        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                          Assigned on Briefs March 12, 2014

              STATE OF TENNESSEE v. KEVIN LEE JOHNSON

                  Appeal from the Circuit Court for Bedford County
                  Nos. 17610, 17503     Franklin L. Russell, Judge



               No. M2013-01842-CCA-R3-CD - Filed April 7, 2014


The defendant was convicted of being a habitual motor vehicle offender, driving under the
influence, and failure to appear and was sentenced to an effective term of nine years and six
months. On appeal, the defendant argues that the trial court abused its discretion in imposing
the sentence because it is excessive and contrary to law. After reviewing the record, we
affirm the judgment of the trial court.

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

J OHN E VERETT W ILLIAMS, J., delivered the opinion of the Court, in which JERRY L. S MITH
and N ORMA M CG EE O GLE, JJ., joined.

Kristin B. Green, Shelbyville, Tennessee, for the appellant, Kevin Lee Johnson.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney
General; Robert Carter, District Attorney General; and Andrew Lee Wright and Richard
Aron Cawley, Assistant District Attorney Generals, for the appellee, State of Tennessee.

                                         OPINION

                       FACTS AND PROCEDURAL HISTORY


       On March 7, 2013, the defendant entered an open guilty plea to the charges of being
a motor vehicle habitual offender (“MVHO”), a Class E felony, driving under the influence
(“DUI”) first offense, a Class A misdemeanor, and failure to appear in court, a Class E
felony. The trial court sentenced the defendant as a Range II offender to serve three years
and six months for the MVHO offense, eleven months and twenty-nine days for the DUI
offense, to be served concurrently with the MVHO sentence, and six years for the failure to
appear to be served consecutively to the MVHO and DUI sentences, for an effective sentence
of nine years and six months.

       At the guilty plea hearing, the State offered a summary of the evidence it would use
against the defendant in a trial. On January 17, 2012, Deputy Monte Moore of the Bedford
County Sheriff’s Department responded to a report of a suspicious vehicle. When he arrived
on the scene, Deputy Moore discovered the defendant “passed out” in the driver’s seat of a
white Chevrolet Impala parked just off the roadway. Deputy Moore observed that the
defendant was in physical control of the vehicle, as the keys were in the ignition, the vehicle
was on, and the defendant had his foot on the brake.

       Deputy Moore suspected that the defendant was intoxicated and asked the defendant
to perform field sobriety tests. After the defendant performed poorly, Deputy Moore arrested
the defendant. The defendant refused to consent to a blood or breath test. Deputy Moore
then discovered that the defendant had his driver’s license revoked in 2005 when the
Marshall County Circuit Court declared him a habitual motor vehicle offender.

       The defendant had a pre-trial motion hearing date of February 15, 2013, for the
charges of DUI and being a habitual motor vehicle offender. The defendant did not appear
in court at this time, and the State had a number of witnesses it could call to verify the
defendant’s absence.

        At the conclusion of the State’s proof, the defendant stated that he was not driving
when he was arrested as a habitual motor vehicle offender and for DUI. He then announced
that his plea was a best-interest plea.

        At the sentencing hearing, the trial court considered the voluminous criminal history
of the defendant when determining his sentencing ranges and any enhancement factors that
applied. The defendant had convictions for domestic assault, reckless endangerment,
resisting arrest, a second violation of the MVHO law, and theft, in 2012 in Marshall County.
These convictions occurred after he was charged with MVHO in Benton County, but before
he was charged with failure to appear. As a result, the trial court did not consider these
offense in determining the defendant’s offender status for the MVHO conviction. From 2003
to 2006 the defendant was convicted of: a second felony for failure to appear, simple assault,
resisting arrest, two felony convictions for forgery, resisting arrest, flight to avoid
prosecution, two convictions for driving with a revoked license, a third felony conviction for
failure to appear, two convictions for criminal impersonation, misdemeanor vandalism,
felony vandalism, five misdemeanor thefts, underage consumption of alcohol, underage
possession of alcohol, and driving under the influence. The defendant also violated his
probation four different times.


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        The trial court determined that the defendant was a Range II offender as to the MVHO
charge based on two felony forgery charges from 2006 with a sentencing range of two to four
years. The court found that several enhancement factors applied to the defendant. Under
enhancement factor number one, which takes into consideration the defendant’s prior history
of criminal convictions, the court found that the defendant had two felony convictions for
failure to appear and a felony conviction for vandalism. Under enhancement factor number
eight, which takes into consideration the defendant’s failure to comply with the conditions
of a sentence involving release into the community, the court found that the defendant had
repeatedly violated his probation. The trial court considered but rejected the defendant’s
mitigating evidence under mitigating factors numbers three and eight. The defendant asked
the trial court to consider as a mitigating factor that substantial grounds existed that tended
to excuse or justify the defendant’s criminal conduct in that the defendant was operating the
vehicle in order to keep another more intoxicated individual from driving, a course of action
the defendant felt was “the safer and more responsible thing to do.” He also asked the trial
court to consider mitigating factor number eight, that he suffered from a mental condition
that significantly reduced his culpability for the offense, because he had been diagnosed with
bipolar disorder as a child but had not received treatment, along with untreated alcoholism
and substance abuse struggles. The court considered this evidence but declined to apply the
factors. The trial court noted that there were no grounds to excuse or justify the defendant’s
conduct because the defendant entered a best-interest plea “and he still, kind of, claims that
someone else was driving.” The trial court also found that the defendant’s bipolar disorder
did not “at any time contribute[] to the fact that he was committing these particular crimes.”
After applying the enhancement factors, the court sentenced the defendant to a three years
and six month period of incarceration. Based upon his prior criminal history, the trial court
also enhanced the defendant’s DUI sentence to eleven months and twenty-nine days, to be
served concurrently with his MVHO sentence.

        The trial court found that the defendant was a Range IV career offender as to the
failure to appear based on the same felony convictions considered for the MVHO conviction,
in addition to his current MVHO conviction and a felony conviction for theft. The court
sentenced the defendant to serve a six-year sentence on the failure to appear conviction.
Because the defendant committed the felony offense of failure to appear while released on
bail for the MVHO charge the trial court ordered the sentences to be served consecutively.
The defendant received an effective sentence of nine years and six months.


                                        ANALYSIS

       The defendant argues that the trial court abused its discretion when it imposed an
effective sentence of nine years and six months. Specifically, the defendant claims that the

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sentence is excessive and contrary to the law.

        This court reviews challenges to the length of a sentence under an abuse of discretion
standard, “granting a presumption of reasonableness to within-range sentences that reflect
a proper application of the purposes and principles of our Sentencing Act.” State v. Bise, 380
S.W.3d 682, 707 (Tenn. 2012). A sentence should be upheld “so long as the statutory
purposes and principles, along with any applicable enhancement and mitigating factors, have
been properly addressed.” Id. at 706. After the 2005 amendments to the Sentencing Act,
trial courts are “guided by—but not bound by—any applicable enhancement or mitigating
factors when adjusting the length of the sentence.” Id. Even if a trial court misapplies an
enhancement or mitigating factor, this court will not invalidate the sentence “unless the trial
court wholly departed from the 1989 Act, as amended in 2005.” Id. The court should uphold
a sentence “so long as it is within the appropriate range and the record demonstrates that the
sentence is otherwise in compliance with the purposes and principles listed in the statute.”
Id. at 709-10. In that situation this court may not modify a sentence “even if we would have
preferred a different result.” State v. Carter, 254 S.W.3d 335, 346 (Tenn. 2008). The
defendant bears the burden of proving that the sentence was improper. State v. Ashby, 823
S.W.2d 166, 169 (Tenn. 1991).

        At sentencing, the parties agreed that the defendant was a Range II offender in regards
to the HMVO conviction and a Range IV offender as to the conviction for failure to appear.
The parties further agreed that the sentence for failure to appear would be served
consecutively to the sentences for HMVO and DUI pursuant to Tennessee Rule of Criminal
Procedure 32(c)(3)(C), which states that when a defendant is convicted of multiple offenses
from one trial and the law requires consecutive sentences, the sentence shall be consecutive
to a sentence for a felony committed while the defendant was released on bail and the
defendant was convicted of both offenses. In this case, the defendant was convicted of the
Class E felony of being a habitual motor vehicle offender and the Class E felony of failure
to appear.

        The appropriate sentence range for a Range II offender convicted of a Class E felony
is two to four years, and the appropriate range for a Class E felony conviction for a Range
IV offender is six years. Here, the trial court sentenced the defendant to serve three years and
six months as a Range II offender for his HMVO conviction, and six years as a Range IV
offender for his failure to appear conviction. The trial court considered the defendant’s prior
criminal history and repeated probation violations as enhancement factors. The sentences
that the defendant received were both within the applicable range for an offender of his status
convicted of a Class E felony. Thus, we conclude that the trial court did not abuse its
discretion in its sentencing of the defendant.



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                              CONCLUSION

For the foregoing reasons, we affirm the judgment of the trial court.




                                           _________________________________
                                           JOHN EVERETT WILLIAMS, JUDGE




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