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State v. Strickland1/15/1999
The appellant, 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 consecutive sentences of three (3) years and six (6) months on each count. On appeal, Appellant claims that the trial court imposed excessive sentences. After a thorough review of the record, we affirm the judgment of the trial court.
I.
Appellant was adjudicated an habitual offender under the HMVO Act on May 7, 1993. Thereafter, on April 19 and May 16, 1997, Appellant was arrested for driving in violation of that Act. Appellant pled guilty to the offenses, and a sentencing hearing was held to determine the length and manner of Appellant's sentences.
At the sentencing hearing, Appellant testified that he was fifty-one (51) years old and in poor health. Appellant was suffering from cirrhosis of the liver, asthma, a hernia, arthritis and a back injury. He stated that he was taking several medications as a result of his health problems and was en route to the drugstore 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 take his medicine at the appropriate time, his "stomach would blow up." He had no other means of transportation to the drugstore on the occasions when he drove and he was not physically able to walk to get his medications.
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 sentence involving release into the community, Tenn. Code Ann. § 40-35-114(8); and (3) that the present offenses were committed while Appellant was on bail for a felony which he was ultimately convicted of, Tenn. Code Ann. § 40-35-114(13)(A). The 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 consecutively to a prior felony sentence. Appellant now brings this appeal, challenging the length of his sentences imposed by the trial court.
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). This 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. Poole, 945 S.W.2d 93, 96 (Tenn. 1997).
The burden is upon the appealing party to show that the sentence is improper. Tenn. Code Ann. § 40-35-401(d) Sentencing Commission Comments; State v. Gregory, 862 S.W.2d 574, 578 (Tenn. Crim. App. 1993). In conducting our review, we are required, pursuant to Tenn. Code Ann. § 40-35-210, to consider the following factors in sentencing:
"(1) he evidence, if any, received at the trial and the sentencing hearing; "(2) he presentence report; "(3) he principles of sentencing and arguments as to sentencing alternatives; "(4) he nature and characteristics of the criminal conduct involved; "(5) vidence and inform
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