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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON
Assigned on Briefs June 7, 2005 STATE OF TENNESSEE v. CLAUD SIMONTON
Direct Appeal from the Criminal Court for Shelby County No. 03-01528 James C. Beasley, Jr., Judge

No. W2004-02406-CCA-R3-CD - Filed October 3, 2005

Defendant, Claud Simonton, pled guilty to one count of vehicular homicide by intoxication, a Class B felony, and one count of simple possession of cocaine, a Class A misdemeanor. Pursuant to a plea agreement, Defendant agreed to a minimum sentence of eight years as a Range I, standard offender, for his vehicular homicide conviction, and an eleven month, twenty-nine day sentence for his possession conviction, without an agreement as to the manner of service of the sentences. The trial court ordered Defendant to serve his sentences concurrently for an effective sentence of eight years. Following a sentencing hearing, the trial court ordered Defendant to serve his eight-year sentence in confinement. In this appeal, Defendant argues that the trial court erred in not granting Defendant's request for alternative sentencing. Following a thorough review of the record, we affirm the judgments of the trial court. Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed THOMAS T. WOODALL, J., delivered the opinion of the court, in which JOSEPH M. TIPTON and DAVID G. HAYES, JJ., joined. Robert Wilson Jones, District Public Defender; Garland Erguden, Assistant Public Defender; and Diane Thackery, Assistant Public Defender, Memphis, Tennessee, for the appellant, Claud Simonton. Paul G. Summers, Attorney General and Reporter; Blind Akrawi, Assistant Attorney General; William L. Gibbons, District Attorney General; and Paul Goodman, Assistant District Attorney General, for the appellee, the State of Tennessee. OPINION In January 2002, Defendant was returning to his home in Covington from Tunica, Mississippi, when he drove his motor vehicle off the road and hit a tree in Memphis. Mary Simonton, Defendant's mother, was a passenger in the vehicle, and she later died of the injuries she sustained in the accident. Defendant's blood alcohol level was 0.17, and he had 1.1 grams of cocaine

in his possession at the time of the accident. Defendant's blood analysis also was positive for cocaine. At the sentencing hearing, Cathy Oliver said that she and Defendant attended the same high school and had remained acquaintances over the years. She and Defendant began dating about nine months before the sentencing hearing. Ms. Oliver said that Defendant had not driven an automobile while they were dating. Ms. Oliver said that either she or one of Defendant's sons drove Defendant where he needed to go. She was aware that Defendant had a prior history of alcohol and drug problems. Ms. Oliver said that Defendant was currently serving a nine-month sentence in Tipton County for an unrelated DUI conviction. Jim Whitley, the minister of the Liberty Baptist Church in Fayette County, became friends with Defendant after Defendant made a "profession of faith" in 1986. Reverend Whitley said that after the accident Defendant gave "testimony as to his failure" before the congregation. Reverend Whitley said that Defendant told the congregation "[t]hat he had gotten his eyes off the Lord and had fallen back into some past patterns and told of the wreck and the death of his mother and took full responsibility, very remorseful as he spoke to the church." Reverend Whitley, however, could not specifically recollect if Defendant told the congregation that he was under the influence of alcohol and drugs when the accident occurred. Peter Simonton, Defendant's brother, said that Defendant was well respected in the community and a good father to his two sons. Mr. Simonton said that Defendant checked on his mother every day, either in person or by telephone, while she was alive. Mr. Simonton said that Ms. Simonton particularly enjoyed going to the casinos in Tunica so that she could play the slot machines. Mr. Simonton said that either he or Defendant would take their mother to Tunica each month. Mr. Simonton said that he was aware that Defendant had six prior DUI convictions. He said, however, that Defendant had not driven an automobile since the accident. Mr. Simonton said that Defendant's assets had also been placed in a trust which paid for Defendant's basic needs and the upkeep of his house. Mr. Simonton said that he approached Defendant about establishing a trust approximately six months after the accident, and Defendant agreed to the plan. Mr. Simonton said that Defendant was very remorseful about the accident, and it was his belief that the seriousness of the accident had changed Defendant's life. Mary Hunt Cook, Defendant's sister, said that Defendant was a good father, and it would be detrimental to his sons if Defendant was not granted probation. She said Defendant was "a strong figure," and that people "could follow him down a good path." Defendant testified that he was convicted three times of DUI in the 1980's, and then he stopped drinking for eleven years. In the 1990's, his marriage began to fail, and he incurred three more DUI convictions. The last DUI conviction was for an offense which occurred on November 15, 2001, two months before the accident that led to the current charges. Defendant said that he was -2-

currently incarcerated as a result of this DUI conviction. Defendant said that he went on disability in 2000 because of chronic obstructive pulmonary disease. He said that he used crack cocaine "once or twice every couple of weeks" despite his respiratory problems. Defendant said that he and his mother went to Tunica every two weeks or "sometimes every week." Defendant said his mother had experienced problems with alcoholism and depression in the past, but she had overcome those problems through "self-determination." Defendant said that he thought about his mother every day. He said that it was not "a case of me being an alcoholic or a drunk day in and day out." Defendant said that he just "made some bad decisions." Defendant denied that he was addicted to either alcohol or drugs. Defendant said that none of his DUI convictions required him to attend alcohol rehabilitation programs as part of his sentence, although he had attended a few AA meetings in 1997 or 1998. Defendant said that he no longer used alcohol or drugs and did not drive. Defendant said that he bought crack cocaine shortly before the accident occurred. He told his mother he "had to pay a man some money." Defendant said that he did not use the cocaine before the accident, and that he had not used cocaine for some weeks before the accident. Robert Simonton, Defendant's brother, testified on behalf of the State. He said that all of his family, with the exception of his sister, were alcoholics at some point in time. Mr. Simonton said his attempts to distance himself from the family's drinking habits had caused conflict within the family. Mr. Simonton said that he did not believe that Defendant would change, and that Defendant would "be back up in front of the judicial system no matter what." At the conclusion of the sentencing hearing, the trial court found that Defendant was not a proper candidate for any form of probation. The trial court found that although Defendant had been previously extended probation and served minimal time in confinement for his prior DUI convictions, he had demonstrated little potential for rehabilitation over the years. The trial court noted also that the alcohol problems existing in Defendant's family would not be a positive factor if Defendant were placed back into the community on a probated sentence. The trial court specifically declined to accredit Defendant's testimony that he had not used cocaine for weeks before the accident. The trial court also denied Defendant's request for probation based on its finding that a sentence of confinement was "necessary to avoid depreciating the seriousness of the offense" and "particularly suited to provide an effective deterrence to others likely to commit similar offenses." See Tenn. Code Ann.

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