IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
SEPTEMBER SESSION, 1999
FILED
October 25, 1999
Cecil Crowson, Jr.
Appellate Court Clerk
STATE OF TENNESSEE, *
* No. 02C01-9901-CR-00006
Appellee, *
* SHELBY COUNTY
vs. *
* Hon. Bernie Weinman, Judge
RICHARD WALKER, *
* (Vehicular Assault, 2 counts)
Appellant. *
For the Appellant: For the Appellee:
Leslie I. Ballin and Paul G. Summers
Mark A. Mesler Attorney General and Reporter
Ballin, Ballin & Fishman, P.C.
200 Jefferson Avenue, Suite 1250 R. Stephen Jobe
Memphis, TN 38103 Assistant Attorney General
Criminal Justice Division
425 Fifth Avenue North
2d Floor, Cordell Hull Building
Nashville, TN 37243-0493
William L. Gibbons
District Attorney General
Ms. Rosemary Andrews
Asst. District Attorney General
201 Poplar Avenue - Third Floor
Memphis, TN 38103
OPINION FILED:
AFFIRMED
David G. Hayes, Judge
OPINION
The appellant, Richard Walker, appeals the sentence imposed by the Shelby
County Criminal Court following the entry of guilty pleas to two counts of vehicular
assault. Pursuant to the negotiated plea, the appellant received concurrent two year
sentences on each count. The manner of service was submitted to the trial court for
determination. Following a sentencing hearing, the trial court suspended all but one
hundred and twenty days of the appellant’s sentences. Additionally, the appellant
was placed on probation for a period of four years and was ordered to perform one
hundred hours of community service during this period. In this appeal, the appellant
contends that the trial court improperly denied his request for total probation.
After review of the record, we affirm the sentence imposed by the trial court.
Background
The appellant’s guilty pleas stem from events occurring on the evening of
August 24, 1997. On this date, the appellant explained that
I’d originally been at a cookout, then we left there and went to
Shooters. From there, one of the guys that I was with -- I was with two
other friends. One was driving my truck at that time. One of the guys
stayed there, and me and my other friend went to Neon Moon. From
there, my buddy left; and I drove back to Shooters to pick up my other
buddy.
On the return trip to Shooters, the appellant, failed to yield while making a left turn
onto Raleigh-LaGrange Road. While executing the turn, the appellant’s vehicle
collided with the vehicle driven by William Stricker. The appellant, William Stricker,
and Stricker’s passenger, Jessica McKinney, were transported to medical facilities
for treatment.1
1
The record indicates that the appellant was treated at Methodist North while Jessica
McKinney was transported to The Med. The record does not indicate which facility treated William
Stricker.
2
At the hospital, a law enforcement officer, who had responded to the incident,
observed that the appellant had “a strong smell of intoxicant on his breath and blood
shot eyes.” In response to questioning by law enforcement officers, the appellant
denied driving the vehicle. A blood sample was then drawn from the appellant’s
person and submitted for a blood alcohol analysis. The test revealed that the
appellant had a blood alcohol content of .18 percent. Subsequently, the appellant
admitted his responsibility for the incident. He also conceded that he had consumed
six to seven beers on the evening of the offense.
As a result of the collision, William Stricker, protected somewhat by an
airbag, suffered a broken leg, fractured in seven to eight places. Jessica McKinney,
the passenger in the Stricker vehicle, testified that, as a result of the impact, she
remained unconscious for three days. She also described the extent of her injuries
as including a dislocated hip, broken cheekbone, bitten through bottom lip, two
broken teeth, cut spleen and liver, and a severely lacerated hand and knee. She
remained in the hospital for one week and remained in physical therapy for three
months. Ms. McKinney explained that she “may still have to have [her] hip replaced.
There is no feeling in my finger or my lip, and I have to have my hip checked
regularly.” Although the appellant also sustained injuries, he fared better than his
victims, sustaining a broken wrist, bruised ribs, a broken nose and a cut above his
eyes.
At the time the presentence report was prepared, the appellant was a single
twenty-six year old high school graduate. During the period between August 1990
through May 1993, he was enrolled in college courses at Shelby State Community
College. The appellant reported that he has never used illegal drugs and describes
himself as a “very light drinker,” who will no longer drink and drive. He has no prior
record of criminal convictions. Present and previous employers commented that the
appellant was a dependable, appreciated, and valuable employee. Regarding the
current offense, the appellant repeatedly admitted his responsibility for the incident
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and his remorse for the injuries sustained by the victims resulting from his actions.
In response to questioning by the trial court, the appellant admitted that, on the
evening of the offenses, he understood that he was intoxicated and that the decision
to drive “was a very bad judgment call on myself.”
At the conclusion of the proof, the trial court considered the appellant’s
remorse for his actions, his remorse over the injuries sustained by the victims, and
his “good employment history.” Notwithstanding these favorable factors, the court
noted that some jail time was appropriate due to the circumstances of these
offenses. Accordingly, the trial court ordered that the appellant serve one hundred
and twenty days in confinement, followed by a four year period of probation.
Analysis
Although the trial court did grant the appellant the sentencing alternative of
split confinement, the appellant contends that the trial court erred by not imposing a
sentence of total probation. When a challenge is made to the manner of service of
a sentence, it is the duty of this court to conduct a de novo review with a
presumption that the determination made by the trial court is correct. Tenn. Code
Ann. § 40-35-401(d)(1997). Moreover, the appellant bears the burden of showing
that the sentence imposed by the trial court is improper. See Sentencing
Commission Comments, Tenn. Code Ann. § 40-35-401(d).
Because the appellant was convicted as a standard offender of class D
felonies, he is statutorily eligible for probation. See Tenn. Code Ann. §40-35-
303(a)( 1997). However, the fact that the appellant is eligible for probation does not
mean that probation should automatically be granted. While the burden is upon the
State to show a defendant’s non-entitlement to the statutory presumption of an
alternative sentence, the defendant has the burden of establishing suitability for full
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probation. See Tenn. Code Ann. § 40-35-303(b). See also State v. Bingham, 910
S.W.2d 448, 456 (Tenn. Crim. App.), perm. to appeal denied, (Tenn. 1995) (citation
omitted). To meet this burden, the appellant must demonstrate that probation will
“subserve the ends of justice and the best interest of both the public and the
defendant.” Bingham, 910 S.W.2d at 456 (citation omitted).
In determining a defendant’s suitability for probation, the sentencing court
should consider (1) the nature and circumstances of the conduct involved, Tenn.
Code Ann. § 40-35-210(b)(4) (1998 Supp.); (2) the defendant’s potential or lack of
potential for rehabilitation, Tenn. Code Ann. § 40-35-103(5)(1997); (3) whether a
sentence of probation will unduly depreciate the seriousness of the offense, Tenn.
Code Ann. § 40-35-103(1)(B); and (4) whether a sentence other than probation
would provide an effective deterrent to others likely to commit similar crimes, Tenn.
Code Ann. § 40-35-103(1)(B). See Bingham, 910 S.W.2d at 456.
In the present case, the trial court denied the appellant total probation based solely
on the need to avoid depreciating the seriousness of the offense. Despite the
appellant’s subsequent admission and expressed remorse, he initially denied
responsibility for his actions. The record also reflects that the injuries inflicted upon
Jessica McKinney are of particular concern as several injuries sustained by Ms.
McKinney have resulted in permanent impairment. See, e.g., State v. Kyte, 874
S.W.2d 631, 633 (Tenn. Crim. App. 1993); State v. Mitchell Glenn Sanders, No.
01C01-9403-CC-00114 (Tenn. Crim. App. at Nashville, Dec. 22, 1994), perm. to
appeal denied, (Tenn. Mar. 27, 1995). Finally, the appellant chose to put himself
behind the wheel of his vehicle after several hours of drinking alcohol and bar-
hopping that evening, thus, exposing potential passengers and other motorists to
the dangers of drunk driving. See, e.g., Bingham, 910 S.W.2d at 456; State v.
Butler, 880 S.W.2d 395, 401 (Tenn. Crim. App. 1994); State v. Eric W. Friedl, No.
02C01-9509-CR-00255 (Tenn. Crim. App. at Jackson, Sept. 11, 1996). Although
the circumstances of this offense are not egregious enough by themselves to
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overcome the presumption of alternative sentencing, we conclude that the
appellant’s conduct was of such an excessive degree as to support a denial of total
probation. See Bingham, 910 S.W.2d at 456 (citing State v. Fletcher, 805 S.W.2d
785, 788-89 (Tenn. Crim. App. 1991)).
Accordingly, upon de novo review and in accord with a presumption of
correctness, we are unable to conclude that the trial court erred in determining that
the appellant had not met his burden of establishing suitability for total probation.
The judgment of the trial court is affirmed.
____________________________________
DAVID G. HAYES, Judge
CONCUR:
__________________________________
JOE G. RILEY, Judge
__________________________________
THOMAS T. W OODALL, Judge
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