Tennessee Criminal Lawyer Blog

“Professional Criminal” Label Can Warrant Consecutive Sentences

Mon, 08 Feb 2010 21:03:05 -0500

The word “consecutive” is a word that can strike fear into the heart of any criminal defendant. That single word can make decades’ worth of difference in defendants’ sentencing hearings, transforming multiple convictions into one extended prison term. Where sentences are imposed “consecutively” in Tennessee, they run back-to-back, meaning four sentences of four years each could result in a sentence of sixteen years. When sentences are imposed “concurrently” they all run at the same time, meaning those four convictions would net the defendant four total years of jail time. Since consecutive sentencing is an incredibly harsh punishment in many cases, Tennessee law requires that certain factors be met in order to sentence a defendant consecutively. One such factor is that the defendant is a “professional criminal.”

In State v. Talley, the Tennessee Court of Criminal Appeals upheld consecutive sentences for a defendant who was labeled as a “professional criminal,” by the trial court. In placing this label on the defendant the court looked to the defendant’s prior convictions, the defendant’s work history, and the length of time between incarcerations. Unfortunately for the defendant, none of these categories proved favorable for him and his convictions were affirmed.

The best way for a defendant to fight the label of “professional criminal,” will depend upon the circumstances of the case and the defendant’s history. Obviously the defendant stands a better chance of avoiding the label if he or she has not committed the same offense several times previously. It will also be helpful if the defendant does not have a lengthy criminal history and that the defendant’s criminal history has large gaps between offenses, showing that he or she has not made a career out of criminal activity. Also, since the label contains the word “professional,” it may help the defendant to show that he or she has been able to make a living doing something that is not some form of criminal activity. Which parts of this label a defendant wants to attack will depend on the circumstances of the case and the defendant’s history. A skilled criminal defense attorney will be able to rely on past experience and professional judgment in order to determine how to best avoid this categorization.

Source: State v. Tally, 35 TAM 6-22, 12/8/09, Jackson, Glenn, 7 pages.

Belief in "Faith Healing" Results in Criminal Conviction for Oregon Couple

Fri, 05 Feb 2010 18:23:26 -0500

An Oregon couple was convicted of criminally negligent homicide on Tuesday after a jury decided that prayer and anointing oils were not sufficient treatment for the couple’s son, who died from a congenital urinary tract blockage. The couple belongs to a church known as Followers of the Church of Christ and as such adheres to the view that doctors are to be eschewed in favor of faith healing. Stories where parents forego medical treatment in favor of faith healing practices have become increasingly common, and such practices have spawned many criminal trials. In fact, this couple’s own granddaughter had passed away under similar circumstances, but her parents were acquitted of manslaughter. The couple in this case was not so lucky. They reportedly face up to sixteen months in jail for the criminally negligent homicide charge under Oregon law. Criminally negligent homicide is a Class E Felony in Tennessee and carries a penalty of one to six years in jail.

The most obvious issue presented by this case is the conflict between protecting and criminalizing legitimately held religious beliefs. However, that issue is extremely complex and could not be treated in a blog format. Instead this case will just have to suffice for our purposes to illustrate the use of a statutorily recognized mitigating factor found in Tennessee Code Annotated section 40-35-113(3) which says that where substantial grounds exist tending to excuse or justify the defendant's criminal conduct, though failing to establish a defense, the defendant can use such grounds as a mitigating factor.

Man Calls Police after Son Threatens Him with Spoon

Thu, 04 Feb 2010 21:11:19 -0500

Parents often talk about how hard it is to see a child through their teen years, and a father from Niceville, Florida would probably agree with that assessment after he had to call the police on his fifteen year-old son after a family dispute became (kind of) dangerous. The two were reportedly arguing about the son being grounded when the father demanded the son hand over his iPod. The kid refused and reportedly grabbed a spoon “in a knife-like hold” with which to threaten his dad. Fearing for his life, the father called the cops. He was charged with criminal mischief.

The notable thing about this story from a criminal law standpoint is that the son was described as grabbing a spoon in a “knife-like hold” according to the arrest report. Tennessee law, and the law of most other states, has not set a bright-line rule that defines exactly what is and what is not a deadly weapon for purposes of the criminal code. The definition of a “deadly weapon” in the Tennessee code includes “[a]nything that in the manner of its use or intended use is capable of causing death or serious bodily injury.” Thus, the definition literally encompasses any object in the world, as it is technically possible to kill someone with a piece of paper or a cotton swab if used in the appropriate manner. Whether something actually qualifies as a “deadly weapon” for purposes of the criminal code, then, will often depend on the circumstances.

In this situation, the classification of the way the spoon was held would indicate that the police possibly considered the spoon as a deadly weapon. This classification can be extremely important, because use of a deadly weapon greatly enhances the classification and punishment of certain criminal offenses. For example, robbery is a Class C felony in Tennessee, punishable by three to fifteen years in prison. Use or display of a deadly weapon during a robbery, however, automatically escalates the charge to aggravated robbery, a Class B felony that is punishable by eight to thirty years in prison.

It is clear, then, that whether or not the defendant uses an object that is considered a deadly weapon can play a large role in a criminal trial. The bad news for defendants is that there is no set rule for what specific objects can constitute a deadly weapon. The good news, however, for defendants who use borderline objects, such as forks or spoons, is that a skilled criminal defense attorney can argue from the circumstances surrounding the offense that the object was not intended to be a deadly weapon and was not used as such.

Source: http://www.nwfdailynews.com/news/boy-25379-son-police.html

Considering Mitigating and Enhancement Factors at Sentencing

Wed, 03 Feb 2010 18:12:20 -0500

The criminal process is set up so that defendants have a multitude of options at their disposal for making sure they are able to obtain a fair sentence. One of these options is the right to appeal, and defendants can appeal on a wide range of subjects, one of which is that the defendant received a sentence that was excessive. This will usually be based on the theory that the sentencing court did not take the proper considerations into account before sentencing. State v. Pedigo, a recent case heard by the Tennessee Court of Criminal Appeals, serves to illustrate this issue.

In Pedigo, the defendant pled guilty to aggravated burglary and theft over $1,000. He was sentenced as a Range III offender to 15 years in jail. He appealed, arguing that the sentence was excessive. During the sentencing phase, the trial court stated that it had considered mitigating factors but did not state which factors it had considered or how much weight each was given. Likewise, the trial court sought to apply several enhancement factors, but the trial court only discussed one of them. The trial court also failed to state the process by which it balanced the mitigating and enhancement factors in determining the sentence. The Court of Criminal Appeals found that due to these factors, the record did not properly establish that the trial court had considered all of the relevant sentencing principles before sentencing the defendant. As a result, the Court of Criminal Appeals ordered that the case be sent back down to the trial court for a more specific sentencing procedure in which the trial court would properly identify all of the relevant mitigating and enhancement factors, discuss the facts supporting each, and outline how the factors were balanced in determining the sentence.

This case demonstrates that defendants can appeal if they think that they were excessively sentenced due to a flaw in the sentencing process. The good news is that if this appeal is successful, the defendant’s case will be re-evaluated, and he or she may receive a new sentence. The bad news is that the new sentence may be a larger sentence than the first one, and if it is properly reached it may not be overturned. Thus, defendants should always seek out the advice of an experienced East TN criminal defense attorney before deciding whether or not to appeal and on what grounds.

Source: (State v. Pedigo, 35 TAM 5-27, 12/2/09, Nashville, Wedemeyer, 6 pages.)

BAC Level is not Dispositive in Tennessee

Tue, 02 Feb 2010 20:18:28 -0500

A recent Tennessee Court of Criminal Appeals decision interpreted Tennessee’s DUI statute in a way that may prove confusing in the future. In the case, styled State v. Wright, the defendant was convicted of DUI based on the evidence that the officer saw him swerve over the center line of the road three times, the defendant approached a stop sign and turned left without stopping, the officer detected the odor of alcohol when she approached the vehicle, that defendant needed support when he exited the vehicle, and that the defendant failed all five field sobriety tests. Despite this, the defendant’s BAC level was only .03%, well below the legal limit of .08%. The court held that although the defendant’s BAC level was not sufficient to give rise to the legal inference that the defendant was driving under the influence, the evidence nevertheless supported a finding that the defendant was guilty of DUI. This is probably the right result in the case, as intoxication does not necessarily have any correlation to alcohol or BAC level and the defendant seems clearly to have been intoxicated. However, this case begs the question of what purpose the BAC restriction has at all.

Tennessee’s DUI statute, T.C.A. section 55-10-401, provides that it is unlawful for a person to control a motor vehicle on a public roadway or place while:

Under the influence of any intoxicant, marijuana, narcotic drug, or drug producing stimulating effects on the central nervous system; or

The alcohol concentration in the person's blood or breath is eight-hundredths of one percent (.08 %) or more.

Self-Defense in Tennessee

Mon, 01 Feb 2010 15:04:38 -0500

Self-defense is a theory of defense that is generally available in Tennessee to those who are charged with or accused of crimes involving the use of force against another individual. The basic premise behind the defense is that one person has the right to use a reasonable amount of force against another to prevent the suffering of death or bodily harm. This defense is recognized by statute in Tennessee, which effectively limits its applicability to situations where the elements are met. In other words, for a defendant to properly claim that he or she acted out of self-defense, certain conditions must have existed at the time the defendant committed the act for which he or she was charged. Trying to prove all of the elements of the self-defense statute is tricky in a criminal case and will often require the expertise of a skilled Knoxville criminal defense attorney.

The applicability of this defense will obviously depend on the circumstances surrounding the conduct, but certain basic conditions must always be present. Simply put, the defendant (the person who used force and is now claiming self-defense as a defense to criminal charges) must have reasonably and honestly believed that another person was using or about to use unlawful force that presented an imminent danger of death or serious bodily injury to that person or someone else which would justify the immediate use of necessary force.

Mitigating Factors: "I'm a Werewolf"

Thu, 28 Jan 2010 17:49:24 -0500

Understandably, one of the most pressing questions facing any person convicted of a criminal offense is some version of “How can I avoid jail time?” The unfortunate truth for many of those convicted of a criminal offense is that jail time is sometimes impossible to avoid. Luckily, the State of Tennessee recognizes several mitigating factors that can serve to aid defendants in obtaining shorter sentences or possibly even qualify for an alternative sentencing method and avoid jail time altogether. One such mitigating factor recognized by Tennessee is that the defendant had a mental or physical condition that significantly reduced his or her culpability for the offense. It should be noted that the voluntary use of intoxicants does not qualify under this factor. Thinking that you are a werewolf, however, probably does.

A girl from San Antonio, Texas is under investigation by authorities after she admitted to decapitating a dog, boiling its head, and mounting the head on her wall. The girl, who literally claims to be a werewolf, and goes by the name Wolfie Blackheart, told the authorities that she only took the head after finding the dog dead and that she would never hurt the dog because she herself is a canine. This is important because in Texas, just as in Tennessee, the statutes pertaining to animal cruelty and intentional killing of an animal apply by definition only to living creatures. It is unknown whether Wolfie will be charged at this time.

The Right to Remain Silent

Wed, 27 Jan 2010 17:43:21 -0500

For many people, the phrase “you have the right to remain silent…” is just a snazzy saying they hear on police dramas. For others, however, it is an important reminder of a Constitutional right that can be extremely beneficial if invoked when necessary. The right to remain silent derives from the Constitutional protection against self-incrimination afforded to criminal suspects. In its simplest form, it is the right to refuse to say anything that may implicate oneself as being involved in criminal activity. While the famous phrase quoted above is part of a standard Miranda warning that is typically given when a suspect is being arrested, the right to remain silent extends farther than that and can be invoked at routine traffic stops if necessary.

A good example of how this right may be beneficial comes from Crestview, Florida, where a twenty-five year-old man was recently arrested for possession of marijuana with intent to distribute. The man was pulled over for speeding, at which point the officers noticed that the man seemed nervous and that there was a strong odor emanating from his vehicle. When police asked the man if he had anything illegal in the truck, he replied with an ill-advised “I got $2,000 worth of weed in the truck,” immediately putting an end to the suspense and giving the officers probable cause to arrest him. He also admitted to selling marijuana on the weekends. Needless to say, there will be little trouble convicting the man on the charges unless there is some constitutional error with the stop.

Plea Bargaining Helps Man Avoid Lengthy Sentence

Tue, 26 Jan 2010 19:50:37 -0500

A New Jersey man pleaded guilty today to assault by automobile, two counts of aggravated assault and driving while intoxicated stemming from an accident in which the man’s drunk driving was responsible for seriously injuring three women. At the time of the wreck, which occurred on April 18, 2009, the man’s blood-alcohol content was reportedly twice the legal limit. According to his plea deal he will be facing up to five years in prison, a far cry from the decades of prison time he would have been facing had he gone to trial. The injuries to the victims in his case were severe. One victim in particular had her skull detached from her spinal column and miraculously survived. She also suffered brain trauma and has undergone fifteen operations as a result of the accident. The personal injury ramifications of this incident are discussed here.

This situation is a perfect example of how plea bargaining can aid defendants in avoiding lengthy sentences. In situations like this one, where the defendant will almost certainly be found guilty considering all the circumstances, the defendant may be better off pleading guilty and foregoing the trial process. The downside of pleading guilty is that the defendant waives several constitutional rights that are generally available to them, such as the right to a trial by jury, the right to present witnesses in their favor, and the right to confront witnesses against them.

Man Gets DUI in Inoperable Vehicle

Mon, 25 Jan 2010 21:21:35 -0500

The scope of Minnesota’s DUI statute was extended substantially last Thursday when the Supreme Court of Minnesota upheld a DUI conviction for a man who was found intoxicated behind the wheel of an inoperable vehicle. Officers found the man asleep in his legally parked car at his apartment complex. The engine was cold to the touch, giving no indication that the vehicle had been driven, and the keys were in the console instead of the ignition. The man admitted to having consumed a multitude of beers earlier that night. He was arrested and found to have a blood-alcohol content of .18, well over the legal limit. The officers inserted the keys into the ignition and tried to start the car, but it would not start and was inoperable at the time. The defendant was convicted of DUI and appealed at every turn, eventually taking his case all the way to the Minnesota Supreme Court on the argument that he could not be convicted of DUI since he was behind the wheel of a vehicle that could not be driven. With this most recent ruling, the Minnesota Supreme Court has decided that the operability of a vehicle is not a bar to a DUI conviction.

The good news for defendants in Tennessee (assuming the police intervention in this case was legal, which is questionable) is that Tennessee law currently does not recognize that a defendant can get a DUI behind the wheel of an inoperable vehicle. In fact, Tennessee courts have implied in several opinions that the inoperability of the vehicle would in fact bar a prosecution for DUI since a defendant cannot technically “control” a vehicle that is inoperable. It should be noted, however, that the vehicle will have to be literally inoperable; being in park or having the keys lying in the console alone is not enough. Such circumstances merely indicate that the driver was not operating the car at that particular moment. It is thus entirely possible that they have previously been operating the vehicle while intoxicated or were about to operate the vehicle while intoxicated. This law may change some time in the future, but as it now stands, being behind the wheel of an inoperable vehicle is a defense to a DUI charge in Tennessee.

Source: http://thenewspaper.com/news/30/3030.asp

Waiving the Right to Appeal

Fri, 22 Jan 2010 18:39:06 -0500

Criminal defendants, for various reasons, are often unhappy with the way at least one issue was handled by the court at trial, especially if the trial results in a conviction accompanied by a lengthy prison sentence. Luckily for criminal defendants they have the right to appeal the trial court’s decision as long as they comply with certain procedural requirements and avoid certain pitfalls that cause them to lose that right. One such pitfall is waiving the right to appeal. A recent case heard by the Tennessee Court of Criminal Appeals illustrates how this works.

The defendant in this case pleaded guilty to obtaining a controlled substance by forgery and received a sentence of three years. The defendant felt that the sentence was too harsh, so he wished to appeal. Unfortunately for him, the judge had presented him with a waiver of his right to appeal at the conclusion of the sentencing hearing, and the defendant was placed under oath, freely and voluntarily asserted that he wished to waive his right to appeal, and signed a written waiver confirming that decision. By waiving his right to appeal, the defendant necessarily waived his right to appeal the sentencing decision reached by the trial court. Thus, the Tennessee Court of Criminal Appeals was unable to consider his contention that the sentence was too harsh.

Mitigating Factors: Assisting the Authorities

Thu, 21 Jan 2010 16:31:54 -0500

The mitigating factor discussed in today’s blog can be found in T.C.A. section 40-35-113(10) and reads:

“The defendant assisted the authorities in locating or recovering any property or person involved in the crime;”

This can be a very useful mitigating factor for defendants, and is one that has been extended by Tennessee courts to encompass more than what is revealed in the statute. For example, this factor has been extended to apply where the defendant assists the authorities in locating not only other persons involved in committing the crime but also persons or property who were the victims of the crime. This would technically apply even where the victim of the crime is deceased and the defendant assisted authorities in locating the body.

Mitigating Factors: Unusual Circumstances

Wed, 20 Jan 2010 19:35:13 -0500

One potential mitigating factor that defendants can use at sentencing in an effort to get a reduced sentence is where “the defendant, although guilty of the crime, committed the offense under such unusual circumstances that it is unlikely that a sustained intent to violate the law motivated the criminal conduct.” This mitigating factor is one that will not be used all that often because it requires that the circumstances surrounding the conduct be unusual, but when such unusual circumstances give rise to the criminal conduct in question, this factor can be highly effective.

One example of when this factor might be applicable comes from a somewhat bizarre story that took place on Monday in Syracuse, New York, where a man was apparently hanging out on a street corner while intoxicated when he became the victim of a random drive-by shooting. The man, wounded in his shoulder by a single gunshot, then tried to drive himself to the hospital. Unfortunately, he began his trek on the wrong side of the road and failed to correct that mistake, smashing into another vehicle. He was charged with DWI. The personal injury law consequences of this ill-fated decision are discussed here.

Mitigating Factors: Righting the Wrong before Detection

Tue, 19 Jan 2010 20:09:54 -0500

Today’s blog unsurprisingly continues with the recent focus of our criminal blogs on the mitigating factors defendants may be able to use to receive a more favorable outcome at sentencing. These mitigating factors are recognized by the laws of the State of Tennessee as factors that tend to mitigate a defendant’s responsibility for a crime and may lead to the defendant receiving a less severe sentence following a conviction.

One such mitigating factor is explained as: “Before detection, the defendant compensated or made a good faith attempt to compensate the victim of criminal conduct for the damage or injury the victim sustained.” This could occur in a myriad of ways. For example, someone could have stolen a significant amount of money from a friend or employer and went back to that person before being discovered by the authorities and offered to pay them back the money or set up some sort of payment plan. It could also happen if a person was driving while intoxicated and crashed into another person’s home, causing damage to the structure, and before being discovered by authorities, the offender went to that person’s house and offered to pay for the necessary repairs or offered to make the repairs himself. Basically, this mitigating factor is pretty straightforward: if the offender offers to make amends or repay the victim somehow before being discovered or detected by the police, then the offender may be able to use this factor to obtain a more lenient sentence following conviction.

Mitigating Factor: Necessity

Mon, 18 Jan 2010 17:57:20 -0500

Our blog has recently focused on mitigating factors and with good reason. Statutorily-recognized mitigating factors are a tremendous tool that defendants can use in Tennessee to obtain more favorable treatment at sentencing. Sometimes this means a defendant can obtain a sentence below the presumptive sentence, and sometimes mitigating factors simply serve to counteract the effect of enhancement factors, allowing the defendant to avoid a sentence harsher than the presumptive sentence.

One of the mitigating factors that is especially applicable today can be found in T.C.A. section 40-35-113(7) and reads that one mitigating factor can be that “the defendant was motivated by the necessity to provide necessities for the defendant’s family or the defendant’s self.” The applicability of this factor, however, will be largely dependent on the circumstances. For example, a defendant who breaks in to an electronics store and steals a plasma TV will have a harder time convincing the sentencing judge that this factor should apply than will a defendant who is caught shoplifting baby food or diapers. That is not to say that the former defendant would never be able to convince the judge that this factor applies to the crime they committed, but judges will clearly be more accepting of the latter.