State v. Walker

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

SEPTEMBER SESSION, 1999
FILED
October 25, 1999

Cecil Crowson, Jr.
Appellate Court Clerk
STATE OF TENNESSEE, *
* No. 02C01-9901-CR-00006
Appellee, *
* SHELBY COUNTY
vs. *
* Hon. Bernie Weinman, Judge
RICHARD WALKER, *
* (Vehicular Assault, 2 counts)
Appellant. *

For the Appellant: For the Appellee:

Leslie I. Ballin and Paul G. Summers
Mark A. Mesler Attorney General and Reporter
Ballin, Ballin & Fishman, P.C.
200 Jefferson Avenue, Suite 1250 R. Stephen Jobe
Memphis, TN 38103 Assistant Attorney General
Criminal Justice Division
425 Fifth Avenue North
2d Floor, Cordell Hull Building
Nashville, TN 37243-0493

William L. Gibbons
District Attorney General

Ms. Rosemary Andrews
Asst. District Attorney General
201 Poplar Avenue - Third Floor
Memphis, TN 38103

OPINION FILED:

AFFIRMED

David G. Hayes, Judge
 OPINION

The appellant, Richard Walker, appeals the sentence imposed by the Shelby

County Criminal Court following the entry of guilty pleas to two counts of vehicular

assault. Pursuant to the negotiated plea, the appellant received concurrent two year

sentences on each count. The manner of service was submitted to the trial court for

determination. Following a sentencing hearing, the trial court suspended all but one

hundred and twenty days of the appellant’s sentences. Additionally, the appellant

was placed on probation for a period of four years and was ordered to perform one

hundred hours of community service during this period. In this appeal, the appellant

contends that the trial court improperly denied his request for total probation.

After review of the record, we affirm the sentence imposed by the trial court.

Background

The appellant’s guilty pleas stem from events occurring on the evening of

August 24, 1997. On this date, the appellant explained that

I’d originally been at a cookout, then we left there and went to
Shooters. From there, one of the guys that I was with -- I was with two
other friends. One was driving my truck at that time. One of the guys
stayed there, and me and my other friend went to Neon Moon. From
there, my buddy left; and I drove back to Shooters to pick up my other
buddy.

On the return trip to Shooters, the appellant, failed to yield while making a left turn

onto Raleigh-LaGrange Road. While executing the turn, the appellant’s vehicle

collided with the vehicle driven by William Stricker. The appellant, William Stricker,

and Stricker’s passenger, Jessica McKinney, were transported to medical facilities

for treatment.1

1
The record indicates that the appellant was treated at Methodist North while Jessica
McKinney was transported to The Med. The record does not indicate which facility treated William
Stricker.

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 At the hospital, a law enforcement officer, who had responded to the incident,

observed that the appellant had “a strong smell of intoxicant on his breath and blood

shot eyes.” In response to questioning by law enforcement officers, the appellant

denied driving the vehicle. A blood sample was then drawn from the appellant’s

person and submitted for a blood alcohol analysis. The test revealed that the

appellant had a blood alcohol content of .18 percent. Subsequently, the appellant

admitted his responsibility for the incident. He also conceded that he had consumed

six to seven beers on the evening of the offense.

As a result of the collision, William Stricker, protected somewhat by an

airbag, suffered a broken leg, fractured in seven to eight places. Jessica McKinney,

the passenger in the Stricker vehicle, testified that, as a result of the impact, she

remained unconscious for three days. She also described the extent of her injuries

as including a dislocated hip, broken cheekbone, bitten through bottom lip, two

broken teeth, cut spleen and liver, and a severely lacerated hand and knee. She

remained in the hospital for one week and remained in physical therapy for three

months. Ms. McKinney explained that she “may still have to have [her] hip replaced.

There is no feeling in my finger or my lip, and I have to have my hip checked

regularly.” Although the appellant also sustained injuries, he fared better than his

victims, sustaining a broken wrist, bruised ribs, a broken nose and a cut above his

eyes.

At the time the presentence report was prepared, the appellant was a single

twenty-six year old high school graduate. During the period between August 1990

through May 1993, he was enrolled in college courses at Shelby State Community

College. The appellant reported that he has never used illegal drugs and describes

himself as a “very light drinker,” who will no longer drink and drive. He has no prior

record of criminal convictions. Present and previous employers commented that the

appellant was a dependable, appreciated, and valuable employee. Regarding the

current offense, the appellant repeatedly admitted his responsibility for the incident

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and his remorse for the injuries sustained by the victims resulting from his actions.

In response to questioning by the trial court, the appellant admitted that, on the

evening of the offenses, he understood that he was intoxicated and that the decision

to drive “was a very bad judgment call on myself.”

At the conclusion of the proof, the trial court considered the appellant’s

remorse for his actions, his remorse over the injuries sustained by the victims, and

his “good employment history.” Notwithstanding these favorable factors, the court

noted that some jail time was appropriate due to the circumstances of these

offenses. Accordingly, the trial court ordered that the appellant serve one hundred

and twenty days in confinement, followed by a four year period of probation.

Analysis

Although the trial court did grant the appellant the sentencing alternative of

split confinement, the appellant contends that the trial court erred by not imposing a

sentence of total probation. When a challenge is made to the manner of service of

a sentence, it is the duty of this court to conduct a de novo review with a

presumption that the determination made by the trial court is correct. Tenn. Code

Ann. § 40-35-401(d)(1997). Moreover, the appellant bears the burden of showing

that the sentence imposed by the trial court is improper. See Sentencing

Commission Comments, Tenn. Code Ann. § 40-35-401(d).

Because the appellant was convicted as a standard offender of class D

felonies, he is statutorily eligible for probation. See Tenn. Code Ann. §40-35-

303(a)( 1997). However, the fact that the appellant is eligible for probation does not

mean that probation should automatically be granted. While the burden is upon the

State to show a defendant’s non-entitlement to the statutory presumption of an

alternative sentence, the defendant has the burden of establishing suitability for full

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probation. See Tenn. Code Ann. § 40-35-303(b). See also State v. Bingham, 910

S.W.2d 448, 456 (Tenn. Crim. App.), perm. to appeal denied, (Tenn. 1995) (citation

omitted). To meet this burden, the appellant must demonstrate that probation will

“subserve the ends of justice and the best interest of both the public and the

defendant.” Bingham, 910 S.W.2d at 456 (citation omitted).

In determining a defendant’s suitability for probation, the sentencing court

should consider (1) the nature and circumstances of the conduct involved, Tenn.

Code Ann. § 40-35-210(b)(4) (1998 Supp.); (2) the defendant’s potential or lack of

potential for rehabilitation, Tenn. Code Ann. § 40-35-103(5)(1997); (3) whether a

sentence of probation will unduly depreciate the seriousness of the offense, Tenn.

Code Ann. § 40-35-103(1)(B); and (4) whether a sentence other than probation

would provide an effective deterrent to others likely to commit similar crimes, Tenn.

Code Ann. § 40-35-103(1)(B). See Bingham, 910 S.W.2d at 456.

In the present case, the trial court denied the appellant total probation based solely

on the need to avoid depreciating the seriousness of the offense. Despite the

appellant’s subsequent admission and expressed remorse, he initially denied

responsibility for his actions. The record also reflects that the injuries inflicted upon

Jessica McKinney are of particular concern as several injuries sustained by Ms.

McKinney have resulted in permanent impairment. See, e.g., State v. Kyte, 874

S.W.2d 631, 633 (Tenn. Crim. App. 1993); State v. Mitchell Glenn Sanders, No.

01C01-9403-CC-00114 (Tenn. Crim. App. at Nashville, Dec. 22, 1994), perm. to

appeal denied, (Tenn. Mar. 27, 1995). Finally, the appellant chose to put himself

behind the wheel of his vehicle after several hours of drinking alcohol and bar-

hopping that evening, thus, exposing potential passengers and other motorists to

the dangers of drunk driving. See, e.g., Bingham, 910 S.W.2d at 456; State v.

Butler, 880 S.W.2d 395, 401 (Tenn. Crim. App. 1994); State v. Eric W. Friedl, No.

02C01-9509-CR-00255 (Tenn. Crim. App. at Jackson, Sept. 11, 1996). Although

the circumstances of this offense are not egregious enough by themselves to

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overcome the presumption of alternative sentencing, we conclude that the

appellant’s conduct was of such an excessive degree as to support a denial of total

probation. See Bingham, 910 S.W.2d at 456 (citing State v. Fletcher, 805 S.W.2d

785, 788-89 (Tenn. Crim. App. 1991)).

Accordingly, upon de novo review and in accord with a presumption of

correctness, we are unable to conclude that the trial court erred in determining that

the appellant had not met his burden of establishing suitability for total probation.

The judgment of the trial court is affirmed.

____________________________________
DAVID G. HAYES, Judge

CONCUR:

__________________________________
JOE G. RILEY, Judge

__________________________________
THOMAS T. W OODALL, Judge

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