        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                           AT KNOXVILLE             FILED
                     DECEMB ER SESSION, 1998        January 15, 1999

                                               Cecil Crowson, Jr.
                                                Appellate C ourt Clerk
STATE OF TENNESSEE,        )   C.C.A. NO. 03C01-9801-CC-00556
                           )
      Appellee,            )
                           )
                           )   BLOUNT COUNTY
VS.                        )
                           )   HON . D. KELL Y THO MAS
ROBERT STRICKLAND,         )   JUDGE
                           )
      Appe llant.          )   (Dire ct Ap pea l - Cla ss E Felo ny)




FOR THE APPELLANT:             FOR THE APPELLEE:

JULIE A. MAR TIN               JOHN KNOX WALKUP
P. O. Box 426                  Attorney General and Reporter
Knoxville, TN 37901-0426
                               CLINTON J. MORGAN
                               Coun sel for the S tate
                               425 Fifth Avenu e North
                               Nashville, TN 37243-0493

                               MIKE FLYNN
                               District Attorney General

                               PHILIP MORTON
                               Assistant District Attorney
                               363 Court Street
                               Maryville, TN 37804



OPINION FILED ________________________

AFFIRMED

JERRY L. SMITH, JUDGE
                                    OPINION


       The appellan t, Robert B. Strickland, pled guilty to two (2) counts of violating

the Habitual Motor Vehicle Offender Act (“HMVO Act”), a Class E felony. The

trial court sentenced him as a Range II offender to consecu tive sentences of

three (3) years and six (6) month s on ea ch cou nt. On appeal, Appellant claims

that the trial court imposed excessive sentences. After a thorough review of the

record, w e affirm the judgm ent of the tria l court.



                                           I.




       Appellant was adjudicated an habitu al offender under the HMVO Act on

May 7, 1993. Thereafter, on April 19 and May 16, 1997, Appellant was arrested

for driving in vio lation of that Act. Appellant pled guilty to the offenses, and a

sentencing hearing was he ld to determine the length and m anne r of Ap pellan t’s

sentences.

       At the sentencing hearing, Appe llant testified that he was fifty-one (51)

years old and in poor health . Appe llant wa s suffe ring from cirrhos is of the liver,

asthma, a hernia, arthritis and a b ack injury. He stated that he was taking several

medications as a result of his health problem s and was en route to the d rugstore

when he was arrested on both occasions. Although he knew that it was illegal

for him to drive, Appellant insisted that he only drove in emergency situations.

He testified that if he did not tak e his me dicine at th e appro priate time , his

“stomach would blow up.” He had no other means of transportation to the




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drugstore on the occasions when he dro ve and he wa s not p hysica lly able to walk

to get his m edication s.

         In imposing Appellant’s sentence, the trial court found three enhancement

factors to be applicable, namely: (1) that Appellant had a prior history of criminal

convictions in addition to those necessary to establish the appropriate range,

Tenn. Code Ann. § 40-35-114(1); (2) that Appellant has a previous history of

unwillingness to comply with the conditions of a senten ce involving release in to

the comm unity, Ten n. Cod e Ann. § 40-35-114(8); and (3) that the present

offenses were committed while Appellant was on bail for a felony which he was

ultima tely convicted of, Tenn. Code An n. § 40-35-11 4(13)(A). Th e trial court

found no applicable mitigating factors. The trial court then sentenced Appellant

as a Range II offender to consecutive terms of three (3) years and six (6) months

for each offense.      The trial court further ordered that the sentences run

cons ecutive ly to a prio r felony sente nce. A ppella nt now brings this ap peal,

challeng ing the len gth of his s entenc es imp osed b y the trial cou rt.



                                           II.




         This Court's review of the sentence imposed by the trial court is de novo

with a presumption of correctness. Tenn. Code Ann. § 40-35-401(d). T his

presumption is conditioned upon an affirmative showing in the record that the trial

judge considered the sentencing principles and all relevant facts and

circumstances. State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). If the trial

court fails to comply with the statutory directives, there is no presumption of

correctness and our review is de novo. State v. Poo le, 945 S.W.2d 93, 96 (Tenn.

1997).

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       The burden is upon the appealing party to show that the sentenc e is

improper. Tenn . Code Ann. § 40-35-401(d) Sentencing Commission Comme nts;

State v. Gregory, 862 S.W.2d 574, 578 (Tenn . Crim. A pp. 199 3). In conducting

our review, we are required, pursuant to Tenn. Code Ann. § 40-35-210, to

consider the following factors in sentencing:

       (1) [t]he eviden ce, if any, rec eived at the trial a nd the sentencing
       hearing;

       (2) [t]he pre senten ce repo rt;

       (3) [t]he principles of sentencing and arguments as to sentencing
       alternatives;

       (4) [t]he nature and characteristics of the criminal conduct involved;

       (5) [e]vidence and information offered by the parties on the
       enhancement and mitigating factors in §§ 40-35-113 and 40-35-114;
       and

       (6) [a]ny statement the defendant wishes to make in the de fenda nt's
       own behalf about sentencing.


       Under the 1989 Sentencing Act, the presumptive sentence for a Class B,

C, D or E felony is the m inimu m with in the a pplica ble ran ge if no mitiga ting or

enhancement factors for sentencing are p resent.               T enn. C ode An n. §

40-35-210 (c); State v. Fletcher, 805 S.W .2d 785, 788 (Tenn. Crim . App. 1991 ).

Howeve r, if such factors do exist, a trial court should start at the minimum

sentence, enhance the minimum sentence within the range for enhancement

factors and then reduce the sentence within the range for the mitigating factors.

Tenn. Code Ann. § 40-35-210(e). Where one or more enhancement factors

apply but no mitigating factors exist, the trial court may sentence above the

minimum sentence within the range. Tenn. Code Ann. § 40-35-210(d). No

particular weight for each factor is prescribed by the statute, as the weight given

to each factor is left to the disc retion of the trial court as long as its findings are

                                          -4-
suppo rted by the record. State v. Santiago, 914 S.W.2d 116, 125 (Tenn. Crim.

App. 1995);         see Tenn. Code Ann. § 40-35-210 Sentencing Commission

Commen ts.



                                                  III.




      Appellant contends that the trial court erred in failing to consider several

statutory mitigating factors. Although he does not challenge the applicability of

the enhance ment factors conside red by the trial court, 1 Appellant argues that had

the trial court properly applied the mitigating factors, he would have re ceived a

sentence closer to the minimum for each conviction.

                                                   A.

      Appellant first conte nds th at the tria l court s hould have c onsid ered th at his

conduct neithe r caus ed no r threa tened seriou s bod ily injury. Tenn. Code Ann.

§ 40-35-113(1). H e claims that there is no evide nce in the record th at he was

impaired at the time he was driving nor that he threatened harm to any person.

Howeve r, Appe llant is an habitu al offender with a lengthy record of driving

offenses, including driving und er the influence of an intoxicant. This Court has

previously held,

      [b]y mea ns of th e Mot or Ve hicle Habitual Offenders Act, the General
      Asse mbly of Tennessee, as a matter of public policy, has
      determined that certain drivers are such a threat that they should not
      be allowed to operate a motor vehicle. Appellant is just such a
      driver, and h is pres ence behin d the w heel, in and of itself,
      constitutes a threat of serious bodily injury to other drivers.

State v. Michael Bellew, C.C.A. No. 02C01-9510-CC-00324, 1997 WL 81656 at

*2, Henry Co unty (Tenn . Crim. App. filed Fe bruary 27, 199 7, at Jackson ).


      1
          Additionally, Appellant does not challenge the trial court’s imposition of consecutive sentences.

                                                   -5-
      The trial court did no t err in failing to apply this mitigating factor.

                                          B.

      Appellant next argues that the trial court should have considered that

Appellant was acting under strong provoc ation when the offenses we re

committed. Tenn . Code Ann. § 4 0-35-11 3(2). He claims that he “was facing a

medical emergency which could threaten his life and put him in to the h ospita l if

he did not obtain his medication.” Appellant claims that although he knew he

could not drive, his medication was vital to his he alth. However, he does not

explain why he did no t mak e prior arrangements to receive his medication.

Certainly , the medicine could have b een delivered, o r Appellant cou ld have

arranged for transportation to the drugstore before his health was endangered.

This would have been a m ore pruden t course o f condu ct, rather than c onsc iously

choosing to drive a car and knowingly violate the law. There was not sufficient

provocation to mitigate Appellant’s sentence under Tenn. Code Ann. § 40-35-

113(2).

                                          C.

       Appellant further contends that his “medical emergency” constituted a

substantial reason excusing or justifying his behavior under Tenn. Code Ann. §

40-35-113 (3). However, as we have previously stated, Appellant had other, legal

options for receiving his medication before his circumstances became critical.

This mitigating factor is not applicable.

                                          D.

       Appellant asserts that by d riving his car to get his required medication, he

was motivated by a desire to provide necessities for himself, Tenn. Code Ann. §

40-35-113 (7). However, this factor “is more properly addressed to individuals

who, beca use o f their de stitution , may c hoos e to ste al brea d or m ilk for the ir

                                          -6-
children or themselves due to their dire circumsta nces.” State v. Martie Lane

Williamson, C.C.A. No. 03C01-9210-CR-00371, 1993 WL 335433 at *2, Knox

Coun ty (Tenn. Crim. App. filed September 1, 19 93, at K noxville ). Thu s, this

factor is inapplicable.

                                          E.

       Finally, Appellant insists th at bec ause he is in c onsta nt pain due to his

health proble ms a nd he drove his vehicle to get medications to alleviate his pain,

the trial court should have found that he acted under duress at the time the

offenses were committed. Tenn. Code Ann. § 40-35-113(12). Duress has been

defined by courts of this state as a “threat of ‘such a character as to overcome

the mind and w ill and d estroy the free agen cy of a p erson of ordin ary firm ness .’”

State v. Jerry Taylor, C.C.A. No. 0 1C01-9 612-CC-00499, 1998 WL 424570 at

*11, Williamson County (Tenn. Crim. App. filed July 29, 1998, at Nashville)

(quoting Johnson v. Roland, 61 Tenn. (2 Baxt.) 203, 206 (1872)). Once again,

Appellant had oth er legal m eans fo r obtaining his med ication prio r to the onset

of the pain for which he is com plaining. A lthough this Cou rt sympa thizes with

Appe llant’s medical difficulties, we do not find Appellant’s pain to be within the

meaning of “duress” as contemplated by Tenn. Code Ann. § 40-35 -113( 12). T his

factor is inapplicable.

                                          F.

       Finally, this Court notes that Appellant has an extensive history of criminal

convictions.    Appellant, in his brief, acknowledges that he has over 48

misdemeanor convictions and arre sts in Tennessee. In addition, Appellant has

enough felony convictions to qualify as a Range II offender. Moreover, the

present offenses were committed while Appellant was on bail for another felony

offense for whic h he w as ultim ately co nvicted .       Appe llant insists tha t his

                                          -7-
sentences should b e reduc ed due to his spe cial circum stance s, i.e., his nee d to

receive the required medication as a result of his numerous illnesses. However,

even if this Court were to find Appellant’s proposed mitigating factors to be

applicable, those factors would be greatly outwe ighed by the a pplica ble

enhancement factors.

      Furtherm ore, Appellant’s prior criminal record indicates that he has a

sustained intent to violate the law.      As such, his criminal record negates

Appe llant’s assertion that he violated the law only as a matter of medical

emerge ncy.

      W e , therefore, conclud e that the tria l court imp osed a n appro priate

sentence of three (3) years an d six (6) months for each offense of violating the

HMVO Act. Accordingly, the judgment of the trial court is affirmed.



                                  ____________________________________
                                  JERRY L. SMITH, JUDGE



CONCUR:



___________________________________
DAVID G. HAYES, JUDGE


___________________________________
JAMES CURWOOD WITT, JR., JUDGE




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