State v. Robinson

• Decision Date: 02 September 2022
• Docket Number: M2021-01539-CCA-R3-CD
• Parties: STATE OF TENNESSEE v. EBONY ROBINSON
• Court: Tennessee Court of Criminal Appeals

STATE OF TENNESSEE v. EBONY ROBINSON

No. M2021-01539-CCA-R3-CD

Court of Criminal Appeals of Tennessee, Nashville

September 2, 2022

Appeal from the Criminal Court for Davidson County No. 2020-D-1886 Mark J. Fishburn, Judge.

Defendant Ebony Robinson, pled guilty to vehicular homicide by intoxication, aggravated assault, resisting arrest, and driving without a license. The trial court imposed an effective ten-year sentence to be served on probation with periodic confinement each year near Christmas and each victim's birthday. On appeal, the State argues that the trial court erred by granting probation because Defendant was not statutorily eligible. Following our review of the entire record, oral arguments, and briefs of the parties, we reverse the trial court's imposition of probation and remand for execution of Defendant's sentence and entry of amended judgments of conviction.

Tenn R. App. P. 3; Judgment of the Criminal Court Reversed and Remanded

Jeffrey A. DeVasher and Emma Rae Tennent, Assistant Public Defenders (on appeal); Mary Ruth Pate, Assistant Public Defender (at trial and on appeal); and Randi Hess, Assistant Public Defender (at trial), Nashville, Tennessee, for the appellant, Ebony Robinson.

Herbert H. Slatery III, Attorney General and Reporter; Benjamin A. Ball, Senior Assistant Attorney General; Glenn R. Funk, District Attorney General; and Elaine Heard, Assistant District Attorney General, for the appellee, State of Tennessee.

Jill Bartee Ayers, J., delivered the opinion of the court, in which Robert L. Holloway, Jr., and John W. Campbell, Sr., JJ., joined.

OPINION

JILL BARTEE AYERS, JUDGE.

The facts of this case, as set forth by the State at the guilty plea submission hearing, are as follows:

[O]n August 9th, 2020 at approximately 21:29 hours, police were called to 2400 Buena Vista Pike in regards to two minors on their bicycles being struck by a vehicle. When officers arrived on the scene, they made contact with [Defendant]. She admitted she was driving the vehicle that struck the two children. Both of the children were under ten years old. They were - - they'll be referred to as CM and CD.

This crash was on video, and [Defendant] backed up at a high rate of speed without looking and hit the two children on the bike. She was also on her cell phone. When Officer Harriman spoke with [Defendant], he immediately noticed she smelled of alcohol. He asked [Defendant] if she had been drinking that evening, and she replied that she had a few. Officer Harriman asked [Defendant] how much she had had to drink, and then she stated that she had only had a sip.

[Defendant] gave officers verbal consent to search her vehicle. They located a cup in the center console that contained what smelled like tequila. Officer Harriman asked [ ] Defendant to perform field sobriety tasks, and she started to comply. After showing signs of impairment after only a couple of the tasks, she then refused to complete anymore tasks. She then began to yell at bystanders and had to be restrained.

When officers attempted to put handcuffs on [Defendant], she became combative, ignored their commands and they had - - she had to be forcibly lowered to the ground in order to get the handcuffs on her. A check of her information revealed that she did not [have] a driver's license. She admitted to police that she did not have insurance. They read the implied consent law. She stated that she understood and signed the form.

A search warrant was obtained for her blood. Her blood came back at .08. The child, CM, died at Vanderbilt Children's Hospital that evening. The child, CD, survived, but received injuries.

The presentence report was made an exhibit at the sentencing hearing. Monique Archibald testified that CM and her son had been best friends, and CM called her "Auntie." Her son was around nine years old when CM was killed. Ms. Archibald described CM as a "very active" and "loving" child who "had a good heart." She said that he loved to interact with other children, and he was "always looking out for everybody else[.]" She further noted that CM "was a pretty good kid for the most part." Ms. Archibald testified that her son was also friends with CD. She described him similarly to CM. Ms. Archibald testified that all of the boys were "very close, very active," and they rode skateboards and bicycles together.

Valerie Robinson testified that she first had Defendant as a foster child and then formally adopted her around the age of eight. Ms. Robinson noted that she and her former husband adopted eight children, including three of Defendant's brothers. There were a total of ten children in the home. Ms. Robinson described Defendant's childhood as fun and said that the family traveled and had a family choir that Defendant participated in by playing the drums. Defendant also played basketball. Ms. Robinson noted that Defendant was missing two fingers on her right hand, which Defendant was teased about "quite a bit."

Ms. Robinson testified that Defendant was very quiet, and she did not have any behavioral or discipline issues with Defendant. She said that Defendant's birth mother, whom Defendant was allowed to visit, and one of the other adopted children passed away while Defendant was living with Ms. Robinson. Ms. Robinson testified that Defendant had some difficulty in school, "[b]ut she was able to succeed" and with tutoring "graduated a couple of months after her class graduated." She said that Defendant always had a job with various employers.

Ms. Robinson testified that Defendant "did have some drinks," and "[s]he may have gotten high sometimes." She also noted that Defendant's "relationships with different people may have encouraged a little more usage of marijuana, alcohol." Ms. Robinson testified that Defendant was married at one time, but she and her husband eventually separated. She thought a man that Defendant met later was the "main reason [Defendant] did more drinking and maybe even got into possible some other drugs[.]" Ms. Robinson testified that Defendant had two children at the time of the sentencing hearing, ages ten and six, and oldest child lived with the child's paternal grandmother, and the younger child lived with Ms. Robinson's niece. Ms. Robinson testified that Defendant had a good relationship with her children and loved them. She said that the younger child was living with Defendant at the time of the offenses.

Ms. Robinson testified that the accident was "horrible," and she noted that Defendant and CM were "very close," and she thought Defendant's youngest daughter sometimes spent time with CM. Ms. Robinson hoped that Defendant would be able to return home and "have a much better relationship with her children," and she thought that "this experience had strengthened [Defendant's] desire to be a better mother to them." Ms. Robinson testified that Defendant had a good support system in place if she were released.

Upon questioning by the trial court, Ms. Robinson testified that Defendant usually worked through a temporary agency. When asked if there was a reason that Defendant "went through temp services rather than trying to pursue a steady long-term type of job[,]" Ms. Robinson replied: "Possibly because of the laws for marijuana being in your system."

Defendant gave a statement of allocution during which she expressed remorse and said that CM's death was an accident. She said that CM was like a nephew to her, and they were very close. Defense counsel submitted a detailed sentencing plan, which was admitted as an exhibit at the sentencing hearing. The State submitted as exhibits the video of the collision and the toxicology report, reflecting that Defendant tested positive for alcohol and marijuana following the collision.

The State filed a sentencing memorandum and argued at the sentencing hearing that Defendant was not statutorily eligible for probation or any form of alternative sentencing for her conviction for vehicular homicide by intoxication pursuant to the amendment to Tennessee Code Annotated Section 40-35-303(A), which took effect on January 1, 2017. Defendant argued that while a sentence of full probation was prohibited by Section 40-35-303(A), when read together with Section 39-13-213(A)(2) a sentence of split confinement was not prohibited in Defendant's case.

The trial court took the matter under advisement, and in a later hearing announced its findings concerning Defendant's sentence. The trial court also entered a written order containing all of its findings. The record reflects that the trial court in sentencing Defendant, considered all appropriate principles set forth in T.C.A. § 40-35-210(b). In determining the length of Defendant's sentence, the trial found three applicable enhancement factors and no mitigating factors. The court imposed a sentence of ten years for vehicular homicide by intoxication, four years for aggravated assault, six months for resisting arrest and six months for driving without a license. The trial court ordered the sentences to be served concurrently for an effective ten-year sentence as a Range I offender.

As for the manner of service of Defendant's sentence, the trial court noted that Defendant was ineligible for probation for her vehicular homicide by intoxication conviction pursuant to Tennessee Code Annotated Section 40-35-303. In its written order, the trial court pointed out:

The Court notes there appears to be a conflict of laws in this matter and the case of State [ ] v[.] Cindy B. Hinton, No. M2020-00812-CCA-R3-CD (Tenn. Crim. [ ] App[.]) Opinion filed 7-21-21, which was submitted by the State, was "not binding precedent on the Court" and "does not think it was a finding" when the Court of Criminal Appeals stated that probation was not available

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