# FILED
March 17, 1999 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT KNOXVILLE OCTOBER 1998 SESSION

STATE OF TENNESSEE, * C.C.A. No. 03C01-9710-CC-00461 Appellee, * HAWKINS COUNTY VS. * Honorable Jam es E. Beckner, Ju dge CLIFTON D. WALLEN, * (Violation of Motor Vehicle Habitual Offender Act; felony evading arrest) Appellant. *

For Appellant : For Appellee : R. Russell Mattocks John Knox Walkup Office of the Public Defender Attorney General and Repor ter Third Judicial District 1609 College Park Dri

ve, Box 11 Clinton J. Morgan Morristown, TN 37813- 1618 Counsel for the State (on appeal & elbow counsel at trial) 425 Fifth Avenue, North Cordell Hull Buildi ng, Second Floor Clifton D. Wallen, pro se Nashville, TN 37243-0493 P.O. Box 549 Whiteville, TN 38075 Michelle Green (at trial) and Doug Godbee Assistant District A

ttorneys General Hawkins County Courthouse Rogersville, TN 37857

OPINION FILED:__________________

AFFIRMED

GARY R. WADE, PRESIDING JUDGE2 OPINION The defendant, Clifton D. Wallen, who was conv icted of violating an order declaring him a motor vehicle habitual offender, w as also convicted of evadi ng arrest while operati ng a motor vehicle. Both offenses are Class E felonies. Tenn. Code Ann. §§ 55-10-616, 39-16-603( b)(1). The trial court imposed consecutive, Range I sentences of two y ears for each offense. The defendant was fined $750.00.
In this appeal of right, the defendant presents the following issues for review: (I) whether the ev idence is sufficient to support the convictions; (II) whether the tri al court erred by misapplying enhancement factors, by failing to apply mitigating factors, and by denying an alternative sentence; (III) whether he w

as improperly depriv

ed of appointed counsel at the preliminary hearin g;(IV) whether the trial court improperly restricted crossexamination of police officers during trial; (V) whether the defendant w as incompetent to represent himself; (VI) whether the defendant w as prejudiced because the trial court allowed only nineteen days to prepare for trial; and (VII) whether the dis

trict attorney hinder

ed the defendant's ability to repr esent himself by refusing to provide information about jury selection and subpoenas.
We affirm the judgment of the trial court.
On January 28, 1997, Randy Collier of the Mount Carmel Police Department observed the defendant dr iving a Ford Must

ang in a parking lot. Officer3 Collier, who knew

the defendant and suspected he had no driv er's license, watche

d as the defendant parked his vehic le and entered a drugstore. Within minutes, the defendant left the drugstore, gl anced at Officer Collier, and then entered an adjoining grocery

store. Meanwhile, Officer Collier had called dis patch and verified that the defendant's license had been r evoked. He also learned that the defendant was classif ied a mot or vehicle habitua l offen der. Appr oximatel y thirty to f orty-five minutes later, the defendant wal ked out of the grocery sto re, again glanced at the officer, and then drove down Main Street. Officer Collier followed in his cruiser for a short distance before activ ating the blue lights.When the defendant accelerated, Officer Collier turned on hi s siren and chased the defendant at speeds of 30 m.p.h. over the 20 m.p.h. speed limit. Several minutes later, the defen dant stopped at his residence. Officer Collier informed him of his arrest for dri ving without a l icense. At that point, the defendant tossed his c ar keys into the bushes nea rby and said, "I [was not] driving ." Officer Collier then handcuffed the defendant and transported him to the Hawkins County Sheriff's Department. The defendant was belligerent and informed th e officer that the only re ason he had dr

iven was to get some medication for his mother.

At trial, Officer Collier

denied that he was stalki ng the defendant and testified that the basis for the st op was that the defendant was dr iving on a revoke

d license and was a motor v ehicle habitual offender. Officer Trav is Chapel of the Mount Carmel Police Depar tment was with Officer C ollier on the date of the offenses. He corroborated the testi mony of Officer Collier. Hol ly Jaynes, the Hawkins County C ircuit Court Clerk, presented the original order, entered March 1, 1996, declaring the defendant a motor vehicle habitu al offender and barring him from driving for at least three years.4 The defendant testified in his defense. He c laimed that it was dark on the evening

in questio n and that the officers we re stalkin g him.

I Initially, the defendant chal lenges the sufficiency of the ev idence as to each conviction. On appeal, of course, the state is entitled to the strongest legitima te view of t he eviden ce and all reasona ble infe rences whi ch might b e drawn therefrom. State v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 1978). The credibility of the witnesses, the w

eight to be given thei r testimony, and the reconc iliation of conflicts in the proof are matters entrusted to the jury as trier of fact. Byrge v. State , 575 S.W.2d 292, 295 (Tenn. Crim. App. 1978). When the sufficiency of the evidence is challeng ed, the relevant questi on is whether, after rev iewing the evidence in the ligh t most fa vorable to the state , any ratio nal trier o f fact c ould have found the essential elements of the cri me beyond a reasonable doubt. State v. Williams , 657 S.W.2d 405, 41 0 (Tenn. 1983); Tenn. R. App. P. 13(e).

The applicable statute provi des as follows: (a) It is unlawful for any person to operate any motor vehicle in this state while the judgment or order of the court prohibiting th e operation remains in effect. (b) Any person found to be an habi tual offender under the provisions of this part who thereafter is convicted of operating a motor vehicle in this state while the judgment or order of the court prohibiting such operatio n is in eff ect comm its a Class E felony. Tenn. Code Ann. § 55-10-616. At tri al, the state introduced a cer tified copy of the order declaring the defendant a motor vehicle habitual offender. Officer Collier and Officer Chapel testified that they had witnessed the def endant driving a Ford Mustang on January 28, 1997, less than one year after ent ry of the order barring him from driving a motor v ehicle. See Tenn. Code Ann. § 55-10-615(a). In our view, the evidenc

e is clearly sufficient to support his convicti on for violating the5 motor vehicle habitual offender order.

Next, the defendant argues that the evidence is insuff icient to support his conviction for ev

ading arrest by use of an automobile. "It is unlawful for any person, while operating a motor vehicle on any street, road, alley or highway in this state, to intentionally flee or attempt to elude any law enforcement officer, after having received any

signal from such officer to bri ng the vehicle to a stop ." Tenn. Code Ann. § 39-16-603(b)(1). A person acts intentionally, "when it is the person's conscious objective or

desire to engage in the conduct or cause the result. " Tenn. Code Ann. § 39-11-302(a). He re, Officer Collier acti vated his blue lights

and siren and chased for several minutes a vehicle operated by the defendant through the streets of Mount Carmel. There was proof that the defendant acceler ated rather than yielding to blue l ights. In our view, it was reasonable for th e jury to conclude that the defendant, who was driving in violation of a court order, was intentionally attempting to elude Officer Coll ier. Thus, the evidence i s sufficient.

II Next, the defendant complains that the trial court erred by misapplying enhancement factors, failing to appl y mitigating factors , and refusing to grant an alternative sentence.

When there is a challenge to the length, range, or manner of servi ce of a sentence, it is the duty of this court to conduct a de novo review with a presumption that the determinations made by the trial court are correct. Tenn. Code Ann. § 40-35-401(d). This pr esumption is "conditioned upon the a ffirmative showing in the record that the tria l court considered the sente ncing principles and al l relevant facts and circumstances." State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991); see6 State v. Jones , 883 S.W.2d 597 (Tenn. 1994). The Sentencing Commissi on Comments provide that the burd en is on the defendant to show the i mpropriety of the sentence.

Our review req uires an analysis of (1) the evidence, if any, received at the trial and sentencing he aring; (2) the presenten ce report; (3) the princ iples of sentencing and the arguments of counsel relative to sent encing alternatives;(4) the nature and characteristic s of the offense; (5) any mitigating or enhancing factors;(6) any statements made by the defendant in his own behalf ; and (7) the defendant's potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35- 102, -103, and -210; State v. Smith , 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987).

At the time of this offense, the presumptiv e sentence was the minimum in the range if there w ere no enhancement and mitigating factors. Tenn. Code Ann. § 40-35-210. Should the t rial court find mitigati ng and enhancement factors, it must start at the mi nimum sentence in the range and enhan ce the sentence based upon any applicab le enhancement factors, and then reduce the sentence based upon any appropri ate mitigating factors. Tenn. Code Ann. § 40-35- 210(e). The weight g iven to each factor is w ithin the trial court's

discretion provided that the record supports it s findings and it complies with the Criminal Sent encing Reform Act of 1989. See Ashby , 823 S.W.2d at 169. The trial court should, however, make specific findings on the record w hich indicate its applic

ation of the sentencing principles.Tenn. Code Ann. §§ 40-35-209, -210.

The fifty-one-year-old defendant ob tained his GED while serving in the army. He reported a his tory of alcohol abuse and il lness, including hepatitis B, for which he had been prescri bed medication. He reported that he suffers from an7 anxiety and panic diso rder and that he is disabled and unemployed.

At the sentencing hearing , the state introduced certified copies of judgments showing a number of prior convictions an d arrests. In 1997, the defendant

was ch arged b ut later

acquit ted of DU I; he wa

s, howe ver, c onvict ed of a violation of the implied cons ent law. In 1995, he was convicted of two counts of felony reckless endanger ment and felony possession of a prohi bited weapon. In 1994, he was twice convicted of driving on a revoked license. In 1993, a jury convicted the defendant of public i ntoxication, two count s of disorderly conduct, and simple possession of marijuana. That same year the defendant was a lso convicted of public intoxication and a reduced charge of simple poss ession of marijuana. In 1992, the defendant was convic ted of driving without a license, DUI, and v iolation of the implied consent law. He also pleaded nolo contendere to another instance of driving without

a license. In 1989, he was convicted of public intox ication and driving without

a license and in 1985, he w as convicted of attempted agg ravated assault. In 1982, the defendant was convicted of public drunke nness and in 1980, he was convicted of diso rderly conduct and fined for v iolating his probation.In 1978, the defendant was convicted of possession of marijuana for resale and, in 1977, possession of an open beer. In 197 6, he was convicted of di sorderly conduct. The defendant was convicted of publi c drunkenness in 1976 and in 1969, the defendant was convicted of dri ving without a l icense and possession of whi skey.
After determining that the sentenc e for each offense ranged from one to two years, the tr

ial court applied two enhancement factors on each offense: (1) that the defendant has a prev ious history of crimina l convictions or cri minal behavior; and (2) that the defendant has a histor y of unwillingness

to comply with conditi ons of a sentence involvi ng release to the community.8 Tenn. Code Ann. § 40-35-114(1), (8). The trial court determin ed that each enhancement factor was "extr emely weighty." No mitigating factors were identified. The maximum sentence of two year s was imposed on each conv iction.
In our view, the impos ition of the maximum sentences w as warranted. Because the defendant has failed to demonstrat e that the trial court impos ed an improper sentence, the record fully supports the concl usion of the trial court. Both the length and the nature of the cons ecutive sentences wer

e entirely appropriate.
Especially mitigat

ed or standard offenders convict ed of Class C, D, or E feloni es are, of course, p resumed to be favo rable can didates "for alt ernative sentencing options in the abs ence of evidence to the contrar y." Tenn. Code Ann. § 40-35-102(6). With certain statutory exceptions, none of which apply here, probation must be automatically considered by the trial court if the sente nce imposed is eight years

or less. Tenn. Code Ann. § 40- 35-303(b). Among the factors applicable to probatio n consideration are the cir cumstances of the offense, the defendant's criminal recor d, social history and present condition, and the deterrent effect upon and best interest of the defendant and the public. State v. Grear , 568 S.W.2d 285 (Tenn. 1978).

In denying probation, the trial court concluded that confinement was required to protect society from the defendant who has a l ong history of criminal conduct, to avoid depreciating the seriousness of the off ense, and to serve as a deterrent to others. Moreo ver, confinement was neces sary because, in the past, less restr ictive mea sures had been uns uccessf ully appli ed to the defend ant. Fina lly, the trial court concluded that the defendant's potential for rehabi litation was poor and, in considering the principles of sentencing, determined tha t probation should9 be denied. In our assessment, the trial court was w arranted in denying pr

obation. Because the defendant has a history of criminal convictions and probation violations, he is a poor

candidate for a sentence invol ving release to the c

ommunity.
The purpose of the Community Corr ections Act of 1985 was to pr ovide an alternative means of punishment for "se lected, nonviolent felony offenders in front-end community based alter natives to incarcerati on." Tenn. Code Ann. § 40-36-103. The community corr ections sentence provides a desired degree of flexibility that may

be both beneficial to the defendant yet serve legitimate so

cietal aims. State v. Griffith , 787 S.W.2d 340, 342 (Tenn. 1990). Even in cases where the defendant meets the minimum requirements of the Community Corrections Act of 1985, the defendant is not necessarily entitled to be se ntenced under the Act as a matter of law or right

. State v. Taylor , 744 S.W.2d 919 (Tenn. Crim. App. 1987). The following offenders are eligible for community corrections:

(1) Persons who, w

ithout this option, woul d be incarcerated in a correc tional institution; (2) Persons who are convicted of property- related, or drug/alcohol-related felony offenses or other felony offenses not involving c rimes against the person as provided in title 39, c

hapter 2 [repealed], parts 1- 3 and 5-7 or title 39, chapter 13,parts 1-5; (3) Persons who are convicted of nonviolent felony offenses; (4) Persons who are convicted of felony offenses in which the use or possess ion of a weapon was not involved; (5) Persons who do not demonstrate a present or past pattern of behavior indicati ng violence; (6) Persons who do not demonstrate a pattern of committing violent offenses; and (7) Persons who are sentenced to incarceration or on escape at the time of consideration will not be eligi ble. Tenn. Code Ann. § 40-36-106(a).10 The defendant is eligible for communit y corrections. In Ashby , however, our supreme court encouraged the grant of considerable discretionary authority to our trial

courts in matters such as these. 823 S.W.2d at 171. See State v. Moss , 727 S.W.2d 229, 235 (Tenn. 1986). In the words o f the late Judge Joe B. Jones, "each case must be bottomed upon its own facts." Taylor , 744 S.W.2d at 922. "It is not the policy or purpose of this court to pl ace trial judges in a j udicial straight-jacket in this or any other area, an d we are always reluctant to interfere w ith their traditional disc retionary powers. " Ashby , 823 S.W.2d at 171. Here, the trial court considered and reject ed community corrections,citing the need for incarceration to restr

ain the defendant, protect the public , and avoid depreciating the seriousness of the offense. That the defendant had an ex tensive prior cri minal record and prior probation violations was also considered. As the trial court observed, "there's an inabi lity at this point to achieve any rehabili tation." Incarceration was w

arranted.

III The defendant also contends that he was improperly depriv

ed of appointed counsel at the prelimi nary hearing. The appell ant's brief contains no citation to legal authori ty nor references to the r ecord. In such circumstanc es, the issues may be treated as w aived. Rule 10, Tenn. Ct. C rim. App. Moreover, the record contains insufficient evidence to support the de fendant's contention. There is no transcript of the proceedings from general sessions court and, while included in the record, the affidavit of complai nt is not signed by the defendant. The warrant does indicate that the matter w as bound over to the grand jury. This is an insufficient record for an in-depth analysis of the issue. The appellant has the duty to prepare a record that conv eys a fair, accurate, and c omplete account of what transpired in the trial

court with respect t

o the issues that form the basis for the11 appeal. Tenn. R. App. P. 24(b). State v. Cooper , 736 S.W.2d 125 (Tenn . Crim. App. 1987). The issue has been w aived.

IV Next, the defendant argues that the trial court improper ly restricted cross-examination of poli ce officers. At trial, the foll owing exchange oc curred: Defendant: Okay, after the arrest, di d I not request that

you get my

heart medica

tion from my mother's house? State: Object to the relevancy of this, your Honor. The Court: Sustained. That's not a proper q uestion. *** Defendant: Well, I'm asking the question agai n. Did I

not ask you to find my medication? State: Objection, your Honor. The Court: I sustained that objection. *** Witness: So I had you loaded in the back of my car within eight minutes from the time the whole thing started. Defendant: Well, I just didn't want the jury to get the wrong idea that maybe this had lasted longer. State: Objection to te stifying. The Court: Remember questions, questions. Defendant: Well, evidently the Court is not going to let me ask any questions of any thing of that nature. No more questions. While the right of cross-examination is fundamental, its exerci se is controlled by the discretionary authori

ty of the trial judge. Davis v. State , 212 S.W.2d 374 (Tenn. 1948); Hobbs v. State , 460 S.W.2d 377 (Te nn. Crim. App. 1970). Only a plain abuse of that authority constitutes grounds for rever sal. State v. Fowler , 373 S.W.2d 460 (Tenn. 1963); State v. Black , 618 S.W.2d 526, 528 (Tenn. Crim. App. 1981). The defendant did not explain the relevance o f the question regarding his medication nor has he cited legal authority to suppor t his claim. Rule 10, Tenn. C t. Crim. App. The defendant has failed to demonst rate an abuse of discretion on the part of the trial court. In consequence, this issue has no merit.12 V The defendant also complains that he w as incompetent to represent himself at trial because he suffers fr om a "50% brain condition that r equires strong medication." During the sentencing hearing, the defendan t concluded in retrospect that he had been incompetent to represent himself at trial because of his prescription medication. The trial court observed as follows:

[The defendant] says he was drun k during the course of the trial. ... The defendant did ask that Mr. Mattocks not represent him although he could assist as elbow counsel, and he asked that he represent hims elf. I asked the defendant a lot of questions to determin e his competence. ... [The defenda nt] demonstrated at all times a clear mind and ability to represent [him]self during the trial of the caus e. Counsel representing the defendant in this appea l has conceded that the record contains no evidence to suppor t the "brain condition" alleg ed by the defendant. The findings of the trial court also dispel the defendant's contenti on that he was under the influence of medication. Thus, the is sue has no merit.

VI The defendant maintains that he was pr ejudiced because the trial court permitted him only n ineteen days to prepare for tr ial. Our legislatur

e has provided that "[e]very

person accused of any crime ... shall be entitled to fourteen (14) full days ... after ar rest and the return of the indic tment ... before being tried for such offense." Tenn. Code Ann. § 40-14-105. That statutory requirement

was met in this case. The defendant did not r equest a continuance before tri al and cannot now complain that his ri ghts were viola ted because the trial was commenced as scheduled. SeeTenn. R. App. P. 36(a). Mor e importantly, the defendant has not demonstrated how he was pr ejudiced by the relativ

ely short duration betw een the indictment and the trial.13 VII Lastly, the defendant argues that he was hampered in his def ense because the District Attor ney General's office refused to pr ovide him with information on jury selection and subpoenas. This issue w as not included in the defendant's motion for new trial . Typically, an is sue not included as a ground for relief in the motion for new tr ial is considered w

aived. Tenn. R. App. P. 3(e)

. Nevertheless, the defendant would not prevail on the merits of the claim. We are aware of no duty on the part of the District Attorney General to provide jur

y selection information or subpoena information to a pro se defendant. The defendant does not allege any irreg ularities in the jury selection process at his trial nor does he indicat e that there were witnesses essential to his defense whose presence he was unable to secure.
Accordingly, w

e affirm the judgment of the trial cour t.

__________________________________ Gary R. Wad e, Presiding Judge CONCUR:

________________________________ David H. Wel les, Judge

________________________________ Thomas T. W oodall, Judge