Habitual Traffic and DUI Offender Not Suitable for House Arrest

December 3, 2013

Stephen Addleburg was indicted in July 2009 on numerous charges that included the violation of a habitual traffic offender order, possession of a handgun while under the influence, two counts of driving under the influence (“DUI”), and one count of driving under the influence eighth offense (“DUI 8th”). Addleburg was convicted by a Sullivan County jury for, among other things, possession of a handgun while under the influence. Addleburg was sentenced to four years in prison. On appeal, he claimed that the trial court erred in denying his request for alternative sentencing.

In 2009, David Creasy was working at a gas station in Kingsport when he saw Addleburg attempting to stand up a motorcycle that was laying on its side in the roadway at one of the entrances to the station. Creasy didn’t see the motorcycle involved in a wreck, and never saw him drive the motorcycle. A customer at the station assisted Addleburg in pushing the motorcycle to a gas pump. One of the two came into the station and paid for five dollars worth of gas, but Creasy couldn’t recall which one. Creasy thought that Addleburg was intoxicated by the way he was walking and because of his slurred speech. Creasy called the police, and didn’t turn on the gas pump for Addleburg because the 911 dispatcher asked him to “stall” him until the police arrived.

Officers McGuire and Pendleton with the Kingsport Police both responded to the scene. McGuire arrived first and saw Addleburg standing next to a black motorcycle which was parked at a gas pump. When Pendleton arrived, Officer McGuire was tying to speak with Addleburg. Both officers testified that they smelled alcohol on him and that he was “unsteady” on his feet. Pendleton added that he had slurred speech, appeared nervous and “fidgety,” kept trying to reach into his pockets, and was “kind of aggressive.”

Addleburg told the officers that he had two to three beers and that he had been at his house, which was less than one-half mile away. Although he claimed not to have a firearm, when Officer McGuire patted him down, he found a .22 caliber pistol on him, as well as a small bag of green leafy substance. After placing Addleburg in his patrol car, McGuire requested that he submit to a blood alcohol test. Addleburg agreed and signed an Implied Consent Advisement, agreeing to a BAC test. The officer also ran his driver’s license, which showed that it was revoked because he was a habitual traffic offender. McGuire took Addleburg into custody.

The blood alcohol kit and the green leafy substance were sent to the Tennessee Bureau of Investigation, the results of which reflected that Addleburg tested positive for .15% ethyl alcohol and that the green leafy substance was 1.4 grams of marijuana. The jury found Addleburg guilty of the charges including the possession of a handgun while under the influence. The jury set fines but acquitted him of both counts of DUI. As a result, the State dismissed the DUI 8th charge.

At the sentencing hearing, Addleburg testified that he had been diagnosed with stage one lung cancer after he was convicted of these offenses.  He introduced his medical records as an exhibit. Addleburg testified that he had “a very large tumor in [his] chest cavity” that would require surgery to remove. Addleburg testified about future scheduled appointments with doctors regarding his diagnosis and treatment. Addleburg asked the trial court to consider his health issues, treatment, and doctor’s appointments in determining his sentence. Specifically, he requested that the court grant him some type of house arrest or “ankle monitoring” so that he could continue his treatment.

On cross-examination, Addleburg acknowledged that he was arrested on a new charge after his convictions in this case, and that he had at least three prior felony convictions. The State asked him if his medical records indicated that the biopsy of the tumor revealed that is was “not malignant.” Addleburg said the doctor “wasn’t satisfied with the … biopsy” so he performed a “PET scan” after the biopsy. According to Addleburg, the PET scan showed “the first stages of cancer.”

The trial court determined that Addleburg was a range II multiple offender, and defense counsel agreed. The court found one enhancement factor applicable—that Addleburg had a “prior record of criminal activity outside those necessary to establish the range.” The trial court also specifically noted that Addleburg had a “terrible” record, sentenced him to four years, and also affirmed the fines set by the jury.

The trial court determined that Addleburg would serve his four-year sentence in confinement, denying an alternative sentence, but did state it would make a strong recommendation that he be housed at the Lois DeBerry Special Needs Facility and that it would contact the jail nurse to inform her of the situation.

Judge Jeffrey Bivens of the Court of Criminal Appeals of Tennessee at Knoxville wrote that Addleburg’s challenges to the denial of alternative sentencing centered on the trial court’s failure to consider his “current serious health problems,” prison overcrowding, or statistical information regarding similar convictions. Judge Bivens explained that the Court of Criminal Appeals would uphold the trial court’s sentencing decision “so long as it is within the appropriate range and the record demonstrates that the sentence is otherwise in compliance with the purposes and principles listed by statute.” In making its sentencing determination, the appellate judge said, a trial court must consider:

(1) The evidence, if any, received at the trial and the sentencing hearing;

(2) The presentence report;

(3) The principles of sentencing and arguments as to sentencing alternatives;

(4) The nature and characteristics of the criminal conduct involved;

(5) Evidence and information offered by the parties on the mitigating and enhancement factors set out in the Tennessee Code;

(6) Any statistical information provided by the administrative office of the courts as to sentencing practices for similar offenses in Tennessee; and

(7) Any statement Addleburg wishes to make in Addleburg’s own behalf about sentencing.

Judge Bivens explained that the trial judge should also consider “[t]he potential or lack of potential for the rehabilitation or treatment of Addleburg … in determining the sentence alternative or length of a term to be imposed.” When a court determines the manner of service of a sentence, a defendant who “is an especially mitigated or standard offender convicted of a Class C, D or E felony, should be considered as a favorable candidate for alternative sentencing options in the absence of evidence to the contrary[.]” However, it isn’t bound by this advisory sentencing guideline. Addleburg bore the burden of establishing his or her suitability for full probation. This burden included demonstrating that probation will ‘subserve the ends of justice and the best interest of both the public and Addleburg. In determining whether to deny an alternative sentence, the trial court should consider the following:

(A) Confinement is necessary to protect society by restraining a defendant who has a long history of criminal conduct;

(B) Confinement is necessary to avoid depreciating the seriousness of the offense or confinement is particularly suited to provide an effective deterrence to others likely to commit similar offenses; or

(C) Measures less restrictive than confinement have frequently or recently been applied unsuccessfully to Addleburg.

In this case, Judge Bivens held that the appellate court didn’t see any error in the trial court’s denial of alternative sentencing. As a result, the trial court denied any form of alternative sentencing in a manner consistent with the purposes, principles, and goals of the Sentencing Act. The Criminal Court of Appeals affirmed.

 

State v. Addleburg, Slip Copy, 2013 WL 4806962 (Tenn.Crim.App. Sept. 9, 2013).

 

Questions about sentencing or other matters in a criminal case?

Kevin Patterson has been providing professional legal services to individuals and businesses in the greater Memphis area since 1983.  When you ask Kevin to assist you with your legal issue, he will treat your case with the dedicated service and attention it deserves. Call Kevin at 901.300.4820 or e-mail at kpatterson@kgplawfirm.com to discuss your legal matter. We look forward to hearing from you.

 

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