State of Tennessee v. Patrick Wayne Evans

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
January 13, 2016 Session

STATE OF TENNESSEE v. PATRICK WAYNE EVANS

Appeal from the Circuit Court for Williamson County
No. IICR058012 Deanna B. Johnson, Judge

No. M2015-00897-CCA-R3-CD – Filed July 21, 2016
_____________________________

The Defendant, Patrick Wayne Evans, pleaded guilty to vehicular homicide by
impairment, a Class B felony, with an agreed sentence length of eight years. After a
sentencing hearing, the trial court ordered that the Defendant serve his eight year
sentence in confinement. The Defendant appeals, asserting that the trial court: (1)
erroneously relied upon enhancement factors that are not applicable to the Defendant‘s
offense; (2) erroneously admitted improper evidence at the sentencing hearing; (3) failed
to properly consider mitigating factors; (4) erroneously found the Defendant had no
potential for rehabilitation; and (5) failed to comply with the purposes and principles of
sentencing when it denied a sentence of ―split confinement.‖ After a thorough review of
the record and the applicable law, we reverse and remand to the trial court for re-
sentencing.

Tenn. R. App. 3 Appeal as of Right; Judgment of the Circuit Court Reversed and
Remanded
ROBERT W. WEDEMEYER, J., delivered the opinion of the Court, in which JOHN EVERETT
WILLIAMS, J., joined. THOMAS T. WOODALL, P.J., concurs in result only.

David H. Veile, Franklin, Tennessee, for the appellant, Patrick Wayne Evans.

Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Senior Counsel;
Kim Helper, District Attorney General; and Carlin C. Hess, Assistant District Attorney
General, for the appellee, State of Tennessee.

OPINION
I. Facts
 This case involves a car crash resulting in the death of Ralph Calendine, (―the
victim‖). A Williamson County grand jury indicted the Defendant for three counts of
vehicular homicide, charged alternatively, vehicular assault by impairment, and
possession of a firearm while under the influence of alcohol. The State and the
Defendant entered a plea agreement that provided for the Defendant to plead guilty to
vehicular homicide by impairment, a Class B felony, with the remaining charges to be
dismissed. The Defendant agreed to an eight-year sentence, with the manner of service
of the sentence to be determined by the trial court after a sentencing hearing.

At the guilty plea submission hearing, the State made the following offer of proof
as a basis for the trial court‘s acceptance of the Defendant‘s guilty plea:

[T]here was a vehicle collision on December 30th, of 2013 around 6:00
p.m., here in Williamson County on Lewisburg Road, near Highway 840.
[The Defendant] was the driver of the vehicle in the crash. And the
passenger of the other vehicle, Mr. Ralph Calendine, was pronounced dead
on the scene.

Officers from the Tennessee Highway Patrol made their way to that
location and identified [the Defendant] as the driver of one of the vehicles.
He had an odor of an alcoholic beverage about his person, bloodshot watery
eyes, admitted to drinking prior to driving his vehicle, and preformed [sic]
Field Sobriety Test. He did not perform those to the Officer‘s satisfaction.

T.H.P. Crash Reconstructionist will testify that the cause of the
vehicle collision and the cause of Mr. Calendine‘s death was the driving
behavior of [the Defendant], specifically that he had turned into the lane of
travel at the moment that the Calendines were driving down Lewisburg
Pike. And that he was at fault in the accident.

He agreed to a blood alcohol test that came back at above 20 grams -
- .20 grams percent Ethyl alcohol. And Mr. Calendine‘s death, as I said,
was proximate result of [the Defendant]‘s driving behavior. And that
occurred here in Williamson County.

At the sentencing hearing, the parties presented the following evidence: Joseph T.
Massengill, a Tennessee Highway Patrol officer, testified that, on December 30, 2013, he
was dispatched to a two-vehicle injury crash. When he arrived, he observed a 2013 Kia
Soul on the left shoulder ―next to the off ramp from 840 and a 2008 Chevrolet Silverado
facing southwest in the southbound travel lane.‖ He stated that it appeared to have been a
head-on collision with severe damage to the driver‘s side of each vehicle. Trooper
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Massengill recalled that medical personnel and Sheriff‘s deputies were already present at
the scene. He approached the Kia where first responders were attempting to extricate the
driver, who was the victim‘s wife, Lynda Calendine. The victim had already been
removed from the vehicle.

Trooper Massengill testified that, after making contact with Mrs. Calendine, he
approached the Defendant, who appeared to be disoriented and confused and was
standing a distance away from the Kia Soul. Trooper Massengill recalled that the
Defendant had a slight odor of alcohol about his person and admitted to drinking two
beers. The Defendant told Trooper Massengill that he had been driving from Franklin to
Spring Hill. The Defendant indicated that he was diabetic and so Trooper Massengill had
medical personnel at the scene assess the Defendant before conducting field sobriety
tasks. Trooper Massengill stated that the Defendant performed the tasks ―poorly.‖ The
Defendant was placed under arrest for driving under the influence. A loaded gun was
located inside his vehicle.

Trooper Massengill testified that, based upon his investigation at the scene, he
determined the Defendant was at fault in the accident. While still at the crash scene
Trooper Massengill learned that the victim had died either en route to the hospital or at
the hospital. Trooper Massengill said that he then requested that the THP Critical
Incident Response Team (―CIRT Team‖) come to the scene for further assessment.

On cross-examination, Trooper Massengill agreed that the Defendant was fully
cooperative with the investigation. He further confirmed that the conclusion of the CIRT
Team was that the crash occurred because the Defendant failed to yield to oncoming
traffic when making a left turn. Trooper Massengill stated that the Defendant had a head
injury as a result of the crash but refused medical treatment.

The victim‘s wife and three sons testified at the hearing about the impact of the
loss on each of them, their families, and their community. Approximately six years
before, the victim and his wife had moved to Chapel Hill in retirement to be near their
four grandchildren who lived in the Brentwood area. The victim was sixty-six years old,
had been married forty-five years, had three sons, and four grandchildren. During his
career he served his country and his community in the army, as a police officer, a
minister, and a missionary. About the impact on the family, one of the victim‘s sons
stated, ―This loss clearly continues to be felt profoundly. There is not a day that goes by
that I don‘t think about my father and my mother and my children that have continued to
struggle with the loss of their grandfather.‖ The victim‘s family expressed concern about
a reoccurrence and urged the trial court to take preventative measures to protect others
from a senseless loss. Lynda Calendine, the victim‘s wife and the driver at the time of

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the accident, testified that she underwent two knee operations and an arm surgery due to
bone fractures caused by the crash.

Following the State‘s proof, the Defendant made the following statement of
allocution:

[My attorney] told me that I could speak to you today about me.
Please do not take this as me making any excuses. I have no excuses for
drinking, driving, and causing the accident that took the life of Mr.
Calendine. I would like to start by saying I‘m very sorry for my crime and
the loss of Mr. Calendine‘s life and how it has affected his family.

I know words can not express how hurt everyone feels and how
sorry I am that I created this tragedy. . . . And for the hurt and pain I
afflicted on everyone involved. Many people have been hurt and affected
by my mistake on that night. And I know that it changed their lives. I
apologize with all my heart and soul to first, the Calendine family and their
friends. Next to my family because I have hurt them bad. And all my
friends and my team members that I have let down.

My entire life I have always worked harder to support my family and
help others when they needed it. I would like to tell you what led up to
December 30, 2013. I grew up in Indiana. My mother left when I was six
and my father raised me and my sister. My father is a great man. He is a
great example. He worked extremely hard for our family and he taught me
what it means to help others. Please do not let my crime reflect on my dad.
He raised me better than this.

In 1988 I began working at Discount Labels in Indiana. I started at
the bottom, but over 24 years I worked my way up to Vice-President of
Operation over many plants. At first everything was wonderful, but my
health began to get bad. My stress level was high due to my position I held
at work. During the tough economic times, we had to let a lot of people go
from their jobs. This was diff -- very difficult for me and it broke my heart
to have to do that. But finally, it was my turn and they let me go.

Me and my wife were blessed when I was offered a job in Franklin,
Tennessee as director of operations over the Franklin and Memphis plants.
Everything was going good, our numbers were up, we were paying bonus
to our employees and the team there called me Coach. Then it changed.
They brought in a new president and started cutting head count, and I had
4
to fire some of our veteran people. The day of the accident, I was helping a
former boss of mine move some boxes from the plant to a storage area. He
called me that morning to ask me if I would help and since I had a truck, I
said of course I would. I always tried to help when anybody needed it. We
loaded the boxes and we took them to a storage area, and we then went to a
place where he was a member of in Franklin and I drank and I smoked a
cigar. And then I made the worse decision I‘ve ever made in my life.

Though, I don‘t remember it, I chose to drive. I can‘t remember
much that night, except for seeing a lot of lights and bleeding from my
head. I remember talking with the Trooper and agreeing to volunteer to
give him blood. He was a nice guy and I was very respectful with him and
was compliant with his directions. And I thank him for the work on this
case.

I later found out that I was impaired and I was devastated. You
know it is one thing to know you caused an accident that took a life and
injured another. But now, to know you were drunk when it happened was
sickening to me and I was confused. It was literally destroying me inside.
It was all I could think about. It kept me up at night. And I‘ve never
stopped thinking about what I done. Again, words can not express how
sorry I am and how horrible I feel what I did that night.

Since the accident my life has changed dramatically. My wife and I
have been saved and got baptized. I have -- I have not had a sip of any
alcohol for over a year and it doesn‘t even sound appealing to me anymore.
I don‘t take high blood pressure medicine anymore. And I‘m only taking
25 percent of my medication for diabetes. My weight went from 305 to
now I‘m about 210. I have completely changed my life. But I do not take
what has happened lightly. I will do everything in my power to prevent this
from happening to others and families if given the chance. I will go into
the community, I will share my story. So that others, they know how
seriously their decisions can affect and harm others. If I could go back to
that day, I would. This is one situation that people just say it won‘t happen
to me, but it did. It happened to Mr. Calendine‘s family.

And it is a huge mistake to cause an unnecessary tragedy. I have to
live with this guilt and regret for the rest of my life. And I vow to live a
better life serving God and continue to help others. I‘m truly and deeply
sorry for the hurt to these folks and to my family and friends.

5
 The Defendant‘s cousin and two former colleagues testified on the Defendant‘s
behalf. All three witnesses testified that the Defendant was a hard-working, honest man
who took responsibility. The witnesses all stated that the Defendant would successfully
complete a sentence involving probation if ordered. In addition, the trial court admitted
numerous letters of support from the Defendant‘s family members and friends.

The Defendant‘s attorney submitted to the trial court that the Defendant was a
strong candidate for a sentence involving split confinement. The Defendant‘s attorney
acknowledged that the seriousness of the offense required a period of incarceration but
asked the trial court to consider the Defendant‘s entire life and circumstances and not just
the horrible events of one day. The State responded that the Defendant was not presumed
a favorable candidate for an alternative sentence pursuant to Tennessee Code Annotated
section 40-35-102(6)(a). The State conceded that the Defendant did not have a long
history of criminal conduct or frequent or recent applications of probation; however, the
State asserted that, a probated sentence would undermine the seriousness of the
deterrence effect on other Williamson County citizens. The State noted that there were
over 700 DUI charges in Williamson County in the previous year, noting that the
Defendant‘s charge was the only one involving a death. After hearing the arguments and
considering the evidence, the trial court ordered the Defendant to serve his eight-year
sentence in the Tennessee Department of Correction. It is from this judgment that the
Defendant appeals.

II. Analysis

The Defendant asserts that the trial court: (1) erroneously relied upon
enhancement factors that are not applicable to the Defendant‘s offense; (2) erroneously
admitted improper evidence at the sentencing hearing; (3) failed to properly consider
mitigation factors; (4) erroneously found that the Defendant had no potential for
rehabilitation; and (5) failed to comply with the purposes and principles of sentencing
when it denied split confinement. We consider each issue in turn.

In sentencing decisions, ―sentences imposed by the trial court within the
appropriate statutory range are to be reviewed under an abuse of discretion standard with
a ‗presumption of reasonableness.‘‖ State v. Bise 380 S.W.3d 682, 708 (2012). A
finding of abuse of discretion ―‗reflects that the trial court‘s logic and reasoning was
improper when viewed in light of the factual circumstances and relevant legal principles
involved in a particular case.‘‖ State v. Shaffer, 45 S.W.3d 553, 555 (Tenn. 2001)
(quoting State v. Moore, 6 S.W.3d 235, 242 (Tenn. 1999)). To find an abuse of
discretion, the record must be void of any substantial evidence that would support the
trial court‘s decision. Id.; State v. Grear, 568 S.W.2d 285, 286 (Tenn. 1978); State v.
Delp, 614 S.W.2d 395, 398 (Tenn. Crim. App. 1980). The reviewing court should uphold
6
the sentence ―so long as it is within the appropriate range and the record demonstrates
that the sentence is otherwise in compliance with the purposes and principles listed by
statute.‖ Bise, 380 S.W.3d at 709-10. So long as the trial court sentences within the
appropriate range and properly applies the purposes and principles of the Sentencing Act,
its decision will be granted a presumption of reasonableness. Id. at 707.

Our Supreme Court extended the Bise standard to appellate review of the manner
of service of the sentence. The Court explicitly held that ―the abuse of discretion
standard, accompanied by a presumption of reasonableness, applies to within-range
sentences that reflect a decision based upon the purposes and principles of sentencing,
including the questions related to probation or any other alternative sentence.‖ State v.
Caudle, 388 S.W.3d 273, 278-79 (Tenn. 2012). We are also to recognize that the
defendant bears the burden of demonstrating that the sentence is improper. State v.
Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).

In determining the proper sentence, the trial court must consider: (1) the evidence,
if any, received at the trial and the sentencing hearing; (2) the presentence report; (3) the
principles of sentencing and arguments as to sentencing alternatives; (4) the nature and
characteristics of the criminal conduct involved; (5) evidence and information offered by
the parties on the mitigating and enhancement factors set out in Tennessee Code
Annotated sections 40-35-113 and -114; (6) any statistical information provided by the
administrative office of the courts as to sentencing practices for similar offenses in
Tennessee; and (7) any statement the defendant made in the defendant‘s own behalf
about sentencing. See T.C.A. § 40-35-210 (2014); State v. Taylor, 63 S.W.3d 400, 411
(Tenn. Crim. App. 2001). The trial court must also consider the potential or lack of
potential for rehabilitation or treatment of the defendant in determining the sentence
alternative or length of a term to be imposed. T.C.A. § 40-35-103 (2012).

With regard to alternative sentencing, Tennessee Code Annotated section 40-35-
102(5) provides as follows:

In recognition that state prison capacities and the funds to build and
maintain 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 failure of past efforts at
rehabilitation shall be given first priority regarding sentencing involving
incarceration.

A defendant who does not fall within this class of offenders, ―and who is an especially
mitigated offender or standard offender convicted of a Class C, D or E felony, should be
considered as a favorable candidate for alternative sentencing options in the absence of
7
evidence to the contrary.‖ T.C.A. § 40-35-102(6). Additionally, we note that a trial court
is ―not bound‖ by the advisory sentencing guidelines; rather, it ―shall consider‖ them.
T.C.A.§ 40-35-102(6) (emphasis added).

Even if a defendant is a favorable candidate for alternative sentencing under
Tennessee Code Annotated section 40-35-102(6), a trial court may deny an alternative
sentence because:

(A) Confinement is necessary to protect society by restraining a defendant
who has a long history of criminal conduct;

(B) Confinement is necessary to avoid depreciating the seriousness of the
offense or confinement is particularly suited to provide an effective
deterrence to others likely to commit similar offenses; or

(C) Measures less restrictive than confinement have frequently or recently
been applied unsuccessfully to the defendant.

T.C.A. § 40-35-103.

In a written order, the trial court made the following findings as to sentencing:

In determining the appropriate sentence for this offense, this Court
has considered the evidence presented at the Sentencing Hearing, the
Sentencing Memoranda submitted by both parties, the letters of support
submitted by [the Defendant], the Pre-Sentence Report, and [the
Defendant‘s] allocution. The Court has also considered the arguments
made as to the principles of sentencing, sentencing alternatives, and
enhancement and mitigating factors. In addition, the Court considered the
statistical information provided by the Administrative Office of the Courts
as to sentencing practices for similar offenses in Tennessee.

Furthermore, the Court has considered all of the principles and
purposes of sentencing enumerated in Sections 40-35-102 and 40-35-103 of
the Sentencing Reform Act of 1989 as well as the mitigating and
enhancement factors enumerated in T.C.A.40-35-113 and T.C.A. 40-35-
114. Pursuant to T.C.A 40-35-102 (1), ―every defendant shall be punished
by the imposition of a sentence justly deserved in relation to the seriousness
of the offense.‖ Also, T.C.A. 40-35-102 (3) provides: ―punishment shall be
imposed to prevent crime and promote respect for the law by:

8
 (A) Providing an effective general deterrent to those likely to
violate the criminal laws of this state;
(B) Restraining defendants with a lengthy history of criminal
conduct;

(C) Encouraging effective rehabilitation of those defendants,
where reasonably feasible, by promoting the use of
alternative sentencing and correctional programs that elicit
voluntary cooperation of defendants; and

(D) Encouraging restitution to victims where appropriate.

T.C.A. 40-35-102(3).

In the instant case, the Court has considered all of these factors and
provisions. The crime committed here was extremely serious — Vehicular
Homicide, a Class B felony. Mr. Calendine was killed as a result of this
crime and Mrs. Calendine was seriously injured. She endured much
physical pain and suffering as a result of this crime and still endures it.
However, as she testified, her most severe pain and suffering is the
emotional pain she endures as a result of the loss of her husband of 45
years. This crime impacted many people. Mr. Calendine‘s entire family
has suffered and continues to suffer from his death. His wife, his sons, and
his grandchildren all suffer from this crime. Thus, the ―seriousness of [this]
offense‖ requires imposition of severe punishment — 8 years as a Range I
Standard Offender, to serve. T.C.A. 40-35-102(1).

Moreover, a prison sentence of 8 years in this case is necessary to
―prevent crime and promote respect for the law.‖ T.C.A. 40-35-102(3).
Requiring a prison sentence in this case will ―[p]rovide an effective general
deterrent to those likely to violate the criminal laws in this state.‖ T.C.A.
40-35-102(3)(A).

The Court has also considered the principles enumerated in T.C.A.
40-35-103. Here, ―[c]onfinement is necessary to avoid depreciating the
seriousness of the offense [and] confinement is particularly suited to
provide an effective deterrence to others likely to commit similar offenses.‖
T.C.A. 40-35-103(1)(B). As discussed above, the Court finds this offense
to be extremely serious. Also, driving under the influence is a serious
problem in our community. It is important that the Court send a message to
others who would drive under the influence in hopes of deterring such
9
conduct and saving lives. In addition, the 8 year prison sentence imposed
in this case is not ―greater than that deserved for the offense committed‖
T.C.A. 40-35-103(2) and is ―the least severe measure necessary to achieve
the purposes for which the sentence is imposed‖ T.C.A. 40-35-103(4).

The Court has also considered sections three, five, and six of T.C.A.
40-35-103 and believes an eight year prison sentence comports with those
concerns as well. The Court has considered [the Defendant‘s] potential for
rehabilitation or treatment and finds none. There was no evidence at the
Sentencing Hearing that [the Defendant] is in need of treatment or
rehabilitation. Indeed, he claimed during his allocution and in his written
statement submitted to the Court that he no longer drinks alcohol.
Additionally, there was no proof at trial that [the Defendant] is in need of
any other type of treatment or rehabilitation.

The Court has also considered the sentencing alternatives outlined in
T.C.A. 40-35-104 and elsewhere in the statute. The Court believes there
are no alternatives to incarceration that would be appropriate in this case
given: 1) the seriousness of the offense and the impact it has had on the
Calendine family and the community; 2) the need to deter this type of
behavior; and (3) the need to avoid depreciating the seriousness of the
offense.

As stated above, the parties agreed [the Defendant] would receive an
8 year sentence as a Range I Standard Offender. The manner of service of
that sentence was the primary issue before the Court. The parties addressed
the enhancement and mitigating factors set out in the Sentencing Act which
are used to determine the length of the sentence. Accordingly, the Court
will address the enhancement and mitigating factors here. Pursuant to
T.C.A. 40-35-114, the Court finds the following enhancement factors
apply: (3) the offense involved more than one victim. Mrs. Calendine was
severely injured and Mr. Calendine passed away. (6) the personal injuries
inflicted upon . . . the victim were particularly great. Mrs. Calendine
sustained severe injuries. (9) the defendant possessed or employed a
firearm . . . during the commission of the offense. [The Defendant] had a
.380 in his vehicle during the commission of this offense. (10) The
defendant had no hesitation about committing a crime when the risk to
human life was high. [The Defendant] had no hesitation about driving a
vehicle when he was very intoxicated - an act which put many lives in
danger.

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 Pursuant to T.C.A. 40-35-113, the Court finds that the following
mitigating factors apply: (13) any other factors consistent with the purposes
of this chapter. [the Defendant‘s] lack of criminal history serves as a
mitigating factor. Also, [the Defendant‘s] strong work history and
reputation as a helpful and caring person serve as mitigating factors. The
Court finds that, although these mitigating factors apply, they do not
warrant probation in this case.

As stated above, this crime has had a severe financial impact on the
Defendant‘s family. In light of [the Defendant‘s] upcoming incarceration
and the financial problems it will cause his family, the Court sees no reason
to impose a fine in this matter. Therefore, no fine will be imposed.

Regarding loss of license, the Court finds that [the Defendant] shall
lose his license for a period of five years. This time period is sufficient, but
not greater than necessary, to accomplish the goals of sentencing. In
addition, the Court has taken into consideration all of the sentencing factors
discussed above in determining this aspect of [the Defendant‘s] sentence.

A. Enhancement Factors

The Defendant asserts and the State concedes that the trial court misapplied
enhancement factor (3), the offense involved more than one victim, enhancement factor
(6), the personal injuries inflicted were particularly great, and enhancement factor (8) the
defendant failed to comply with the conditions of a sentence involving release into the
community. T.C.A. § 40-35-114 (2014). The Defendant also contests the trial court‘s
application of enhancement factor (9), possession of a firearm during the commission of
the offense and enhancement factor (10), the defendant had no hesitation about
committing a crime when the risk to human life was high. Id. In our view, for the
reasons discussed in this opinion, the enhancement factors found at Tennessee Code
Annotated section 40-35-114 (3), (6), (8), (9), and (10) are inapplicable in this case.

1. Tennessee Code Annotated § 40-35-114 (3); Offense Involved More Than One
Victim

The trial court applied enhancement factor (3), the offense involved more than one
victim, to the Defendant‘s conviction. The Defendant, citing State v. Imfeld, 70 S.W.3d
698, 706 (Tenn. 2002), contends that application of this factor was inappropriate because
there cannot be multiple victims for any one charge referring to a particular named
person. This Court has defined ―victim,‖ as used in Tennessee Code Annotated Section
40-35-114(3), as being limited in scope to a person or entity that is injured, killed, had
11
property stolen, or had property destroyed by the perpetrator of the crime. State v.
Raines, 882 S.W.2d 376, 384 (Tenn. Crim. App. 1994). This Court has also held that
factor (3) may not be applied to enhance a sentence when a defendant is separately
convicted of the offenses committed against each victim. State v. Freeman, 943 S.W.2d
25, 31 (Tenn. Crim. App. 1996); State v. Williamson, 919 S.W.2d 69, 82 (Tenn. Crim.
App. 1995) (citations omitted). Additionally, our Supreme Court has held that there
cannot be multiple victims for any one offense where the indictment specifies a named
victim. Imfeld, 70 S.W.3d at 698. Because the Defendant was convicted of the indicted
offense of vehicular homicide involving a specifically named victim, Ralph Calendine,
the trial court improperly applied enhancement factor (3) during sentencing to his
conviction.

2. Tennessee Code Annotated § 40-35- 114(6); Injuries are Particularly Great

The trial court found that the personal injuries sustained by the victims were
particularly great. T.C.A. § 40-35-114(6). Again, the State concedes that the trial court
should not have applied this factor to enhance the Defendant‘s sentence. This Court has
consistently held that this factor should not be used to enhance a sentence for the offense
of vehicular homicide because the death of the victim is an element of the offense. State
v. Norris, 874 S.W.2d 590, 601 (Tenn. Crim. App. 1993). The trial court applied this
factor based upon Mrs. Lynda Calendine‘s injuries, not the victim‘s injuries. The victim
of the vehicular homicide conviction, however, was Mr. Ralph Calendine. Therefore, the
trial court improperly applied enhancement factor (6).

3. Tennessee Code Annotated § 40-35- 114(8); Failed to Comply with the Conditions
of a Sentence

Although the trial court did not address this factor in its sentencing order, in
sentencing the Defendant following the proof at the hearing, the trial court stated:

Factor number 8, I think applies: That the defendant before trial or
sentencing has failed to comply with the condition of a release into the
community. Although specifically the bond conditions - - there was no
bond condition that he not refuse to submit to a blood test, that‘s not
specifically mentioned. But it does mention that he should comply with the
laws of the State. And so on July 21st, 2014, as a result the Tennessee
Department of Safety suspended his driver‘s license for one year.

Release on bond is not a sentence involving release into the community and, therefore,
application of factor (8) is improper when a defendant violates a condition of bond prior
to sentencing. See State v. Clark Douglas Lively, No. M2002-00666-CCA-R3-CD, 2002
12
WL 31757480, at *3 (Tenn. Crim. App., at Nashville), perm. app. denied (Tenn. Feb. 11,
2003); State v. Mark Allen Haskett, No. E2001-00600-CCA-R3-CD, 2002 WL 31431498,
at *11 (Tenn. Crim. App., at Knoxville, Oct. 31, 2002), perm. app. denied (Tenn. Jan. 7,
2003). Accordingly, this enhancement factor is not applicable in this case.

4. Tennessee Code Annotated § 40-35- 114(9); Possession of a Firearm During
Commission of the Offense

At the sentencing hearing, the trial court correctly found that the possession of a
firearm during the commission of the offense was inapplicable to the facts of this case. It
stated, ―Although [the Defendant] did have a firearm in the vehicle, I think that that
enhancement goes to whether or not it was used on the offense.‖ In the subsequent
written order, however, the trial court found, ―(9) the defendant possessed or employed a
firearm . . . during the commission of the offense. [The Defendant] had a .380 in his
vehicle during the commission of this offense.‖ The State asserts that the inclusion in the
order of factor (9) was ―an oversight.‖ In our view, the specific application of this factor
by the trial court in the order, along with the trial court‘s reasoning for applying the
factor, amounts to more than an ―oversight.‖ Because the trial court specifically
addresses this factor and the basis for its application in denying the Defendant‘s request
for a sentence involving split-confinement, we address factor (9).

This Court has held that factor (9) requires facts that ―show some reasonable
connection between the defendant‘s conduct or state of mind and the firearm[.]‖State v.
Randall Cunningham, No. W2013-01966-CCA-R3-CD, 2014 WL 2547726, at *5 (Tenn.
Crim. App., at Jackson, May 30, 2014), no Tenn. R. App. P 11 application filed. No
evidence was presented at the hearing about where the gun was located or kept within the
Defendant‘s vehicle at the time of the crash nor is there any evidence that the firearm was
used or there was an attempt to use the gun in the commission of this offense. Moreover,
the nature of the offense, vehicular homicide by intoxication, reveals no reasonable
connection between the Defendant‘s conduct or state of mind and the firearm. Thus, the
trial court‘s application of this factor was error.

5. Tennessee Code Annotated § 40-35- 114(10); Risk to Human Life was High

The trial court made no mention of the application of enhancement factor (10), at
the sentencing hearing when it ordered the Defendant to serve eight years in confinement.
In the subsequent, sentencing order, however, the trial court found applicable ―(10) The
defendant had no hesitation about driving a vehicle when he was very intoxicated – an act
which put many lives in danger.‖

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 The State asserts that this factor did not contribute to the trial court‘s decision to
deny alternative sentencing since it was not addressed at the sentencing hearing. The trial
court stated in its sentencing order that it was a basis for its findings, so we review its
application of factor (10).

The Defendant contends that the trial court erred when it applied enhancement
factor (10) to his sentence for vehicular homicide because the factor is inherent in the
offense. See State v. John D. Neblett, No. 01C01-9805-CC-00231, 1999 WL 743633
(Tenn. Crim. App., at Nashville, Sept. 24, 1999), perm app. denied (Tenn. Feb. 14,
2000). However, this Court has held that, even when factor (10) is an element of the
offense, it may still be applied where the defendant creates a high risk to the life of a
person other than the victim. State v. Bingham, 910 S.W.2d 448, 452 (Tenn. Crim. App.
1995).

Our review of the record shows that the Defendant, after consuming alcohol, was
driving toward Highway 840 at around 5:30p.m. The Defendant made a left turn into the
victim‘s southbound vehicle, causing the crash. The record is silent as to traffic patterns
on the day of the crash and whether other motorists were present and therefore subject to
injury at the time of the crash. In our view, no evidence was presented regarding the
―many lives‖ that were put in danger. The life of Mrs. Lynda Calendine was in fact put
in danger by the Defendant‘s conduct. Mrs. Calendine is a person other than the victim,
Mr. Ralph Calendine. For this reason, we conclude that factor (10) is applicable here.

B. Mitigating Factors

The Defendant contends that the trial court erred in its application of mitigating
circumstances. Specifically, (1) the Defendant argues that the trial court‘s oral findings
at the sentencing hearing were inconsistent with regard to whether the crime occurred
under such unusual circumstances that it is unlikely that a sustained intent to violate the
law motivated the criminal conduct, Tennessee Code Annotated section 40-35-113(11);
and (2) the trial court erred in concluding the Defendant showed no remorse based upon
his decision to give a statement in allocution.

1. Tennessee Code Annotated § 40-35-113(11); Commission of Offense Where
Unlikely that Substantial Intent to Violate the Law was Motivation

Mitigating factor (11) is applicable when the ―defendant, although guilty of the
crime, committed the offense under such unusual circumstances that it is unlikely that a
sustained intent to violate the law motivated the criminal conduct.‖ See T.C.A. § 40-35-
113(11). At the sentencing hearing the trial court stated, ―I don‘t see that that factor
applies in this case because it is a factor that is already taken into account in the vehicular
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homicide offense.‖ Shortly thereafter, the trial court contradicted its finding that the
offense did not occur under unusual circumstances by finding that the Defendant‘s
conduct was ―aberrant conduct.‖

Our review of the record shows that the Defendant had never been arrested before
this incident. The record does not indicate ―a sustained intent to violate the law
motivated the criminal conduct of the Defendant.‖ Id. There is overwhelming evidence
in the record that the Defendant, prior to this crime, was a law-abiding citizen. In our
view, this mitigating factor was applicable.

2. Allocution

Allocution has been defined ―as the formality of the court‘s inquiry of a convicted
defendant as to whether he has any legal cause to show why judgment should not be
pronounced against him on the verdict of conviction.‖ State v. Stephenson, 878 S.W.2d
530, 551 (Tenn. 1994) (citing Black‘s Law Dictionary 76 (6th ed.1990)) (footnote
omitted). There is no constitutional right to allocution. See State v. Stephenson, 878
S.W.2d 530, 551-52 (Tenn. 1994), abrogated on other grounds by State v. Saylor, 117
S.W.3d 239 (Tenn. 2003) (citing Hill v. United States, 368 U.S. 424 (1962)); State v.
Burkhart, 541 S.W.2d 365, 371 (Tenn. 1976)). Rather, the right derives from Tennessee
Code Annotated Section 40-35-210(b)(6) which mandates that, in a non-capital case, a
defendant be allowed allocution before a sentencing judge or jury. A defendant is not
required to provide a statement in allocution, and the sentencing judge is only required to
consider ―[a]ny statement the defendant wishes to make in the defendant‘s own behalf
about sentencing.‖ T.C.A. § 40-35-210(b)(7).

In considering remorse as a mitigating factor, the trial court stated:

I don‘t think that remorse actually is a mitigating factor here, today
w[ith] all due respect to [the Defendant]. The Court watched the hearing
and watched the Defendant‘s reactions during the whole time. And of
course you can never get into somebody‘s head or their heart, but I did not
detect remorse from [the Defendant]. But I think also, the State has a good
point in that [the Defendant] chose to allocate [sic] rather than take the
witness stand and be subject to cross examination. I think if he had been
willing to be subject to cross examination - - and of course, he‘s waived his
Fifth Amendment rights by pleading guilty. So, if he had been willing to be
subject to cross examination, he - - that would have shown more remorse to
the Court. So, I don‘t think that factor applies.

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 Based upon our review of the law and the history of allocution, we do not think
the Defendant‘s decision to make a statement in allocution rather than testify is a proper
consideration in determining remorse. The Defendant has a statutory right to allocution.
This right assists the trial court in considering individual aspects of a case for proper
sentencing and ―preserves the appearance of fairness‖ in the judicial system. United
States v. Ward, 732 F.3d 175, 180-81 (3d Cir. 2013). For this Court to recognize a
finding of lack of remorse based solely upon the Defendant‘s decision to allocute would
undermine the purpose of the allocution. A trial court should not speculate that a sworn
statement might be more remorseful than an allocution. It is the role of the trial court to
assess the credibility and demeanor of the defendant during the allocution and then make
a determination as to remorse.

In this case, it appears that the trial court determined that the Defendant was not
remorseful because he expressed his remorse in an allocution rather than expressing his
remorse in testimony, subject to his being cross-examined. In our view, the trial court
should, on remand, determine whether or not the Defendant was remorseful based upon
the allocution, giving the Defendant‘s allocution the weight that the trial court deems
appropriate, without considering whether sworn testimony would be ―more remorseful‖
than the allocution.

C. Potential for Rehabilitation

The trial court did not address the Defendant‘s potential for rehabilitation at the
sentencing hearing during its oral ruling. In the subsequent sentencing order, the trial
court stated:

The Court has considered [the Defendant]‘s potential for rehabilitation or
treatment and finds none. There was no evidence at the Sentencing Hearing
that [the Defendant] is in need of treatment or rehabilitation. Indeed, he
claimed during his allocution and in his written statement submitted to the
Court that he no longer drinks alcohol. Additionally, there was no proof at
trial that [the Defendant] is in need of any other type of treatment or
rehabilitation.

Tennessee Code Annotated section 40-35-103 provides sentencing considerations.
One of the considerations enumerated states: ―The potential or lack of potential for the
rehabilitation or treatment of the defendant should be considered in determining the
sentence alternative or length of a term to be imposed. The length of a term of probation
may reflect the length of a treatment or rehabilitation program in which participation is a
condition of the sentence.‖ This statute contemplates specific treatment and

16
rehabilitation programs; however, it also encompasses a broader consideration of
―rehabilitation.‖

This Court has previously found that the failure to accept responsibility for one‘s
actions is a proper consideration for determining potential for rehabilitation. See State v.
Dowdy, 894 S.W.2d 301, 306 (Tenn. Crim. App. 1994). Moreover, this Court has
previously held that, upon viewing a defendant‘s demeanor while testifying, the trial
court is in a better position to accurately assess potential for rehabilitation. See State v.
Shawn E. Dodd, No. 03C01-9508-CC-00214, 1996 WL 393926, at *1 (Tenn. Crim. App.,
at Knoxville July 16, 1996). This Court has previously stated that, ―[a] lack of
truthfulness is an indication of a defendant‘s potential for rehabilitation.‖ State v. Allen
R. Jordan, No. 01C01-9807-CC-00315, 1999 Tenn. Crim. App. 436837 at *3, (Tenn.
Crim. App., at Nashville, June 30, 1999), no Tenn. R. App. P. 11 application filed. A
defendant‘s repeated criminal behavior, history of drug abuse, and lack of a work history
may indicate a lack of potential for rehabilitation. See State v. Felicia Ann Lowery, No.
W2006-01808-CCA-R3-CD, 2007 WL 1989026 (Tenn. Crim. App., at Jackson, July 9,
2007), perm. app. denied (Tenn. Nov. 19, 2007). Repeated violations of sentences
involving probation and Community Corrections indicates a poor potential for
rehabilitation. See State v. Tammy Yvonne Knight, No. M1999-02540-CCA-R3-CD,
2001 WL 208506 (Tenn. Crim. App., at Nashville, March 1, 2001), no Tenn. R. App. P.
11 application filed. This list is certainly not exhaustive but shows the breadth of
consideration when a trial court considers a defendant‘s potential for rehabilitation.

In the present case, the Defendant stated that the offense has served as a life-
altering event in his life. He has since stopped drinking alcohol, lost weight, his health
has improved, and he has sought spirituality. The Defendant‘s testimony indicates he has
actively sought rehabilitation, and the Defendant‘s truthfulness was not questioned. He
has a strong work history and has not shown a pattern of repeated criminal behavior or
repeatedly violated sentences involving release into the community. In our view, the
Defendant has a high potential for not re-offending and remaining a productive member
of society. In considering whether to impose a sentence of ―split confinement,‖ which by
definition would include a period of probation, the Defendant‘s potential for
rehabilitation is an important factor for the trial court to consider, and is a broader issue
than treatment for a drug or alcohol problem. On remand, we respectfully direct the trial
court to consider ―rehabilitation‖ and the Defendant‘s ―potential for rehabilitation‖ in a
broad sense rather than focusing solely on the Defendant‘s issues with alcohol.

D. Denial of Alternative Sentence

Tennessee Code Annotated section 40-35-103 provides, in part:

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 (1) Sentences involving confinement should be based on the following
considerations:

(A) Confinement is necessary to protect society by restraining a
defendant who has a long history of criminal conduct;

(B) Confinement is necessary to avoid depreciating the seriousness
of the offense or confinement is particularly suited to provide an
effective deterrence to others likely to commit similar offenses; or

(C) Measures less restrictive than confinement have frequently or
recently been applied unsuccessfully to the defendant;

The sentencing consideration we focus upon is subsection (B) - ―Confinement is
necessary to avoid depreciating the seriousness of the offense or confinement is
particularly suited to provide an effective deterrence to others likely to commit similar
offenses.‖ Here, the trial court found, and we agree, that the offense is ―extremely
serious.‖ The trial court concluded that confinement was necessary under each of the two
prongs set out in subsection (B).

Applying the relevant statutes, we find that the Defendant is not presumptively a
favorable candidate for alternative sentencing because of the class of the offense
committed. Even so, probation shall automatically be considered because the length of
the Defendant‘s sentence is eight years. The trial court considered probation, found that
it was not appropriate in this case, and stated its reasons on the record: to avoid
depreciating the seriousness of the offense and deterrence. See T.C.A. § 40-35-103.
Thus, the issue is whether the sentencing court‘s reasons for denying alternative
sentencing comport with the Criminal Sentencing Reform Act of 1989.

If the seriousness of the offense forms the basis for the denial of alternative
sentencing, Tennessee courts have held that ―‗the circumstances of the offense as
committed must be especially violent, horrifying, shocking, reprehensible, offensive or
otherwise of an excessive or exaggerated degree,‘ and the nature of the offense must
outweigh all factors favoring a sentence other than confinement.‖ State v. Grissom, 956
S.W.2d 514, 520 (Tenn. Crim. App. 1997) (citing State v. Bingham, 910 S.W.2d 448, 454
(Tenn. Crim. App. 1995) and State v. Hartley, 818 S.W.2d 370, 374-75 (Tenn. Crim.
App. 1991)); State v. Millsaps, 920 S.W.2d 267 (Tenn. Crim. App. 1995) (citations
omitted). We are unable to conclude that, although serious, the circumstances of this
offense meet this standard.

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 As to the deterrent effect, this Court has stated that ―[b]efore a trial court can deny
alternative sentencing on the ground of deterrence, there must be some evidence
contained in the record that the sentence imposed will have a deterrent effect within the
jurisdiction.‖ State v. Bingham, 910 S.W.2d 448, 455 (Tenn. Crim. App. 1995); see also
State v. Ashby, 823 S.W.2d 166, 170 (finding evidence insufficient to support deterrence
as sole reason for denying alternative sentencing). At the sentencing hearing, the State
told the trial court that the Defendant‘s offense had been the only vehicular homicide in
the previous year. The State failed to present evidence to support an argument for
deterrence. Our Supreme Court has held that ―deterrence cannot be conclusory only but
must be supported by proof.‖ Ashby, 823 S.W.2d at 170. As no proof was presented
here, this consideration cannot be the basis for a denial of alternative sentencing.

III. Conclusion

The Defendant‘s sentence in this case is within the proper sentencing range;
however, while we are mindful of the standard of review for sentencing, the numerous
errors made by the trial court in ordering this sentence rebut the presumption of
reasonableness afforded to a trial court‘s sentencing determinations. Given the
circumstances of this case, we cannot be certain that the trial court would have sentenced
the Defendant to serve his eight-year sentence, if it had not improperly applied
enhancement factors, failed to apply appropriate mitigating factors, and properly
considered alternative sentencing factors. As such, because the trial court is in the best
position to determine an appropriate sentence for the Defendant, we remand this case for
re-sentencing. See Bise, 380 S.W.3d at 706 n. 41 (noting that ―the trial court is in a
superior position to impose an appropriate sentence and articulate the reasons for doing
so‖).

_________________________________
ROBERT W. WEDEMEYER, JUDGE

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