IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
SEPTEMBE R SESSION, 1998 December 8, 1998
Cecil W. Crowson
Appellate Court Clerk
STATE OF TENNESSEE, ) C.C.A. NO. 01C01-9710-CR-00454
)
Appellee, )
) SUMNER COUNTY
V. )
)
) HON. JANE WHEATCRAFT, JUDGE
MICHAEL T. KEEN, )
)
Appe llant. ) (VEHICULAR HOMICIDE)
FOR THE APPELLANT: FOR THE APPELLEE:
DAVID A. DOYLE JOHN KNOX WALKUP
District Public Defender Attorney General & Reporter
18th Judicial District
117 East Main Street CLINT ON J. M ORG AN
Gallatin, TN 37066 Assistant Attorney General
2nd Floor, Cordell Hull Building
425 Fifth Avenue North
Nashville, TN 37243
LAWRENCE RAY WHITLEY
District Attorney General
SALLIE WADE BROWN
Assistant District Attorney General
18th Judicial District
113 West Main Street
Gallatin, TN 37066
OPINION FILED ________________________
AFFIRMED
THOMAS T. WOODALL, JUDGE
OPINION
Michael T. Keen, the Defendant, appeals as of right following his sentencing
hearing in the Sum ner Co unty Criminal Court. Defendant was indicted for vehicular
homicide and D UI, seco nd offen se. In an agreement with the State, Defendant pled
guilty to vehicula r homic ide, a Class B felony, and agreed to an eight (8) year
sentence, with the trial court to determine the manner of service of the sente nce.
Following his sentencing hearing, the trial court orde red Defen dant to serve eight (8)
years in the Tennessee Department of Correction. In his appeal, Defendant argues
that the trial court erred in refusing to grant an alterna tive sentence. We affirm the
judgm ent of the tria l court.
When an accused challenges the length, range or the ma nner of s ervice of a
sentence, this court has a duty to conduct a de novo review of the sentence with a
presumption that the determinations made by the trial court are correct. Tenn. Code
Ann. § 40-35 -401( d). Th is presumption is “conditioned upon the affirmative showing
in the record that the trial court considered the sentencing principles and all relevant
facts and circum stances.” State v. Ashby, 823 S.W .2d 166 , 169 (T enn. 19 91).
In conducting a de novo review of a sentence, this co urt must con sider: (a) the
evidence, if any, received at the trial and the sentencing hearing; (b) the presentence
report; (c) the principles of sentencing and arguments as to sentencing alternatives;
(d) the nature and chara cteristics of the criminal co nduct involved; (e) an y statutory
mitigating or enhancement factors; (f) any statement that the defen dant m ade o n his
own behalf; an d (g) the p otential or lac k of poten tial for rehab ilitation or treatm ent.
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Tenn. Code An n. §§ 40 -35-102 , -103, an d -210; see State v. S mith, 735 S.W .2d
859, 863 (T enn. Crim. A pp. 1987).
If our rev iew refle cts that the trial court followed the statutory sentencing
procedure, imposed a lawful sentence after having given due consideration and
proper weight to the factors and principles set out under the sentencing law, and
made findings of fact adequately supported by the record, then we may no t modify
the senten ce even if we wou ld have p referred a different res ult. State v. Fletcher,
805 S.W .2d 785, 789 (Tenn. Crim . App. 1991 ).
Defendant was convicted of a Class B felony, thus he is not presumed to be
a favorable candidate for alternative sentencing options. Tenn. Code Ann. § 40-35-
102(6); State v. Smith, 891 S .W .2d 92 2, 929 (Ten n. Crim . App. 1 994). N or is
Defendant eligible for pa rticipatio n in a co mm unity co rrection s prog ram d ue to h is
conviction for vehicula r homic ide. Ten n. Cod e Ann. § 40-36-1 06(a)(2) . However,
as a defendant sentenced to eight (8) years or less, he was statutorily eligible for
probation. Tenn. Co de Ann . § 40-35 -303. W hile the trial co urt was re quired to
consider the Defendant as a candidate for probation, the Defendant bore the burden
of establishing both his suitab ility and th at an a lternativ e to inc arcera tion wo uld
“subserve the ends of justice a nd the best intere st of both the public and the
defend ant.” State v. Dykes, 803 S.W.2d 250, 259 (Tenn. Crim. App. 1990) (citations
omitted). The trial court found that Defe ndant fa iled to carry th at burde n. See State
v. Boston, 938 S.W .2d 435 , 438 (T enn. C rim. App . 1996).
When imposing a sentence of total confinement, our Criminal Sentencing
Reform Act ma ndates the trial cour t to base its decision on the considerations set
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forth in Tennessee Code Annotated section 40-35-103. These considerations which
militate against alternative sentencing include: the need to protect society by
restraining a defendant having a long history of criminal conduct; whether
confinement is partic ularly ap propr iate to e ffectively deter o thers lik ely to com mit a
similar offense; the need to avoid depreciating the seriousness of the offense; and
the need to order confinement in cases in which less restrictive measures have often
or recently been unsuccessfully applied to the defendant. Tenn. Code Ann. § 40-35-
103(1).
In determining whether to grant probation , the judge must consider the nature
and circumstances of the offense, the defendant’s criminal record, his background
and social history, his present condition, including his physical and mental condition,
the deterrent effect on other criminal activity, and the like lihood that pro bation is in
the best in terests of both the pu blic and the defend ant. Stiller v. State, 516 S.W.2d
617, 620 (Ten n. 1974). The b urden is on the defendant to show that the sentence
he received is improp er and th at he is en titled to probatio n. Ashby, 823 S.W.2d at
169.
The record before us justifies the sentence imposed by the trial court. At the
sentencing hearing, the victim’s mother testified that three (3) to four (4) weeks prior
to the night the victim was killed, the Defendant was driving the victim and the
victim’s brothe r aroun d until the early morn ing hours wh ile all three (3) were drinking.
She advised the Defendant that she was going to press charges, but Defendant
apolog ized and promis ed to ne ver do it aga in.
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The presentence report reflects that the Defendant told the police he was
driving his girlfriend, s tepbroth er and s tepsister around while he was drinking.
Defendant admitted that “drinking and driving was something that I was accustomed
to doing” due to his drinking problem. At the time of the accident he was driving
approxima tely sixty-five (65) miles per hour when he saw that he was going to run
into a tree and tried to cut his vehicle to the le ft. The Defendant’s stepsister was
killed due to the accident. Defendant testified that the victim’s moth er corr ectly
described that one (1 ) month prior to the vic tim’s dea th, the De fendant had her
children o ut drinking and driving until 3:30 a .m.
The presen tence re port and the prob ation office r who tes tified at the
sentencing hearing both indicated that Defendant was employed at the time of the
sentencing hearin g and had b egun going to AA mee tings a nd Pa thfinders, a
drug/alcohol rehabilitation facility. Defendant was desc ribed b y a sup ervisor at his
place of emp loymen t as “an ac ceptab le emp loyee.” Defendant’s sponsor at AA
described Defendant as “involved” in the program for ten (10) weeks prior to the
sentencing hearing, but no t “actively.” During Defen dant’s testimon y, he admitted
that he missed a full month of AA meetings from A pril 8, 19 97 un til May 6, 1997, and
also m issed the meetin gs from May 22 , 1997 thr ough J une 12 , 1997.
Prior to this offense, Defendant had twice been arrested for DUI. He was first
arrested for DUI on September 1, 1995, and was convicted of DUI on October 16,
1995. Defendant was sentenced to eleven (11) months, twenty -nine (2 9) day s, all
suspended except for forty-eight (48) hours. The second arrest for DUI occurred on
June 10, 1996, while Defendant was on probation from his first DUI conviction, and
resulted in a conviction for reckless driving on August 19, 1996. The reckless driving
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conviction concluded with a sentence of six (6) months, with all except forty-eight
(48) hours suspended. During his testimony, Defendant conceded that he never
sought help for his drinking problem following either of these convictions, and that
he continued to drink and d rive. Th is offense of vehicular homicide was committed
on November 8, 1996, only three (3) months after Defendant’s last conviction. A
violation of probation wa s pending in G eneral Sessions Court at the time of the
senten cing hea ring.
Other proof at the sentencing hearing included testimony that Defendant was
in a bowling alley on July 4, 1997, just prior to the sente ncing hearin g for his
vehicu lar homic ide conv iction. W hile at the b owling alle y, Defen dant tried to
persuade a waitress to serve alcoholic beverages to his girlfriend, who was not of
age to legally consume alcoholic beverages.
With two (2) prior DUI arrests in the two (2) years preceding this offense, the
need to protect society by restraining this Defendant with a history of criminal
conduct is obvious. By his own admission, Defendant has continued to drink and
drive following his previous convictions. As the trial court noted, drinking and driving
is a serio us pro blem in our society a nd con fineme nt is particula rly approp riate to
effective ly deter the Defendant. Defendant did not seek any help for his alcohol
problem until as late as February 1997, and between the time of February until the
time of the sentencing hearing he had only attended AA a total of twenty-three (23)
times. The trial court found that Defendant should have attended as many as 143
times since this acciden t occurred. As d escribed by a probation officer of the court,
this Defendant has twice before been placed on probation. With a hearing for
Defe ndan t’s violation of probation imminent at the time of his sentencing, the need
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to order confinement when less restrictive measures have often and recently been
unsu cces sfully applied was also justified by the record. Defendant bore the burden
of establish ing his su itability for probation and that an alternative to incarceration
would subserve the ends of justice and the best interest of both the public and the
defend ant. Based upon his continuing criminal conduct, his failure to seek
continuing assistance with his alcohol addiction, and the fact that probation has been
implemented on two (2 ) prior occa sions in th e past two (2) years without success,
the De fendan t has failed to mee t his burde n. This iss ue is witho ut merit.
We affirm the ju dgme nt of the trial co urt.
____________________________________
THOMAS T. W OODALL, Judge
CONCUR:
___________________________________
GARY R. WA DE, Presiding Judge
___________________________________
JAMES CURW OOD W ITT, JR., Judge
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