State v. Leonard Prater

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE FILED SEPTEMBE R SESSION, 1998 February 16, 1999

Cecil W. Crowson Appellate Court Clerk STATE OF TENNESSEE, ) C.C.A. NO. 01C01-9710-CC-00499 ) Appellee, ) ) COFFEE COUNTY V. ) ) HON . GER ALD L. E WEL L, SR., ) JUDGE LEO NARD HUS TON PRAT ER, JR ., ) ) Appe llant. ) (DUI, THIR D OFF ENSE )

FOR THE APPELLANT: FOR THE APPELLEE:

DOYLE E. RICHARDSON JOHN KNOX WALKUP 128 W. Lincoln Street, Ste. B Attorney General & Reporter Tullahoma, TN 37388 DARYL J. BRAND Assistant Attorney General 2nd Floor, Cordell Hull Building 425 Fifth Avenue North Nashville, TN 37243

MICHAEL LAYNE District Attorney General

STEP HEN E . WEITZ MAN Assistant District Attorney General P.O. Box 147 Manchester, TN 37355

OPINION FILED ________________________

AFFIRMED

THOMAS T. WOODALL, JUDGE

OPINION

The Defendant, Leonard Huston Prate r, appe als as o f right his conviction of third offense DUI following a jury trial in the Coffee County Circuit Court. The trial court sentenced him to eleven (11) months and twenty-nine (29) days, suspended after 180 days, suspended his driver’s licen se for te n (10) y ears, a nd fine d him $5,000. The trial court also ordered the conditional forfeiture of Defendant’s vehicle. In this appeal, Defendant raises the following four (4) issues:

1. Whether Defendant’s rights against double jeopardy were violated;

2. Wh ether D efenda nt was properly convicted o f third offense DUI;

3. Wh ether the trial court committed sentencing errors; and

4. Whether the trial court erred in ordering the conditional forfeiture of D efenda nt’s vehicle .

After a careful review of the record, the judgment of the trial court is affirmed.

On September 9, 1996, Investigato r William Marco m of the Coffee C ounty Sher iff’s Office was driving home on Highway 53 when a pickup truck crossed the center line into his path, “nearly strikin g the veh icle in front of [h im].” Acco rding to Marcom , he was then forced to swerve onto the rig ht shou lder to avoid a collision. Investigator Marcom made a U-turn, followed the pickup , and th en turn ed on his dashboa rd blue light and his blue stro be ligh ts in the grill to ale rt the dr iver to pu ll over. Th e driver of the pickup tru ck was Defen dant.

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In asking Defendant for his driver’s license, Marcom noticed the odor of alcohol coming from inside the vehicle. Investigator Marcom said that he asked Defendant how much he had had to drink that evening and Defendant responded “about six beers.” When Defendant got out of his truck, Marcom observed Defendant to be unsteady on his feet. He also noticed that Defendant’s speech was slurred and that his eyes were bloodshot. Marcom administered one field s obriety test, the alphabet test. Defendant was not able to correctly complete the test as he missed about every fourth letter a nd then finally had to s top at the le tter “P.” Investigator Marco m radio ed for De puty Lee Nettles to a ssist in the a rrest. Dep uty Nettles also n oticed that D efend ant wa s uns teady on his feet. Nettles testified that at one p oint he ha d to grab Defen dant’s arm to preven t him from falling over.

Once they arrived at the Coffee County Jail, Officer Lisa Brazier “booked” Defen dant. She testified that Defendant fit the description of someone who was under the influence of alcohol. Sergeant Rodney Banks then spoke with Defendant about taking a breath a lcohol tes t, and De fendan t subseq uently ag reed to ta ke it. Sergeant Banks conducted the breath alcohol test using the Intoximeter 3000 mach ine. The report sh owed D efenda nt’s breath alcohol lev el to be .21 percen t.

Defendant testified that prior to September 9, 1996, he had been in the midst of a divorce tha t he didn’t w ant. He sa id that it h ad be en a ve ry difficult tim e in his life, and that at times he was “b ezerk.” D efenda nt testified tha t he had been a t a friend’s house, Floyd Edsel Jones, on September 9, 1996, to watch Monday Night Footb all. He testified that he had a few drinks of George Dickel whiskey and that Edsel had a lso be en drin king fro m the sam e bottle of Ge orge D ickel. He als o said that he had eaten some chips and dip that night at Edsel’s house, however, Edsel

-3-testified that no chips or dip had been served that night. Defendant testified that when he left Edsel’s house that the liquor bottle was a bout ha lf full. Accordin g to Defen dant, he did not feel under the influence of alcohol when he left Edsel’s house. Edsel also te stified th at De fenda nt did not app ear to be dru nk wh en he left Eds el’s house. Defendant testified that the road surface was uneven which cause d him to stum ble following th e depu ty’s stop. Defendant also testified that the straw used for the breath alcohol test fell on the floor and that it could have affected the accuracy of the test results. However, Sergeant Banks denied that the straw fell on the floor and said that even as suming tha t it had, that he would h ave obtained a new straw before administering the test to Defendant. Defendant had previously been convicted of two DUI’s, the first on November 29, 1988, in Warren County and the second o n March 6 , 1989, in Coffee County.

As a result of the incident on September 9, 1996, Defendant was indicted by the Coffee County Grand jury in March 1997 on two counts of DUI. The first count alleged a violation of Tenn. Code Ann. § 55-10-401(a)(2), driving with a blood or breath alcohol level at or above 0.10 percent. The second count alleged a violation of Tenn. Code Ann. § 55-10-401(a)(1), driving while under the influen ce of intoxic ant. Following a jury trial, Defendant was found guilty of both counts. During the second phase of the trial, the jury found that it was Defendant’s third DUI offense and set the fine at $5,000. At the sentencing hearing, the trial court sentenced Defendant on only one count to wit: driving with a blood or breath alcohol level at or above 0.10 percen t. The cou rt sentenced him to eleven (1 1) months and twenty-nine (29) days in prison, suspended after 180 days. The court also suspended his license for ten (10) years, ordered Defendant to pay the $5,000 fine as set by the jury, and ordered the condition al forfeiture of Defendant’s vehicle. Following the court’s denial of

-4-Defe ndan t’s motion for new tria l, the trial court clarified the record by merging count two of th e indic tmen t into co unt on e. Def enda nt time ly filed this appe al.

I.

Defendant argues that he was subjected to double jeopardy because the State charged in its indictment and the jury considered two counts of driving while under the influence of an intoxicant. In count one, Defendant was charged with driving while the concentration of his blood or breath alcohol level was 0.10 percent or higher. Tenn. Code Ann. § 55-10-401(a)(2). In count two, Defendant was charged with driving while under the influence of an intoxicant. Tenn. Code Ann. § 55-10-401(a)(1). Both counts were charged as third offenses. The verdict form shows that the jury con victed De fendan t on both c ounts a s charg ed in the in dictme nt.

The trial judge subsequently sentenced Defendant to only one count of driving while under the influence of an intoxicant as evidenced in his sentencing order and in the judgme nt. Following the he aring on the mo tion for new trial, the trial court entered an order merging the second count into the first count to resolve any confusion. Howe ver, the trial court stated that its previous sentencing order had actually accomplished the same purpose.

After a careful review of the record, we find the double jeopardy argument to be without m erit. The d ouble jeo pardy cla uses o f both the United States and the Tennessee constitutions have been interpreted to “protect[] against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the s ame offens e after c onvictio n. And it protec ts aga inst m ultiple

-5-punish ments for the sam e offense .” North Carolina v. Pearce, 395 U.S. 711, 717, 89 S. Ct. 2072, 2076, 23 L. Ed. 2 d 656 (1 969); State v. Phillips, 924 S.W.2d 662, 664 (Tenn. 1996). It is true that both counts in the case sub judice arose from a singular incident. However, double jeopardy does not apply here because count one required a showing by the State that Defendant was driving and had a blood or breath alcohol level at or above 0.10 percent. There is no such requirement under count two. In count two, the State was required to prove that Defendant was “[u]nder the influence of any intoxicant, marijuana, narcotic drug, or drug producing stimulating effects on the central nervous system.” Tenn. Code Ann. § 55-10-401(a)(1). Count one does not require that proof, but merely the showin g of a specified blood or brea th alco hol leve l. “[T]wo offens e are n ot the s ame for dou ble jeopardy purpos es whe n each requires a proof o f a fact that the other do es not.” State v. Black, 524 S.W .2d 913, 924 (Tenn. 197 5).

Furthermore, only one sentencing judgment was entered for a violation of Tenn. Code Ann. § 55-10-401. This Court has noted, “the trial court’s entry o f only one judgment of conviction imposing only one sentence . . . protects the defendant from receiving multiple punishments for the same offense. No doub le jeop ardy p eril exists.” State v. Michael Addison, C.C.A. No. 02C01-9503-CR-00078, slip op. at 7, Shelby Coun ty (Tenn. Crim. App, Jackson, Nov. 25 , 1997), perm. to appeal denied (Tenn ., June 29, 19 98). W e find th at De fenda nt was not su bjecte d to m ultiple punish ments for the sam e offense , and ther efore, this iss ue is witho ut merit.

II.

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Defendant argues ne xt that he shou ld not have been convicted of third offense DUI because his prior two DUI convictions did not expressly state whether or not he actually ha d a blood or breath alcohol lev el in exces s of .10 pe rcent.

Tenn. Code Ann. § 55-10-403(a)(3) requires enhanced penalties for persons previo usly convicted of driving while under the influence of intoxicants, unless the convictions occurred more than ten years apart. Specifically, the statute provides that “every con viction for a vio lation of § 55-1 0-401 . . . shall be cons idered in determ ining the n umbe r of prior offen ses.” Te nn. Co de Ann . § 55-10 -403(a)( 3).

Tenn. Code Ann. § 55-10-403(a)(3) does not require that the prior convictions involve a blood or breath alcohol level. In fact, this Court has stated, “it is the quantity, not the qu ality of the prior offenses that govern.” State v. Mahoney, 874 S.W.2d 627, 630 (T enn. Crim. A pp. 1993), perm. to appeal denied (Tenn. 1994). As evidenced by the record, Defendant’s two prior convictions were for violations of Tenn. Code Ann. § 55-10-401, and the two prior DUI convictions occurred within ten years of the present offense. Therefore, he was properly convicted and sentenced as a m ultiple offend er to third offe nse DU I. This issu e is withou t merit.

III.

Defendant argues that the penalties imposed against him are too severe and should be reduced. As discussed in the previous issue, Defendant’s conviction of

-7-third offense DUI was warranted in this case. Tenn. Code Ann. § 55-10-403 mandates penalties for a conviction of third offense DUI by requiring the following:

a fine of not less than one thousand one hund red dollars ($1,100) nor more than ten thousa nd dollars ($10 ,000), and the pe rson o r perso ns shall be confined in the cou nty jail or workh ouse fo r not less th an one hundre d twenty (120) days nor more than eleven (11) m onths and tw enty- nine (29) days, and the court shall prohibit such convicted person or persons from driving a vehicle in the state of Tennessee for a period of time of not less than three (3) years nor more than ten (10) years.

...

All persons sentenced under subse ction (a ) shall, in addition to service of at least the minimum sentence, be required to serve th e differe nce b etwee n the tim e actu ally served and the maximum sentence on probation.

Tenn. C ode Ann . § 55-10-403 (a)(1) and (c).

“A senten ce for DU I [ ] does not involve a range. A defendant convicted of DUI automatically receives a sentence of eleven months and twenty-nine days. Accordingly, enhancement and mitigating factors are not used in determining the length of a DUI sentences. T enne ssee Code Anno tated s ection 40-35 -210( f) is clearly inapplicable to D UI sentenc ing.” State v. Kenneth Eugene Troutman, __S.W.2d __No. 03S01-9705-CC-00049, slip op. at 5, Washington County (Tenn. Crim. App., Knoxville, Nov. 9, 1998). “While trial courts cannot deviate from the length of the DUI sentence, trial courts do reta in som e discr etion in determining what portion of the eleven m onth and twe nty-nine day sen tence a defe ndant will serve in confineme nt.” Id.

In determ ining w hat po rtion of th e ma ndate d sen tence shall be served in confinem ent, a trial court need only consider the principles of sentencing and

-8-enhancement and mitigating fac tors in order to com ply with the misdemeanor senten cing statu te. See id. at 7; Tenn. Code Ann. § 40-35-302.

In the case sub judice, sentencing was held before Troutman was filed, and the trial court did set forth findings of fact. In its sentencing order, the trial court found that Defendant had a previous criminal history and had no hesitation about committing a crime when the risk to human life was high. See Tenn . Code Ann. § 40-35-114(1) and (10). The da ta report reveals that Defendant had convictions for leaving the scene of an accident, public intoxication, and reckless driving. T his is certain ly enough to determine that Defendant has a criminal history. Furthermore, the circumstances of the offense for which Defe ndan t stand s con victed a re certa inly the type that involve a high risk to human life. Investigator Marcom testified that Defendant crossed the yellow line on a public highway and nearly caused a collision with the vehicle in front of Ma rcom. Th e trial court was ju stified in considering these enhancement factors. As to mitigating factors, the court found no specific statutory ones to apply, bu t it did consid er Defe ndant’s c omm endab le emp loymen t history. Based on the forego ing, we find tha t the trial c ourt’s s enten ce of 1 80 da ys in confinem ent is am ply supp orted by th e record .

The jury imposed a fine against Defendant of $5,000, near the mid-point of allowa ble fines und er the statu te. See Tenn . Code Ann. § 55-10-403(a)(1). Defendant argues that the jury was confused about the possible fines because the jury returned a verdict of guilty on two coun ts of DU I during the first p hase of the tria l. However, the record does not support Defendant’s assertion.

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The trial court s uspe nded Defe ndan t’s driver’s license for ten (10) years which is the maximum duration under the statute. See Tenn . Code Ann. § 55-10-403 (a)(1). In doing so, the trial c ourt no ted D efend ant’s p rior DU I offens e, as w ell as his entire criminal record, and the seriousness of DUI offenses in the county. We believe the trial court was justified in imposing the maximum suspension.

In summary, we find the length of Defendant’s se ntenc e, the a mou nt of his fine, and the length of his driver’s license suspension to all be appropriate.

IV.

Lastly, Defendant argues that the trial court erred in ordering the confiscation of his pickup truck under the applicable 1995 provisions of Tenn. Code Ann. § 55-10-403(k).

The statutory provision at issue in the present case reads in pertinent part as follows:

The jud ge hea ring a third o r subse quent vio lation of § 55-10 -401, o r the third or sub sequ ent viola tion of any combination of violations of § 55-10-401 and driving w hile intoxicated violations com mitted in othe r states , shall declare the vehicle used in the commission of such offense to be contraband and subject to forfeiture as provided in this subsection.

Tenn. Code Ann. § 55-10-403(k)(1) (Supp. 1995). The statute was ame nded in 1996, effective January 1 , 1997, and d esignated the Departm ent of Safety as the applic able agency for forfeitures instead o f the trial court. Tenn. Code Ann. § 55-10-403(k)(1) (Supp. 1996). However, since the offense at issue here occurred on September 5, 1996, the trial court was authorized to order the forfeiture because the

-10-evidence showed that the vehicle was being driven by De fenda nt at the time o f his third DUI offense.

Under the applicable statute, Tenn. Code Ann. § 55-10-403(k)(3), any person claiming a right to the vehicle forfeited under this section:

may, not later than thirty (30) days from the date of receipt of the conditional order of forfeiture, file w ith the cou rt a claim in writing, requesting a hearing and stating such perso n’s or corporation’s interest in the vehicle. Fa ilure to file such a claim within the time specified shall, without exception, constitute a waiver of such claim.

Tenn. Code Ann. § 5 5-10-40 3(k)(3) (S upp. 19 95). The record shows that a copy of the court’s conditional order of forfeiture was entered on August 29, 1997 and was faxed to Defendant’s attorney on that date. There is nothing in the record which shows that Defendant filed any claim in writing or requested a hearin g. Therefore, it appears he waived any right to his vehicle.

Defendant also argues that the desire of the Tennessee State L egisla ture in the 1996 amendment was to use forfeiture as a reme dial rather than a pu nitive measure. See Tenn. Code Ann. § 55-10-403(k)(3)(Supp. 1996). However, as noted above, Defendant’s offense occurred prior to the effective date of the amendment and is thereby governed by the 1995 statute. Under that statute, the trial court, upon a finding that this is a third or sub sequ ent D UI offe nse, s hall declare th e vehic le subject to forfeiture. Tenn. Code Ann. § 5 5-10-40 3(k)(1) (S upp. 19 95). We find that the trial court properly ordered the forfeiture in this case as outlined by Tenn. Code Ann. § 5 5-10-40 3(k)(1) (S upp. 19 95). Th is issue is w ithout me rit.

Based on all the for egoing , we affirm th e judgm ent of the tria l court.

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____________________________________ THOMAS T. W OODALL, Judge

CONCUR:

(SEE C ONC URR ING OP INION) GARY R. WA DE, Presiding Judge

___________________________________ JAMES CURW OOD W ITT, JR., Judge

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