State of Tennessee v. Adrianne Elizabeth Noles

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs October 1, 2002

STATE OF TENNESSEE v. ADRIANNE ELIZABETH NOLES

Appeal from the Circuit Court for Haywood County

No. 4753 Clayburn L. Peeples, Judge

No. W2002-01558-CCA-R3-CD - Filed December12, 2002

Pursuant to Tennessee Code Annotated section 39-13-213(a)(1) (1997), the defendant, Adrianne

Elizabeth Noles, was charged with vehicular homicide by recklessness in the Haywood County

Circuit Court. She submitted a guilty plea to the charge, a Class C felony, and agreed to have the

trial court determine the length and manner of service of her sentence. After a sentencing hearing,

the trial court imposed a three-year sentence to be served in the Department of Correction.

Aggrieved of the trial court’s rejection of any sentencing alternative to incarceration, she appeals.

We affirm.

Tenn. R. App. P. 3; Judgment of the Circuit Court is Affirmed and Remanded.

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which DAVID H. WELLES and

ALAN E. GLENN, JJ., joined.

Tom Crider, Trenton, Tennessee (at trial), and Joyce Diane Blount, Trenton, Tennessee (on appeal),

for the Appellant, Adrianne Elizabeth Noles.

Paul G. Summers, Attorney General & Reporter; John H. Bledsoe, Assistant Attorney General; and

Garry G. Brown, District Attorney General, for the Appellee, State of Tennessee.

OPINION

The conviction stems from events of October 14, 2001, that unfolded on Interstate

40 in Haywood County. Based upon facts gleaned from the presentence report and testimony

introduced in the sentencing hearing, the defendant, who was 20 years old, was driving west on

Interstate 40, accompanied by a male friend and her four-year-old son. She was traveling from

Nashville to Arkansas and was approximately 30 minutes west of Nashville when a car pulled up

behind her, shined its high beams into the defendant’s car, then pulled around and in front of the

defendant’s car and braked. She was initially angered and later somewhat frightened as the two cars

jockeyed in front of each other, sometimes reaching speeds of 90 miles per hour. At least once, the

other car, which was occupied by two young Hispanic males, disappeared but after a half hour or so,

it reappeared behind the defendant’s car with high beams activated.

This “cat-and-mouse” activity continued until the cars reached Haywood County,

where the occupants of the other car began throwing objects at the defendant’s car. At some point,

according to the defendant, an object was thrown through her car window. As she attempted to reach

for the unknown object, the other car pulled in front of her and braked.

The defendant had no recollection of losing control of her car, crossing the Interstate

median, or colliding with the east-bound vehicle driven by the victim, Joseph Cooper. Mr. Cooper

died from injuries sustained in the accident. The defendant and her male companion were

hospitalized but recovered from their injuries. The defendant’s child, riding in the rear seat of the

defendant’s car, was uninjured.

The post-accident blood test performed on the defendant was negative for drugs or

alcohol. Although the defendant admitted that she had used cocaine two days before the accident,

the record contains no proof that her October 14 actions were influenced by the drug.

In the sentencing hearing, the victim’s mother and first cousin offered “victim

impact” testimony. The victim was an industrious young man who was devoted to his mother, his

four-year-old daughter, and other members of his family. Understandably, his loss was grievous to

the family, especially to his young daughter.

The defendant testified that she deeply regretted her actions on October 14 that

resulted in the loss of the victim’s life. She admitted that she had driven at speeds up to 90 miles

per hour but denied that she had been weaving in and out of traffic, as was alleged in the presentence

report. She admitted that she could have left the Interstate at any one of a number of exit ramps and

that she declined to do so. She did not know the men in the other car. She gave no thought to the

risks posed to her son in the rear seat.

The presentence report revealed that the defendant began using marijuana and cocaine

when she was thirteen years old. She had undergone treatment, including residential treatment in

the past. She asked the court to avail her the opportunity to enter an eighteen-month treatment

program that offered drug rehabilitation and parenting skills education. She had thoroughly

researched the availability and aptness of the specific program that she described and testified that

she would be accepted into the program, if the court permitted, and that she would acquire a

Graduate Equivalency Diploma while in the program. Her great aunt and great uncle testified and

confirmed the tentative arrangements in the treatment program. They assured the court that the

defendant was genuinely remorseful about the victim’s death, saying that she had expressed

anguished empathy for the victim; he, like her, was the parent of a four-year-old child.

The presentence report also revealed that the defendant, at age 18, was convicted in

Arkansas of “speeding (50 in a 40 MPH zone)” and driving without a driver’s license. At age 17,

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she was convicted in Williamson County, Tennessee of “speeding (69 in 40 MPH zone).” The

defendant’s juvenile record consisted of an adjudication of shoplifting.

The trial court imposed the Class C felony, Range I minimum sentence of three years.

See Tenn. Code Ann. § 40-35-112(a)(3) (1997). It ordered the entire sentence served in confinement.

On appeal, the defendant limits her grievance to the trial court’s rejection of alternative sentencing.

Following our review, we affirm the trial court’s order of incarceration.

Before we begin our analysis, we note that no transcript of the defendant’s plea

submission hearing appears in the record. A plea-submission hearing transcript would have

contained a factual basis for the court accepting the guilty plea. See Tenn. R. Crim. P. 11(f). “We

have repeatedly held that failure to include the transcript of the guilty plea hearing in the record

prohibits this court from conducting a meaningful de novo review of the sentence.” State v. Jorge

Obdulio Herrera, No. E1999-00118-CCA-R3-CD, slip op. at 2 (Tenn. Crim. App., Knoxville, July

20, 2000). The defendant, as the appellant, is obliged to furnish this court with a fair, accurate, and

complete record of what transpired in the trial court with respect to the issues that form the bases of

the appeal. Tenn. R. App. P. 24(b); State v. Banes, 874 S.W.2d 73, 82 (Tenn. Crim. App. 1993);

State v. Miller, 737 S.W.2d 556, 558 (Tenn. Crim. App. 1987). In the absence of such a record, the

affected issues are waived. State v. Oody, 823 S.W.2d 554, 559 (Tenn. Crim. App. 1991). However,

we also have commented that occasionally we can “reconstruct . . . an undisputed version of the

factual events of the crime” from the “bits and pieces” of the record on appeal. See Jorge Obdulio

Herrera, slip op. at 2-3, n.l. In the present case, the record of the sentencing hearing, including the

presentence report, affords us an adequate view of the nature and circumstances of the conviction

offense. Thus, we proceed to the appellate issue at hand.

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 of the record with a presumption that the

determinations made by the trial court are correct. Tenn. Code Ann. § 40-35-401(d) (1997). 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). “The burden of showing that the sentence is improper is upon the

appellant.” Id. In the event the record fails to demonstrate the required consideration by the trial

court, review of the sentence is purely de novo. Id. If appellate review reflects the trial court

properly considered all relevant factors and its findings of fact are adequately supported by the

record, this court must affirm the sentence, “even if we would have preferred a different result. State

v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).

An alternate sentence is any sentence that does not involve total confinement. See

generally State v. Fields, 40 S.W.3d 435 (Tenn. 2001). A defendant who “is an especially mitigated

or standard offender convicted of a Class C, D, or E felony is presumed to be a favorable candidate

for alternative sentencing options in the absence of evidence to the contrary.” Tenn. Code Ann. §

40-35-102(6) (1997). Our sentencing law also provides that “convicted felons committing the most

severe offenses, possessing criminal histories evincing a clear disregard for the laws and morals of

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society, and evincing failure of past efforts at rehabilitation, shall be given first priority regarding

sentences involving incarceration.” Id. § 40-35-102(5) (1997). Thus, a defendant who meets the

above criteria is presumed eligible for alternative sentencing unless sufficient evidence rebuts the

presumption. However, the Act does not provide that all offenders who meet the criteria are entitled

to such relief; rather, it requires that sentencing issues be determined by the facts and circumstances

presented in each case. See State v. Taylor, 744 S.W.2d 919, 922 (Tenn. Crim. App. 1987).

The presumption of favorable candidacy for alternative sentencing may be rebutted

by “evidence to the contrary.” Fields, 40 S.W.3d at 440.

Guidance as to what constitutes evidence to the contrary may be

found in the following sentencing considerations contained in

Tennessee Code Annotated section 40-35-103(1) (1997):

(A) Confinement is necessary to protect society by restraining

a defendant who has a long history of criminal conduct;

(B) Confinement is necessary to avoid depreciating the

seriousness of the offense or confinement is especially suited to

provide an effective deterrence to others likely to commit similar

offenses; or

(C) Measures less restrictive than confinement have frequently

or recently been applied unsuccessfully to the defendant.

Id. When the presumption of favorable candidacy for alternative sentencing applies and the state

seeks to rebut it via Code section 40-35-103(1)(B) by showing that confinement is necessary to avoid

depreciating the seriousness of the offense, a resulting trial court decision to impose total

confinement must be predicated upon a finding that the nature and circumstances of the offense are

“especially violent, horrifying, shocking, reprehensible, offensive, or otherwise of an excessive or

exaggerated degree,” and the nature of the offense must outweigh all factors favoring probation.

State v. Travis, 622 S.W.2d 529, 534 (Tenn. 1981); see State v. Hartley, 818 S.W.2d 370, 375 (Tenn.

Crim. App. 1991) (Travis qualifiers of nature and circumstances of offense have been codified in

section 40-35-103(1)(B) which considers confinement to avoid depreciating the seriousness of the

offense).

“Sentencing decisions should not, however, turn on a generalization of the crime

committed, such as the fact that a death occurred.” State v. Housewright, 982 S.W.2d 354, 356

(Tenn. Crim. App. 1997) (citing State v. Bingham, 910 S.W.2d 448, 456 (Tenn. Crim. App. 1995)).

The defendant, a Range I offender, enjoyed the presumption of favorable candidacy

for alternative sentencing for her Class C felony. See Tenn. Code Ann. § 40-35-102(6) (1997).

Moreover, she was eligible for probation. See id. § 40-35-303(a) (1997).

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In the present case, the trial court referred to the sentencing principles but did not

refer specifically to Code section 40-35-103 in determining that a sentence of total confinement was

appropriate. If a trial court ignores the governing statute on rebutting the presumption favoring

alternative sentencing in imposing a sentence of total confinement, we should generally review the

sentence de novo, without a presumption of correctness. See Fields, 40 S.W.3d at 440-41. However,

in the present case, we believe the presumption of correctness applies because the trial court tacitly

alluded to section 40-35-103 and to Travis/Hartley.

The trial judge “specifically [found] that the Defendant in order to maintain the moral

symmetry between crime and punishment in a situation like this should serve three years in the State

Penitentiary as a Standard Offender.” We comprehend this statement to refer to the need to avoid

depreciating the seriousness of the offense. See Tenn. Code Ann. § 40-35-103(1)(B) (1997). He also

found “that this is just about as aggravated as a vehicular homicide by recklessness can be[,] . . . that

the Defendant is guilty of gross recklessness in operating her vehicle. She injured a passenger. She

had a child [] four years old.” Thus, the trial court found that the nature and circumstances of the

offense were especially reprehensible and exaggerated. See Travis, 622 S.W.2d at 534.

We agree with this assessment. The fatal accident which the defendant caused was

not just the result of some fleeting moment of inattention; rather, it resulted from a high-speed “cat-

and-mouse” game which covered approximately 100 miles of Interstate 40. Furthermore, the

defendant did not come before the sentencing court with the cleanest of hands. She had previously

been convicted of two speeding offenses, and one of those additionally involved her driving without

a license. Not only did the defendant’s recklessness result in the victim’s death, but it imperiled both

passengers in her car, including her four-year-old son. When asked in the sentencing hearing

whether she realized that her conduct endangered her child, the defendant said, “No, sir. I didn’t

think about that.” Finally, the collision resulted in bodily injury to the defendant’s adult male

companion; he spent twelve days in the hospital.1 In our view, these circumstances warrant the trial

court’s finding that the nature of the offense was exaggerated. Based upon the aptness of this

finding, the trial court’s imposition of a sentence of confinement is warranted.

We notice that the conviction judgment does not provide for the prohibition from

driving of a defendant convicted of vehicular homicide that is mandated by Tennessee Code

Annotated section 39-13-213(c) (1997). Pursuant to that Code section, the trial court must impose

a driving prohibition for a period of time “not less than three (3) years nor more than ten (10) years.”

Id. Thus, on remand, the trial court shall revise the judgment to comply with section 39-13-213(c).

Otherwise, we affirm the trial court’s judgment.

___________________________________

JAMES CURWOOD WITT, JR., JUDGE

1

T he companion did not app ear at the sentencing hearing. The defendant testified about his hospitalization,

but she was uninformed ab out the nature and extent of his injuries.

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