Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs April 22, 2015.
Appeal from the Circuit Court for Bedford County No. 17807 F. Lee Russell, Judge.
Brian Christopher Belden, Shelbyville, Tennessee, for the appellant, Kevin Lee Johnson.
Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Senior Counsel; Robert James Carter, District Attorney General; and Michael David Randles, Assistant District Attorney General, for the appellee, State of Tennessee.
Roger A. Page, J., delivered the opinion of the court, in which John Everett Williams and Alan E. Glenn, JJ., joined.
ROGER A. PAGE, JUDGE.
A. Trial Proceedings
On direct appeal from his sentence, this court summarized the procedural history of this case and the facts underlying petitioner's guilty plea as follows:
On March 7, 2013, the defendant entered an open guilty plea to the charges of being a motor vehicle habitual offender ("MVHO"), a Class E felony, driving under the influence ("DUI") first offense, a Class A misdemeanor, and failure to appear in court, a Class E felony. The trial court sentenced the defendant as a Range II offender to serve three years and six months for the MVHO offense, eleven months and twenty-nine days for the DUI offense, to be served concurrently with the MVHO sentence, and six years for the failure to appear to be served consecutively to the MVHO and DUI sentences, for an effective sentence of nine years and six months.
At the guilty plea hearing, the State offered a summary of the evidence it would use against the defendant in a trial. On January 17, 2012, Deputy Monte Moore of the Bedford County Sheriffs Department responded to a report of a suspicious vehicle. When he arrived on the scene, Deputy Moore discovered the defendant "passed out" in the driver's seat of a white Chevrolet Impala parked just off the roadway. Deputy Moore observed that the defendant was in physical control of the vehicle, as the keys were in the ignition, the vehicle was on, and the defendant had his foot on the brake.
Deputy Moore suspected that the defendant was intoxicated and asked the defendant to perform field sobriety tests. After the defendant performed poorly, Deputy Moore arrested the defendant. The defendant refused to consent to a blood or breath test. Deputy Moore then discovered that the defendant had his driver's license revoked in 2005 when the Marshall County Circuit Court declared him a habitual motor vehicle offender.
The defendant had a pre-trial motion hearing date of February 15, 2013, for the charges of DUI and being a habitual motor vehicle offender. The defendant did not appear in court at this time, and the State had a number of witnesses it could call to verify the defendant's absence.
At the conclusion of the State's proof, the defendant stated that he was not driving when he was arrested as a habitual motor vehicle offender and for DUI. He then ...