State v. Housewright

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE FILED
OCTOBER SESSION, 1997 December 16, 1997

Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9705-CR-00195
)
Appellee, )
)
) SULLIVAN COUNTY
VS. )
) HON. R. JERRY BECK
BRADLEY JOE ) JUDGE
HOUSEWRIGHT, )
)
Appe llant. ) (Sentencing)

ON APPEAL FROM THE JUDGMENT OF THE
CRIMINAL COURT OF SULLIVAN COUNTY

FOR THE APPELLANT: FOR THE APPELLEE:

RICHARD SPIVEY JOHN KNOX WALKUP
142 Cherokee Street Attorney General and Reporter
Kingsport, TN 37660
SANDY C. PATRICK
Assistant Attorney General
425 Fifth Avenu e North
Nashville, TN 37243

GREELEY W ELLS
District Attorney General

ROBERT MONTGOMERY
Assistant District Attorney General
Sullivan County Justice Center
Blountville, TN 37617

OPINION FILED ________________________

AFFIRMED

DAVID H. WELLES, JUDGE
 OPINION

This is an appeal as of right pursuant to Rule 3 of the Tennessee Rules of

Appe llate Proced ure. The Defendant, Bradley Joe Housewright, pleaded nolo

contende re to five co unts o f assa ult, Class A misdemeanors, and one count of

vehicular homicide, a Class B felony. Pursuant to a plea agreement, he was

sentenced to eleven month s and tw enty-nine days for each assault conviction

and eight ye ars for th e vehic ular ho micid e con viction. The sentences were

ordered to be served concurrently. The trial court considered and denied

alternative sentencing and ord ered the Defen dant to serve his sentences in the

Department of Correction. The Defendant raises three intertwin ed issu es in th is

appe al: (1) That the trial court erred by denying the Defendant’s request for

alternative sentencing; (2) that the trial court erred by rejecting the proposition

that the fact a death occurred is not a proper factor to consider in decid ing

alternative senten cing; and (3) that the court erred by applying the exceptional

circumstances rule in denying alterna tive senten cing. We affirm the judgment of

the trial cou rt.

The record reflects that at approximately 10:00 p.m. on July 8, 1995, the

Defendant was at the home of a friend. The home belonged to the brother of the

victim of the vehicular homicide, Christopher Collins. Collins was a lifelong friend

of the Defendant. Collins met the Defendant at this house at approximately 9:45

p.m. The Defendant had consumed at least five beers in four hours. The

Defendant decided to go to a store less than a mile away to g et some m ore beer.

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Collins acco mpa nied th e Def enda nt in a 1981 Toyota automobile. Collins had

also bee n drinking .

After buying the beer, the Defendant and C ollins hea ded ba ck to the house

traveling west on Bloo mingd ale Pike in Sullivan C ounty at approximately 45 to 50

miles per hour. A Chevrolet B lazer was traveling east on Bloomingdale Pike,

being driven by Chad Ball and containing four passengers. Some persons in the

Blazer saw the Defendant’s vehicle approaching and stated that the headligh ts

went off just before the collision. T he De fenda nt turne d left on to Bro oklaw n in

front of the Blazer and the Blazer struck his vehicle. The Blazer overturned and

three passengers in the back seat were thrown from the vehicle. Collins was

pinned in the Defendant’s vehicle and was unconscious when the police arrived.

He was pronounced dead at the Holston Valley Community Hospital. The other

victims were injured , but none seriou sly.

The Defendant’s blood alcohol registered .15% and Collins’ was .02%.

The Defe ndan t was in dicted for one coun t of vehic ular homicide involving

intoxication and five counts of aggravated assault. Tenn. Code Ann. §§ 55-10-

401; 39-13-213 (a)(2); 39-13-102 (a)(2)(A). On December 13, 1996 and pursuant

to a negotiated plea agreement, the Defendant pleaded nolo contende re to five

counts of simple assault, Tennessee Code Annotated section 39-13-101, and

one count of vehicular h omicide . For the vehicular homicide, the Defendant was

sentenced as a R ange I, Stand ard O ffende r to eigh t years , the m inimum

sentence in the rang e for a Cla ss B felon y. Tenn. C ode Ann . §§ 39-13-21 3(b).

The Defendant moved for alternative sentencing and a hearing was conducted

on January 24, 1997. In an order containing lengthy findings of fact and legal

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analysis, the trial court denied the Defe ndant’s m otion. It is from this denial that

the Defendant now appeals.

W hile we recognize the Defendant has presented his appeal in terms of

three issues, b ecaus e of their in terrelatedness, we will address them as

comp onents of the p rimary issue o f wheth er the tr ial cou rt erred in failing to grant

alternative sentencing. When an accused challenges the length, range, or the

manner of servic e of a s enten ce, 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). This presumptio n is

"conditioned upon the affirm ative showing in the record that the trial court

considered the sentencing principles and all relevant facts and circums tances ."

State v. Ashby, 823 S.W .2d 166 , 169 (T enn. 19 91).

In conducting a de novo review of a sentence, this court must consider: (a)

the evidence, if any, received at the trial and the sentencing hearing; (b) the

presentence report; (c) the principles of sentencing and argum ents as to

sentencing alternatives; (d) the nature and characteristics of the criminal conduct

involved; (e) any statutory mitigating or enhancement factors; (f) any statement

that the defe ndant made on his own behalf; and (g) the potential or lack of

potential for rehab ilitation or treatm ent. Ten n. Cod e Ann. §§ 40-35-102, -103,

and -21 0; see State v. S mith, 735 S.W .2d 859, 863 (Tenn. Crim . App. 1987 ).

If our review reflects 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

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that the trial court's findings of fact are adequately supported by the record, then

we may not m odify the sentence even if we would have preferred a different

result. State v. Fletcher, 805 S.W .2d 785, 789 (Tenn. Crim . App. 1991 ).

In 1995, the legislature amended the law regarding the offense of vehicular

homicide and specified that “[v]ehicular homicide is a Class C felony, u nless it is

the proxima te result of d river intoxicatio n as set fo rth in subd ivision (a)(2), in

which case it is a Class B felony.” Tenn. Code Ann. § 39-13-213(b)(1997). The

Defendant was convicted of vehicular homicide pursuant to the intoxication

provision and thus, was subject to the sentence range for a Class B felony. The

sentencing range for a standard offender for a Class B felony is eight (8) to

twelve (12 ) years. T enn. C ode An n. § 40-3 5-101.

Because vehicular homicide by intoxication is a Class B felony, there is no

presumption that the Defendant is a suitable candidate for alternative sentencing

options as afforded those convicted of a Class C, D, or E felony. Tenn. Code

Ann. § 40-35-102(6). However, probation must be automatically considered by

the trial court as a sentencing alternative for eligible defendants. Tenn. Code

Ann. § 40-35-303(b). “A defendant shall be eligible for probation under the

provisions of this chapter if the sente nce a ctually imposed upon such defendant

is eight (8) years or less.” Tenn . Code Ann. § 4 0-35-30 3(a). Furthermore, the

burden of establishing suitability for probation rests with the Defendant. Tenn.

Code Ann. § 40-35-303(b). Guidance in dete rmining what factors are to be

considered concerning alternative sentences may be found in Tennessee Code

Annotated section 40-35-103(1), which states:

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 Sente nces involving confinement should be based on the following
considerations:

(A) Confinem ent is necess ary to protect society by re straining a
defend ant who has a lon g history of c riminal co nduct;

(B) Conf inem ent is n eces sary to avoid depreciating the seriousness of
the offense or confinement is particularly suited to provide an effective
deterrent to others likely to commit similar offenses; or

(C) Measures less restrictive than confinement have frequently or
recently b een ap plied uns uccess fully to the de fendan t.

See Ashby, 823 S.W.2d at 169. A court may also apply the mitigating and

enhancing factors set forth in Tennessee Code Annotated sections 40-35-113

and -114 as they are relevant to the section 40-35-103 considerations. Tenn.

Code Ann. § 40-35 -210(b)( 5); State v. Zeolia , 928 S.W.2d 457, 461 (Tenn. Crim.

App. 1996). Finally, the potential or lack o f potential for rehabilitation of a

defendant should be considered in determining whether he should be granted an

alternative sentence. Tenn. Code Ann. § 4 0-35-10 3(5); State v. Boston, 938

S.W .2d 435 , 438 (T enn. C rim. App . 1996).

For a denial to occur based on the circumstances of the offense "as

committed, [they] mus t be 'es pecia lly violent, horrifying, shocking, reprehensible,

offensive, or otherwise of an excessive or exaggerated degree,' and the nature

of the offens e mus t outweigh all factors favo ring prob ation." State v. Travis , 622

S.W.2d 529, 53 4 (Ten n. 1981 ); State v. Cleavor, 691 S.W.2d 541, 543 (Tenn.

1985). This principle ha s been co dified in section 40-3 5-103(1)(B ) whic h

considers confinement to avoid depreciating the seriousness of the offense.

State v. Hartley, 818 S.W.2d 370, 375 (T enn. C rim. App . 1991); see also State

v. Fletcher, 805 S.W.2d 785, 787 (Tenn. Crim. App. 1991). Sentencing decisions

shou ld not, however, turn on a generalization of the crime committed, such as the

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fact that a dea th occurr ed. State v. Bingham, 910 S.W.2d 448, 456 (Tenn.

Crim. A pp. 199 5); but see State v. Ramsey, 903 S.W.2d 709, 714 (Tenn. Crim.

App. 1995 ).

When a defendant is not afforded the presumption of suitability for

alternative sentencing, the defendant bears the burden solely to establish that it

would “subserve the ends of justice and th e bes t interes t of both the pu blic and

the defendan t.” Bingham, 910 S.W .2d at 456 (quoting State v. Dykes, 803

S.W.2d 250, 259 (Tenn. Crim. App. 1990). In the case at bar, the trial court

determined that alterna tive sentencing for the Defendant would not serve the

ends of justice. The presentence report indicates that at the time of the hearing

concerning the manner of service of the sentence, the Defendant was twenty-

three years old, sing le, and lived with his mo ther. He had no prior offenses as

a juvenile or an a dult. He gradu ated fro m hig h sch ool in 1992, attended a truck

driving school afterwa rds, and has been stead ily emplo yed. He admitted to a

history of alcohol and marijuana use. The victim’s mother submitted a statement

that she w as not op posed to proba tion for the D efenda nt.

The Defe ndan t testified at the h earing in addition to the aforementioned

facts, that he w as a clos e friend of th e victim. The Defen dant ha d difficulty

sleeping after the ac cident an d cried at night. He testified that he mad e a big

mistake and that he was willing to pay his debt to society. The Defendant also

admitted that he had continued to drink alcohol after the accident. He agreed

that he was feeling the effects of alcohol when he decided to drive the night of the

incident.

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 The trial court denied alternative sentencing and documented its reasoning

in extensive findings. In general terms, the trial judge found that the unfavo rable

factors considered weighed again st the D efend ant’s p roof tha t he wa s a suita ble

candid ate for alternative sentencing. The court considered the facts that (1) the

Defendant turned off the vehicle’s headlights; (2) the danger to the passen gers

in the other vehicle who were thrown onto the roadway; (3) that victims other than

the Defen dant we re injured; a nd (4) tha t the Defe ndant’s blood alcohol level of

.15% was well over the legal limit. The trial judge considered the circumstances

to be reprehensible, excess ive and to an exaggerated degree such that probation

was not warra nted. Be cause the Defe ndant w as afford ed no p resum ption that

he was a suitable candidate for alternative sentencing, the trial judge was vested

with a considerable degree of discretion within the sentencing guidelines to

determine the manner of service of the sentence. We cannot conclude that the

trial judge erred or abused his discretion by de nying an alternative to

incarceration.

Howeve r, the Defendant also contends that the trial court erred by rejecting

the proposition that the fact that a death occurred cannot alone support the denial

of alternative sentencing. S pecifically, a panel of this Co urt has held that the trial

court may n ot con sider fa ctors w hich co nstitute elem ents o f the offe nse in

question. See State v. Bingham, 910 S.W.2d 448, 456 (Tenn. Crim. App. 1995 ).

Thus, the fact that a death occurred alone cannot support denial of probation in

a case where death is a general elemen t of the offen se. Id. This Cou rt

recognizes the grave nature o f crimes th at involve the death of another person.

Howeve r, we also readily acknowledge that we are governed by laws enacted by

the legislature. The legislature has provided that a person sentenced to eight (8)

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years or less is eligible for probation and other sentencin g optio ns, eve n if

convicted for an offense involving the death of another person.

Apparen tly, the legislature has considered the nature of the offense of

vehicular homicide and determined that the proper grade of the offense is a Class

C felony in cases of recklessness and a Class B felony in cases where

intoxication is involved. Tenn. Code Ann. § 39-13-213(b). The legislature has

also specified that persons convicted of Class C felonies are presumed favora ble

candidates for alternative sentencing. Tenn. Code Ann. § 40-35-102(6).

Therefore, even in a case involving a death, a de fendant m ay receive alternative

sentencing, including probation. Here, because the Defendant was convicted by

way of intoxication, he is a Class B felon who does not possess the presumption

but neither is he precluded from receiving probation or other sentencin g

alternatives solely because a death occu rred. See Tenn. Code Ann. § 40-35-

303(a). The trial court must consider his suitability for probation but the burden

of proof re mains solely upo n the De fendan t.

In conjunction with this, the trial court also concluded that in cases whe re

a death occurred, a defendant must demo nstrate exception al circum stance s to

establish his or her suitability for alternative sentencing. He based his reasoning

on cases decided under prior sentencing law, see State v. S mith, 662 S.W.2d

588, 590 (T enn. 19 83); Kilgore v. State, 588 S.W.2d 567, 568 (Tenn. Crim. App.

1979), that applied a rule that exceptional circumstances must be demonstrated

to warrant probation in a case involving the death of another person. Again, we

recognize the tragic and senseless losses involved in cases of vehicular

homicide. However, there is nothing in the 1989 Sentencing Act that provides for

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the application of an exceptional circumstances doctrine and we must conclude

that any suc h doctrine did not su rvive in our p resent C ode. See State v. Michael

D. Frazier, C.C.A. N o. 0C0 1-9602 -CR-0 0084, K nox Co unty (Te nn. Crim . App.,

Knoxville, June 4 , 1997); State v. McKinzie Monroe Black, C.C.A. No. 01C01-

9401-CC-00006, Robe rtson Co unty (Ten n. Crim . App., Nash ville, July 14, 1995);

but see State v. Ramsey, 903 S.W.2d 709, 714 (Tenn. Crim. App. 1995). The

burden remains up on the De fendant to prove his suitability for alternative

sentencing but we do not believe that our law mandates an enhanced burden to

prove exceptional circumstances when a death occurs. Therefore, we believe

that the trial court erred in ap plying this rule to the case at bar.

Nevertheless, we cannot conclude that the trial judge abused his discretion

in refusing to grant an alternative sentence. The Defendant presented proof

regarding his appropriaten ess for probation. The v ictim’s m other w as also in

favor of an alternative sentence. Yet, there is evidence in the record that the

accident was violent, re prehe nsible and o ffensive . Multiple victims were involved

and three of those persons we re thrown from their vehicle. The trial court

determined that the circumstances of the offense outweighed the positive factors

submitted by the Defendant such that gra nting a n altern ative se ntenc e wou ld not

serve the ends of justice. There being no presumption for alternative sentencing

because the Defendant was convicted of a Class B felony, the trial judge was

warranted in using his discretion to determine the appropriate manner of service

of the sentence. Clearly, he was concerned with depreciating the seriousness

of the offense and the record supports this finding.

There fore, we a ffirm the jud gmen t of the trial cou rt.

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 ____________________________________
DAVID H. WELLES, JUDGE

CONCUR:

___________________________________
GARY R. WADE, JUDGE

___________________________________
JERRY L. SMITH, JUDGE

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