fithiamt.opn

FILED

October 28, 1997

Cecil Crowson, Jr.

Appellate C ourt Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

JULY SESSION, 1997

STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9610-CC-00381

)

Appellee, )

)

) COCKE COUNTY

VS. )

) HON. WILLIAM R. HOLT, JR.

TERESA FITHIAM, ) JUDGE

)

Appellant. ) (DUI & Child Endangerment)

ON APPEAL FROM THE JUDGMENT OF THE

CIRCUIT COURT OF COCKE COUNTY

FOR THE APPELLANT: FOR THE APPELLEE:

SUSANNA L. THOMAS JOHN KNOX WALKUP

Assistant Public Defender Attorney General and Reporter

102 Mims Avenue

Newport, TN 37821 MARVIN E. CLEMENTS, JR.

Assistant Attorney General

425 5th Avenue North

Nashville, TN 37243

AL SCHUMTZER, JR.

District Attorney General

JAMES B. DUNN

Assistant District Attorney General

339A East Main Street

Newport, TN 37821

OPINION FILED ________________________

APPEAL DISMISSED; JUDGMENT AFFIRMED

DAVID H. WELLES, JUDGE
1

 Tenn. Code Ann. §§ 55-10-401, -414.

fithiamt.opn -2-

OPINION

This is a direct appeal from a guilty plea pursuant to Rule 37(b)(2)(ii) of the

Tennessee Rules of Criminal Procedure. Pursuant to a plea agreement, the

Defendant pleaded guilty to one count of DUI and one count of child

endangerment.1

 Both offenses are Class A misdemeanors. As part of the

agreem ent, she was sentenced to a forty-eight (48) hour mandatory incarceration

plus eleven (11) months and twenty-seven (27) days of probation for the DUI

conviction and a mandatory thirty (30) day incarceration plus ten (10) months and

twenty-nine (29) days of probation for the child endangerment conviction. Also,

the Defendant reserved the right to appeal the “legality” of her sentence. In this

appeal, she argues that the statute imposing a mandatory thirty-day incarceration

period for child endangerment is unconstitutional as cruel and unusual

punishment violative of the Eighth and Fourteenth Amendments to the United

States Constitution. We dismiss the appeal and affirm the judgment of the trial

court.

On October 13, 1995, the Defendant, Teresa Fithiam, was arrested after

she lost control of the vehicle she was driving northbound on Highway 321 in

Cocke County. The car left the roadway and overturned. Two of her four

children, ages 23 months and 11 months, were in the vehicle and received minor

injuries. Only the younger child was restrained. The Defendant suffered head
fithiamt.opn -3-

injuries for which she was hospitalized for three days. A blood alcohol test

measured the Defendant’s blood alcohol level at .13%.

The Defendant testified at the guilty plea hearing that she came home from

work, had two or three beers, cooked dinner and bathed the children. Her

husband, who had been drinking all day, became abusive and she left with the

children. It is unclear whether her husband was chasing her in the car, but he

was present after the accident and transported the children to the hospital.

The Defendant was indicted on one count of DUI and two counts of child

endangerment. She entered into a plea agreement with the district attorney for

the minimum mandatory sentence for DUI of forty-eight hours in confinement and

the minimum mandatory sentence for child endangerment of thirty days

incarceration. The remainder of each sentence was to be suspended and the

Defendant placed on probation. The Defendant was also required to pay the

minimum $350 fine for the DUI conviction and the minimum $1000 imposed for

the child endangerment conviction. The plea agreement and the transcript of the

guilty plea hearing reflect that the State agreed that the Defendant “reserves right

to appeal legality of sentence and merger of counts of child endangerment.” The

judgment forms do not mention a reservation of a review of the sentence in an

appeal, however, in an order on May 16, 1996, the trial court approved the plea

agreement reached by the parties. At the hearing on the guilty plea, the trial

court dismissed the second count of child endangerment, finding that it merged

into the first count as one offense for both children. The Defendant requested

work release, which the trial court denied because of the mandatory

incarceration. The trial court did not rule on the legality or constitutionality of the
fithiamt.opn -4-

thirty-day incarceration mandated by Tennessee Code Annotated section 55-10-

414.

The Defendant argues that the mandatory incarceration required by section

55-10-414 unconstitutionally denied her the granting of work release. We note

initially that the Defendant has not properly reserved the issue for the purposes

of this appeal. The notice of appeal reflects that the issue is being appealed

pursuant to Rule 37(b)(2)(ii) of the Tennessee Rules of Criminal Procedure which

states in pertinent part that: “An appeal lies . . . from any judgment of conviction:

(2) upon a plea of guilty or nolo contendere if: (ii) defendant seeks review of the

sentence set and there was no plea agreement under Rule 11(e).” (emphasis

added). A guilty plea constitutes a waiver of all nonjurisdictional and procedural

defects or constitutional infirmities, State v. Bilbrey, 816 S.W.2d 71, 75 (Tenn.

Crim. App. 1991), and Rule 37 provides limited exceptions for an appeal following

a guilty plea. State v. Pendergrass, 937 S.W .2d 834, 837 (Tenn. 1996). 

Here, although the Defendant purported to reserve review of her sentence

as reflected in the plea agreement and the hearing transcript, the record reflects

that the Defendant entered into a negotiated plea agreement that comports with

Rule 11(e). The particular posture in which this case has been presented does

not fit squarely within any of the enumerated exceptions under Rule 37. The

record reflects that a plea agreement was reached and thus, the Defendant has

waived appellate review of her sentence because she has not met the

requirem ents of Rule 37(b)(2)(ii). See State v. McKissack, 917 S.W.2d 714, 716

(Tenn. Crim. App. 1995). In order to obtain appellate review of her sentence, the

Defendant could have chosen to plead guilty without a negotiated agreement and
fithiamt.opn -5-

left sentencing to the trial court and pursued the issue in a direct appeal under

Rule 3. 

The judgment entered reflects that the trial judge accepted and approved

the recommended sentence. The trial court did not rule on the constitutionality

of the mandatory sentence because the issue was not presented. There is no

procedural vehicle under Rule 37 for a hybrid plea agreement that reserves a

portion of the sentence purportedly not agreed to for appellate review. There is

no right to appeal from an agreed sentence. McKissack, Id. Therefore, because

it is not properly before us, we believe this appeal should be dismissed.

In consideration of the foregoing, even if the Defendant had properly

reserved the issue for appeal, we would conclude that it is without merit. The

Defendant contends that the mandatory thirty-day sentence unconstitutionally

deprives her of probation or the possibility of work release in her case. She

argues that it is cruel and unusual punishment violative of the Eighth and

Fourteenth Amendments to the United States Constitution. The Eighth

Amendment applied to the states through the Fourteenth Amendment prohibits

cruel and unusual punishment and requires that the punishment imposed must

be proportioned to the severity of the offense in the capital case context. See

State v. Harris, 844 S.W .2d 601, 602 (Tenn. 1992)(citing Weems v. United

States, 217 U.S. 349, 367, 30 S.Ct. 544, 549, 54 L.Ed. 836 (1910)). Yet,

“[r]eviewing courts should grant substantial deference to the broad authority

legislatures possess in determining punishments for particular crimes, ‘[o]utside

the context of capital punishm ent, successful challenges to the proportionality of

particular sentences [will be] exceedingly rare.’” Harris, 844 S.W.2d at 602
fithiamt.opn -6-

(quoting Solem v. Helm, 463 U.S. 277, 289-90, 103 S.Ct. 3001, 3009, 77 L.Ed.2d

637, 649 (1983)) (emphasis in original). The mandatory nature of a sentence,

even if it appears to be cruel, is not otherwise unusual and does not render it

violative of the Eighth Amendment. Harmelin v. Michigan, 501 U.S. 991, 996,

111 S. Ct. 2680, 2701, 115 L.Ed.2d 836 (1991)(life without parole for conviction

for possessing 672 grams of cocaine constitutional); State v. Hinsley, 627 S.W.2d

351, 355 (Tenn. 1982)( sentencing provisions of the habitual drug offender act

constitutional); State v. Danny Lee Holder, C.C.A. 01C01-9501-CC-00015,

Lincoln County (Tenn. Crim. App., Nashville, Mar. 22, 1996) (mandatory service

of the entire sentence for defendants convicted of rape of a child constitutional).

Nor does the mandatory sentence violate the more expansive application

to non-capital sentencing by our supreme court of Article I, Section 16 of the

Tennessee Constitution. If we consider the m andatory sentence under the state

constitution, this requires that the sentence initially be compared to the crime

committed. Harris, 844 S.W.2d at 603. “Unless this threshold comparison leads

to an inference of gross disproportionality, the inquiry ends--the sentence is

constitutional.” Id. However, in the few cases when the inference arises, we

must compare the sentence as applied to other criminals in the jurisdiction, and

sentences for the same crime in other jurisdictions. Id. Here, we cannot

conclude that the imposition of a mandatory thirty-day sentence is

disproportionate to the crime on its face. Obviously, the general assembly has

determined that the seriousness of the offense of driving while under the

influence with children in the vehicle warrants a more severe punishment. The

legislature has also graded the offense with reference to more serious

consequences to a child, i.e. serious bodily injury and death. Tenn. Code Ann.
fithiamt.opn -7-

§ 55-10-414(2), (3). The legislature has broad power to determine the nature

and length of punishments for crimes and we should generally defer to its

authority. 

The appeal is dismissed and the judgment of the trial court is affirmed.

____________________________________

DAVID H. WELLES, JUDGE

CONCUR:

___________________________________

THOMAS T. WOODALL, JUDGE

___________________________________

JOHN K. BYERS, SENIOR JUDGE