State of Tennessee v. Rickey Lee Brown, Jr.

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs June 21, 2016

STATE OF TENNESSEE v. RICKEY LEE BROWN, JR.

Direct Appeal from the Criminal Court for Sumner County

No. 100-2014 Dee David Gay, Judge

No. M2015-01730-CCA-R3-CD – Filed September 16, 2016

The appellant, Rickey Lee Brown, Jr., was convicted in the Sumner County Criminal

Court of driving under the influence (DUI); DUI per se; DUI, fourth offense; and driving

on a revoked license. The trial court merged the first three offenses and sentenced the

appellant as a Range II, multiple offender to four years for DUI, fourth offense. The trial

court sentenced him to six months in confinement to be served at 75% release eligibility

for driving on a revoked license and ordered that the four-year sentence be served

consecutively to the six-month sentence. On appeal, the appellant contends that his four-

year sentence is excessive. Based upon the record and the parties‟ briefs, we affirm the

judgments of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court are

Affirmed.

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which JOHN EVERETT

WILLIAMS and TIMOTHY L. EASTER, JJ., joined.

Jon David Rogers, Hendersonville, Tennessee, for the appellant, Rickey Lee Brown, Jr.

Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Senior Counsel;

Lawrence Ray Whitley, District Attorney General; and Sidney Preston, Assistant District

Attorney General, for the appellee, State of Tennessee.

OPINION

I. Factual Background

The appellant does not contest the sufficiency of the evidence. Taken in the light

most favorable to the State, the evidence shows that on the afternoon of October 12,

2013, Deputy Brandon Carter of the Sumner County Sheriff‟s Department was traveling

on Highway 109 from Portland to Gallatin when he saw a red pickup truck being driven

by the appellant. The appellant was not wearing a seatbelt, so Deputy Carter decided to

stop him. The officer began following the truck to make the stop, observed the truck

cross the double yellow line, and decided “hold off” on the stop in order to watch the

truck. The truck crossed the double yellow line several more times, so Deputy Carter

activated his patrol car‟s emergency equipment and stopped the appellant for suspicion of

DUI and the seatbelt violation.

When Deputy Carter came into contact with the appellant, the appellant smelled of

alcohol but denied he had been drinking. Deputy Carter asked a passenger in the truck if

the appellant had been drinking alcohol, and the passenger said the appellant had

consumed “two or three” that morning. The officer learned from dispatch that the

appellant‟s license had been revoked and asked that the appellant perform field sobriety

tests. The appellant agreed, so Deputy Carter administered the Horizontal Gaze

Nystagmus (HGN) test, the walk-and-turn test, and the one-leg stand test. Based on the

appellant‟s performance on the tests, Deputy Carter arrested him for DUI and driving on

a revoked license. After the arrest, Deputy Carter inspected the pickup truck and saw an

open, twenty-four-ounce beer can on the driver‟s floorboard. He read an implied consent

form to the appellant and requested that the appellant submit to a blood alcohol test. The

appellant agreed, so Deputy Carter transported him to a medical center for the blood

draw. Analysis on the blood showed that it had an ethyl alcohol content of 0.12 gram

percent, which was above the legal limit of .08 gram percent.

The jury convicted the appellant as charged of DUI, DUI per se, and driving on a

revoked license. The State then presented evidence of three prior DUI convictions, and

the jury convicted him of DUI, fourth offense.1

At the sentencing hearing, no witnesses testified for the State, but the State

introduced the appellant‟s presentence report into evidence. According to the report, the

then thirty-seven-year-old appellant dropped out of high school after the eleventh grade

but obtained his GED. In the report, the appellant described his physical health as

“good” and his mental health as “excellent.” He stated that he had been consuming

alcohol since he was sixteen years old and that he did not drink often, just on weekends.

The appellant also stated that he tried marijuana one time when he was a teenager but that

he did not use any other illegal drugs. The report showed that the appellant worked for

1

We note that on page 2 of the appellant‟s brief, counsel states incorrectly that the appellant was

convicted of aggravated robbery. We also note that the State‟s brief provides few facts underlying the

appellant‟s convictions that were relevant to sentencing. See Tenn. R. App. P. 27(b).

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Brown‟s Insulation from January to February 2013, for Unipres from February to May

2013, and for a landscaping company from July to October 2013. The report showed no

other employment. The appellant‟s prior criminal history spanned almost six pages of the

report and included numerous misdemeanor convictions for domestic assault and assault

and convictions of resisting arrest, public intoxication, evading arrest, violation of the

open container law, driving on a revoked license, and harassment. The State also

introduced into evidence two certified judgments of conviction for aggravated assault.

Sue Morrow, a probation officer with the Tennessee Department of Correction

(TDOC), testified for the appellant that she prepared his presentence report. She said that

if the trial court granted probation, the appellant would need assistance obtaining

employment. He also needed some social skills, particularly in making decisions about

consuming alcohol. She stated that the appellant‟s alcohol use “needs to be addressed”

and suggested that he take classes offered through the TDOC. Defense counsel asked if

Ms. Morrow thought the appellant could complete probation successfully, and she stated

that he “has had several other opportunities of probationary sentences that he was not

successful at.” She stated that if the appellant was willing to participate in the programs

she suggested and “change his ways,” he possibly could complete probation.

On cross-examination, Ms. Morrow acknowledged that the appellant had ten to

eleven prior convictions for domestic assault and assault. The appellant told her that he

stopped working for Unipres because he was working twelve-hour shifts, seven days per

week, which was too much. He lost his landscaping job due to the charges in this case.

Ms. Morrow stated that she did not think the appellant could complete probation and that

he was “going to have to be on a very tight leash.” Although he had numerous alcohol-

related convictions, the appellant did not think he had an alcohol problem. To Ms.

Morrow‟s knowledge, he had never received or sought treatment for his alcohol

addiction. He also was not taking advantage of Alcohol Anonymous (AA) in jail.

The appellant acknowledged that he had a problem with alcohol. He said he was

currently incarcerated but was not attending AA because “[t]hey very seldom come and

get you for AA here.” He acknowledged that he would attend alcohol treatment if

granted probation. He also acknowledged that he had hit “rock bottom,” which was why

he was finally seeking treatment. He said that if released from confinement, he planned

to seek employment immediately.

On cross-examination, the appellant acknowledged that he had an extensive

criminal history and that he was first charged with DUI when he was only nineteen years

old. His two prior convictions for aggravated assault were committed against his ex-

wife. He denied ever hitting her and said they were just arguing. The appellant

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acknowledged that he was continually charged with crimes from the time he was nineteen

to thirty-three years old and that he obtained his third DUI conviction in 2007.

The appellant testified that he worked for Brown Insulation, his father‟s company,

but had to change jobs when business slowed and he did not have enough work. The

appellant said he had known for at least seven years that he had an alcohol problem. He

said the trial court should place him on supervised probation because “I need to start

doing something. . . . I want to do something with my life, and I think it‟s about time to

start.” Upon being questioned by the court, the appellant denied being the driver of the

pickup truck stopped by Deputy Carter.

The trial court described the appellant‟s criminal record as “[u]nbelievable” and

applied enhancement factor (1), that “[t]he defendant has a previous history of criminal

convictions or criminal behavior, in addition to those necessary to establish the

appropriate range,” to his sentence for DUI, fourth offense. Tenn. Code Ann. § 40-35-

114(1). The court also applied factor (10), that “[t]he defendant had no hesitation about

committing a crime when the risk to human life was high,” noting that the appellant was

crossing the centerline and could have hit an oncoming car. Tenn. Code Ann. § 40-35-

114(10). The court found no mitigating factors applicable. Regarding the appellant‟s

potential for rehabilitation, the trial court stated that “I don‟t see much there at all hope-

wise” and that the court was “bother[ed]” by the appellant‟s failure to take responsibility

in this case.

The trial court merged the DUI convictions into a single conviction for DUI,

fourth offense, a Class E felony. The court found that the appellant was a Range II,

multiple offender based upon his two prior felony convictions for aggravated assault.

Thus, his range of punishment was two to four years. See Tenn. Code Ann. § 40-35-

112(b)(5). The trial court sentenced him to four years. For the conviction of driving on a

revoked license, a Class B misdemeanor, the trial court sentenced him to six months to be

served at seventy-five percent release eligibility. Due to the appellant‟s extensive

criminal activity, the trial court ordered that he serve the four-year sentence consecutively

to the six-month sentence. See Tenn. Crim. App. § 40-35-115(b)(2). The trial court

denied the appellant‟s request for probation, finding that confinement was necessary to

protect society by restraining a defendant with a long history of criminal conduct; that

confinement was necessary to avoid depreciating the seriousness of the offense; and that

measures less restrictive than confinement had been frequently applied unsuccessfully to

the appellant. See Tenn. Code Ann. § 40-35-103(c)(1).

II. Analysis

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On appeal, the appellant contends that the trial court erred by sentencing him to

four years, the maximum punishment in the range, for DUI, fourth offense. He contends

that the trial court should have mitigated his sentenced based upon his alcohol problem,

his having no history of violent crimes, the fact that his criminal record was based almost

exclusively on alcohol-related crimes, and his desire for help to overcome his addiction.

The State argues that the trial court properly sentenced the appellant. We agree with the

State.

The appellant states that we should reduce his sentence based upon our de novo

review of the record. However, length, range, or manner of service of a sentence

imposed by the trial court are to be reviewed under an abuse of discretion standard with a

presumption of reasonableness. State v. Bise, 380 S.W.3d 682, 708 (Tenn. 2012). In

sentencing a defendant, the trial court shall consider the following factors: (1) the

evidence, if any, received at the trial and the sentencing hearing; (2) the presentence

report; (3) the principles of sentencing and arguments as to sentencing alternatives; (4)

the nature and characteristics of the criminal conduct involved; (5) evidence and

information offered by the parties on enhancement and mitigating factors; (6) any

statistical information provided by the administrative office of the courts as to sentencing

practices for similar offenses in Tennessee; (7) any statement by the appellant in his own

behalf; and (8) the potential for rehabilitation or treatment. See Tenn. Code Ann. §§ 40-

35-102, -103, -210; see also State v. Ashby, 823 S.W.2d 166, 168 (Tenn. 1991). The

burden is on the appellant to demonstrate the impropriety of his sentence. See Tenn.

Code Ann. § 40-35-401, Sentencing Comm‟n Cmts.

In determining a specific sentence within a range of punishment, the trial court

should consider, but is not bound by, the following advisory guidelines:

(1) The minimum sentence within the range of

punishment is the sentence that should be imposed, because

the general assembly set the minimum length of sentence for

each felony class to reflect the relative seriousness of each

criminal offense in the felony classifications; and

(2) The sentence length within the range should be

adjusted, as appropriate, by the presence or absence of

mitigating and enhancement factors set out in 40-35-113 and

40-35-114.

Tenn. Code Ann. § 40-35-210(c).

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Although the trial court should consider enhancement and mitigating factors, the

statutory enhancement factors are advisory only. See Tenn. Code Ann. § 40-35-114; see

also Bise, 380 S.W.3d at 701; State v. Carter, 254 S.W.3d 335, 343 (Tenn. 2008). Our

supreme court has stated that “a trial court‟s weighing of various mitigating and

enhancement factors [is] left to the trial court‟s sound discretion.” Carter, 254 S.W.3d at

345. In other words, “the trial court is free to select any sentence within the applicable

range so long as the length of the sentence is „consistent with the purposes and principles

of [the Sentencing Act].‟” Id. at 343. Appellate courts are “bound by a trial court‟s

decision as to the length of the sentence imposed so long as it is imposed in a manner

consistent with the purposes and principles set out in sections -102 and -103 of the

Sentencing Act.” Id. at 346.

Here, the trial court applied two enhancement factors, and the appellant does not

contest the applicability of those factors. In our view, the appellant‟s criminal history

alone justifies enhancing his sentence to the maximum punishment in the range. As to

his suggested mitigating factors, none of them are an enumerated factor but could fall

under the catch-all provision of the statute. See Tenn. Code Ann. § 40-35-113(13).

However, given the appellant‟s repeated convictions for aggravated assault, domestic

assault, and assault; the fact that he continues to deny assaulting his ex-wife; and his

failure to seek treatment for his alcohol addiction, despite numerous prior convictions

related to alcohol and knowing for at least seven years that he had an alcohol problem,

the trial court justifiably refused to mitigate his sentence. Thus, we conclude that the trial

court properly sentenced the appellant to four years for DUI, fourth offense.

III. Conclusion

Based upon the record and the parties‟ briefs, we affirm the judgment of the trial

court.

_________________________________

NORMA MCGEE OGLE, JUDGE

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