# FILED
April 29, 1999 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT NASHVILLE MAY 1996 S ESSION

STATE OF TENNESSEE, ) ) Appellee, ) No. 01C01-9510-CC-00343

) ) Rutherford County v. ) ) Honorable Robe rt E. Corlew, III, Jud ge ) SAM NEELY, ) (Reckless endangerment with a deadly ) weapon and passing a worthless check) Appellant. ) For the Appellant : For the Appellee : Nancy G. Wallace Charles W. Burson 6 Public Square North Attorney General of Tennessee Murfreesboro, TN 37130 and Christina S. Shevali er Assistant Attorney Gener al of Tennessee 425 Fifth Avenue North Nashville, TN 37243-0493 William C. W hitesell, Jr. District Attorney General and John Price Assistant District A

ttorney General Judicial Building Murfreesboro, TN 37130

OPINION FILED:____________________ CONVICTIONS AFFIRMED; SENTENCES MODIFIED Joseph M. Tipton Judge1 The record of the a ctual particulars of each sentence i s quite conf using, but these sentences wil l be revi ewed later i n this opi nion. 2 O P I N I O N
The defendant, Sam Neely, appeals as of r ight from his convicti ons for reckless endangerment w ith a deadly weapon and pas sing a worthless c

heck in the amount of $808 .20, bot h Class E f elonies. The convi ctions wer e the resu lt of two separate, unrelated jury trials in the Rutherford C ounty Circuit Court . However, the records from both cases wer e commingled below so as to reflect a single, consol idated appeal. Therefore, we will address the defendant’s conte ntions with respect to each conviction in this opi nion. The defendant received concur rent one-year sentences for both convictions as a Range I, standard offender and a $ 2,000.00 fine for the reckless endangerment conviction. 1 Regarding the reck less endangerment convic tion, the defendant contends that the evidence is insuf ficient. Regarding the worthless check conviction, the defendant contends that the trial court err

ed by allowing hi m to be tried on a dismissed indictment for a c harge barred by the sta tute of limitations. In both
ca se s, th e d ef en da nt

ar gu es th at th e t ri al co ur

t e rr ed by de ny in g h im pr

ob at io n. We affirm the conv

ictions upo n the jury verdicts but modify th e sentence to reflect time served with the remai nder of the one-year sentence to be served on supervis ed probatio n for eac h convicti on, to be served con currentl y.

I. RECKLESS ENDA

NGERMENT CONVICTIO N The defendant was originally charged with evadi ng arrest and two count s of reckless endangerment with an automobile as a deadly weapon. One count related to the reckless endangerment of Rutherford County Deputy Whit Davis, and the other count related to the reckles s endangerment of Marvin Les ter. The defendant was acquitted of evading arr est and the reckless endanger ment of Deputy Davis but w as convicted of the reckless endangerment of Mr. Lester.3 Deputy Davis testified that on April 21, 1993, he went to the defenda nt’s home to serve a writ of execution upon the defendant’s Cadi llac Seville in or der to satisfy a civil j udgment against the defendant. After bei ng told by an elderly woman that the defendant was not home, he went around the corner of the house and saw the defendant getting into the Cadi llac. He said that he appr oached the car and told the defendant to get out. He said that he opened the driver’s si de door and tried to pull the defendant out, but the defe ndant pushed him off and closed th e door. Deputy Davis testified that he threatened to shoot the defendant but did not pull his weapon. He said that the defendant drove away before he could release the door h andle.

Murfreesboro Police Officer Tom Si ssom testified that he receiv ed a dispatch regarding the

defendant. He said he saw the de fendant driving at a hig h rate of speed causing other cars t o take evasive action.Officer Sissom stated that the defendant was driving forty-five to fifty miles per hour in a thirty-mile-per-hour zone. He said that the defendant “whipped up into a driveway

” as a man was crossi ng it. Officer Sissom arrested the defendant.

Marvin Lester testified that he was in his y ard when he heard a siren,and then he saw a car coming into his drivewa

y. He said that he had to r un to get out of the way or the car w

ould have run over him.He said that the car came w ithin ten feet of him.

The defendant testified tha t he was unaware that Deputy Davis was at his house when he left. He said that as he was leaving , Davis ran up and threat ened to blow his brains out if he did not get out of the car. He said that Davis’ testimony was incorrec t. He said t hat his ca r doors au tomatic ally locked and that Davis would h ave had to reach into the car to unl ock the door. He said that Davis did not touch the car

.4

The defendant testified that he felt threatened by Davis and drove aw

ay. He explained that he did not think about Dav is being a deputy; he onl y saw a gun.
The defendant denied going the route des cribed by Officer Sissom and stated that he was going to visit some people. H e said he saw Officer Siss om’s flashing lights but did not think they were for him. He denied hearing a siren. H e said that when he realized that Officer Sis som was pursuing him, h e pulled into a drivew ay. The defendant testified that he was dri ving about twenty

-five miles per hour, and he pulled into the driveway

at a slow speed. He cl aimed that Mr. Lester wa s in the yard about seventy-five feet from the dr iveway. Also, he said that there were no skid marks on the driveway. He said that he was unawar e of any outstanding civ il judgment against him.

The defendant contends that the evidence i s insufficient to prove bey ond a reasonable doubt that Mr. Les ter was placed “in i mminent danger of death or serious bodily injury” as required by the r eckless endangerment statute. Tenn. Code Ann. § 39- 13-103(a). He argues th at the evidence fails to show that his car came close enoug h to Mr. Lester to put him in i mminent danger. The defendant asserts that Mr. Lester was standing in the yard w

hen the car pulled into the dr iveway. Also, he claims that he was not violating any traffic laws. The state contends that the evidence is sufficie nt.

Our standard of review when the sufficiency of the ev idence is questioned on appeal is “whether, after viewing the ev

idence in the light most fav orable to the prosecution, any

rational trier of fact could have found the essential elements o f the crime beyond a reasonable doubt.” Jackson v. Virginia , 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979). This means that w e do not reweigh the ev idence but presume that the jury has resolv

ed all conflicts in the testimony and drawn all r easonable inferences from the evidence in favor of the s tate. See State v. Sheffield , 676 S.W.2d 542, 547 (Tenn. 1984); State v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 1978).5 Viewed in this light, we believe that the evidence is sufficient to support the reckless endangerment c onviction. Although th e defendant claims that Mr. Lester was seventy-five feet away from him and that he was traveling at a slow speed, the jury obviously accredited the testimony of the state’s witnesses. Officer Siss om testified that the defendant was travel ing about fifteen to twenty miles per hour over the speed limit when he “whi pped up into” Mr. Lester’s driveway. M r. Lester testified that if he had not been looking, the defendant w ould have run over him, and he had to run to get out of the way. He testified that the defendant’s car came within ten feet of him. In the light most favorable to the state, the e vidence is sufficient.

II. WORTHLESS CHECK CONVICTION The defendant contends that the trial cour t erred by allowi ng him to be tried for the worthless

check charge. He arg ues that the charge had been dis missed as part of a plea agreement, but the tr ial court reinstated the c harge when the defendant withdrew his plea

agreement. He contends that th e proper procedure to reins tate the charge would be to is

sue a new indictment. Becaus e this procedure was not followed, he argues that he could not pr operly be tried for the cha rge. He also contends that the statute of limitations on the char ge has now run. The state a rgues that a new indictment was not req uired in order to reinst ate the charge, and it further argues that the statute of limitations has not yet run.

The record reveals that the defendant was indicted for the worthless check charge in Jul y 1992. On Decemb er 28, 1992, th e trial court dism issed the charge without prejudice as par t of a plea agreement. On March 22, 1993, the defendant filed a motion to withdraw h is guilty plea. The t rial court granted the motion on May 6, 1993, and set aside the dismissal o f the worthless check char ge, reinstating that c

harge.6 The defendant now contends that the tri al court did not properly reinstate the charge and that a new i ndictment should have been iss ued, relying on State v. D’Anna , 506 S.W.2d 200, 20 2 (Tenn. Crim. App. 1973). In that case, a panel of th is court determined that “[w]hen an unconditional order nolle prosequi is entered after indictment, it is a dismis sal of the indictment and no conv iction can be had except by beginning a new case against the accused.” Id. (citing State ex rel. Hobbs v. Murrell , 93 S.W.2d 628, 630 (Tenn. 1936)).

The defendant argues that the reasoning in D’Anna applies to the present case and that his conviction is improper because a new indictment was not iss ued. The crucial difference between D’Anna and the present case, howev er, is that in D’Anna , the order nolle prosequi was unconditional. In State ex rel. Hobbs , our supreme court concluded that although an unconditional nolle prosequi would result in char ges being dismissed, “a nolle may be entered on a legal condition precedent, and, in such case, it is not final or effective until the condition is performe d[.]” 92 S.W.2d at 630. In the present case, the trial court stated that, “Upon the entry of this plea an d these settlements, [the worthles s check charge] is to be dismissed without prej udice and without costs.” Thus, the dismissal of the worthless check charge was implicitly conditioned upon the defendant honoring his plea agreement and wa s not effective or final until this condition w as performed. Because the condition failed, the plea agreement was not binding , and the trial court proper ly reinstated the charg e.
The defendant next argues that the s tatute of limitations has run, thus the state is precluded from reindicting him on the worthless check charge. The record shows that the offense was committed on July 7, 1990, and a w arrant was issued for the defendant on April 10, 1992. At that time, the applicable two- year statute of limitations was toll ed, and approximately thr ee months remained before the statute expired. The charge w as dismissed pursuant to a pl ea agreement on December 28,7

1992. The defendant moved to withdra w his guilty p lea on March 22, 1993, and the order granting the moti on and reinstating the w orthless check charge was filed on May 6, 1993.
The issue of the subsequent status of c harges dismissed pursuant to a plea agreement in which the defendant pleads guilty to another charge has not been addressed in Tennessee in the context of the stat ute of limitations and the defenda nt’s attempt t o withd raw hi s guil ty plea . Howe ver, th e case of State v. White , 838 S.W.2d 140 (Mo. C t. App.), is on poin t. Wh ite pled gu ilty to thre e counts of rape, and two remainin g rape cou nts were di smissed p ursuant to the ple a agreeme nt. Subse quently, he successfully collater ally attacked the conv

ictions. However, the court deemed the collateral attack to be a br each of the plea agreement and set asi de the dismissal of the two rape counts. The defendant w as tried and convicted on the five rape counts. On appeal, he conte nded tha t the stat ute of li mitatio ns had run relative to the two dismissed coun ts. The Missouri Co urt of Appeal s stated the f ollowing:

This court hol ds that u nder the case law t ol ling criminal statutes of limitations, and in fairness to both sides who enter a plea bargai n a greement, the statute was tolled during White’s collateral review, and the parties are return ed to preagreementstatus by

his b reach. Therefore the statute of limitationsdoes not bar the State fro m pr osecuting White on counts IV and V, o riginally d ismi ssed under the plea agreement. To hold otherwise would allow a defendant to gain the benefits of a plea bargain, and then s uccessfully attac k it collater ally, without allowing the state to rescind its p art of the bargain. 838 S.W.2d at 142.

Applying the White analysis to the present case, we note that the petitioner filed his motion to withdraw his g uilty plea before the statute of limitations had run. Such would be sufficient to allow reinstatement of the worthless check char ge. However, we also believe that the conditional status of the dismissal operates as a toll of the statute of limitations. Otherwise, the def endant could successfully attack his8

agreed-upon conviction while the state could not rescind its part of the bargain. In any event, the statute of limitati ons had not run on the worthl ess check offense.

III. DENIAL O F PROBATION The defendant contends that the trial court erred by denying him probation in both the reckles s endangerment and worthles s check cases. He contends that none of the justifications for deny ing probation exist i n his case. See Tenn. Code Ann. § 40-35-103. The state contends that the trial court found that th e defendant had seventy-two day

s of jail credit and ordere d the defendant to begin servi ng probation immediately. Thus, the state c laims that the defendant did receiv e probation.
Appellate review of sentencing is de novo on the record with a presumption that the trial co urt's determinations are c orrect. Tenn. Code Ann. §§ 40- 35-401(d). As the Sentencing Commission Comments to this s ection note, the burden is now on the defendant to show that the sentence is improper.This means that if the trial court followed the statutory sentencing procedure, made findings of fact that are adequately supported in the record, and gave due co nsideration and proper w eight to the factors and principles tha t are relevant to sentenci ng under the 1989 Sentencing Act, we may not distur

b the sentence even if a different res ult were preferred. State v. Fletcher , 805 S.W.2d 785, 78 9 (Tenn. Crim. App. 1991).

However, “the pres umption of correctness whic h accompanies the trial court's action is conditioned upon the affirmative showi ng in the record that the tr ial court considered the sentencing principles and all relevant facts and circumsta nces.” State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). In this respect,for the purpose of meaningful appellate review,

the trial court must place on the record its reasons for arriving at the final sentencing decisi on, identify the mitigat ing and enhancement factors found, state the specific facts supporting each enhancement factor found, and articulate h ow the9 mitigating and enhancement factors have been eva luated and balanced in determining the sentence.T.C.A. § 40-35-2 10(f) (1990). State v. Jones , 883 S.W.2d 597, 59 9 (Tenn. 1995).

Also, in conducting a de novo review, we must consider (1) the evi dence, if any, received at the t rial and sentencing heari ng, (2) the presentence r eport, (3) the principles of sentencing and arguments as to sentencing alternatives, (4) the natu re and characteristics of the c riminal conduct, (5) any mitigating or statuto ry enhancement factors, (6) any statement that the defendant made on his own behalf and ( 7) the potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-3 5-102, -103, -210; see Ashby , 823 S.W.2d at 168; State v. Moss , 727 S.W.2d 229 (Tenn. 1986).

The sentence to be imposed by the trial court for a Class E felon y is presumptively the mini mum in the range when there are no enhancement or mitigati ng factors present. Tenn. Code Ann. § 40- 35-210(c). Procedurall y, the trial court i s to increase the sentence within the range based upon the ex istence of enhancement factors and then reduce the sentence a s appropriate for any miti gating factors. Tenn. Code Ann. § 40-35-210(d), (e) . The weight to be afforded an ex isting factor is left to th e trial court's discr

etion so long as it compli es with the purposes and pr inciples of the 1989 Sentencing Act and its findi ngs are adequately su pported by the record. Tenn. Code Ann. § 40-35-210, Sentencing Commission Comments; Moss , 727 S.W.2d at 237; see Ashby , 823 S.W.2d at 169.

The record in this case with respect to the defendant’s senten ce is confusing at b est. It reflect s that the def endant was sente nced to one year a s a Range I, standard offender for each convic tion and that the sentences we re to be served concurrently. Beyo nd that, it is difficult to deter mine what sentence the defendant received. The judgment form r eflects that the defendant was sentenc ed to one year of confinement in

the Departme nt of Correc tion. How

ever, on th e same judgme nt form,10

the trial court handwrote that the defendant was to serve his sentence in the Ruth erford County Workhouse. The same judgment form also r eflects that the defendant was sentenced to one year of supervised probation. The ef fective date of the probation is March 24, 1995, which i s the same date on which the tr ial court imposed the sentence.
The transcript of the sentencing hearing does not help clar ify the record. The following co lloquy took place at the sentencin g hearing:

JUDGE: Respectfully, it does appea r though to the Court that this is not a case where the Court should simply determine that Mr. Neely should simplybe placed on probatio n. Respec tfully, it appears and the Court recog nizes that Mr. Neely

has served a substantial pe riod of the sen tence. It appe ars though that he must proceed to serve the bal ance of that sentence. It appears that upon his release, he must be placed on supervised probation, conditioned u pon his good and lawful behavior, conditioned upon his payment of the fine which has previousl y been imp osed by th e jury.

. . . . DEF ENSE ATTORNEY: Were y ou asking h im t o b e incarcerated or on superv ised probation? JUDGE: I think

he needs to serve the

balance of the sentence. Now, if he’s standard range 1, 30 percent offender, the Court recognizes

he’s served a substanti al portion of that sentence. But it would be required -- and obviously may be commuted to the workhouse for

the service of the balance of that. He must serve the balance of that sentence as a stand ard range 1, 30 percentoffender. And at t he time he serves the balanc e of that, he’s entitled to suspension for the remainder of that period. DEFENSE ATTORNE Y: I misun derstoo d yo u. I thought you said to serve the

balance on supervised probation. So you’re saying he needs to serve the balance -- JUDGE: Yes , ma’am. DEFENSE ATTORNEY: -- of the sentence. JUDGE: Yes , ma’am. DEFENSE ATTORNEY: See, I don’t think you can put them on supervised probation if he goes to s erve the balance of his sentence. He would be rel eased on parole.11 PROSECUTOR: No. These a re determinative releas ed sentences. He comes out the expirati on of 30 percent without the actual intervention of the par ole b o ard, and he can go on any form of super vision nec essary.

. . . . PROSECUTOR: . . . . We’ve con cluded all proceedings . . . And it wou ld seem appropri ate that his per iod of s upervi sed probation commenced today as opposedto some point in the future.

. . . . JUDGE: All right. Very well. All right. After reviewing the record, we simply cannot determine the manner of service in whic

h the trial court ordered the defendant to serve his sentenc e. Furthermore, if the trial c ourt did deny probation, it failed to state on the record an y reason in support of the denial. For these reasons, we hav e conducted a de novo review of the defendant’s sentence and have concluded that a sentence of probation is warranted, taking i nto consideration the time that the defendant has already serv ed.
Pursuant to Tenn. Code Ann. § 40-35- 102(6), the defendant is presumed to be a favorable candidate for alternative sentencing op tions in the absence of evidence to the contrary. This means that although the defe ndant is not automatically entitled to probation, a rebutt able presumption exists that a sentence other than incarceration would r

esult in successful rehabil itation. Fletcher , 805 S.W.2d at 787; Ashby , 823 S.W.2d at 168. The presumption can be rebutted upon a s howing that:

(A) Confinement is necessary to protect society

by restraining a defendant who has a long hist ory of criminal conduct; ( B) C onfinement is necessary to av oid depreciating the seriousness of the offense or confinement is particularly suited to provide an effectiv e det errence to others likely to commit similar offenses; or (C) Measures less restricti ve than co nfinem ent have frequently or recently been applied unsuccessfully to the defendant[.] Tenn. Code Ann. § 40-35-103(1).12 Upon a review of the rec ord, we conclude that the pr esumption in favor of probation has not been rebutted. The r ecord contains no evidence that the defendant had a lengthy criminal

history or that less

restrictive measure

s were frequently or recently applied unsucc essfully to the defendant. “‘The entire theory of probation is that it is in the public interest that those who violate society’s rules of conduct should, in proper cases, be given an opportunity to rehabilitate themselves . . . .’” Ashby , 823 S.W.2d at 160 (quoting Stiller v. State , 516 S.W.2d 617, 620 (Tenn. 1974)). Any concern about the less-than-mi tigating circumstanc

es surrounding the offense reflecti ng a particular need for deterre nce or need for acknowledg ing the seriousness of the offense is more than fully met by the time the defendant has already se rved. Based upon the record before us, we conclude that his concurrent one -year sentences shall be suspended upon time previousl y served, and the remai nder of the time shall be served on probation.

In consideration of the foregoing and the record as a whole , we affirm the defendant’s convictions upon the jury verdicts for felony reckless endanger ment and passing a worthless check. We modify the def endant’s sentences to reflect for each offense a sentence of one year, with time served of seventy -two days and the remainder of the year to be ser ved on supervised prob ation. The sentences shall be served con currentl y.

__________________________ Joseph M. Tipto n, Judge13

CONCUR:

___________________________ Gary R. Wad e, Presiding Judge

___________________________ William M. Barker, Specia l Judge