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State v. Sims

Court of Criminal Appeals of Tennessee, Knoxville

March 22, 2018

STATE OF TENNESSEE
v.
JENNA SIMS

          Assigned on Briefs December 20, 2017

          Appeal from the Criminal Court for Sullivan County Nos. S64, 777, S64, 778, & S66, 994 James F. Goodwin, Jr., Judge No. E2017-00283-CCA-R3-CD

         The Defendant, Jenna Sims, pled guilty to multiple driving and drug offenses, for which she received an agreed-upon sentence of one-year, eleven months, and twenty-nine days. The Defendant was later placed on probation. During her probation, the Defendant left a residential treatment program and failed to return to jail, so a probation violation warrant was filed and she was charged with failure to appear. She pled guilty to the failure to appear charge and received an agreed-upon sentence of one year to be served consecutively to the remainder of her probationary sentence. At the subsequent sentencing hearing, the trial court revoked her probation and ordered her to serve her one-year sentence for failure to appear in confinement. On appeal, she argues that the trial court abused its discretion by revoking her probation and by denying her alternative sentencing. We disagree. Accordingly, the judgments of the trial court are affirmed.

         Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed

          Stephen M. Wallace, District Public Defender; and Ashley D. Boyer, Assistant District Public Defender, for the appellant, Jenna Sims.

          Herbert H. Slatery III, Attorney General and Reporter; Leslie L. Price, Senior Counsel; Barry P. Staubus, District Attorney General; and Emily M. Smith, Assistant District Attorney General, for the appellee, State of Tennessee.

          D. Kelly Thomas, Jr., J., delivered the opinion of the court, in which James Curwood Witt, Jr., and Robert H. Montgomery, Jr., JJ., joined.

          OPINION

          D. KELLY THOMAS, JR., JUDGE

         FACTUAL BACKGROUND

         On May 20, 2015, the Sullivan County Grand Jury returned a six-count presentment against the Defendant in case number S64, 777, charging her with reckless endangerment, driving under the influence ("DUI"), DUI per se, possession of drug paraphernalia, speeding, and DUI third offense. See Tenn. Code Ann. §§ 39-13-103, 39-17-425, 55-8-152, 55-10-401, & 55-10-402. That same day, the Defendant was charged in case number S64, 778 with DUI, DUI per se, speeding, and DUI third offense. In exchange for her plea to both cases on August 13, 2015, the Defendant received an agreed-upon sentence of one year in case number S64, 777, and a consecutive term of eleven months and twenty-nine days in case number S64, 778. Pursuant to the terms of the agreement, the Defendant was required to serve 240 days in jail with the remainder of the sentence to be suspended. However, she was permitted to "mitigate 110 days (55 x 2) of incarceration for inpatient rehabilitation subject to court approval."

         The August 13, 2015, guilty plea transcript is not included in the record on appeal. However, we glean the following information from the technical record about the facts underlying these two cases. Regarding case number S64, 777, the Defendant was pulled over on January 24, 2015, for driving ninety-four in a thirty-five mile-per-hour zone on a "wet roadway." The arresting officer, Officer Michael Still, "noticed a strong odor of alcohol coming from the vehicle[, ]" and the Defendant told Officer Still that she "had two shots of Crown Royal at about 2000 hours and had later had a J[ä]ger Bomb at the bar." She also stated "that she took Zoloft but not any other drugs." The Defendant was unable to find her driver's license, so she stepped out of the car to continue looking but was still unable to find it. Officer Still "continued to detect a strong odor of alcohol coming from [the Defendant's] person." The Defendant was administered three different field sobriety tests while on the scene.

         There was also a passenger in the Defendant's vehicle. Another officer, Officer Cowan, [1] spoke with the passenger, David Haskins, who stated that "he was scared and that he told her to slow down after she had run two red lights prior to being stopped."

         In addition, a canine unit was called, and the dog "alerted on the vehicle." The Defendant was not allowed to return to the vehicle at that time. During the search, the officers found "a zippered pouch, in the pocket behind the passenger seat, " which contained "one metal spoon, two partial drinking straws, one partial ink pen tube, two complete syringes, one push rod for a syringe and a piece of aluminum foil." According to Officer Cowan, the passenger, Mr. Haskins, "had no way of reaching the pocket where the pouch was located."

         While in the back of the police car, the Defendant said that "she was having chest pain and requested that she be taken to the hospital." The Defendant "slumped over and became unresponsive" during the ride to the hospital. She was taken to Bristol Regional Medical Center for medical treatment, where a blood draw was also performed. At the time of her arrest, the Defendant had two prior DUI convictions-one in Indiana on December 4, 2009, and another on December 6, 2006, in Sullivan County, Tennessee.

         Turning to case S64, 778, Officer Christopher Odle was informed by dispatch on the evening of February 23, 2015, that the Defendant had been involved in a domestic disturbance and that she was driving "highly intoxicated" to avoid facing charges. Officer Odle located the Defendant's vehicle, which "appeared to be traveling above the posted speed limit of [twenty-five]." Officer Odle stated that he "paced the vehicle at [forty miles per hour] in a [twenty-five mile-per-hour] zone" and that he "had difficulty catching up [to] the vehicle[.]" After reaching the vehicle, Officer Odle initiated a traffic stop, and the Defendant complied. Officer Odle "smelled an odor of alcoholic beverage coming from [the Defendant's] person and her speech appeared to be slurred." The Defendant was unable to successfully complete three field sobriety tests, so Officer Odle placed the Defendant under arrest. After a search warrant was obtained because the Defendant refused to give her consent, her blood was drawn at Bristol Regional Medical Center the following morning. The Defendant's two prior DUI convictions were noted by Officer Odle in the affidavit of complaint, as well as her DUI arrest on January 24, 2015.

         According to the history of supervision provided, the Defendant was granted a furlough on March 30, 2016, for her convictions in these two cases (S64, 777 and S64, 778). The Defendant was released from jail custody on the "special condition that she complete 110 days in the treatment program known as Bristol Road to Recovery, " but if she "were to leave said program, it was conditioned that she return immediately to the Sullivan County Jail." Program Director Donna Camper reported that the Defendant left the treatment program on May 28, 2016, without permission, but the Defendant was allowed to return and was reinstated to the program over one month later on June 29, 2016. However, according to Ms. Camper, the Defendant, soon after, left the program without permission again on July 7, 2016, staying only eight days following her reinstatement. It was alleged that the Defendant did not report to the jail as instructed.

         Thereafter, a violation of probation affidavit and warrant were issued against the Defendant on September 14, 2016. Specifically, it was alleged therein that the Defendant violated the conditions of her probation by leaving the treatment program without permission and failing to report to the Sullivan County Jail as instructed. Based upon this same conduct, the Defendant was charged in case number S66, 994 with failure to appear, a Class E felony. See Tenn. Code § 39-16-609. On December 1, 2016, the Defendant pled guilty to the failure to appear offense and received an agreed-upon one-year sentence as a Range I, standard offender, with the trial court to consider the Defendant's request for alternative sentencing. The trial court thereafter considered the probation revocation and alternative sentencing issues jointly.

         The presentence report, admitted as an exhibit, reflected that the Defendant had the two aforementioned DUI convictions on December 4, 2009, in Indiana and on December 6, 2006, in Sullivan County. She also had convictions for domestic violence, misdemeanor vandalism, misdemeanor theft, telephone harassment, possession of drug paraphernalia, unauthorized use of a vehicle, driving on an expired license, driving without a license, speeding, and violation of the financial responsibility law.

         Regarding her alternative sentencing history, in December 2006, the Defendant, at the age of nineteen, was placed on probation in Tennessee for her first DUI conviction. She again received probation in February 2008 on the Sullivan County, Tennessee, vandalism offense. In December 2009, the Defendant received a probationary sentence in Indiana for her second DUI conviction, and that probation was transferred to Tennessee in August 2010. Thereafter, in March 2012, the Defendant once more received probation in Sullivan County, Tennessee, for her collective convictions for ...


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