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# FILED
October 28, 1997 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT KNOXVILLE JULY SESSION, 1997 STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9610-CC-00381 ) Appellee, ) ) ) COCKE COUNTY VS. ) ) HON. WILL IAM R. HOLT, JR . TERE SA F IT HIA M, ) JUDGE ) Appe llant. ) (DUI & Child En dange rment)

ON APPEA L FROM THE JUDGMENT OF THE CIRCUIT COURT OF COCKE COUN TY
FOR THE APPELLANT : FOR THE APPELLEE : SUSANNA L. THOMAS JOHN KNOX WALKUP Assistant Public Defender Attorney Generaland Reporter 102 Mims Avenue Newport, TN 37821 MARVIN E. CLEMENTS, JR. Assistant Attorney General 425 5th Avenu e North Nashvill e, TN 37243 AL SCHUMTZER, JR. Distri ct Attorney General JAMES B. DUNN Assistant Distri ct Attorney General 339A East Main Street Newport, TN 37821
OPINION FILED ________________________ APPEAL DISMI SSED; JUDGMENT AFFI RMED DAVID H. WELLES , JUD GE1 Tenn. Code Ann. §§ 55-10-401, -414.

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# OPINION

This is a dir

ect appeal from a guil ty plea pur suant to Rule 37( b)(2)(i i) of t he Tennessee Rules o f Cri minal Procedure. Pursuant to a pl ea agreement, the D efendan t plead ed gu ilty to one coun t of DU I and o ne co unt of c hild endan germe nt. 1 Both o ffense s are C la ss A m isdemeanors. As par t of the agreem ent, she was sen tenced to a forty-ei ght (48) hour mandatory incar

ceration plus eleven (11)mont hs and twen ty- seven (27) daysof pr obat ion f

or t he DUI convicti on and a m andato ry thirty (30) day i ncarcerati on plus ten (10) months and twenty-ni ne (29) days of probation f

or the child endangerment convic tion. Al so, the Defen dant res erved the right to app eal the “leg ality” of her se ntence
. In this appe al, she arg ues tha t the statute i mposing a mandatory t hirty-day incar ceration period for c hild endangerment is unconstitutionalas cruel and unusual punishmentv iolative of the Eight h and Fourteenth Amendments to the United States Constitu tion. W e dismiss the ap peal and aff irm the judg ment of the t rial court.
On October 13, 1995, t he Defendant, Teresa Fithiam, was arrested af ter she lost cont rol of t he vehicle she was d riving no rthbou nd on Highw ay 321 in Coc ke County. The car l eft the r oadway and overtu rned. Two of her four children, ages 23 months and 11 months, were i n the vehicl e and received mi nor injuries. Only th e youn ger ch ild was restrain ed. The Defendant suffered headfithiamt.opn -3-

injuri es for which she w as hospitalized fo r t hree d ays. A blood alcohol test measured the Defendant’ s blood alcohollevel at .13%.

The Defen dant testified at the guilty ple a hea ri ng t hat shecamehomefrom work, had two or thr ee beers, cooked di nner and bathed th e childre n. Her husband, who had been dr inking al l day, became abusive and she lef t with t he children. It is uncle ar whe ther he r husb and w as ch asin g her in the c ar, but he was p resen t after the accide nt and transp orted th e child ren to th e hos pital.

The Defendant was indi cted on one coun t of DU I and tw o cou nts of c hild endan germe nt. She entered into a plea agreement wi th the district attorney

for the minimum man datory sente nce fo r DUI o f forty-eig ht hou rs in confinement and the minimum manda tory sentence fo r child endang erment of thirty days incarcerat ion. The remainder of each sentence was to be s uspended and the Defendant placed on probat ion. The Defendant was also r equired to pay the mini mum $350 f ine f

or t he DUI convicti on and the minimum $1000 imposed for the child endangerment convicti on. The plea agreement a nd the transc ript of the guilty plea hearing ref lect that the State agreed that the Defendant “res erves ri ght to appeal legal ity of

sentence and merger of counts of

child endangerment.” The judgment forms d o not m ention a re servation of a review of t he sentence i n an appe al, however, i n an order on May 16, 1996, the t rial cour t approved t he plea agreement reach ed by th e partie s. At the hearin g on th e guilt y pl ea, the trial court dismissed the second count of child endangerment, findi ng that it merged into th e first

count as one offense for both children. The Defendant requested work release, whi ch the tri al court de nied bec ause o f t he man datory incarcerat ion. The trialcourt did not rule on the legali ty or const ituti onality of thefithiamt.opn -4-

thirt y-dayincarcerat ion mandated byTennessee Code Annotated secti on 55-10- 414.

The Defen dant arg ues tha t the manda tory incarceration required by section 55-10-414 unconstitutional ly denied her the granti ng of work rel ease. We note initially that the Defendant has not pr operly reserved the i ssue for the purposes of this appeal . The notice of appeal refl ects that

the issue is bei ng appealed pursuantto Rule 37(b) (2)(ii ) ofthe Tenn essee R ules of Crimina l Procedure which statesin pertinen t part that: “An appeal li es . . . from any judgment of convicti on: (2) upon a plea of guilty or nolo conten dere if: ( ii) defendant seeks revi ew of the sentence se t and there was no pl ea agreement under Rule 11(e) .” (em phas is added). A guilty p lea co nstitute s a wa iver of all nonjuris dictio nal and procedur al defects or constitu tional infirmitie s, State v. Bilbrey , 816 S.W.2d 71, 75 ( Tenn. Cri m. App. 1991), and Rule 37 pr ovides li mited excepti ons for an appeal fol lowing a guilty plea
. State v. Pendergrass , 937 S.W .2d 834 , 837 (T enn. 19 96).
Here, although t he Defendant purpor ted to reser

ve review of

hersentence
as reflected in the plea a greem ent and the hea ring transc ript, the reco rd reflects thatthe Defendant

entered into a neg otiated ple a agree ment th at com ports with Rule 11(e). The particul ar posture i n which thi s case has been presented does not fit squarely w ithin an y of the enumerated exceptions under Rule 37. The record reflect

s that a pl ea 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. A pp. 199 5). In order to obtain appell ate revi ew of her sentence, the Defendant could ha ve chos en to plea d guilty witho ut a negotiated agreement andfithiamt.opn -5-

left sente ncin g to the trial court and pursued the i ssue in a dir ect appeal under Rule 3.

The judgment entere d reflect s that thetrialjudge accepted and approved the reco mm ended senten ce. The trial court did n ot rule on th e cons titutionality of the ma ndat ory s ente nce be causethe i ssue was not pres ente d. Th ere i s no procedural vehicle u nder Rule 37 for a hy bri d plea agreement that reserves a portion of the sentence purportedl y notagree d to for a ppella te revie w. Th ere is
no right to appeal from an agre ed sen tence. McKissack , Id . Therefore, because it is not properly before us, we believe t his appeal shoul d be dismissed.

In considerat ion of theforego ing, even if th e Def enda nt had prope rly reserved the issue for appeal, we would co nclude that i t is wi thout merit . The Defendant contends that the m an datory thirty-da y sente nce u ncon stitution ally deprivesher of probat ion or the po ssibil ity of work release in her case. She
a rgues th at it i s cruel and unusualpunishment vi olativ e of the Eight h and Fourtee nth Ame ndme nts to the U nited Sta tes Con sti tu tion. The Eighth Amendment applied to the states thro ugh the Fourtee nth Ame ndme nt prohibits cruel and unusual punishment and requires that t he punishment imposed must be proportioned to the severity o f the offens e in the ca pital case context. See State v. Harris , 844 S.W .2d 601 , 6 02 (Tenn. 1992)(citing Weems v. United States , 217 U .S. 349, 3 67, 30 S .Ct. 544 , 549, 54 L .Ed. 836 (1910)). Y et, “[r]eviewing courts sh ould gra nt s ubs tantial defe rence to the broa d autho rity legisl atures possess in determin ing punishments for particul ar crimes, ‘ [o]utsi de the context of

capitalpunishm ent, successful challeng es to the proport ionali ty of particul ar sentences [will be] exceedingly rare.’” Harris , 844 S.W.2d at 602fithiamt.opn -6-

(quoting Sol em v. Hel m, 463 U.S. 277, 289-90, 103 S.Ct.3001, 3009, 77 L. Ed.2d 637, 649 (1983)) ( emphasis in ori ginal). The mandatory natureof a sentence,
even if it

appears to be cruel, i s not otherwi se unusual and does not ren der it violative of the Eigh th Ame ndme nt. Harmelin v. Michigan , 501 U .S. 991, 996, 111 S. Ct. 2680, 2701, 115 L.Ed.2d 836 (1991) (life without par ole for convicti on forpossessing 672 gra ms of cocaine con stituti onal); State v. Hinsley , 627 S.W.2d 351, 355 (Ten n. 1982)( se ntencing provisions of the habitual drug off

ender act constitutional); State v. Dann y Lee Holder , C.C.A. 01C01-9501- CC-00015, Linco ln County (Tenn. Crim. App., Nashvill e, Mar. 22, 1996) (mandatory servi ce of the entir

e sentence for

defend ants convicted of rape of a child constitutional).

Nor does the mandatory sentence violate the more expansive appl icatio n to non-capital sen tencing by our supreme court of Articl e I, Secti on 16 of the Tennessee Constitu tion. If we con sider the m andato ry senten ce und er the state constit ution, this require s that the s entenc e initially be co mpare d to th e c ri me committed. Harris , 844 S.W.2d at 603. “Unless this t hreshold compari son leads to an i nference of gros s dispr oportio nality, the inquiry e nds--t he se ntenc e is constitution al.” I d. However, in thefew caseswhen the i nference arise s, we must compare the sentence as applied to other criminals i n the juri sdicti on, and sentences for the s ame crime in other ju risdictions. Id. Here, we cannot conclude that the im position o f a ma ndato ry thirty-d ay sen tence is disprop ortionate to the crime o n its face. Obvi ously, t he general assembly has determined that the s eriousness of the offens e of driv ing whil e u nder the influence with children in the vehicle warran ts a more se vere punishment. The legislature has also graded t he o ffens e with reference to more seri ous consequences to a chi ld, i.e. s erious bodi ly inj ury and death. Tenn. Code Ann.fithiamt.opn -7-

§ 55-10-4 14(2), ( 3). The legislature has bro ad powe r to determine th e nature and length of

punishments for

crimes and w e shou ld gene rally defer to its authority.
The appeal is di smissed and the j udgment of the t rial cour t is af firmed.

____________________________________ DAVID H. WELLES , JUD GE

CONCUR:

___________________________________ THOMAS T. WOODALL, J UDGE

___________________________________ JOHN K. BYERS, SENIORJUDGE