine years …

SAMPLE SENTENCING MEMORANDUM

IN THE CIRCUIT COURT OF DAVIDSON COUNTY, TENNESSEE

STATE OF TENNESSEE ] ]

vs. ] Case No. 99-T-77

JIMMY RAY SIMMONS ]

SENTENCING MEMORANDUM

Mr. Jimmy Ray Simmons is before the Court for sentencing upon his guilty plea to two counts of criminally negligent homicide. The plea agreement contemplates that this Court has full discretion to impose any sentence within the statutory limits. Mr. Simmons is to be sentenced within Range I given that he has no prior convictions of any sort that would trigger sentencing into higher ranges. A Range I sentence for criminally negligent homicide is between one and two years. While this Court has authority to impose incarceration, the relevant statutory guidelines, as well as the unusual facts and circumstances of this case, justify a finding that Mr. Simmons should be placed on probation supervision under such terms and conditions as this Court believes to be appropriate.

There should be few, if any, factual disputes in this case. Mr. Jimmy Ray Simmons was employed by McDonald Transit Associates that provides drivers for the buses operated by the Metropolitan Transit Authority. On August 31, 1998, Mr. Simmons was driving a bus that went through a red light at 14^th and Broadway and also went through a red light at 13^th and Broadway. The bus initially collided with at least one vehicle and then veered into a lane of oncoming traffic. The bus rode over a Volkswagen, killing two of the occupants and injuring a third. Other vehicles sustained significant damage. Approximately eleven other people were hurt including individuals on the bus as well as one or more people in other vehicles.

It is also undisputed that Mr. Simmons is a diabetic. The defense will demonstrate through medical testimony that Mr. Simmons was suffering from hypoglycemia at the time of this event. Hypoglycemia (or low blood sugar) can produce various symptoms such as faintness, dizziness, and blurred vision. Obviously, this can affect driving performance by decreasing accurate perception.

The defense asserts two factors in mitigation. T.C.A. §40-35-113(8) provides that it is a mitigating factor that the “defendant, although guilty of the crime, was suffering from a mental or physical condition that significantly reduced his culpability for the offense.”

T.C.A. §40-35-113(11) provides in part that it is a mitigating factor that the “defendant, although guilty of the crime, committed the offense under such unusual circumstances, that it is unlikely that a sustained intent to violate the law motivated his conduct.”

The defense asserts that both of these factors are present here. Thus, this Court should exercise its discretion by sentencing Mr. Simmons to probation supervision. Mr. Simmons should not be incarcerated.

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