IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
JANUARY 1998 SESSION
August 14, 1998
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, ) No. 03C01-9704-CC-00119
)
Appellee )
) BLOUNT COUNTY
V. )
) HON. D. KELLY THOMAS, JR.,
SHAWN T. O’MALLEY, ) JUDGE
)
Appellant. ) (Sentencing)
)
)
For the Appellant: For the Appellee:
Mack Garner John Knox Walkup
District Public Defender Attorney General and Reporter
419 High Street
Maryville, TN 37804 Marvin E. Clements, Jr.
Assistant Attorney General
425 Fifth Avenue North
Nashville, TN 37243-0493
Michael L. Flynn
District Attorney General
Philip H. Morton
Assistant District Attorney
363 Court Street
Maryville, TN 37804
OPINION FILED: ___________________
AFFIRMED
William M. Barker, Judge
OPINION
The appellant, Shawn T. O’Malley, appeals as of right the sentence he received
in the Blount County Circuit Court as a result of his guilty plea to the offense of
vehicular homicide. Appellant was sentenced to serve eight (8) years in the
Department of Correction as a Range I offender. On appeal, he contests only the trial
court’s denial of alternative sentencing. We affirm.
Around 11:00 p.m. on the evening of November 6, 1995, appellant and the
victim, Glenn Miller, were leaving an exotic night club in Knox County. Both appellant
and the victim had been drinking. Appellant testified at the sentencing hearing that he
drank four beers during the three hours that they spent at the club, while the victim
drank substantially more.1 Appellant was the designated driver.2
As they left the club, the victim stated that he needed to use the restroom and
said that he was going to urinate on a police car that was parked in the parking lot.
Although appellant cautioned against it, the victim walked toward the police car.
Appellant got into his car and waited for the victim. Suddenly, the victim opened the
passenger side door and started screaming for the appellant to “get the f--- out of
there.” Appellant sped out of the parking lot as an officer from the Knox County
Sheriff’s Department pursued. Appellant drove down Alcoa Highway and then turned
on Singleton Station Road. At some point, officers from the Blount County Sheriff’s
Department and the Alcoa Police Department joined the chase, which covered
approximately six miles. While driving on Singleton Station Road, appellant lost
control of his 1986 Camry on the wet roadway and crashed into a utility pole. The
victim died as a result of the crash.
1
Appellan t’s blood alc ohol con tent that eve ning was .13%.
2
Tes timo ny at th e sen tenc ing he aring indica ted th at the victim had b een in a se rious mo torcyc le
accident several months earlier and was still recuperating from his injuries. Because he still needed
assistance with a number of activities, the victim had been living with appellant for several weeks. At the
time of this incident, the victim was unable to drive and had been relying on the appellant for
transportation.
2
Although appellant denied any memory of the crash or what happened
afterwards, police reported that he ran from the scene after the wreck and struggled
with officers when apprehended. Appellant was later indicted and pled guilty to
vehicular homicide by intoxication.3 The plea agreement recommended the minimum
eight (8) year sentence, with the trial court to decide the manner of service of the
sentence. Following the sentencing hearing, the trial court ordered the appellant to
serve his sentence in the custody of the Department of Correction.
Appellant argues on appeal that he was entitled to some form of alternative
sentencing because the circumstances of his offense did not justify a complete denial
of probation. He asks this Court to grant him a sentence of split confinement. We
decline to do so.
When a defendant challenges his or her sentence, we must conduct a de novo
review of the record. Tenn. Code Ann. §40-35-401(d) (1990). The sentence imposed
by the trial court is accompanied by a presumption of correctness and the appealing
party carries the burden of showing that the sentence is improper. Tenn. Code Ann.
§40-35-401 Sentencing Commission Comments. The presumption, however, is
conditioned upon an affirmative showing in the record that the trial court considered
the sentencing principles and all relevant facts and circumstances. State v. Ashby,
823 S.W.2d 166, 169 (Tenn. 1991). Because the trial court in this case carefully
considered the relevant principles of sentencing, we afford its decision the
presumption of correctness.
Initially, we note that although the appellant was eligible for an alternative
sentence, he was not entitled to the presumption in favor of alternative sentencing
because he was convicted of a Class B felony. Tenn. Code Ann. §40-35-102(6)
(Supp. 1995); Tenn. Code Ann. §39-13-213(b) (Supp. 1995). However, as the
3
Appellant was indicted on two counts alleging alternative theories of vehicular homicide: (1) as
the result of conduct creating a substantial risk of death or serious bodily injury to a person; and (2) as
the resu lt of the driver’s intoxication . See Tenn. Code A nn. §39-13-213 (Supp . 1995).
3
recipient of an eight (8) year sentence, appellant was statutorily eligible for probation.
Tenn. Code Ann. §40-35-303 (Supp. 1995). While the trial court was required to
automatically consider appellant for an alternative sentence, including probation,
appellant bore the burden of establishing both his suitability and that an alternative to
incarceration would “subserve the ends of justice and the best interest of both the
public and the defendant.” State v. Dykes, 803 S.W.2d 250, 259 (Tenn. Crim. App.
1990) (quoting Hooper v. State, 297 S.W.2d 78, 81 (Tenn. 1956)); State v. Bradley
Joe Housewright, No. 03C01-9705-CR-00195 (Tenn. Crim. App. at Knoxville,
December 16, 1997), perm. app. filed (Tenn. Feb. 16, 1998). The trial court found
that appellant failed to carry that burden. State v. Boston, 938 S.W.2d 435, 438
(Tenn. Crim. App. 1996).
In denying alternative sentencing, the trial court determined that confinement
was necessary in order to avoid depreciating the serious nature of the offense and
that measures less restrictive than confinement had been applied unsuccessfully to
appellant in the past. See Tenn. Code Ann. §40-35-103(1)(B), (C) (1990). The trial
court’s conclusion in that regard is supported by the factual record before us.
In order to deny probation based upon the nature of the offense, the
circumstances of the offense must be especially violent, shocking, reprehensible,
offensive, or of an exaggerated degree so as to outweigh all other factors favoring an
alternative sentence. State v. Bingham, 910 S.W.2d 448, 454 (Tenn. Crim. App.
1995) (citations omitted). In this case, appellant took the wheel of his automobile to
drive home a disabled friend who trusted him for transportation. W hile knowingly
intoxicated, appellant sped out of the parking lot of the dance bar and refused to yield
to pursuing police officers for six miles. After the horrific crash, appellant attempted to
flee the scene, demonstrating a callous indifference for his injured friend. Those
circumstances weigh heavily against any factors that favor an alternative sentence.
Next, as determined by the trial court, measures less restrictive than
confinement have been applied unsuccessfully to the appellant. Tenn. Code Ann.
4
§40-35-103(1)(C) (1990). In 1984, appellant began serving a three (3) year
probationary sentence for a conviction of larceny. He was later sentenced to an
additional four (4) months after he failed to report to his probation officer. In addition,
appellant testified that he was convicted of D.U.I. in 1986. The commission of the
instant offense indicates that he was not rehabilitated following his previous
convictions. Tenn. Code Ann. § 40-35-103(5) (1990).
Furthermore, we note that the appellant was released on bond after his arrest
in the present case and he subsequently went to Arizona. Following the indictments
on vehicular homicide, he agreed to submit to Tennessee authorities, but failed to
report on the scheduled date. Over one month passed before he was finally arrested
at his home in Tucson, Arizona, and an additional ten (10) days passed before he
agreed to waive extradition.4 The trial court found that such conduct was indicative of
appellant’s poor potential for success if placed on probation. We agree.
Although appellant expressed remorse, has a positive employment history, and
does not have a lengthy criminal record, he has nevertheless failed to carry his burden
of demonstrating suitability for an alternative sentence. Accordingly, we affirm the
judgment of the trial court ordering appellant to serve his eight (8) year sentence in the
Department of Correction.
_______________________________
William M. Barker, Judge
CONCUR:
____________________________
Joseph M. Tipton, Judge
____________________________
Curwood Witt, Judge
4
The reco rd als o sho ws th at ap pellan t has a hist ory of failing to ap pea r for c ourt d ates in
Arizona.
5