Defendant, a 92-year-old, pled guilty to four counts of violation of a habitual traffic offender order, one count of DUI, and one count of failing to yield to an emergency vehicle. The trial court issued a six-year jail sentence and denied defendant's request for an alternate sentence.
The trial court determined that defendant's habitual traffic offender status merited the sentence. Specifically, the trial judge stated,
We've done things like...required [the defendant] to put his car up on blocks, park it down the road, and ordered the sheriff's department to make sure it was there on blocks. Then I found out he had another car when he got arrested. That didn't work. I think he might have got away with that a few times on the blocked-up cars. What we'd do, we'd jack them up and take the wheels off, and try to give him minimal sentences...Then we'd get him out of jail and put him back on probation...Mainly, quite frankly, due to his age.
In addition, the trial court and defendant's attorney discussed alternate sentencing options including living with a relative, living in an assisted care facility, or surrendering his car keys. Nonetheless, during the time that the hearing for an alternate sentence was suspended, defendant received a new charge for violation of the habitual traffic offender order. Therefore, the trial court determined that the jail sentence was necessary under the circumstances.
Defendant filed an appeal contending that the trial court erred in denying his request for an alternate sentence. However, defendant failed to include a copy of the transcript from his guilty plea hearing in the appellate record as required by Tenn. R. App. P. 24(b). The appellate court determined that defendant waived the presentation of his argument that he should have been granted an alternative sentence under Tenn. Code Ann. § 40-35-102. The appellate court stated that for defendants who plead guilty, the guilty plea hearing is the equivalent of a trial and it permits the State the opportunity to present the facts underlying the offense. The appellate court held that without the guilty plea morhearing transcript, it was precluded from reviewing the trial court's sentence. Therefore, defendant's appeal was dismissed.
Lexis.com subscribers can access the Lexis enhanced version of the State v. Gettner, 2011 Tenn. Crim. App. Lexis 655, decision with summary, headnotes, and Shepard's.
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