Please E-mail suggested additions, comments and/or corrections to Kent@MoreLaw.Com.
Help support the publication of case reports on MoreLaw
Date: 10-18-2020
Case Style:
State of Tennessee v. Gil Jackson Groseclose
Case Number: E2019-01721-CCA-R3-CD
Judge: Norma McGee Ogle
Court: IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Plaintiff's Attorney: Herbert H. Slatery III, Attorney General and Reporter; Garrett D. Ward, Assistant Attorney General; Barry P. Staubus, District Attorney General; and Mitchell B. Watson, Assistant District Attorney General
Defendant's Attorney:
OR
Just Call 855-853-4800 for Free Help Finding a Lawyer Help You.
Description:
Blountville, TN - Criminal defense lawyer represented defendant Gil Jackson Grosec lose charged with driving under the influence (DUI) and DUI second offense.
In October 2017, the Sullivan County Grand Jury returned a presentment charging
the Appellant with DUI; DUI, per se; and DUI, second offense. The Appellant filed a
10/15/2020
- 2 -
motion “to suppress and/or exclude evidence of [his] prior conviction for Driving under
the Influence as alleged in Count Three of the Presentment and to dismiss Count Three of
the Presentment.” The Appellant argued in the motion that his 2008 guilty plea to DUI in
general sessions court was void because the officer swore to the affidavit of complaint in
the presence of a notary instead of a qualified judicial officer. The trial court reviewed the
affidavit and the judgment of conviction for Sullivan County General Sessions Court case
number K3320. The trial court denied the Appellant’s motion, explaining as follows:
He - he’s pled guilty. And the Court’s of the opinion that the guilty
plea corrects any infirmities or inconsistencies with regard to the - affidavit
such that the judgment would then be facially valid, and it’s such that you
could not attack - collaterally attack that conviction and judgment in this
proceeding.
On March 25, 2019, the Appellant entered a “blind” plea to DUI and DUI per se.
The State did not provide a recitation of the facts during the plea hearing, but the Appellant
stipulated to the following “essential facts constituting the offense(s),” which appeared in
Officer Eric Keller’s affidavit of complaint:
On June 23, 2016 at approximately 2046 hours I, Officer Keller (511),
was dispatched to 1317 Virginia Ave., Food City parking lot, in reference to
a reckless driver that was possibly under the influence. Central dispatch
advised the suspected vehicle was a blue BMW 745i that was now parked in
the Family Dollar parking lot, at 1404 Virginia Ave. They also advised the
driver was wearing a v-neck t-shirt. Upon my arrival, I noticed a blue BMW
745i, with Tennessee tag (Y82 72N), parked in the parking lot of the [F]amily
[D]ollar in front of the RedBox movie rental. The vehicle engine was still
on as well as the headlights.
There were several subjects at the RedBox. I asked who the driver
was of the blue BMW. A white male with a white [v]-neck t-shirt, fitting the
description of the suspected driver, stated he was. The driver was identified
as Gil Groseclose. I informed Mr. Groseclose, I had received multiple calls
about a reckless driver. Mr. Groseclose stated he was not driving recklessly.
I then asked if he was driving the BMW, in which he stated “yes”. Mr.
Groseclose stated, he dropped his wife and kid off at Food City on Virginia
Ave. and drove across the street to rent a DVD at the RedBox.
I asked Mr. Groseclose if he would perform a few tests for me to
verify that he was fine to drive. Mr. Groseclose agreed to do so. I
administered the Standardized Field Sobriety Test to Mr. Groseclose
- 3 -
consisting of: Horizontal Gaze Nystagmus test, Walk and Turn test, and the
One Leg Stand test. Mr. Groseclose performed poorly on all tests exhibiting
several clues on each portion. It was very difficult for him to keep his
balance, and his speech was slurred. Mr. Groseclose was placed under arrest
for Driving Under the Influence.
I then transported Mr. Groseclose to BRMC for a blood draw, in which he
consented. Officer Keesee transported Mr. Groseclose to the Sullivan
County Jail for booking. The offense occurred in Bristol, Sullivan County,
Tennessee.
The State introduced the Appellant’s Official Toxicology Reports into evidence, showing
that his blood contained 94 nanograms per milliliter of Alprazolam and that his blood
alcohol content (BAC) was 0.084 gram percent.
Immediately after the trial court accepted the Appellant’s guilty pleas to DUI and
DUI, per se, the Appellant waived his right to a jury trial, and the trial court held a bench
trial on the charge of DUI, second offense. The State called Officer Keller to the stand,
and he identified the case file for case number K3320. The file included a judgment of
conviction for the Appellant’s 2008 guilty plea to DUI. The State rested its proof, and the
Appellant made a motion for judgment of acquittal, again arguing that the Appellant’s prior
conviction was void because the police officer’s affidavit of complaint was improperly
sworn in the presence of a notary. The Appellant also argued that his conviction was void
because no arrest warrant was issued. The trial court denied the Appellant’s motion for
judgment of acquittal, stating that “the Court [is] relying upon its previous holding at the
motion to suppress, [and] the Court’s of the opinion that his appearance in general sessions
court coupled with his plea would have cured the . . . defect.”
Based on the 2008 judgment of conviction, the trial court found the Appellant guilty
beyond a reasonable doubt of driving under the influence, second offense. After a
sentencing hearing, the trial court sentenced him to eleven months, twenty-nine days to be
served as one hundred twenty days in jail followed by supervised probation.
II. Analysis
A. Sufficiency of the Evidence
The Appellant claims that the evidence is insufficient to support enhancement of his
DUI conviction to DUI, second offense. The State argues that the evidence is sufficient
and that the Appellant is essentially attempting to attack the validity of his prior conviction,
which is improper in a subsequent proceeding. We agree with the State.
- 4 -
When an appellant challenges the sufficiency of the convicting evidence, the general
standard of review by an appellate court is “whether, after viewing the evidence in the light
most favorable to the prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319
(1979); Tenn. R. App. P. 13(e). The State is entitled to the strongest legitimate view of the
evidence and all reasonable or legitimate inferences which may be drawn therefrom. State
v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Questions concerning the credibility of
witnesses and the weight and value to be afforded the evidence, as well as all factual issues
raised by the evidence, are resolved by the trier of fact. State v. Bland, 958 S.W.2d 651,
659 (Tenn. 1997). Accordingly, in a bench trial, the trial judge, as the trier of fact, must
resolve all questions concerning the credibility of witnesses and the weight and value to be
given the evidence, as well as all factual issues raised by the evidence. State v. Ball, 973
S.W.2d 288, 292 (Tenn. Crim. App. 1998). The trial judge’s verdict carries the same
weight as a jury verdict. State v. Hatchett, 560 S.W.2d 627, 630 (Tenn. 1978).
A guilty verdict can be based upon direct evidence, circumstantial evidence, or a
combination of direct and circumstantial evidence. State v. Hall, 976 S.W.2d 121, 140
(Tenn. 1998). “The [trier of fact] decides the weight to be given to circumstantial evidence,
and ‘[t]he inferences to be drawn from such evidence, and the extent to which the
circumstances are consistent with guilt and inconsistent with innocence, are questions
primarily for the [trier of fact].’” State v. Rice, 184 S.W.3d 646, 662 (Tenn. 2006) (quoting
Marable v. State, 313 S.W.2d 451, 457 (Tenn. 1958)). “The standard of review ‘is the
same whether the conviction is based upon direct or circumstantial evidence.’” State v.
Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011) (quoting State v. Hanson, 279 S.W.3d 265,
275 (Tenn. 2009)).
Tennessee Code Annotated section 55-10-401(a)(1) provides that a person commits
DUI when the person drives or is in physical control of a vehicle “on any of the public
roads and highways of the state, or on any streets or alleys, or while on the premises of any
shopping center, trailer park, or apartment house complex, or any other premises that is
generally frequented by the public at large” while the person is under the influence of an
intoxicant. A person convicted of DUI, first offense, “shall . . . serve in the county jail or
workhouse not less than forty-eight (48) consecutive hours nor more than eleven (11)
months and twenty-nine (29) days.” Tenn. Code Ann. § 55-10-402(a)(1)(A). A person
convicted of DUI, second offense, “shall . . . serve in the county jail or workhouse not less
than forty-five (45) consecutive days nor more than eleven (11) months and twenty-nine
(29) days.” Tenn. Code Ann. § 55-10-402(a)(2)(A).
A prior DUI conviction is merely used to enhance a sentence for DUI and is not an
element of DUI, second or subsequent offense. State v. Ronnie Lamar Evans, No. E2000-
- 5 -
00327-CCA-R9-CD, 2001 WL 501414, at *2 (Tenn. Crim. App. at Knoxville, May 11,
2001); see Tenn. Code Ann. § 55-10-405(a). Nevertheless, the State must prove the prior
conviction beyond a reasonable doubt. State v. Sanders, 735 S.W.2d 856, 858 (Tenn. Crim.
App. 1987); see Tenn. Code Ann. § 40-35-203(3). “A certified computer printout of the
official driver record maintained by the department of safety shall constitute prima facie
evidence of any prior conviction.” Tenn. Code Ann. § 55-10-405(d). If the defendant
challenges the prior conviction, “the court may require that a certified copy of the judgment
be provided for inspection by the court.” Tenn. Code Ann. § 55-10-405(d).
Here, the State introduced a certified copy of the Appellant’s 2008 judgment of
conviction into evidence at trial. The judgment of conviction showed that the Appellant
pled guilty to DUI in general sessions court. Therefore, taken in the light most favorable
to the State, the evidence is sufficient to support the Appellant’s conviction of DUI, second
offense.
The Appellant contends that his sufficiency of the evidence issue “hinges around
the validity of his 2008 conviction” and that his 2008 conviction is “clearly void” because
the affidavit of complaint was signed by a notary public rather than a clerk or magistrate
and because no arrest warrant was issued. However, “unless invalid on its face, a prior
judgment of conviction in a court with personal and subject matter jurisdiction cannot be
collaterally attacked in a subsequent proceeding in which the challenged conviction is used
to enhance punishment.” State v. McClintock, 732 S.W.2d 268, 272 (Tenn. 1987).
Likewise, “a facially invalid judgment cannot be used to enhance punishment in a
subsequent prosecution.” State v. Jody Glen Loy, No. E2006-02206-CCA-R3-CD, 2008
WL 2229259, at *6 (Tenn. Crim. App. at Knoxville, May 30, 2008). Tennessee Rule of
Criminal Procedure 32(e) provides that a judgment of conviction shall be signed by the
judge and entered by the clerk and that the judgment of conviction must include the plea,
the verdict or findings, and the adjudication and sentence.
The trial court conducted a pretrial hearing to assess the validity of the 2008
judgment of conviction and ruled that the judgment was facially valid. As noted by the
Appellant, this court reviews questions of law de novo with no presumption of correctness.
State v. Livingston, 197 S.W.3d 710, 712 (Tenn. 2006).
The document at issue is the standard general sessions court form. The form can be
found on the Administrative Office of the Courts (AOC) website and consists of one page,
front and back. The front of the document contains an affidavit of complaint section and a
probable cause determination section. The Appellant’s written waiver and guilty plea,
signed by the Appellant, his attorney, and the judge, and the judgment are on the back of
the document. The judgment of conviction bears the general sessions judge’s signature;
shows that the Appellant entered a guilty plea to DUI and was found guilty of the offense;
- 6 -
and reflects a sentence of eleven months, twenty-nine days to be served as forty-eight hours
in jail followed by probation. The judgment of conviction satisfies all of the requirements
of Rule 32(e), Tennessee Rules of Criminal Procedure.
In support of his argument that the judgment is void, the Appellant cites State v.
Jones, 512 S.W.3d 258 (Tenn. Crim. App. 2016), in which this court affirmed the trial
court’s holding that the affidavit of complaint was sworn before a notary public rather than
a qualified judicial officer and, therefore, was invalid. However, unlike this case, Jones
did not involve a defendant’s collateral attack of a judgment. Here, the judgment of
conviction had to be facially void in order to be inadmissible as proof of the prior
conviction. The judgment at issue was not facially void. Therefore, the trial court properly
ruled it could be used to enhance the Appellant’s sentence to DUI, second offense.
B. Sentencing
The Appellant contends that the trial court erred by denying full probation except
for the statutory minimum jail sentence. The State argues that the trial court properly
sentenced the Appellant. We agree with the State.
At the Appellant’s sentencing hearing, Mike Groseclose, the Appellant’s father,
testified that the Appellant was thirty-one years old. When the Appellant was a freshman
in high school, he was diagnosed with Attention Deficit Hyperactivity Disorder (ADHD).
The Appellant was prescribed Ritalin and took the medication for more than one year.
However, his parents “didn’t see a big difference” in his behavior, so he stopped taking it.
Mr. Groseclose said that in hindsight, “we shouldn’t have maybe taken him off of it at that
time.” Mr. Groseclose said that the Appellant’s communication could be “erratic at times.”
The Appellant knew what he wanted to say but said it “in different ways.” Mr. Groseclose
stated that the Appellant got “somewhat excited,” that the Appellant’s ADHD “cause[d] a
lot of that problem,” and that the Appellant was not very articulate. Regarding the
Appellant’s ability to learn, Mr. Groseclose thought the Appellant “was probably in his
class.” However, the Appellant had a few learning disabilities and could not concentrate
“long enough . . . to really learn the right way.”
Mr. Groseclose testified that he and the Appellant had a “close” relationship and
that he saw the Appellant every day. The Appellant lived with his girlfriend, and they had
been in a relationship about six years. The Appellant and his girlfriend had a three-yearold son, and the Appellant was in the process of adopting his girlfriend’s eight-year-old
son from a previous relationship. The Appellant was the only financial provider for his
family and worked as a chef at two restaurants. After the Appellant’s DUI conviction, he
lost his ability to drive. The Appellant worked about eighty hours per week, and Mr.
Groseclose drove him to work every day at 4:00 a.m.
- 7 -
Mr. Groseclose testified that if the trial court ordered incarceration, the Appellant’s
girlfriend and her children could afford to live in their apartment only thirty days before
being evicted. Mr. Groseclose said that the Appellant “pays the bills and everything,” that
the Appellant read to the children, and that the Appellant was “potty training” the threeyear-old. The Appellant used to drive the eight-year-old to school every day, and he went
with the children to all of their medical appointments. He also tried to help the older child
with his homework. Mr. Groseclose said he had not seen the Appellant drink alcohol since
his arrest for DUI, which occurred in 2016. The Appellant also seemed to be “on a little
better note” and was “more aware of things.” Mr. Groseclose said that he was retired and
that he could continue to transport the Appellant wherever the Appellant needed to go if
the trial court granted alternative sentencing. At the conclusion of Mr. Groseclose’s
testimony, the Appellant introduced a certified copy of the payments he had made toward
his fines and court costs.
The parties discussed the Appellant’s presentence report with the trial court.
According to the report, the Appellant was a high school graduate and attended Palm Beach
Culinary School in Florida but did not complete the program. The Appellant stated in the
report that had never been diagnosed with a mental illness or received mental health
counseling but that he had been prescribed Adderall as a teenager. The Appellant described
his physical health as “fair” due to problems walking after a 2007 car accident in which he
broke his leg. The Appellant stated in the report that he no longer consumed alcohol and
estimated that he stopped drinking in November 2018. The Appellant did not report any
past or current drug use in the questionnaire for his presentence report but reported to the
presentence officer that he used marijuana in high school. According to the report, the
Appellant denied to the presentence officer that he had a juvenile record; however, the
officer noted in the report that the Appellant had a “juvenile history” in that the Appellant
tested positive for marijuana, cocaine, and methamphetamine and that the Appellant was
“convicted” of marijuana possession in 2008. The report showed that the Appellant
worked full time as a cook at the 620 Restaurant in Bristol and part time as a side chef at
the Martha Washington Restaurant in Abingdon, Virginia.
The report showed that the Appellant had the following prior misdemeanor
convictions: driving while impaired in 2011, vandalism in 2010, DUI in 2008, drug
possession in 2008, speeding in 2008, a red-light violation in 2008, two thefts in 2007, and
theft in 2005. The report showed that in 2007, the Appellant had two felony burglary
convictions and one felony theft conviction. The report also showed several violations of
probation.
The trial court noted that the Appellant could have been indicted for DUI, third
offense, due to his 2008 DUI and 2011 DWI convictions. The trial court stated that it was
- 8 -
“not really” going to consider the Appellant’s juvenile record and that it was not going to
put “great emphasis” on his speeding and red-light violations. Nevertheless, the trial court
found that enhancement factor (1), that “[t]he defendant has a previous history of criminal
convictions or criminal behavior, in addition to those necessary to establish the appropriate
range,” applied to the Appellant’s sentence. Tenn. Code Ann. § 40-35-114(1). The trial
court also applied enhancement factors (8) that “[t]he defendant, before trial or sentencing,
failed to comply with the conditions of a sentence involving release into the community,”
and (10) that “[t]he defendant had no hesitation about committing a crime when the risk to
human life was high because “drinking and driving is a very dangerous and risky thing.”
Tenn. Code Ann. § 40-35-114(8), (10). In mitigation, the trial court applied factors (1),
that “[t]he defendant’s criminal conduct neither caused nor threatened serious bodily
injury,” and (13), the “catchall” provision, for the Appellant’s positive work history. Tenn.
Code Ann. § 40-35-113(1), (13). The trial court found that the enhancement factors
outweighed the mitigating factors, merged the Appellant’s three convictions, and sentenced
him to eleven months, twenty-nine days to be served as one hundred twenty days in jail
followed by supervised probation.
This court reviews the length, range, and manner of service of a sentence imposed
by the trial court under an abuse of discretion standard with a presumption of
reasonableness. State v. Bise, 380 S.W.3d 682, 708 (Tenn. 2012); see State v. Caudle, 388
S.W.3d 273, 278-79 (Tenn. 2012) (applying the Bise standard to alternative sentencing).
In determining a defendant’s sentence, the trial court considers the following factors: (1)
the evidence, if any, received at the trial and the sentencing hearing; (2) the presentence
report; (3) the principles of sentencing and arguments as to sentencing alternatives; (4) the
nature and characteristics of the criminal conduct involved; (5) evidence and information
offered by the parties on enhancement and mitigating factors; (6) any statistical information
provided by the Administrative Office of the Courts as to sentencing practices for similar
offenses in Tennessee; (7) any statement by the defendant in his own behalf; and (8) the
potential for rehabilitation or treatment. See Tenn. Code Ann. §§ 40-35-102, -103, -210;
see also Bise, 380 S.W.3d at 697-98. The burden is on the Appellant to demonstrate the
impropriety of his sentence. See Tenn. Code Ann. § 40-35-401, Sent’g Comm’n Cmts.
In determining a specific sentence within a range of punishment, the trial court
should consider, but is not bound by, the following advisory guidelines:
(1) The minimum sentence within the range of punishment is the
sentence that should be imposed, because the general assembly set the
minimum length of sentence for each felony class to reflect the relative
seriousness of each criminal offense in the felony classifications; and
- 9 -
(2) The sentence length within the range should be adjusted, as
appropriate, by the presence or absence of mitigating and enhancement
factors set out in §§ 40-35-113 and 40-35-114.
Tenn. Code Ann. § 40-35-210(c).
Although the trial court should consider enhancement and mitigating factors, the
statutory enhancement factors are advisory only. See Tenn. Code Ann. § 40-35-114; see
also Bise, 380 S.W.3d at 701; State v. Carter, 254 S.W.3d 335, 343 (Tenn. 2008). Our
supreme court has stated that “a trial court’s weighing of various mitigating and
enhancement factors [is] left to the trial court’s sound discretion.” Carter, 254 S.W.3d at
345. In other words, “the trial court is free to select any sentence within the applicable
range so long as the length of the sentence is ‘consistent with the purposes and principles
of [the Sentencing Act].’” Id. at 343.
In misdemeanor sentencing, the “trial court need only consider the principles of
sentencing and enhancement and mitigating factors in order to comply with the legislative
mandates of the misdemeanor sentencing statute.” State v. Troutman, 979 S.W.2d 271,
274 (Tenn. 1998). Thus, the trial court is afforded considerable latitude in misdemeanor
sentencing. See State v. Johnson, 15 S.W.3d 515, 518 (Tenn. Crim. App. 1999). The trial
court retains the authority to place a defendant on probation immediately or after a time of
confinement. See Tenn. Code Ann. § 40-35-302(a). In sentencing a misdemeanor
defendant, the trial court must fix a percentage of the sentence, not to exceed seventy-five
percent, that the defendant must serve in confinement before being eligible for release into
rehabilitative programs. See Tenn. Code Ann. § 40-35-302(d).
In the instant case, the Appellant had a prior criminal history that included several
felonies and numerous misdemeanors. Moreover, the trial court found that the applicable
enhancement factors, which the Appellant does not contest, outweighed the applicable
mitigating factors. This court does not reweigh mitigating and enhancement factors. See
Carter, 254 S.W.3d at 345. We note that in pronouncing the Appellant’s sentence, the trial
court noted the discrepancy between Mr. Groseclose’s testimony that the Appellant
stopped drinking alcohol in 2016 and the Appellant’s claim in the presentence report that
he did not stop consuming alcohol until 2018. Additionally, the trial court commented on
inconsistencies mentioned in the Appellant’s presentence report. Specifically, the trial
court noted that the Appellant claimed in his presentence questionnaire that he had never
used drugs but admitted to the presentence officer that he had used marijuana in high school
and that the Appellant claimed to the officer that he did not have a juvenile record when
“we know that he did.” The trial court’s comments suggest that it did not find the Appellant
particularly credible, which reflects poorly on his potential for rehabilitation. See State v.
Nunley, 22 S.W.3d 282, 289 (Tenn. Crim. App. 1999). We also find it significant that the
- 10 -
Appellant violated several probation sentences in the past. Accordingly, we conclude that
the trial court did not abuse its discretion by finding that the Appellant was not an
appropriate candidate for full probation after service of the statutory minimum jail
sentence.
3
Outcome: Based upon the oral arguments, the record, and the parties’ briefs, we affirm the
judgments of the trial court.
Plaintiff's Experts:
Defendant's Experts:
Comments: