IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
FILED
AT KNOXVILLE August 24, 1999
Cecil Crowson, Jr.
JULY SESSION, 1999 Appellate C ourt
Clerk
STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9811-CR-00392
)
Appellee, )
)
) SULLIVAN COUNTY
VS. )
) HON. R. JERRY BECK,
ANTHONY D. SANDERS, ) JUDGE
)
Appe llant. ) (Sentencing)
ON APPEAL FROM THE JUDGMENT OF THE
CRIMINAL COURT OF SULLIVAN COUNTY
FOR THE APPELLANT: FOR THE APPELLEE:
THOMAS R. BRANDY PAUL G. SUMMERS
245 Broad Street Attorney General and Reporter
Kingsport, TN 37660
ERIK W. DAAB
JULI E A. M ART IN (O n App eal) Assistant Attorney General
P.O. Box 426 425 Fifth Avenu e North
Knoxville, TN 37901-0426 Nashville, TN 37243
GREELEY W ELLS
District Attorney General
TERESA MURRAY-SMITH
MARY K. HARVEY
Assistant District Attorneys General
Blountville, TN 37617
OPINION FILED ________________________
AFFIRMED
DAVID H. WELLES, JUDGE
OPINION
The Defen dant, An thony D . Sande rs, appe als as of righ t pursua nt to Rule
3 of the Tennessee Rules of Appellate Procedure. He wa s con victed, u pon h is
plea of guilty, of vehicular homicide by intoxication,1 a Class C felony at the time
the offense was committed.2 The agreed sentence was the statutory minimum
of three yea rs as a R ange I standard offender. The manner of service of the
sentence was left to the discretion of the trial judge. The judge ordered that the
sentence be served in the Department of Correction. The Defendant appeals,
arguing that the trial judge erred b y not allowing his sen tence to be se rved on
probation or allowing some other se ntencing alternative to incarc eration. W e
affirm the ju dgme nt of the trial co urt.
The Defendant was the drive r of an a utom obile in volved in a on e-veh icle
acciden t. The passenger of the vehicle, who w as the Defe ndan t’s brother-in-law
at the tim e, was thrown from th e vehic le and killed w hen th e vehic le ran off the
road and ove rturned. S hortly after the acciden t, the Defendant gave conflicting
statem ents concerning whether it was the Defendant or his passenger who was
driving. The Defendant’s blood alcohol content was determined to be .22
percen t.
When an accused challenges the length, ran ge, or m anner o f service of a
sentence, this Court has a duty to conduct a de novo review of th e sente nce with
1
Tenn. Code Ann. § 39-13-213(a)(2)(1991).
2
The legislature has subsequently amended the vehicular homicide statute, providing
that a conviction involving intoxication constitutes a Class B felony. Tenn. Code Ann. § 39-13-
213(b)(1995).
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a presumption that the determinations made by the trial co urt are co rrect. Tenn.
Code Ann. § 40-3 5-401 (d). Th is pres ump tion is “conditioned up on the affirmative
showing in the record that the trial court considered the sentencing principles and
all relevant facts and circumstanc es.” State v. Ashby, 823 S.W.2d 166, 169
(Tenn. 19 91).
When conducting a de novo review of a sentence, this Court must
consider: (a) the e videnc e, if any, received at the trial and sentencing hearing; (b)
the presentence re port; (c) the p rinciples o f sentenc ing and argum ents as to
sentencing alternatives; (d) the nature and characteristics of the criminal conduct
involved; (e) any statu tory mitigatin g or enh ancem ent factors ; (f) any statement
made by the defendant regarding sentencing; and (g) the potential or lack of
potential for rehab ilitation or treatm ent. Tenn . Code Ann. §§ 40-35-1 02, -103 , -
210; State v. Thomas, 755 S.W .2d 838, 844 (Tenn. Crim . App. 1988 ).
If our review reflects that the trial court followed the statutory sentencing
procedure, that the co urt imposed a lawful sentence after having given due
consideration and proper weight to the factors and principles set out under the
sentencing law, and that the trial court’s findings of fact are adequately supported
by the record, then w e may no t modify the sen tence even if we would have
preferred a different re sult. State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim.
App. 1991 ).
Tennessee Code A nnotated § 4 0-35-102 outlines whe n alternative
sentencing is appropriate. A defendant who is "an especially mitigated or
standard offender convicted of a Class C, D, or E felony is presumed to be a
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favora ble candida te for alternative sentencing options in absence of evidenc e to
the contrary." Tenn. Code Ann. § 40-35-102(6). Furthermore, the trial court must
presume that a defendant sentenced to eight years or less and not an offender
for whom incarceration is a priority is subject to alternative sentencing and that
a sentence other than incarceration would result in successful rehabilitation
unless sufficient evidence rebuts the presumption.
Even though probation must be considered, a defendant is not
autom atically entitled to proba tion as a m atter of law. Fletcher, 805 S.W.2d at
787. Factors such as the defendant's potential for rehabilitation, the nature and
seriousness of the offense, and deterrence o f others in committing the crime, and
whether the record reflects multiple or recent unsuccessful sentencing measures
other than confinement, can be us ed to rebut the p resump tion that alternative
senten cing is ap propriate . Id. at 788-89.
The sentencing of this Defendant is governed by the Sentencing Reform
Act of 1989. Through the enactment of Tennessee Code Annotated § 40-35-102,
the legislature establishe d certain senten cing principles which include the
following:
(5) In recognition that state prison capac ities and the funds
to build and m aintain them are limited, convicted felons committing
the most severe offenses, possessing criminal histories evincing a
clear disregard for the laws and morals of society, and evincing
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failure of past effo rts at rehab ilitation shall be given first prior ity
regardin g sente ncing invo lving incarc eration;
Tenn. C ode Ann . § 40-35-102 (5).
The Defen dant wa s convicte d of a Class C felony which carries with it the
statutory presumption that he is a favorable candidate for alternative sentencing
options in the abs ence o f evidence to the contrary. Even though a Class C felony
may be qu ite a se rious o ffense , the leg islature has provided that there is a
presu mptio n of eligibility for alternative sentencing options for all Class C
felonies. Also, the principles of sentencing reflect that the sentence should be no
greater than that dese rved for the offense committed and should be the least
severe measure necessary to achie ve the p urpos es for w hich th e sen tence is
imposed. Tenn. Code Ann. § 40-35-103(2), (4). The court should also consider
the poten tial for reh abilitatio n or trea tmen t of the D efend ant in d eterm ining the
sentence a lternative. Tenn. C ode Ann . § 40-35-103 (5).
At the time of the sentencing h earing, the De fendant was twenty-four years
old and married. He dropped out of high school during the tenth grade. He had
one child by a prior marriage, and he was providing some support for this child.
He had held a variety of jobs a nd ha d app arently been regularly employed since
the time he dropped out of school. At the time o f the ac ciden t which led to h is
conviction for vehicular homicide, he had no history of criminal convictions,
although he admitted to a history of alcohol usage while under age and also to
a history of some marijuana usage.
In determining that the State had presented su fficient eviden ce to
overcome the presumption that the Defendant was a favorable candidate for
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alternative sentencing options, the trial judge noted the Defendant’s history of
illegal drug usage, observed that the Defendant had been untruthful to the police
officers shortly after th e accide nt occurred, and expressed his opinion that
confinement was necessary to avoid depreciating the seriousness of the offense
and to provide deterren ce. Beyond these conc erns, howe ver, it is obvious from
this record that the trial judge was concerned primarily with the D efend ant’s
condu ct subsequent to the accident which caused the death of the victim.
The vehicular homicide occurred on February 26, 1995. The Defendant
was found guilty of a DUI which occurred on April 25, 1996. While on probation
for the DUI conviction he was found guilty of driving on a revoked license on June
15, 1996 and ag ain on F ebruary 19, 199 7. At the sentencing hearing in October
of 1998, a witness testified that she had observed the De fenda nt drivin g, aga in
with his license revoked, in July of 1998. We believe that these actions by the
Defen dant, which obviously reflect adversely on the Defendant’s potential for
rehabilitation, weigh heavily in favor of upholding the presumptively correct
discretion exercised by the trial judge in this case.3
The record in this ca se affirm atively shows that the trial judge considered
the sentencing principles and all relevant facts and circumstances. Trial judges
are traditionally vested with broad discretion ary autho rity in sentencing matters.
Based upon our careful review of this record, and particularly in view of the
Defe ndan t’s continued disregard for the laws of this state, we are unab le to
3
The record on appeal reflects that the Defendant was sentenced on October 16,
1998. The Defendant testified at that time that he no longer consumed alcoholic beverages.
He was released on appeal bond. On November 21, 1998 he was arrested on a charge of
public intoxication which led to the revocation of his appeal bond.
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conclude that the trial judge erred or abused his discretion by ordering that the
Defe ndan t’s sentence be served in the Department of Correction. The judgment
of the trial court is affirmed.
____________________________________
DAVID H. WELLES, JUDGE
CONCUR:
___________________________________
GARY R. WADE, PRESIDING JUDGE
___________________________________
JOE G. RILEY, JUDGE
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