State of Tennessee v. June Curtis Loudermilk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs November 3, 2015

STATE OF TENNESSEE v. JUNE CURTIS LOUDERMILK

Appeal from the Criminal Court for Shelby County

No. 12-00078 W. Mark Ward, Judge

No. W2015-00222-CCA-R3-CD - Filed January 6, 2016

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Defendant, June Curtis Loudermilk, appeals his sentence for driving under the influence

(“DUI”), third offense, a Class A misdemeanor, which was imposed upon remand after

this Court modified his original conviction for DUI, fourth offense, a Class E felony. He

argues that the sentence is illegal because, during his first direct appeal, he completed a

probationary period which exceeded the statutory maximum punishment for a Class A

misdemeanor. We conclude that Defendant’s sentence is not illegal because he was not

on probation pending the resolution of his direct appeal. Therefore, the judgment of the

trial court is affirmed.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

TIMOTHY L. EASTER, J., delivered the opinion of the Court, in which JAMES CURWOOD

WITT, JR., and ALAN E. GLENN, JJ., joined.

Claiborne H. Ferguson (on appeal and at resentencing); Taurus and Walter Bailey (at

trial), Memphis, Tennessee, for the appellant, June Curtis Loudermilk.

Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Senior Counsel;

Amy P. Weirich, District Attorney General; and, Michael McCusker, Assistant District

Attorney General, for the appellee, State of Tennessee.

OPINION

Facts and Procedural History

This is our second look at Defendant’s DUI conviction in the Criminal Court for

Shelby County. In April of 2013, a jury convicted Defendant of DUI, fourth offense, and

the trial court sentenced him to two years in the workhouse, suspended to supervised

probation after seven months of confinement. On direct appeal, this Court modified

Defendant’s conviction to DUI, third offense, and remanded the case to the trial court for

resentencing. State v. June Loudermilk, No. W2013-01613-CCA-R3-CD, 2014 WL

3845041 (Tenn. Crim. App. Aug. 6, 2014), perm. app. denied (Tenn. Dec. 26, 2014).

Upon remand, the trial court held a new sentencing hearing on January 30, 2015. The

trial court sentenced Defendant to eleven months and twenty-nine days to be served in the

workhouse at 75%. Defendant timely filed a notice of appeal.

Analysis

On appeal, Defendant pursues the same argument that he presented to the trial

court during the resentencing hearing: that the new sentence is illegal because he has

already served seventeen months on probation, which exceeds the statutory maximum

punishment for DUI, third offense, which is a Class A misdemeanor. The State argues

that Defendant was not on probation during the pendency of his first direct appeal, and

alternatively, that he is not entitled to credit for previous time spent on probation because

he has yet to serve the mandatory minimum confinement period of 120 days for DUI,

third offense.

Because Defendant does not challenge the length, range, or manner of his new

sentence, we will not “review[] the trial court’s sentencing decision under an abuse of

discretion standard with a presumption of reasonableness.” State v. Caudle, 388 S.W.3d

273, 278-79 (Tenn. 2012); State v. Bise, 380 S.W.3d 682, 708 (Tenn. 2012). Instead,

Defendant argues that his sentence illegal, which is a question of law we review de novo.

State v. Dusty Ross Binkley, No. M2014-01173-CCA-R3-CD, 2015 WL 2148950, at *2

(Tenn. Crim. App. May 7, 2015) (citing Summers v. State, 212 S.W.3d 251, 255 (Tenn.

2007)), no perm. app. filed.

At the time of the offense, May 6, 2011, DUI, fourth offense, was a Class E

felony. See T.C.A. § 55-10-403(a)(1)(A)(vi) (2011). DUI, third offense, was a Class A

misdemeanor. See T.C.A. § 55-10-403(a)(1)(A)(v), (m) (2011). The mandatory

minimum sentence for DUI, third offense, was 120 days to be served in the county jail or

workhouse, and the maximum sentence was eleven months and twenty-nine days. T.C.A.

§ 55-10-403(a)(1)(A)(v) (2011). A DUI offender is not “eligible for suspension of

sentence or probation . . . until such time as the person has fully served day for day at

least the minimum sentence provided by law.” T.C.A. § 55-10-403(b)(1) (2011). After

service of the ordered incarceration, a DUI offender “shall . . . be required to serve the

difference between the time actually served and the maximum sentence on probation.”

T.C.A. § 55-10-403(c) (2011).

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We agree with the State’s contention that Defendant, contrary to his assertions, did

not actually serve any time on probation during the pendency of his first direct appeal.

The original judgment form entered on May 13, 2013, contains the special condition that

Defendant “must remain on SCRAM pending appeal.” The original split confinement

order in this case, entered on July 11, 2013, contains the following handwritten notation:

“On appeal—Def to be released prior to serving sentence on appeal bond.”

Tennessee Code Annotated section 40-26-102(e) (2011) provides, “The setting of

bail or release upon recognizance is a matter of right for one convicted of a felony and

sentenced to confinement for less than one (1) year.” Because Defendant was originally

convicted of felony DUI and sentenced to confinement for seven months, he was entitled

to bail. The original judgment and the split confinement order indicate that Defendant

made bail by posting an “appeal bond.” Because Defendant posted bond and was

released on bail pending resolution of his appeal, commencement of his sentence was

also stayed pending appeal.

We acknowledge that, on October 30, 2014, while Defendant’s Rule 11

application for permission to appeal the decision in his first direct appeal was pending,

the trial court entered an “amended probation order,” granting unsupervised probation.

At the hearing on that matter, defense counsel indicated that, at that time, Defendant had

already been on supervised probation for more than eleven months and twenty-nine days.

The State did not object. Similarly, at the resentencing hearing, both parties and the trial

court proceeded under the impression that Defendant had indeed served seventeen

months of probation, partly supervised and partly unsupervised. Yet, aside from the

representations of defense counsel, there is no evidence in the record of Defendant’s

reporting to a probation officer or otherwise being subjected to the terms of probation.

Nonetheless, accepting as true that Defendant was in some manner abiding by

typical supervised probation requirements, it appears to us that compliance with such

restrictions should be properly viewed as a condition of his bond pending appeal, as was

continued use of the SCRAM device. See State v. Sandra Brown, No. M2000-00792-

CCA-R3-CD, 2001 WL 1094940, at *3 (Tenn. Crim. App. Sept. 19, 2001) (holding that a

defendant may not be under supervised probation while simultaneously being released on

bail pending appeal “unless reporting to a probation officer is a condition of bail”);

accord State v. Patty Francine Grissom, No. M2002-00279-CCA-R3-CD, 2003 WL

21397751, at *6 (Tenn. Crim. App. June 18, 2003), perm. app. denied (Tenn. Oct. 27,

2003). But cf. State v. James Cravens, No. M2002-01216-CCA-R3-CD, 2003 WL

22282174, at *3 (Tenn. Crim. App. Oct. 2, 2003), perm. app. denied (Tenn. Mar. 8,

2004) (suggesting that requirement for defendant to report to a probation officer as a

condition of bond on direct appeal of a sentence may violate T.C.A. § 40-11-116(b)(1));

accord State v. Daniel Bilbrey, No. M2002-01043-CCA-R3-CD, 2004 WL 392587, at

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*7-8 (Tenn. Crim. App. Mar. 3, 2004), overruled on other grounds by State v. Judkins,

185 S.W.3d 422 (Tenn. Crim. App. 2005).1

Furthermore, we note that Defendant’s original sentence was two years suspended

to supervised probation after seven months of confinement. That sentence complied with

Tennessee Code Annotated section 55-10-403(b)(1) (2011), which precludes a DUI

offender from receiving probation until after having “fully served day for day at least the

minimum sentence provided by law.” Tennessee Code Annotated section 40-35-303(b)

(2011) provides: “Nothing in Acts 1989, ch. 591, the Sentencing Reform Act of 1989,

shall be construed as altering, amending or decreasing the penalties established in this

section for the offense of driving under the influence of an intoxicant.” See State v.

Palmer, 902 S.W.2d 391, 394 (Tenn. 1995) (holding that “the Criminal Sentencing

Reform Act specifically does not apply to DUI sentences in those particulars in which the

application of the Act would serve to alter, amend, or decrease the penalties specifically

provided for DUI”). Thus, by operation of statute, the trial court could not have

permitted Defendant to begin serving a suspended sentence until after he served time in

confinement.

Because Defendant was not serving a suspended sentence on probation during the

pendency of his direct appeal in this case, his sentence is not illegal, and he is not entitled

to any “credit” against the duration of his suspended sentence other than the three days

noted on the January 30, 2015 corrected judgment form. After service of 75% of eleven

months and twenty-nine days, he will become “eligible for consideration” for work

release, furlough, trusty status and rehabilitative programs for the balance of his sentence.

T.C.A. § 40-35-302(d).

To be clear, the sentence imposed by the trial court as reflected in the January 30,

2015 corrected judgment form is affirmed. Defendant still has most of that sentence to

serve. Defendant shall serve eleven months and twenty-nine days in continuous

confinement at 75%, with a $1,100 fine. This renders an absolute minimum of 270 days,2

day for day, in continuous confinement remaining to be served before Defendant is to be

eligible for consideration for time outside the custody of the chief administrator of any

local jail, workhouse or other facility in which Defendant is confined. If he is deemed

eligible for work release, furlough, trusty status and rehabilitative programs, he may

serve the remaining 91 days in such programs. This sentence is in accordance with the

1

Although we determine that reporting to a probation officer was, at most, a condition of

Defendant’s bond pending appeal, we take no position on whether such a bond condition is authorized by

statute. We note, however, that the relevant language of Tennessee Code Annotated section 40-11-116

was amended after James Cravens and Daniel Bilbrey were decided.

2

This number of days includes the three days of pretrial jail credit reflected on the January 30,

2015 corrected judgment form.

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principles and purposes of the Criminal Sentencing Reform Act of 1989, T.C.A. § 55-10-

403(b)(1) (2011), as well as the supreme court’s holding in Palmer. The percentage of

sentence to serve in actual confinement was not imposed arbitrarily by the trial court.

Conclusion

For the foregoing reasons, the judgment of the trial court is affirmed.

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TIMOTHY L. EASTER, JUDGE

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