Today’s case law update is State v. Patrick Evans, a DUI sentencing case out of Williamson County, recently reversed by the Tennessee Court of Criminal Appeals. As with a lot of DUI cases that result in a death, the underlying facts are tragic. The Defendant, Patrick Evans, pleaded guilty to vehicular homicide by impairment, a Class B felony with an agreed sentencing hearing to the manner of sentence. Evans crashed into the victim and his wife and when his blood was tested, it registered .20. He was determined to be at fault in causing the accident.
One trooper testified that the victim had already been removed from the vehicle upon his arrival, but he observed two vehicles with severe damage to the driver’s side of each car from a head-on crash. Defendant admitted that he had “two beers” and had a slight odor of alcohol.
The victim’s wife and three sons testified about the loss of the victim, who was sixty-six years old and was married to his wife for forty-five years. The victim had served in a number of service-related professions: army, police officer, minister, and missionary. The victim’s wife who was driving at the time of the accident testified that she had two knee operations and surgery as a result of the accident.
The Defendant made an allocution which discussed his background, the changes in his life, acceptance of responsibility, and his remorse. Three others testified favorably on his behalf.
The Defense argued that Evans’ lack of criminal history and life and circumstances made him a favorable candidate for alternative sentencing. The State argued that a probated sentence would undermine the seriousness of the offense and not serve as a deterrent when there were 700 DUIs in Williamson County during the prior year. The trial court ordered the Defendant to serve 8 years at TDOC.
On appeal, the Court of Criminal Appeals examined whether the trial court abused its discretion in sentencing Evans to serve his sentence via incarceration. “Sentences imposed by the trial court within the appropriate statutory range are to be reviewed under an abuse of discretion standard with a ‘presumption of reasonable.’” State v. Bise, 380 S.W.3d 682, 708 (2012). The CCA cited T.C.A. 40-35-102(5) that: 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.
Upon review, the CCA found that the trial court misapplied the following factors it used to enhance the client’s sentence for the B felony: 1) the offense involved more than one victim, (2) the personal injuries inflicted were particularly great, (3) the defendant failed to comply with conditions of a community-released sentence, and (4) the defendant possessed a firearm during the commission of the offense.
Citing past case law, the CCA found that there cannot be multiple victims for any one offense where the indictment specifies a named victim. Imfeld 70 S.W.3d at 698. The State conceded that the second enhancement finding that the decedent’s injuries were particularly great, should not have been applied because death is an element of vehicular homicide. The CCA found that failure to comply with a condition of bond is not a basis for enhancement.
The CCA also held that the trial court incorrectly held that the Defendant had used a firearm in the commission of his offense, simply because he violated the law for driving under the influence with a weapon in his vehicle. There must be “some reasonable connection between the defendant’s conduct or state of mind and the firearm.” State v. Cunningham, 2014 WL 2547726 (Tenn. Crim. App. 2014).
The CCA found that the enhancement that Defendant “committed a crime with risk to life was high” was accurate because Evans had endangered the victim’s wife’s life. The CCA found that Evans had never been arrested prior to this incident, and such behavior was “aberrant conduct.”
In a big win for the defense bar, the CCA held that the trial court’s decision not to find Evans remorseful because he gave an allocution rather than take the witness stand was inaccurate. “For this Court to recognize a finding of lack of remorse based solely upon the Defendant’s decision to allocate would undermine the purpose of the allocution. A trial court should not speculate that a sworn statement might be more remorseful than an allocution.” The CCA ordered the trial court on remand to determine if Evans seemed remorseful, without contemplating the meaning of an allocution versus testimony with cross-examination.
Finally, when discussing the Court’s determination, the CCA stated: “In our view, the Defendant has a high potential for not re-offending and remaining a productive member of society.” It directed the trial court to consider the Defendant’s potential for rehabilitation. The errors made by the trial court caused the appellate court to question whether the manner of sentencing was appropriate.
Read the full opinion here: http://www.tsc.state.tn.us/sites/default/files/evansopn.pdf
Okay kids, quick Fifth of July update. Today is federal law day. I hope my recap of the first case can all help us think about sentencing a little differently and that it provides some fresh ideas to those of us in state court. The second case isn’t really relevant to much of anything, other than it is the BEST opinion I’ve read in a while.
Recently, the Sixth Circuit decided a matter of first impression. As everyone knows, there can only be so many first impressions, so these cases don’t come along every day. Essentially, a district court judge polled the jury that decided a child pornography case and asked them how much time they thought the defendant should spend incarcerated. Prior to the Sentencing Reform Act in Tennessee, juries used to settle penalties after rendering guilty verdicts, but we did away with that. This case has a tinge of that “everything that is old, is new again” feel. Judges typically go back and speak to jurors, but this judge actually asked specific questions about sentencing and then used that information when rendering a downward departure.
Here are the facts:
The Defendant was convicted of receiving and distributing child pornography. His sentencing range was above the statutory twenty-year maximum – his range was 262 years to 327 months – which runs in-between 21 and 27 years. After the trial, the judge polled the jury, and found:
Jurors’ responses ranged from zero to 60 months’ incarceration, with a mean of 14.5 months and median of 8 months. With one exception, every juror recommended a sentence less than half of the five-year mandatory minimum accompanying defendant’s offenses. See 18 U.S.C. §§ 2252(b)(1), 2252A(b)(1). Each juror’s recommendation was but a fraction of defendant’s calculated guidelines range.
Very interesting, especially for a child pornography case. It also shows the lack of awareness that jurors have about the effects of their decisions. The sentencing judge believed that the jury’s opinion showed how skewed the sentencing guidelines were, and used it as one factor, among the other required 3553 considerations for sentencing. I suppose for state court, this might fall under that catch-all provision at the end of the mitigating factors statute. The court sentenced the defendant to the mandatory-minimum 5-year sentence and ran the convictions concurrently to each other.
Despite the Government’s objections and appeal, the Sixth Circuit upheld the sentencing judge’s decision to consider the jury’s opinion, primarily because he did so while still utilizing the requirements of 3553. The Sixth Circuit found that: Considering the jury’s sentencing recommendation as part of the sentencing calculus did not conflict with the district judge’s duty or ability to properly weigh the § 3553(a) factors and independently craft an appropriate sentence. Verrrrrry interesting. Sorry, Government.
To read the full opinion, click here:
And, on to the second case. One of the civil litigators in my firm sent out this case, and just raved about it. Turns out he was right. It’s a criminal case, so it has nothing to do with his practice, but he read it because it was just SO interesting. And when was that last time you could say that about an opinion? I think the key is that it starts with a “hook” and is direct and “readable” throughout. Anyway, a nice example of legal writing if you’re need some inspiration:
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