Attorney-at-Law in Spencer, Tennessee

Are you looking for a lawyer in Spencer, Tennessee?  Perhaps, you were visiting Fall Creek Falls State Park and got a traffic ticket along the way.  Maybe, you were charged with a serious crime, such as drug possession or DUI.  Or, you may not need a criminal defense attorney at all.  Instead, you need an attorney to write your will, draft a real estate deed, or fight for custody of your kids.

As a small-town lawyer in Van Buren County and Spencer, Tennessee, I know the importance of having a broad practice so that I can help people capitalize on opportunities and find their way through difficult times.  Whether it is writing a contract or negotiating with the district attorney’s office, I am here to help you.

I know the importance of keeping my prices affordable.  The people of Van Buren County are hardworkers.  Many people work at the prison in Bledsoe County.  Others work at the Bridgestone factory in Warren County.  Most people farm, either part-time or full-time.  The citizens of Van Buren County and Spencer earn their money through hardwork and it’s important that a lawyer not take advantage of them.

I also know the value of honesty.  If I don’t know the answer, I’ll tell you and then find it.  If we’re negotiating with the DA, I’ll let you know exactly where you stand and what your options are.  I don’t sugarcoat things either way, good or bad.  I wouldn’t want an attorney to make me believe things were going good when they were going bad or bad when they were going good.  I’d want an attorney to shoot me straight.  That’s what I strive to do for each and every client.

Finally, communication is key for me.  If you’re my client, you get my cell phone number.  I regularly call clients at night.  I try to respond to texts even if I’m in court.  I understand that whether you’re trying to close a business deal or win custody of your children, it’s critical that you be able to reach your attorney.  So, I do my best to stay available, for you.

If you need an attorney-at-law in Spencer, Tennessee, call my office today at (931) 310-6945.

Tennessee Court of Criminal Appeals affirms Judge Stanley’s revocation of a defendant’s probation

As one Van Buren County resident found out, it’s difficult to reverse a probation revocation on appeal.  The decision to revoke a defendant’s probation rests within the sound discretion of the trial court, and the court of criminal appeals “will not disturb the trial court’s ruling absent an abuse of that discretion.”  To show an abuse of discretion, “there must be no substantial evidence to support the conclusion of the trial court that a violation of the conditions of probation has occurred.”

On September 24, 2012, the defendant pled guilty to attempted to tampering with evidence, a Class D felony, delivery of a Schedule II drug, a Class C felony, and theft under $500, a Class A misdemeanor.  For these crimes, Judge Stanley sentenced the defendant to five years, eleven months, and twenty-nine days, with thirty days in confinement and the remainder on supervised probation.  Almost a year later, a warrant was filed alleging the defendant violated her probation by committing disorderly conduct and criminal trespass.  The warrant was later amended to show those charges had been dropped but that the defendant committed additional violations of probation including driving under the influence, possession of a Schedule IV drug, and possession of a Schedule III drug.  Again, the warrant was amended to add further violations, specifically aggravated burglary, theft, domestic assault, simple possession, possession of a Schedule III drug, possession without a prescription, and initiating a false report.

At the probation revocation hearing, the defendant’s probation officer testified that the defendant did not make any payments toward her court costs and fines until she picked up the disorderly conduct and criminal trepass charges.  While these charges were dismissed, the officer testified that the defendant had since been arrested on the other charges listed above.  Further, the defendant failed to start her community service work while she was unemployed and she still owed restitution to the victim of the theft.

Before taking the witness stand, the defendant addressed the court:

I guess all I can say is I did violate the terms of my probation.  I do have a bit of a drug problem.  I want to say that I’m sorry.  I apologize but I would just ask that you look at some of the things that my attorney has mentioned.  I understand I have a lot of charges against me.  I don’t know what else to say for myself.

On the stand, the defendant testified that she had two children by age sixteen and two children that died when she was eighteen.  Her father died when she was young.  Her mother recently passed away.  She had been in the judicial system since age fourteen, and had been taken into state custody at age fifteen.  At age eighteen, her two oldest children were taken away from her but she had recently established a relationship with them.  Despite her difficult childhood, the defendant acknowledged that this was not an excuse for her behavior as an adult.  Finally, with regard to her community service obligation, the defendant testified that she was working twelve hours a day, seven days a week, until she had to stop working because of an injury in a car accident and the need to take care of her ill mother.

After hearing the proof and the arguments of counsel, the trial court revoked the defendant’s probation and ordered her to serve her original sentence, with credit for time served.  The court emphasized that the Adult Recovery Program or Drug Court Program was not a get-out-of-jail-free free card, as some people think of it.  He noted that all the defendant had to do was ask her probation officer for help with drug addiction and the officer would have assisted her with finding housing and treatment.  However, the defendant had not even asked her probation officer for help.  Regarding her upbringing, the court stated:

[W]hen you become an adult there comes a time when you have to pay for what you do and you have to take personal responsibility for what you do.  I do agree that you have had a difficult childhood, a difficult young adult life but at some point that’s got to come to an end.  You had an opportunity to have a job.  You had an opportunity to do better with your children and it just continues to get worse and worse and worse and you continue to do these things knowing very specifically that you faced almost six years in jail.

Finally, the court commented that there was a lot of harm to the community in driving under the influence, aggravated burglary, attempting to tamper with evidence, and delivering amphetamines, and that the “citizens of Van Buren County would be aghast if I let you walk out of this courtroom knowing that you have done what you have and not taken really any steps necessary to try to correct it or make yourself better.”

On appeal, the defendant argued that the trial court erred by (1) not considering the presentence report, (2) using her prior convictions as a basis for the revocation, and (3) basing its decision on political influence and vindictiveness.  However, the court of criminal appeals rejected all of these arguments.  Regarding the presentence report, the court first noted that the obligation to consider a presentence report is for sentencing hearings, not probation revocation hearings.  See generally T.C.A. § 40-35-210; State v. Thacker, No. M2011-01061-CCA-R3-CD, 2012 WL 1072005, at *3 (Tenn. Crim. App. Mar. 28, 2012).  Even so, the trial court had considered the defendant’s testimony about her family history and drug abuse.  Concerning the trial court’s statement about the defendant’s prior convictions, the appellate court noted that it was in response to a question by defense counsel – “How can the public be hurt by giving her the opportunity to get off these drugs and run her life successfully?”  Finally, responding to the defendant’s third argument that the decision was based on political influence and vindictiveness, the court stated that “[t]he record . . . is devoid of any proof supporting this claim.”  In summary, the Tennessee Court of Criminal Appeals explained:

While on probation for three different offenses, [the defendant] was arrested multiple times, incurred numerous criminal charges in two different counties, lied to her probation officer, and repeatedly disregarded her obligation to pay fines, restitution, and perform community service.  Based on this record, the trial court properly ordered [the defendant] to serve the balance of her original sentence in confinement.  Accordingly, she is not entitled to relief.

State v. Yearwood, No. M2014-01622-CCA-R3-CD (Tenn. Crim. App. Mar. 11, 2016).

Tennessee Court of Appeals upholds revocation of driver’s license despite flaw in implied consent form

In the law, technicalities do not prevail as often as people think.  Normally, courts will find a logical way to arrive at the “right” conclusion.  An example of this is the Tennessee Court of Appeals’ decision in State v. Hembrook, which upheld the Van Buren County Circuit Court’s revocation of a defendant’s driver’s license based on a violation of the implied consent law.  In Hembrook, the defendant was arrested and charged with driving under the influence of alcohol.  After the defendant was transported to the Van Buren County Sheriff’s Department, the arresting officer read him the form entitled, “Tennessee Implied Consent Advisement for Use in Mandatory Test Cases Per T.C.A. § 55-10-406(f).”  The form stated in pertinent part:

There exists probable cause to believe you were driving or in physical control of a motor vehicle while under the influence of alcohol and/or drugs (DUI) and the vehicle you were operating was involved in a crash resulting in the injury or death of another.  As required under T.C.A. § 55-10-406(f), I am hereby requesting that you submit to a chemical test or tests to determine the alcohol and/or drug content of your blood.

As required by State law I must advise you that if you refuse to submit to either or both tests, you will be charged with the offense of violation of the implied consent law.  If the judge finds you guilty of this separate offense your driver’s license will be suspended for a period of at least one year.

The defendant refused to submit to the blood test and was subsequently charged with a violation of the implied consent law.

After a preliminary hearing, the General Sessions Court of Van Buren County bound the DUI charge over to the grand jury and revoked the defendant’s license pursuant to T.C.A. § 55-10-406.  The defendant then filed a timely appeal in circuit court, contending that the form the officer read was “not applicable to him” because he was not involved in an accident, let alone an accident that resulted in the injury or death of another.  However, the circuit court upheld the revocation, finding that “although the Defendant was ‘misinformed’ or read provisions that [were] inapplicable to his position, the Defendant was advised that he would lose his license if a Judge found that he refused a chemical test . . . that the Defendant did refuse the sample testing although made aware of the consequences of refusal . . . [and] that the requirements were met for the Defendant to have his driver’s license revoked.”

Again, the defendant filed a timely appeal, this time to the court of appeals.  He raised one issue on appeal:

Whether the admonitions read to Defendant were proper and sufficient pursuant to Tenn. Code Ann. § 55-10-406 to require the revocation of Defendant’s license for one year.

Specifically, the defendant argued that the implied consent form was inapplicable to him because he was not involved in an accident.  Nevertheless, the appellate court affirmed the revocation, stating that whether the defendant “was arrested only for DUI or was also involved in an accident causing injury or death is inconsequential in determining if he was properly advised of the consequences of failing to submit to the blood test, as required by Tenn. Code Ann. § 55-10-406(a)(3).”

I should note that this is an excellent job of “lawyering” on behalf of the defendant.  There wasn’t much here to go off of, but they found the one issue that had a chance of winning.  As noted above, however, courts typically end up at the “right” conclusion and avoid deciding cases on technicalities.  Here, the defendant was advised of the consequence of refusing to take the blood test and he refused to take it.  Good lawyering aside, revocation affirmed.

State v. Hembrook, No. M2011-01358-COA-R3-CV (Tenn. Ct. App. July 31, 2012)

Sobriety Checkpoints Throughout White and Van Buren Counties During Thanksgiving Week

Spartalive.com reports that the Tennessee Highway Patrol will have several sobriety checkpoints in White County (Sparta) and Van Buren County (Spencer) throughout Thanksgiving week.  The troopers will be looking for people driving under the influence of alcohol or drugs.

If you are charged with a DUI or drug offense in Sparta or Spencer, contact an attorney as soon as possible.  I can handle many of these cases in general sessions for as little as $200.

 

Other Useful Links:

Van Buren County, Tennessee

White County, Tennessee

Post-conviction granted because defense attorney failed to obtain impeaching evidence against witness

Note: The defendant/petitioner has since been reconvicted of aggravated sexual battery, and so, this blog post will not use the term “alleged.”

In White County, Tennessee, the last petitioner to win a post-conviction on appeal was a Spencer resident convicted of one count of rape of a child and two counts of aggravated sexual battery.  This case is all the more interesting because some people think that appellate courts are less likely to reverse cases involving sexual crimes than cases involving “normal” crimes, such as DUI, simple possession, etc.  There isn’t any hard evidence for this opinion (that I know of), but it does make sense.  At the very least, lawyers, judges, and the public should take notice when an appellate court reverses a sexual conviction.

This case hinged on the credibility of the witnesses.  At trial, all three victims claimed that their mother was away from home on the night in question.  One of the victims testified that her mother was snowed in overnight while visiting her father in prison, and on cross-examination, said that she was “certain” that her mother was away.  However, in a videotaped interview with the Department of Children’s Services, the victim had said that her mother was home when the incidents occurred.  Corroborating the victims’ testimony, the mother stated that she was away visiting her incarcerated husband on the night in question.

After the State’s proof, the defense presented three witnesses.  First, a nurse practitioner testified that she had examined the victims and saw no sign of injury.  However, on cross-examination she admitted that physical evidence was unlikely to remain unless the touching occurred over a prolonged period.  Next, the defendant’s girlfriend testified that, when she visited the victims’ house after the incidents, the victims did not appear to be afraid of the defendant.  Finally, the defendant denied touching the victims and being at the house the night the mother was away.

At the post-conviction hearing, a lieutenant showed that, according to Tennessee Department of Correction visitor logs, the mother did not see her husband on the night in question.  Further, trial counsel did not obtain these logs, despite the mother’s previous statement that she drove to Nashville to visit her husband in prison and was snowed in.  Counsel reasoned that the logs were unimportant because one of the victims said in her statement that her mother was home when the offense occurred.  However, counsel admitted that it would have helped to have records demonstrating the mother never visited her husband in prison.

The post-conviction court found that trial counsel did not think the TDOC records were necessary because the issue was “well-clouded.”  Further, the court found that counsel sought to impeach the adult witnesses with prior convictions and the children with the nurse practitioner’s testimony.  Further, the trial court stated that the absence of the records did not “erode its confidence in the [p]etitioner’s conviction.”  Thus, the court found that counsel’s performance was not deficient and that the petitioner was not prejudiced as a result of counsel’s representation.

On appeal, the Tennessee Court of Criminal Appeals noted that the prison visitation logs were essential to the defense because they would have contradicted the mother’s testimony and demonstrated that the offenses occurred outside the time relied upon by the State.  Importantly, the court found that the convictions rested solely on the credibility of the witnesses and the proof only marginally exceeded the standard required to convict.  These finding allowed the appellate court to distinguish this case from the general rule that the mere failure to employ additional modes of impeachment is not ineffective.  See Haymon v. State, No. W2005-01303-CCA-R3-PC (Tenn. Crim. App. July 10, 2016) (citing Williams v. State, 599 S.W.2d 276, 279-80 (Tenn. Crim. App. 1980)).  Since this case turned exclusively on the crediblity of the witnesses and the TDOC records would have “irrefutably impeached [the mother’s] crediblity,” the court could not say that counsel’s failure to obtain the records did not affect the outcome of the proceedings.  Accordingly, the court of criminal appeals reversed the petitioner’s convictions and remanded the case for a new trial.

Blanton v. State, No. M2011–1454-CCA-R3-PC (Tenn. Crim. App. Oct. 9, 2012)

P.S. The opinion was written by Judge Roger A. Page, now Justice Roger A. Page.