                 IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                     AT KNOXVILLE             FILED
                                   JULY SESSION, 1997         October 28, 1997

                                                          Cecil Crowson, Jr.
                                                           Appellate C ourt Clerk
       STATE OF TENNESSEE,           )    C.C.A. NO. 03C01-9610-CC-00381
                                     )
               Appellee,             )
                                     )
                                     )    COCKE COUNTY
       VS.                           )
                                     )    HON. WILLIAM R. HOLT, JR.
       TERESA FITHIAM,               )    JUDGE
                                     )
               Appe llant.           )    (DUI & Child En dange rment)


                         ON APPEAL FROM THE JUDGMENT OF THE
                           CIRCUIT COURT OF COCKE COUN TY


       FOR THE APPELLANT:                 FOR THE APPELLEE:

       SUSANNA L. THOMAS                  JOHN KNOX WALKUP
       Assistant Public Defender          Attorney General and Reporter
       102 Mims Avenue
       Newport, TN 37821                  MARVIN E. CLEMENTS, JR.
                                          Assistant Attorney General
                                          425 5th Avenu e North
                                          Nashville, TN 37243

                                          AL SCHUMTZER, JR.
                                          District Attorney General

                                          JAMES B. DUNN
                                          Assistant District Attorney General
                                          339A East Main Street
                                          Newport, TN 37821



       OPINION FILED ________________________

       APPEAL DISMISSED; JUDGMENT AFFIRMED

       DAVID H. WELLES, JUDGE




fithiamt.opn
                                                 OPINION


                 This is a direct appeal from a guilty plea pursuant to Rule 37(b)(2)(ii) of the

       Tennessee Rules o f Criminal Procedure. Pursuant to a plea agreement, the

       Defendant plead ed gu ilty to one coun t of DU I and o ne co unt of c hild

       endan germe nt. 1 Both o ffense s are C lass A misdemeanors. As part of the

       agreem ent, she was sentenced to a forty-eight (48) hour mandatory incarceration

       plus eleven (11) months and twenty-seven (27) days of probation for the DUI

       conviction and a m andato ry thirty (30) day incarceration plus ten (10) months and

       twenty-nine (29) days of probation for the child endangerment conviction. Also,

       the Defen dant res erved the right to app eal the “leg ality” of her se ntence . In this

       appe al, she arg ues tha t the statute imposing a mandatory thirty-day incarceration

       period for child endangerment is unconstitutional as cruel and unusual

       punishment violative of the Eighth and Fourteenth Amendments to the United

       States Constitu tion. W e dismiss the appeal and affirm the judgment of the trial

       court.



                 On October 13, 1995, the Defendant, Teresa Fithiam, was arrested after

       she lost control of the vehicle she was d riving no rthbou nd on Highw ay 321 in

       Cocke County.          The car left the roadway and overturned.        Two of her four

       children, ages 23 months and 11 months, were in the vehicle and received minor

       injuries. Only th e youn ger ch ild was restrain ed. The Defendant suffered head




       1
           Tenn. Code Ann. §§ 55-10-401, -414.

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       injuries for which she w as hospitalized fo r three days. A blood alcohol test

       measured the Defendant’s blood alcohol level at .13%.



               The Defen dant testified at the guilty plea hearing that she came home from

       work, had two or three beers, cooked dinner and bathed the children. Her

       husband, who had been drinking all day, became abusive and she left with the

       children. It is uncle ar whe ther he r husb and w as ch asing her in the car, but he

       was p resen t after the accide nt and transp orted th e child ren to th e hos pital.



               The Defendant was indicted on one coun t of DU I and tw o cou nts of c hild

       endan germe nt. She entered into a plea agreement with the district attorney for

       the minimum man datory sente nce fo r DUI o f forty-eig ht hou rs in confinement and

       the minimum manda tory sentence fo r child endang erment of thirty days

       incarceration. The remainder of each sentence was to be suspended and the

       Defendant placed on probation. The Defendant was also required to pay the

       minimum $350 fine for the DUI conviction and the minimum $1000 imposed for

       the child endangerment conviction. The plea agreement and the transcript of the

       guilty plea hearing reflect that the State agreed that the Defendant “reserves right

       to appeal legality of sentence and merger of counts of child endangerment.” The

       judgment forms d o not m ention a re servation of a review of the sentence in an

       appe al, however, in an order on May 16, 1996, the trial court approved the plea

       agreement reach ed by th e partie s. At the hearin g on th e guilty plea, the trial

       court dismissed the second count of child endangerment, finding that it merged

       into the first count as one offense for both children. The Defendant requested

       work release, which the trial court denied because o f the man datory

       incarceration. The trial court did not rule on the legality or constitutionality of the

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       thirty-day incarceration mandated by Tennessee Code Annotated section 55-10-

       414.



               The Defen dant arg ues tha t the manda tory incarceration required by section

       55-10-414 unconstitutionally denied her the granting of work release. We note

       initially that the Defendant has not properly reserved the issue for the purposes

       of this appeal. The notice of appeal reflects that the issue is being appealed

       pursuant to Rule 37(b)(2)(ii) of the Tenn essee R ules of Crimina l Procedure which

       states in pertinen t part that: “An appeal lies . . . from any judgment of conviction:

       (2) upon a plea of guilty or nolo conten dere if: (ii) defendant seeks review of the

       sentence set and there was no plea agreement under Rule 11(e).” (em phas is

       added). A guilty p lea co nstitute s a wa iver of all nonjurisdictional and procedural

       defects or constitu tional infirmitie s, State v. Bilbrey, 816 S.W.2d 71, 75 (Tenn.

       Crim. App. 1991), and Rule 37 provides limited exceptions for an appeal following

       a guilty plea . State v. Pendergrass, 937 S.W .2d 834 , 837 (T enn. 19 96).



               Here, although the Defendant purported to reserve review of her sentence

       as reflected in the plea a greem ent and the hea ring transc ript, the reco rd reflects

       that the Defendant entered into a neg otiated ple a agree ment th at com ports with

       Rule 11(e). The particular posture in which this case has been presented does

       not fit squarely within any of the enumerated exceptions under Rule 37. The

       record reflects that a plea agreement was reached and thus, the Defendant has

       waived appellate review of her sentence because she has not met the

       requirem ents of Rule 37 (b)(2)(ii). See State v. McKissack, 917 S.W.2d 714, 716

       (Tenn. Crim. A pp. 199 5). In order to obtain appellate review of her sentence, the

       Defendant could ha ve chos en to plea d guilty witho ut a negotiated agreement and

fithiamt.opn                                     -4-
       left sente ncing to the trial court and pursued the issue in a direct appeal under

       Rule 3.



               The judgment entered reflects that the trial judge accepted and approved

       the reco mm ended senten ce. The trial court did n ot rule on th e cons titutionality

       of the mandatory sentence because the issue was not presented. There is no

       procedural vehicle under Rule 37 for a hybrid plea agreement that reserves a

       portion of the sentence purportedly not agree d to for a ppella te revie w. Th ere is

       no right to appeal from an agre ed sen tence. McKissack, Id. Therefore, because

       it is not properly before us, we believe this appeal should be dismissed.



               In consideration of the foregoing, even if th e Def enda nt had prope rly

       reserved the issue for appeal, we would conclude that it is without merit. The

       Defendant contends that the mandatory thirty-da y sente nce u ncon stitution ally

       deprives her of probation or the possibility of work release in her case.       She

       argues that it is cruel and unusual punishment violative of the Eighth and

       Fourtee nth Ame ndme nts to the U nited Sta tes Con stitution.          The Eighth

       Amendment applied to the states thro ugh the Fourtee nth Ame ndme nt prohibits

       cruel and unusual punishment and requires that the punishment imposed must

       be proportioned to the severity of the offens e in the ca pital case context. See

       State v. Harris , 844 S.W .2d 601 , 602 (Tenn. 1992)(citing Weems v. United

       States, 217 U .S. 349, 3 67, 30 S .Ct. 544, 549, 54 L .Ed. 836 (1910)).         Y et,

       “[r]eviewing courts sh ould gra nt substantial defe rence to the broa d autho rity

       legislatures possess in determining punishments for particular crimes, ‘[o]utside

       the context of capital punishm ent, successful challeng es to the proportionality of

       particular sentences [will be] exceedingly rare.’” Harris , 844 S.W.2d at 602

fithiamt.opn                                    -5-
       (quoting Solem v. Helm, 463 U.S. 277, 289-90, 103 S.Ct. 3001, 3009, 77 L.Ed.2d

       637, 649 (1983)) (emphasis in original). The mandatory nature of a sentence,

       even if it appears to be cruel, is not otherwise unusual and does not ren der it

       violative of the Eigh th Ame ndme nt. Harmelin v. Michigan, 501 U .S. 991, 996,

       111 S. Ct. 2680, 2701, 115 L.Ed.2d 836 (1991)(life without parole for conviction

       for possessing 672 grams of cocaine constitutional); State v. Hinsley, 627 S.W.2d

       351, 355 (Ten n. 1982)( sentencing provisions of the habitual drug offender act

       constitutional); State v. Dann y Lee Holder, C.C.A. 01C01-9501-CC-00015,

       Linco ln County (Tenn. Crim. App., Nashville, Mar. 22, 1996) (mandatory service

       of the entire sentence for defend ants convicted of rape of a child constitutional).



               Nor does the mandatory sentence violate the more expansive application

       to non-capital sen tencing by our supreme court of Article I, Section 16 of the

       Tennessee Constitu tion. If we con sider the m andato ry senten ce und er the state

       constitution, this require s that the s entenc e initially be co mpare d to the crime

       committed. Harris , 844 S.W.2d at 603. “Unless this threshold comparison leads

       to an inference of gros s dispr oportio nality, the inquiry e nds--t he se ntenc e is

       constitution al.” Id.    However, in the few cases when the inference arises, we

       must compare the sentence as applied to other criminals in the jurisdiction, and

       sentences for the s ame crime in other ju risdictions.            Id.   Here, we cannot

       conclude that      the    im position   of   a     mandato ry   thirty-d ay   sen tence   is

       disprop ortionate to the crime o n its face. Obviously, the general assembly has

       determined that the seriousness of the offense of driving while under the

       influence with children in the vehicle warran ts a more se vere punishment. The

       legislature has also graded the offense with reference to more serious

       consequences to a child, i.e. serious bodily injury and death. Tenn. Code Ann.

fithiamt.opn                                        -6-
       § 55-10-4 14(2), (3).   The legislature has bro ad powe r to determine th e nature

       and length of punishments for crimes and we shou ld gene rally defer to its

       authority.



               The appeal is dismissed and the judgment of the trial court is affirmed.




                                        ____________________________________
                                        DAVID H. WELLES, JUDGE



       CONCUR:



       ___________________________________
       THOMAS T. WOODALL, JUDGE


       ___________________________________
       JOHN K. BYERS, SENIOR JUDGE




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