IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs June 22, 2010

STATE OF TENNESSEE v. JOSEPH VALENTINE HILL

Direct Appeal from the Circuit Court for Bedford County

No. 16847 Franklin L. Russell, Judge

No. M2009-02258-CCA-R3-CD - Filed February 16, 2011

Defendant, Joseph Valentine Hill, was charged with one count of DUI, second offense, a

class A misdemeanor, and with seven counts of aggravated assault with a deadly weapon, a

class C felony. He entered pleas of guilty as charged in each count and submitted to a

sentencing hearing with no agreement as to the length or manner of service of the sentences.

The trial court sentenced Defendant to four years for each aggravated assault conviction and

to 11 months and 29 days for the DUI second offense conviction. The DUI sentence and

three of the aggravated assault sentences were ordered to be served concurrently with each

other. The remaining four aggravated assault sentences were ordered to be served

concurrently with each other, but consecutively to the first grouping of sentences, for an

effective sentence of eight years. The trial court ordered the eight-year sentence to be served

in incarceration. Recognizing that the DUI, second offense conviction requires a mandatory

minimum period of incarceration, Defendant argues on appeal that the trial court erred by

declining to grant him probation after serving the above-noted mandatory minimum

confinement. After careful review, we affirm the judgments of the trial court.

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

THOMAS T. WOODALL, J., delivered the opinion of the Court, in which JERRY L. SMITH and

J.C. MCLIN, JJ., joined.

Donna Leigh Hargrove, District Public Defender; and Andrew Jackson Dearing, III,

Assistant Public Defender; Michael Collins, Assistant Public Defender; and Catherine H.

Hickerson, Assistant Public Defender, Shelbyville, Tennessee, for the appellant, Joseph

Valentine Hill.
Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney

General; William Michael McCown, District Attorney General; and Michael D. Randles,

Assistant District Attorney General, for the appellee, the State of Tennessee.

OPINION

I. Factual Background

At the guilty plea submission hearing, the prosecutor stated the following as the

factual basis for the guilty pleas:

The factual basis is on the date alleged in the indictment, April 7, 2009,

almost simultaneously - - or I won’t say simultaneously, but the

communications center, the 911 communication center began receiving a string

of calls that they easily linked together as being part of the same course of

conduct.

And it was about a driver of a vehicle between the stretch of Highway

on 41A between Tullahoma and Shelbyville, essentially hitting cars and

running cars off the road and things like that. Literally, they would get a call

from someone and then when they would try to nail down where it was, it was

clear that it was the - - it was something that was moving closer and closer to

Shelbyville.

Ultimately what happened is, the car that the comm [sic] center was

getting calls on, the vehicle was - - ultimately it went off the road also. But

what happened was, the defendant essentially hit three different cars on the

way from Tullahoma to Shelbyville before he was - - he came to a stop also.

The first vehicle was a 2001 Jeep Cherokee, driven by Jerry Hayes and

occupied by Kevin Vaughn and Michael Vaughn. They say that the vehicle

rear-ended them, rammed into the back of them and then clipped them as it

passed them and actually forced them off the road.

The second vehicle, which was, again, a little bit closer to Shelbyville,

was a 2002 Cavalier, which was driven by Maria Esther Albarran, that’s

spelled A-l-b-a-r-r-a-n, Canas, C-a-n-a-s, and occupied by, I believe, her

daughter, Martha Albarran. They were also rear-ended and side-swiped and

had to pull to the side of the road. They actually had to go to the hospital and

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were both diagnosed with acute cervical strain. And Ms. Canas was also

diagnosed with acute lumbar strain from the accident.

The third and final vehicle that was hit was a 2008 Trail Blazer, driven

by David York and occupied by Charlotte York. And they both also had to go

to the hospital and were diagnosed with acute lumbar strain.

The defendant’s vehicle - - he was eventually stopped. Law

enforcement had to respond to all three of these locations along the way. It

took quite a bit of - - took most part of the on-duty law enforcement to respond

to these various locations.

One of the things, of course, they did was take a blood sample from the

defendant. It was sent to the TBI - - and I don’t know that I’ve said this, but

the defendant was the driver of the vehicle involved in these previous three

collisions.

They did take a blood sample of the defendant, it was sent to the TBI

crime laboratory. His blood alcohol came back a .27.

At the time of the sentencing hearing, Major Jan Phillips was a thirty-two-year

employee with the Shelbyville Police Department. Major Philips acknowledged having “a

pretty good sense” of the types and volume of crimes committed both in Shelbyville and in

Bedford County. Major Phillips testified that DUI was a frequently committed crime in both

the city and county, that there was a great need for deterrence, that there was “a great many

DUIs that were the cause of a vehicle accident of some sort,” and that incarceration does

provide a deterrence to the commission of DUI.

No other witnesses testified, but Defendant gave an unsworn statement to the court.

In his statement, Defendant apologized to the victims and their family members, described

his educational and employment background, and described how the death of his wife in

October 2008 had contributed to his abuse of alcohol. He acknowledged he needed help to

achieve sobriety.

From the pre-sentence report, to which Defendant made no objection nor requested

correction, we glean the follow facts relevant to sentencing in this case. Defendant was 45

years old at the time of sentencing, and had received both an undergraduate and a Master’s

degree in geology from the University of Iowa. He was employed as a geological programs

manager by Sems, Inc. in Murfreesboro from September 1997 until September 1, 2008. He

was terminated from his employment because of alcohol abuse which began to interfere with

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his work in late 2007. His employer told Defendant that he could reapply for his position if

he received treatment for his alcoholism. Defendant had already attempted treatment at

Cumberland Heights Treatment Center in Nashville from August 1, 2008 through August 16,

2008, which was apparently provided by his employer in an attempt to curtail his alcohol

abuse. Prior to the sentencing hearing, the former employer stated he would consider rehiring Defendant if Defendant could show that he had stopped drinking.

Defendant’s wife died from cancer on October 5, 2008. The investigating officer who

prepared the presentence report stated that “[Defendant] drank socially through high school

and escalated his usage to a 6 pack of beer a day. [Defendant] stated that he started to drink

excessively after the death of his wife.” Defendant has no children, and was not employed

after his termination from employment in September 2008.

Defendant was arrested for driving under the influence of intoxicants on March 6,

2009, in Davidson County. He was on bond from this offense when he committed the

offenses in the case sub judice on April 7, 2009. He was found guilty of the Davidson

County DUI on April 21, 2009. His only other prior criminal record was a traffic offense,

speeding, in 2006.

Prior to pleading guilty on August 21, 2009, Defendant wrote a letter addressed to the

trial judge on August 11, 2009. The first paragraph of that letter states as follows:

I am respectfully writing thisletter to inform you concerning the circumstances

of my case. I am guilty of driving under the influence of alcohol on April 7,

200[9]. I made a serious error in judg[]ment. No one was injured during the

accident. Three automobiles were damaged that was covered by my insurance

company ([ ]). Therefore, the felony charges against me are actually a DUI

with associated property damages.

Defendant went on to state that he wanted to enter a treatment center for his

alcoholism. He stated that his alcoholism “began in earnest” when his wife was “diagnosed

with cancer 2-3 years ago.” Defendant also added that he had “never been in trouble with

the law.”

Since Defendant has only challenged the denial of alternative sentencing in his appeal,

we will limit our discussion of the trial court’s sentencing decision only as it is relevant to

this issue. Specifically, as to alternative sentencing the trial court made the following

findings:

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On alternative sentencing, we are aware that there is a presumption in

favor of alternative sentencing, but there are several factors which suggest to

me that it’s not appropriate here. One of the things I am to examine is

potential or lack of potential for rehabilitation, including the risk of

committing another crime while on probation. Although his criminal record

is short, it does appear that there is a lack of control on his part in dealing with

this alcohol problem when he is out. I remind you, again, of the timing of the

Cumberland Heights visit and the fact that there certainly were problems after

that. He was still out on bond from one DUI when he gets another one. I think

he is not an appropriate candidate for alternative sentencing for that reason

alone.

Also, we’re aware that deterrence is a factor to be considered. And

we’ve had undisputed testimony here from Major - - from the Major from the

police department about the problem of DUIs here and the effectiveness of

incarceration as a deterrence. So, respectfully, I’m not going to grant

alternative sentencing here.

II. Analysis

When reviewing sentencing issues, the appellate court shall conduct a de novo review

on the record of the issues. The review shall be conducted with a presumption that the

determinations made by the court from which the appeal is taken are correct. Tenn. Code

Ann. § 40-35-401(d). “[T]he presumption of correctness‘is conditioned upon the affirmative

showing in the record that the trial court considered the sentencing principles and all relevant

facts and circumstances.’” State v. Carter, 254 S.W.3d 335, 344-45 (Tenn. 2008) (quoting

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

inappropriate mitigating and/or enhancement factors or otherwise fails to follow the

Sentencing Act, the presumption of correctness fails.” Id. at 345 (citing State v. Shelton, 854

S.W.2d 116, 123 (Tenn. Crim. App. 1992)). The defendant bears “the burden of showing

that the sentence is improper.” Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).

With regard to alternative sentencing, Tennessee Code Annotated section 40-35-

102(5) provides as follows:

In recognition that state prison capacities and the funds to build and maintain

them are limited, convicted felons committing the most severe offenses,

possessing criminal histories evincing a clear disregard for the laws and morals

of society and evincing failure of past efforts at rehabilitation shall be given

first priority regarding sentencing involving incarceration . . .

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A defendant who does not fall within the class of offenders “and who is an especially

mitigated or standard offender convicted of a Class C, D, or E felony should be considered

as a favorable candidate for alternative sentencing options in the absence of evidence to the

contrary.” Tenn. Code Ann. § 40-35-102(6). A court shall consider, but is not bound by, the

advisory sentencing guideline in this subdivision (6). Tenn. Code Ann. § 40-35-102(6); see

also Carter, 254 S.W.3d at 347. Furthermore, with regard to probation, a defendant whose

sentence is ten years or less is eligible for probation. Tenn. Code Ann. § 40-35-303(a).

However, all offenders who meet the criteria for alternative sentencing are not entitled

to relief; instead, sentencing issues must be determined by the facts and circumstances of

each case. See State v. Taylor, 744 S.W.2d 919, 922 (Tenn. Crim. App. 1987) (citing State

v. Moss, 727 S.W.2d 229, 235 (Tenn. 1986). Even if a defendant is a favorable candidate for

alternative sentencing under Tennessee Code Annotated section 40-35-102(6), a trial court

may deny an alternative sentence because:

(A) Confinement is necessary to protect society by restraining a defendant

who has a long history of criminal conduct;

(B) Confinement is necessary to avoid depreciating the seriousness of the

offense or confinement is particularly suited to provide an effective

deterrence to others likely to commit similar offenses; or

(C) Measures less restrictive than confinement have frequently or recently

been applied unsuccessfully to the defendant . . .

Tenn. Code Ann. § 40-35-103(1)(A), (B), (C).

In choosing among possible sentencing alternatives, the trial court should also

consider Tennessee Code Annotated section 40-35-103(5), which states, in pertinent part,

“[t]he potential or lack of potential for the rehabilitation or treatment of the defendant should

be considered in determining the sentence alternative or length of a term to be imposed.”

Tenn. Code Ann. § 40-35-103(5); State v. Dowdy, 894 S.W.2d 301, 305 (Tenn. Crim. App.

1994). The trial court may consider a defendant’s untruthfulness and lack of candor as they

relate to the potential for rehabilitation. See State v. Nunley, 22 S.W.3d 282, 289 (Tenn.

Crim. App. 1999); see also State v. Bunch, 646 S.W.2d 158, 160-61 (Tenn. 1983); State v.

Zeolia, 928 S.W.2d 457, 463 (Tenn. Crim. App. 1996); State v. Williamson, 919 S.W.2d 69,

84 (Tenn. Crim. App. 1995); Dowdy, 894 S.W.2d at 305-06.

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We conclude that the trial court properly considered the statutory sentence principles

and all relevant factors. Accordingly the trial court’s decision is entitled to a presumption

of correctness on appeal.

Defendant was less than candid in his letter to the trial court on August 11, 2009 (prior

to his guilty plea), when he said that “[n]o one was injured during the accident.” In the same

letter he minimized the seriousness of the offenses when he characterized the multiple

aggravated assault felony charges against him as “a DUI with associated property damages.”

Despite the fact he had been arrested for DUI in Davidson County on March 6, 2009, and

been found guilty of that offense on April 21, 2009, Defendant further stated in the same

letter that he had “never been in trouble with the law.”

Further, the trial court noted the sequence of events in Defendant’s life in considering

whether to grant an alternative sentence. Defendant was gainfully employed from September

1997 until September 2008. According to his employer, Defendant’s alcohol abuse began

to interfere with his job performance in the latter portion of 2007, about the same time as

Defendant’s wife was diagnosed with cancer. Defendant had been allowed to work at home,

but due to his alcohol abuse, it became necessary for his employer to require Defendant to

work at the office site. However, he began to leave the office site and consume alcohol, and

had to be driven home on more than one occasion. His employer provided alcohol

counseling for him to curtail Defendant’s alcohol abuse. Defendant went to treatment at

Cumberland Heights Treatment Center from August 1, 2008 until August 16, 2008, and he

told the presentence investigation officer that he left because of his “successful completion”

of the program. However, Defendant was terminated from his employment two weeks later,

and was told by his employer that if “he received treatment for his alcoholism, he could

reapply for his position.” Defendant’s wife died on October 5, 2008. Defendant told the

presentence investigation officer that he “started to drink excessively after the death of his

wife.”

On March 6, 2009, Defendant was arrested for DUI in Davidson County and was

released on bail for this offense (for which he was convicted on April 22, 2009) when he

committed the multiple offenses in the case sub judice on April 7, 2009. In the case on

appeal, Defendant’s blood alcohol level was 0.27, more than three times the amount

necessary to establish an inference of intoxication in a DUI offense. See Tenn. Code Ann.

§ 55-10-401(a)(2). While driving a vehicle on Highway 41A from the direction of

Tullahoma toward Shelbyville, Defendant struck three difference vehicles at three separate

locations, (both rear-ending and side-swiping the first two vehicles), before traveling on

down the road and eventually running off the road himself and finally coming to a stop.

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We are not unsympathetic to Defendant’s personal loss prior to the commission of his

criminal offenses. However, the facts and circumstances of this case, as set forth above,

indicate a poor potential for rehabilitation by any form of probation. Accordingly, we

conclude that Defendant has failed to meet his burden that the sentence is improper. He is

not entitled to relief in this appeal.

CONCLUSION

The judgments of the trial court are affirmed.

_________________________________

THOMAS T. WOODALL, JUDGE

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