State of Tennessee v. Robbie R. Bailey

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs October 30, 2001

STATE OF TENNESSEE v. ROBBIE R. BAILEY

Direct Appeal from the Criminal Court for Washington County

No. 26013 Robert E. Cupp, Judge

No. E2001-00210-CCA-R3-CD

November 29, 2001

The Appellant, Robbie R. Bailey, was indicted by a Washington County Grand Jury for one count

of driving under the influence, fourth offense, one count of driving on a revoked license, and two

counts of vehicular assault. On December 1, 2000, Bailey pled guilty to two counts of vehicular

assault and one count of driving on a revoked license. After a sentencing hearing on January 10,

2001, the trial court sentenced Bailey, as a range I standard offender, to the maximum term of four

years on each count of vehicular assault and ordered that the sentences be served consecutively in

the Department of Correction.

On appeal, Bailey raises the following issues for our review: (1) whether the sentences imposed for

vehicular assault were excessive; and (2) whether the trial court erred by denying Bailey’s request

for a non incarcerative alternative sentence. After review, we find no reversible error and affirm the

judgment of the trial court.

Tenn. R. App. P. 3; Judgment of the Criminal Court is Affirmed.

DAVID G. HAYES, J., delivered the opinion of the court, in which JAMES CURWOOD WITT, JR. and

JOHN EVERETT WILLIAMS, J.J., joined.

Steve McEwen, Mountain City, Tennessee, and David F. Bautista, District Public Defender, Johnson

City, Tennessee, attorney for the Appellant, Robbie R. Bailey.

Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Elizabeth B.

Marney, Assistant Attorney General; Joe C. Crumley, Jr., District Attorney General; and Steve

Finney, Assistant District Attorney General, for the Appellee, State of Tennessee.

OPINION

Factual Background

On the evening of March 4, 2000, Steve Clayton, a third-year medical student1 in the East

Tennessee State University medical program, and his girlfriend, Kara Kuntz, a junior pre-med

student at East Tennessee State University, were returning from the grocery store when they were

struck head-on by a pick-up truck driven by the Appellant. Officer Larry Williams, of the Johnson

City Police Department, testified that the Appellant drove his truck approximately 2 ½ feet across

the center line directly into the path of the 1998 Honda Civic driven by Clayton, pushing Clayton’s

vehicle approximately 70 feet across another lane of traffic before it came to rest in a ditch. Officer

Williams testified that the Appellant did not have his headlights on at the time of the collision and

that the Appellant’s blood alcohol level was .228 percent. Officer Williams also determined that the

Appellant was traveling 55 mph in a 30 mph zone within the city limits.

Clayton suffered various injuries as a result of the collision, including fractures to the right

radius [forearm], a partial ACL tear to his left knee, and various lacerations to his head and hands.

Two surgeries were required to reduce the arm fracture through pin placement. The damage to

Clayton’s left knee also required various MRI’s, drainage and the injection of steroids. In addition

to his physical injuries, Clayton suffered a two-month delay in his residency and a monetary loss of

approximately $28,000.

Clayton’s passenger, Ms. Kuntz, faired less favorably, with the most significant injury being

to her head. This injury resulted in permanent brain damage. At sentencing, Ms. Kuntz’s injuries

were described as follows:

Mostly she had bled into her frontal lobes, and she had what they call an

intraparenchymal bleed as well as a contrecoup injury . . . She bled into the front part

of [her] brain which is known to control centers for personality, memory, and

knowledge - socially appropriate behavior I guess is the best way to put it - as well

as various other bleeds. And then she damaged the back part of her brain that

controls your ability to walk and initiate walking . . . When you walk you don’t have

to think about taking a step or keeping your balance because that part of your brain

constantly adjusts. Well, she had injured it and [it] just made all types of coordinated

movement like that very, very difficult. She [had] several other injuries - the biggest

injury by far was . . . the brain injury . . . she had a . . . fracture . . . in her right tibia.

It’s called a tibea plateau fracture . . . but basically she had shattered the main bone

of the lower leg and actually had free floating bones and stuff in there. And the

medical treatment required [doctors] to go in and actually put an external fixator in

1

On the date of the sentencing hearing, Dr. Clayton had received his medical degree and was in his first year

of residency.

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there [which] runs wires in to kind of push all the bones together so they could heal

appropriately. And for one reason or another, either during the accident or as a result

of the medical treatment - there’s a nerve that runs close to where they had to go in

to fix those bones. And she has since . . . sustained what we call foot drop or

inability to lift her foot up like this . . . She also received a patellar fracture on her left

side as well as multiple fractures in her left hand. She had, once again, a fracture of

one of the metacarpals in her left hand which the orthopedic surgeon just said

basically had [been] just totally . . . for lack of a better word, smushed, I mean, just

totally destroyed . . . In addition to this, she also received a fracture of her left arm

as well.

Ms. Kuntz spent a total of 77 days in the hospital and in rehabilitation facilities. In addition to her

physical injuries, Kara’s father estimated that their family had incurred a monetary loss of $300,000

to $400,000.

Prior the collision, Ms. Kuntz was working to complete her undergraduate degree and had

received early acceptance into the East Tennessee State University medical program. At trial, Ms.

Kuntz’s father described her prior to the collision and the effect the collision has had on their lives:

I would like to tell you about Kara. Kara is the perfect daughter. Beginning in

elementary school, Kara was always an overachiever. She competed and won

trophies and ribbons in math, art, county fairs and many other competitions. She

took dance and music lessons for years. Kara seldom received a grade below an A

in all subjects and she rarely missed a day of school.

Throughout middle school, Kara continued to excel in all subjects. She cluttered our

home with materials for science fair projects and the Gifted and Talented Program.

Kara became very active in volunteer work.

When Kara entered high school, we thought she had done it all, but this was only the

beginning. Kara received straight A’s throughout high school and was on the

Principal’s List for all four years. She continued to receive award after award for her

academic achievements. She was a member of the high school marching and concert

bands. She volunteered at the Children’s Center for abused and neglected children

and continued to do so on her summer breaks from college. She faithfully

volunteered for Special Olympics, Christmas in April and too many other events to

mention.

Kara completed her high school credit requirements early and took four college

courses in her junior and senior years of high school. Kara graduated high school

with a 4.5 grade point, scored 32 on her ACT, and 1470 on her SAT exams. Kara

was the valedictorian in her class of 400 students. We were proud parents.

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Kara was offered over $500,000 in college scholarship funds. She visited at least

eight colleges and chose ETSU because the people were friendly and the faculty was

very encouraging and supported her meeting her goals. Kara was given a full

scholarship and admitted in the pre-medicine program. Kara enjoyed her first two

and a half years at ETSU. She continued to excel academically and to do volunteer

work in the community. Kara became a sorority member and enjoyed the

companionship of her sisters. Together they went dancing, hiking, shopping, and

chasing boys. Unfortunately, because of Kara’s injuries she can no longer participate

in these fun things.

During her sophomore year she met Mr. Clayton and together they planned marriage

and a future together. Sadly, due to the traumatic situation [the Appellant] has

inflicted on our family, this relationship has been destroyed.

Kara continues to attend rehab and works very hard. Her brain injury has left her

with a lifelong short-term memory loss. Her cerebella injury has made it difficult for

her to walk because of difficulty balancing. She will need another surgery on her left

hand due to crushed bones that have left her hand deformed. Her left arm has been

broken and she has drop foot due to the break in her right leg. She has aged 50 years

due to destroyed nerves in her entire body. Kara no longer has her beautiful smile

that always lit up the room when she walked in . . . Kara will never be the person she

was born to be.

At the time of sentencing, Ms. Kuntz had re-entered college on a “trial basis” and was struggling to

complete her undergraduate degree by taking only seven hours a semester. Due to the vehicular

assault, Kara’s father and mother began to lead virtually separate lives. Kara’s mother stayed with

Kara to help her with “everyday living” and her rehabilitation program, while Kara’s father remained

in Maryland with their thirteen-year-old daughter. Kara’s father testified that he, his wife, and his

other daughter had all been profoundly traumatized and psychologically affected by the event.

The Appellant sustained no injuries in the crash. At the time of these offenses, he had three

prior DUI convictions and was driving on a suspended license.2 At sentencing, the Appellant

testified that he did remember drinking at home that night, but has no recollection of the event or

collision that followed until the ambulance arrived at the scene. He was apologetic, remorseful, and

admitted that he has an alcohol abuse problem. The Appellant, age 29 at sentencing, further testified

that he had been fully employed since age 18 and was willing to pay restitution to the victims and

their families.

2

The Appellant had DU I convictions in the following years: 1993 DUI conviction, 1996 DUI conviction, 1997

DUI conviction. After each conviction, the Appellant successfully completed his probationary period for each of these

offenses.

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At the close of proof, the trial court sentenced the Appellant to the maximum sentence of four

years on each vehicular homicide conviction and ordered that those sentences run consecutively, for

an effective sentence of eight years.

I. Whether The Sentences Imposed Are Excessive

The Appellant argues that the trial court erred by sentencing him to the four-year maximum

sentence within the range for each vehicular assault conviction. He contends that the trial court

misapplied enhancement factors, failed to apply or properly weigh mitigating factors, and erred in

ordering the two vehicular assault convictions to be served consecutively.

The Appellant bears the burden of establishing that the sentence imposed by the trial court

was erroneous. State v. Ashby, 823 S.W.2d 166, 168 (Tenn. 1991); State v. Boggs, 932 S.W.2d 467,

473 (Tenn. Crim. App. 1996); State v. Fletcher, 805 S.W.2d 785, 786 (Tenn. Crim. App. 1991). In

determining whether the Appellant has carried his burden, this court must consider the evidence

received at the trial and the sentencing hearing, the pre-sentence report, the principles of sentencing,

the arguments of counsel, the nature and characteristics of the offenses, existing mitigating and

enhancing factors, statements made by the offender, and the potential for rehabilitation. Ashby, 823

S.W.2d at 169; Tenn. Code Ann. § 40-35-210. Furthermore, when a defendant challenges the

sentence imposed by the trial court, this court conducts a de novo review with a presumption that the

determinations made by the trial court are correct. Tenn. Code Ann. § 40-35-401(d). This

presumption is only applicable if the record demonstrates that the trial court properly considered

relevant sentencing principles. Ashby, 823 S.W.2d at 169. With respect to the issue of the length

of sentence imposed, we find that the trial court erred in its application of certain enhancement

factors. Thus, our review of this issue is conducted without a presumption of correctness pursuant

to Tennessee Code Annotated § 40-35-401(d).

The Appellant was convicted of two counts of vehicular assault, both Class D felonies. Tenn.

Code Ann. § 39-13-106(a) & (b). “A person commits vehicular assault, who, as the proximate result

of the person’s intoxication as set forth in § 55-10-401, recklessly causes serious bodily injury to

another person by the operation of a motor vehicle.” Tenn. Code Ann. § 39-13-106(a). Because

the Appellant is a range I standard offender, the range of punishment for a Class D felony is “not less

than two (2) years nor more than four (4) years.” Tenn. Code Ann. § 40-35-112(a)(4). Furthermore,

the presumptive sentence would be the minimum sentence in that range if there are no enhancing or

mitigating factors present. Tenn. Code Ann. § 40-35-210(c). If there are both enhancing and

mitigating factors present, the trial court must “enhance the sentence within the range as appropriate

for the enhancement factors, then reduce the sentence within the range as appropriate for the

mitigating factors.” Tenn. Code Ann. § 40-35-210(e).

The Appellant's sentence is not determined by the mathematical process of adding the sum

total of enhancing factors present then subtracting from this figure the mitigating factors present for

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a net number of years. Rather, the weight to be afforded an existing factor is left to the trial court's

discretion so long as the court complies with the purposes and principles of the 1989 Sentencing Act

and its findings are adequately supported by the record. Boggs, 932 S.W.2d at 475. The weight to

be afforded mitigating and enhancement factors derives from balancing relative degrees of

culpability within the totality of the circumstances of the case involved. Id. at 476.

A. Enhancement Factors

At sentencing the trial court applied four enhancement factors to each of the Appellant’s

convictions for vehicular assault, namely: (1) the defendant has a previous history of criminal

convictions or criminal behavior in addition to those necessary to establish the appropriate range;

(2) the offense involved more than one victim; (3) the personal injuries inflicted upon or the amount

of damage to property sustained by or taken from the victim was particularly great; and (4) the

defendant had no hesitation about committing a crime when the risk to human life was high. Tenn.

Code Ann. § 40-35-114(1), (3), (6), & (10).

With respect to enhancement factor (1), Tenn. Code Ann. § 40-35-114(1), we find that the

trial court properly applied this factor to both vehicular assault convictions. The Appellant had three

prior DUI convictions. As such, the Appellant’s past criminal history is more than sufficient to apply

this enhancement factor.

With respect to enhancement factor (3), Tenn. Code Ann. § 40-35-114(3), the State concedes

that it was error for the trial court to apply this factor. We agree. This court has previously held that

enhancement factor (3) may not be applied when the defendant is separately convicted of the

offenses charged against each victim. State v. Williamson, 919 S.W.2d 69, 82 (Tenn. Crim. App.

1995); State v. Makoka, 885 S.W.2d 366, 373 (Tenn. Crim. App.), perm. to appeal denied, (Tenn.

1994)(overruled on other grounds); State v. Lambert, 741 S.W.2d 127, 134 (Tenn. Crim. App.

1987). In the present case, the Appellant was separately charged and convicted of vehicular assault

against both victims. Thus, we find that the trial court erred by applying this factor.

With respect to enhancement factor (6), Tenn. Code Ann. § 40-35-114(6), the Appellant

argues that the trial court erred in applying this factor because “the personal injuries sustained by the

victim being particularly great is an element of vehicular assault.” The State again concedes this

error with respect to the conviction involving the victim Kuntz. We agree. Enhancement factor (6)

is not applicable to this vehicular assault conviction because great personal injuries or its equivalent,

serious bodily injury, is an element of the offense. Williamson, 919 S.W.2d at 82.

The State does, however, argue that the trial court properly applied enhancement factor (6)

to the vehicular assault conviction involving the victim Clayton. Specifically, the State asserts that

the loss of Clayton’s vehicle, valued at approximately $12,000, is sufficient to support application

of factor (6). In State v. John D. Neblett, No. 01C01-9805-CC-00231 (Tenn. Crim. App. at

Nashville, Sept. 24, 1999), perm. to appeal denied, (Tenn., Feb. 14, 2001), this court upheld the trial

court’s application of enhancement factor (6) where a vehicular assault victim’s car was totaled

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during the wreck. In this case, the collision totaled Clayton’s vehicle, resulting in property damage

of $12,000. See Tenn. Code Ann. § 40-35-114(6). We conclude that the property damage incurred

was particularly great and that the trial court properly applied enhancement factor (6) to the offense

involving the victim Clayton.

Finally, the Appellant argues that the trial court erred by applying enhancement factor (10),

Tenn. Code Ann. § 40-35-114(10), because “there was no evidence that anyone other than the

victims were subject to be injured by the Appellant.” In so applying this factor, the trial court

concluded, “his conduct that night not only exposed himself but everybody on the highway to a high

risk of human life.” Enhancement factor (10) may be applied in circumstances where individuals

other than the victim are in the area of the defendant’s criminal conduct and are subject to injury.

State v. Sims, 909 S.W.2d 46, 50 (Tenn. Crim. App. 1995)(distinguished on other grounds).

Notwithstanding, in State v. Rhodes, 917 S.W.2d 708, 714 (Tenn. Crim. App. 1995), this court held

that enhancement factor (10) does not apply to vehicular assault where the record does not indicate

that any other person was actually threatened by defendant’s driving because “vehicular assault

[unquestionably] reflects the legislature’s appreciation of the substantial risk of and actual degree

of harm that results from DUI caused injury.” Id.

In the present case, we find that the record sufficiently corroborates the trial court’s

application of enhancement factor (10). At the time of the impact, the Appellant had a blood alcohol

content of .228 percent, more than twice the legal limit. We note that the vehicular assaults occurred

within the city limits and that the Appellant was traveling 55 mph in a 30 mph zone. The Appellant

remembers nothing about getting into his vehicle and driving on that particular evening. The

Appellant crossed the center line and proceeded into on-coming traffic, colliding head-on with the

vehicle driven by Clayton. Although the record does not specifically list the names of persons on

the road that night, we find that the facts of this case sufficiently infer that individuals traveling on

this highway were also subject to danger or injury that night.3 See State v. Davis Oliver Brown, No.

03C01-9608-CR-00313 (Tenn. Crim. App. at Knoxville, Dec. 16, 1997), perm. to appeal denied,

(Tenn. Oct. 12, 1998). The trial court properly applied enhancement factor (10) to both victims.

B. Mitigating Factors

At sentencing, the trial court applied only one mitigating factor: that the Appellant was truly

remorseful. Tenn. Code Ann. § 40-35-113(13). However, when weighing the enhancing and

mitigating factors, the trial court stated that it only afforded this mitigating factor little weight

because a defendant’s remorse will always occur after damage to the victim has been done. The

Appellant argues that the trial court erred by finding this factor and then according it only minimal

weight. Specifically, the Appellant contends that “by this reasoning, this factor would never be

entitled to any weight, since logic dictates that [it is only when] the crime has already occurred, and

[its] consequences brought about, [that] remorse can be demonstrated.”

3

The indictment charged that the Appe llant was “o perating a mo tor veh icle on South Roan Stre et, a public

way/premise generally frequented by the p ublic at large.”

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Again, we note that the process of weighing enhancing factors versus mitigating factors is

a matter left to the trial court’s sound discretion so long as it complies with the principles and

purposes of the 1989 Sentencing Act. In the present case, the trial court expressly noted that it

believed the Appellant to be remorseful at sentencing. Nonetheless, after considering the

Appellant’s three prior DUI convictions, the injuries sustained by the two victims, and the other

evidence introduced at sentencing, the trial court found the Appellant’s remorse to be of little value

or weight in determining the appropriate sentence. Furthermore, the record is devoid of any other

actions on the part of the Appellant, prior to sentencing, where he showed or expressed his remorse

for the incident. When comparing the enhancing factors found at sentencing versus the Appellant’s

remorse, we do not find that the trial court abused its discretion by affording this mitigator only

slight weight in arriving at the final sentence.

The Appellant also asserts that the trial court erred by failing to give him credit for a stable

employment history. Over a ten-year period, the Appellant worked in the electronics field for

various employers. Although he worked for several different employers during this period, he

contends that he always maintained full-time employment. The Appellant makes no argument as

to why his employment history should operate to reduce the length of his sentence. Indeed, we

would note that a stable employment history, or the lack thereof, is typically viewed as a factor in

determining a defendant’s potential for rehabilitation within the context of entitlement to alternative

sentencing. As noted by the language of Section 113, in some situations prior employment history,

“if appropriate,” can be considered as a proper mitigating factor pursuant to Tennessee Code

Annotated § 40-35-113(13). Nonetheless, application of this factor, absent a gross abuse of

discretion, is a decision which rests with the trial court. Even if we assume that the factor was

applicable here, this factor, when compared with the enhancement factors applied, is of such little

weight that it would not have affected the determination of the specific sentence imposed.

Lastly, the Appellant argues that the trial court erred by failing to consider his “lengthy” ten-

month incarceration at the time of sentencing as a mitigating factor. Again, the Appellant provides

no argument or reasoning as to why this fact should be considered as a mitigating factor. Tennessee

Code Annotated § 40-35-113(13) provides that, in order for a mitigating factor to apply under this

subsection, the factor must be consistent with the purposes of this chapter. We hold that service of

pretrial confinement by a defendant is not a factor consistent with the purposes of sentencing

mitigation. Thus, the trial court did not err by failing to apply this factor.

In summary, we apply enhancement factors (1) and (10) to the vehicular assault conviction

involving Ms. Kuntz. With respect to the vehicular assault conviction involving the victim Clayton,

we apply enhancement factors (1), (6), and (10). Mitigating factor (1) is also applied to both victims.

After de novo review, we conclude that four-year sentences on each count of vehicular assault are

appropriate sentences in this case.

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C. Consecutive Sentencing

The Appellant next argues that the trial court erred by ordering his two convictions for

vehicular assault to run consecutively to one another, for an effective sentence of eight years.

Specifically, he argues that “he is not a dangerous offender based upon this one reckless act of

crossing into the opposite side of the road, when there was not proof that this was a highly traveled

roadway, or that [his] intoxication caused him to drive recklessly prior to swerving over and striking

Mr. Clayton’s vehicle.” The Appellant also argues that an extended sentence was not necessary to

protect the public because his three prior DUI convictions were misdemeanors and not crimes of

violence. Thus, the Appellant contends that his sentences for vehicular assault should be served

concurrently.

With reference to the particular facts of this case, Tennessee Code Annotated § 40-35-

115(b)(4) provides that the court may order sentences to run consecutively if the court finds by a

preponderance of the evidence that:

(4) The defendant is a dangerous offender whose behavior indicates little or no

regard for human life, and no hesitation about committing a crime in which

the risk to human life is great.

This court’s review of the manner of service of a sentence is de novo with a presumption that the

determination made by the trial court is correct. Tenn. Code Ann. § 40-35-401(d). Following de

novo review, the presumption of correctness is applied to the trial court’s findings relative to the

issue of consecutive sentencing. The Appellant bears the burden of proving the impropriety of the

consecutive nature of the sentences imposed. Sentencing Commission Comments, Tenn. Code Ann.

§ 40-35-401(d).

Before consecutive sentences can be imposed, the trial court must (1) first determine that one

or more of the statutorily enumerated criteria of Tenn. Code Ann. § 40-35-115 exists; and (2) if the

defendant is found to be a dangerous offender, find that the aggregate sentence is reasonably related

to the severity of the offenses and is necessary to protect the public from further criminal activity of

the offender. State v. Wilkerson, 905 S.W.2d 933, 937 (Tenn. 1995); see also State v. Lane, 3

S.W.3d 456 (Tenn. 1999)(holding Wilkerson factors were limited to sentencing of “dangerous

offenders”). Notwithstanding proof of these criteria, a sentencing court retains the discretion of

imposing consecutive sentences. On appeal, the exercise of the trial court’s discretion is afforded

great weight, provided the court correctly applied the principles of consecutive sentencing.

Moreover, in determining whether the trial court providently exercised its discretion, “the overriding

concern” is the fairness of the resulting sentence under all the circumstances.

In the present case, when ordering that the two convictions for vehicular assault be served

consecutively, the trial court reasoned in relevant part as follows:

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[B]efore consecutive sentence[s] can be imposed, the trial court must, one (1), first

determine that one or more of the statutory enumerated criteria [of] 40-35-115 exists.

I’ve done that. It does. Two (2), “If the defendant is found to be a dangerous

offender while the aggregate sentence is reasonably related to the severity of the

offenses and is necessary to protect the public from further criminal activity.” And

it goes on to tell us consecutive sentences are imposed upon dangerous offenders to

protect society against offenders who commit aggravated crimes that pose a high risk

to human life. That’s exactly what this case is about. His conduct that night not only

exposed himself but everybody on that highway to a high risk of human life . . . He

sucked up that alcohol and chose to get in a vehicle. He knew what the consequences

of that were. He didn’t care because the alcohol had taken away his ability to reason

that. But that was voluntary, taking of that alcohol. This Court finds that the

definitions in Wilkerson have been met and the Court does find that he is a dangerous

offender. That’s evident from all of the facts in this case.

In this case, the record clearly supports the trial court’s finding that the Appellant is a dangerous

offender. The Appellant has repeatedly endangered the lives of other motorists by persistently

committing the offense of DUI. Indeed, this court has previously held that a defendant with multiple

DUI convictions “may be classified as a ‘dangerous offender’ for whom consecutive sentencing is

appropriate.” State v. Bobby J. Young, No. M1998-00402-CCA-R3-CD (Tenn. Crim. App. at

Nashville, Dec. 15, 1999), perm. to appeal denied, (Tenn., July 17, 2000)(citing State v. Carl E.

Campen, No. 01C01-9512-CC-00433 (Tenn. Crim. App. at Nashville, Oct. 24, 1997), perm. to

appeal denied, (Tenn., Sept. 21, 1998)); State v. Anthony Raymond Bell, No. 03C01-9503-CR-00070

(Tenn. Crim. App. at Knoxville, Mar. 11, 1996), perm. to appeal denied, (Tenn. Sept. 3, 1996). We

further find that a consecutive sentence is necessary to protect society from the Appellant’s criminal

conduct. The Appellant has had three prior DUI convictions and, at the time of these crimes, was

driving on a revoked license. Notwithstanding, the Appellant again chose to drive in a highly

intoxicated state, thereby demonstrating his lack of concern for his alcohol problems or the safety

of others. Moreover, it is obvious that his prior lenient punishments did nothing to deter his conduct.

Accordingly, we find that the aggregated sentence imposed was reasonably related to the severity

of the offenses. Thus, the imposition of consecutive sentences was not error.

II. Probation/Alternative Sentencing

The Appellant argues that the trial court erred by not finding him eligible for probation, split-

confinement or placement in Community Corrections. The determination of whether the Appellant

is entitled to an alternative sentence and whether the Appellant is entitled to full probation are

different inquiries. Boggs, 932 S.W.2d at 477. Where a defendant is entitled to the statutory

presumption of alternative sentencing, the State has the burden of overcoming the presumption with

evidence to the contrary. State v. Bingham, 910 S.W.2d 448, 455 (Tenn. Crim. App.

1995)(overruled on other grounds). “Conversely, the defendant has the burden of establishing [his]

suitability for total probation, even if the defendant is entitled to the statutory presumption of

alternative sentencing.” Id.; Boggs, 932 S.W.2d at 477. Furthermore, we must review the trial

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court’s sentence de novo with a general presumption of correctness. Ashby, 823 S.W.2d at 168;

Tenn. Code Ann. § 40-35-401(d). Again, with respect to alternative sentencing, this presumption

applies as the record demonstrates that the trial court properly considered relevant sentencing

principles. Ashby, 823 S.W.2d at 168; Tenn. Code Ann. § 40-35-401(d). We begin our review with

the fact that the Appellant is entitled to the statutory presumption of an alternative sentence in view

of his convictions for Class D felonies as a range I offender. Tenn. Code Ann. § 40-35-102(6).

A. Denial of Total Probation

The Appellant, in effect, contends that the trial court erred by denying him total probation.

As previously stated, the defendant has the burden of establishing his or her suitability for probation.

State v. Dykes, 803 S.W.2d 250, 259 (Tenn. Crim. App. 1990)(overruled on other grounds). To

meet that burden, the defendant must demonstrate that probation will “subserve the ends of justice

and the best interest of both the public and the defendant.” Id. Although not the only factor, the

defendant’s amenability to rehabilitation is an important consideration when determining his or her

suitability for probation. See Bingham, 910 S.W.2d at 455; Tenn. Code Ann. § 40-35-103(5). The

following criteria, while not controlling, shall also be accorded weight by the sentencing court when

deciding the defendant's suitability for probation: (1)the nature and circumstances of the criminal

conduct involved, Tenn. Code Ann. § 40-35-210(b)(4); (2) whether a sentence of full probation

would unduly depreciate the seriousness of the offense, Tenn. Code Ann. § 40-35-103(1)(B); and

(3) whether a sentence other than full probation would provide an effective deterrent to others likely

to commit similar crimes, Tenn. Code Ann. § 40-35-103(1)(B). Bingham, 910 S.W.2d at 456.

Denial of probation may be based solely upon the circumstances of the offense when they are of such

a nature as to outweigh all other factors favoring probation. Fletcher, 805 S.W.2d at 788-89.

Upon de novo review, we find the facts and circumstances of this case to be clearly

aggravated. The record reveals a callous indifference by the Appellant for the safety of those

traveling the highways of this state. Despite his three prior DUI convictions, the Appellant continued

to drive intoxicated and, as a result, seriously injured two victims. Common sense dictates that tragic

results are inevitable when a person chooses to drive a vehicle on a public street, at an excessive

speed, without lights, at night, and with a blood alcohol content of .22 percent. The trial court also

found that the Appellant was not subject to rehabilitation, “He chose to be a drunk in an automobile

at least three times prior to this date, was arrested for it, served time for it.” We agree with the trial

court that total probation in this case would not “subserve the ends of justice” or be in “the best

interest of both the public and the defendant.” Accordingly, the trial court properly declined to grant

the Appellant total probation.

B. Alternative Sentencing

In the alternative, the Appellant contends that he was at least entitled to the alternative

sentence of community corrections or split-confinement. When imposing a sentence of total

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confinement, the trial court should base its decision on the considerations listed in Tennessee Code

Annotated § 40-35-103(1):

(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.

In the present case, the trial court found that total confinement was necessary to provide an effective

deterrence to others likely to commit a similar offense. Tenn. Code Ann. § 40-35-103(1)(B).

In State v. Hooper, 29 S.W.3d 1, 10-12 (Tenn. 2000), our supreme court specifically

enumerated five factors to be considered when deciding whether a need for deterrence is present and

whether incarceration is “particularly suited” to achieve that goal:

(1) Whether other incidents of the charged offense are increasingly

present in the community as a whole;

(2) Whether the defendant’s crime was the result of intentional, knowing,

or reckless conduct or was otherwise motivated by a desire to profit

or gain from the criminal behavior;

(3) Whether the defendant’s crime and conviction have received substantial publicity

beyond that normally expected in the typical case;

(4) Whether the defendant was a member of a criminal enterprise, or

substantially encouraged or assisted others in achieving the criminal

objective;

(5) Whether the defendant has previously engaged in criminal conduct of

the same type as the offense in question, irrespective of whether such

conduct resulted in previous arrests or convictions.

In addition to these factors, the court emphasized that the five factors are neither exhaustive nor

conclusive. Id. at 12. In other words, the sentencing court may consider additional non-enumerated

factors provided that: (1) the sentencing court specifically recites these factors on the record; and (2)

these additional factors are supported by “at least some proof.” Id. Additionally, in concluding the

need for deterrence exists, the sentencing court need not find that all five factors are present.

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In this case, Officer Williams testified that alcohol-related injuries had increased 7-8% from

the previous year. The trial court accredited this testimony by stating, “This officer has worked those

type of cases for as long as this court can remember. He knows [the] consequences or the results .

. . out there.” Accordingly, we conclude, based on Officer Williams’ testimony at trial, that the first

factor of Hooper has been met. Moreover, we note that the Appellant had three DUI convictions

prior to the offenses in the present case. It is clear from the record that the Appellant’s past DUI

convictions were of the same type of criminal conduct as was involved in this case. Apparently, the

Appellant gleaned nothing from his prior punishments and continued to disregard the law. Thus, the

fifth factor of Hooper is also met.

After affording the trial court the presumption of correctness upon de novo review, we cannot

conclude, under the guidance provided by the supreme court in Hooper, that the trial court acted

unreasonably in ordering confinement based on grounds of deterrence. Clearly, the record

demonstrates that the Appellant’s conduct has resulted in tragic consequences to two innocent

victims. To prevent further endangerment to the public, a need for deterrence exists as previous

efforts to rehabilitate have miserably failed. We affirm the trial court’s imposition of total

confinement.

CONCLUSION

Based upon the foregoing reasons, we find no reversible error. Accordingly, the Appellant’s

consecutive four-year sentences for vehicular assault in the Washington County Criminal Court are

affirmed.

___________________________________

DAVID G. HAYES, JUDGE

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