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State v. Billingsley3/4/2004
I. Facts
In case number 926, the Moore County Grand Jury indicted the Defendant on charges of: (1) driving a motor vehicle and/or being in physical control of a motor vehicle after being declared an habitual offender; (2) felony DUI; (3) driving on a revoked or suspended license; (4) violation of the implied consent law by refusing to submit to a breathalyzer test; and (5) violating the open container law by possessing an open container of an alcoholic beverage or beer while operating a motor vehicle. A trial was set for January 10, 2003, and the Defendant failed to appear for the trial. In case number 933, the Defendant was indicted by the Moore County Grand Jury for his failure to appear. Subsequently, the Defendant pled guilty to three offenses: driving a motor vehicle after being declared an habitual offender; felony DUI; and failure to appear. The other charges against him were dismissed. After a sentencing hearing, the trial court sentenced the Defendant to five years for each offense and ordered that the sentences run consecutively, for an aggregate sentence of fifteen years. The Defendant appeals, contending that the sentence imposed upon him is excessive and contrary to law.
At the guilty plea hearing, the State asserted that:
The State's proof would show that in December . . . 2000 . . . the defendant was declared an Habitual Traffic Offender in the Circuit Court for Rutherford county, Tennessee and ordered not to drive for a minimum of three years. . . . ithin a three year period [the DUI] offense occurred . . . July 19th 2002. And what the State's proof would show is that a Mr. Tucker who lives close to where the defendant was caught on Chestnut Ridge, got a call from a relative who heard on a scanner that some passing motorist had seen the defendant in a disabled vehicle on the side of the road where Chestnut Ridge Church of Christ is . . . . Mr. Tucker . . . went out to see if he could assist this car that was partly on the road.
He saw the car and was a little le of pulling up because the defendant was passed out at the steering wheel. Deputy Rainey from the sheriff's department arrived about that time. The two of them approached that car and after a few minutes Deputy Rainey was able to rouse the defendant. He refused . . . to take any test, field sobriety test or take a blood alcohol test.
He did make a statement that he had been driving and hit a guard rail up the road. They did see the scrape on the side of the car. It was pretty obvious that he had hit a guard rail and pulled over there and passed out at the steering wheel.
As to the failure to appear charge, the State asserted:
he felony DUI, and the Habitual Traffic Offender case, were set for trial on January 10th of this year. . . . The jury was there and everybody was there for the trial and the defendant did not appear. . . . His father appeared and was questioned and . . . [said] that the defendant had willingly not shown up for court.
At the sentencing hearing, the State offered a pre-sentence report that proved, among other things, that the Defendant was declared an habitual motor vehicle offender on December 11, 2000. Mark Logan, the Sheriff of Moore County, testified that DUIs are a problem in Moore County and that they have increased during his sixteen years as sheriff. The Sheriff also testified that the offenses of failure to appear and driving after being declared an Habitual Motor Vehicle Offender are problems in the county. Sheriff Logan offered the opinion that incarceration would be a factor in deterri
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