IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED JULY SESSION, 1997 December 16, 1997
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9608-CR-00313 )
Appellee, ) HAMILTON COUNTY )
V. )
) HON. STEPHEN M. BEVIL, JUDGE DAVIS OLIVER BROWN, )
) (VEHICULAR ASSAUL T;
Appe llant. ) VEHICULAR HOMICIDE)
FOR THE APPELLANT: FOR THE APPELLEE:
ARDENA J. GARTH JOHN KNOX WALKUP District Public Defender Attorney General & Reporter
DONNA ROBINSON MILLER JANIS L. TURNER Assistant Public Defender Assistant Attorney General 701 Cherry Street, Suite 300 2nd Floor, Cordell Hull Building Chattanooga, TN 37402 425 Fifth Avenue North Nashville, TN 37243-0943
WILLIAM COX
District Attorney General
JOH N A. BO BO, JR .
Assistant District Attorney General 600 Market Street, Suite 310 Chattanooga, TN 37402
OPINION FILED ________________________ AFFIRMED THOMAS T. WOODALL, JUDGE
OPINION
The Defendant, Davis Oliver Brown, appeals as of right from the sentences
imposed by the trial court upon his pleas of guilty to vehicular homicide and vehicular assau lt in the Crim inal Cou rt of Ham ilton Cou nty. Defen dant pled guilty without any agreement between himse lf and the S tate as to the length or manner of service of th e sente nces. T he trial cou rt senten ced De fendan t, as a Ra nge I, Standard Offend er, to the maximum sentence of twelve (12) years for the vehicular homicide conviction and the maximum sentence of four (4) years for the vehicular assault conviction. The court further ordered the sentences to be served conse cutively. In this appeal, Defendant presents two issues for review: (1) whether the trial court erred by imposing the maximum sentences in each case and (2) whether the trial court erred by orderin g the sen tences to be served conse cutively. W e affirm the judgm ent of the tria l court.
At appro ximate ly 11:18 p.m. on July 13, 1995, the Defendant was involved in a two-vehicle wreck on Interstate 24 within the c ity limits of Chattanooga. The record indicates that just prior to the wreck Defendant was traveling eastbound on Interstate 2 4, and the victims, T imothy C levenge r and his b rother, Andy Clevenge r, were traveling in a vehicle westbound on Interstate 24. The collision occurred in the westbound lane. The vehicle was owned by T imothy Cleve nger, who died as a resu lt of the wreck. Andy Clevenger suffered extensive injuries as a result of th e collision. From the photographs of the wreck which are in the record, and from the traffic accident report, it is indicated that the wreck was a head-on collision. Although the traffic accident report indicates that it consists of
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six (6) pag es, on ly the first page was includ ed in the pre-se ntence repo rt as part of the reco rd on ap peal.
Chattanooga Police Officer Robert Simpson testified during the sentencing hearing. After the wreck, he searched the Defendant’s vehicle pursuant to a search warrant. He found various papers which were introduced into evidence, including documents showing that the Defendant had been ordered to attend a DUI school in February of 1995, but that he had failed to attend as required. Officer Simps on also te stified that he found num erous beer cans inside the Defe ndan t’s vehicle. The victims’ father testified at the hearing as to the impact of the crime upon his family and his surviving son.
At the time o f the sente ncing he aring, De fendan t was 32 -years-old . He had been self-employed prior to the charges being placed against him in the presen t case. H e testified tha t he takes full respon sibility for the ca r wreck.
Defendant admitted during his testimony that he had “been drinking all day long” and that he “sh ouldn’t have been out there driving.” The pre-sentence report shows an extensive prior record of Defendant. He testified, however, that someone else had used his name in the past and therefore, several of the offenses in the record had not been committed by him. The State offered no evidence to contradict Defendant’s assertions that certain of the listed offenses had not been committed by him. However, the Defendant did admit to at least four (4) prior arrests for various misdemeanors, which led to three (3) prior convictions and one disposition by diversion. These prior convictions included one for DU I, one fo r reckle ss driving and one for public intoxication. Further
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evidence at the sentencing hearing revealed that both the conviction for DUI and the convic tion for public intoxication had occurred in 1995, and that Defendant was convic ted of p ublic int oxicatio n while on probatio n from th e DUI o ffense. In fact, Defendant had been charged with public intoxication approximately one month prior to the automobile wreck which resulted in the present charges of vehicular homicide and vehic ular assault. Defendant admitted that he was an alcoholic, but that he had never received treatment for his alcohol abuse except for AA meetings while in jail for the present offenses. Defendant expre ssed his sympathy to the victims’ family and explained that he wished he could trade places with Timothy C levenger. He stated that he thoug ht the a ccide nt wou ld prevent him from ever drinking alcoholic beverages again.
When an accused challenges the length, range, or the manner of service of a sentence, this court has a duty to conduct a de novo review of the sentence with a presumption that the determinations made by the trial court are correct. Tenn. Code Ann. § 40-35-401(d). This presumption is "conditioned upon the affirmative showing in the record that the trial court considered the sentencing principles and all relevant facts and circums tances ." State v. Ashby, 823 S.W.2d 166, 169 (T enn. 1991 ).
In conducting a de novo review of a sentence, this Court must consider the evidence adduced at trial and the sentencin g hearing, the presentence report, the principles of sentencing, the arguments of counsel relative to sentencing alternatives, the nature of the offense, and the defendant’s potential for rehabilitation. Tenn. Code Ann. § 40-35-2 10; State v. Parker, 932 S.W.2d 945, 955-56 (T enn. Crim. A pp. 1996).
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If our review reflects that the trial court followed the statutory sentencing procedure, imposed a lawful sentence after having given due consideration and proper weight to the factors and principals set out under the sentencing law, and that the trial c ourt's fin dings of fact a re ade quate ly supported by the record, then we may not modify the sentence even if we would have preferred a different result. State v. Fletcher, 805 S.W .2d 785 , 789 (T enn. C rim. App . 1991).
I. LENGTH OF SENTENCE
The Defendant argues that the trial court erred by imposing the maximum sentences of twelve (12) years for the vehicular homicide conviction and four (4) years for the vehicular assault conviction. The trial court found that five (5) enhan ceme nt factors w ere app licable:
(A) The Defendant has a previous history of criminal convictions or criminal behavio r in addition to those necessary to establish the appropriate ran ge. Tenn . Code An n. § 40-35-11 4(1);
(B) As to the vehicular assault conviction only, the personal injuries inflicted upon th e victim we re particula rly great. Tenn. Code Ann. § 40-35-114 (6);
(C) The Defendant has a previous history of unwillingness to com ply with the conditions of a sentence involving release into the comm unity. Tenn. C ode Ann . § 40-35-114 (8);
(D) As to the vehicu lar assault conviction only, the Defendant had no hesitation about committing a crime when the risk to human life was high. Tenn. Code Ann. § 40-35-114(10); and
(E) The felonies were committed while the Defendant was on a form of release status, if such release is from a prior felony conviction.
Tenn. C ode Ann . § 40-35-114 (13)(C).
The trial court found that no mitigating factors applied.
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Therefore, the trial court found that three (3) enhancement factors under Tennessee Code Annotated section 40-35-114 applied to the vehicular homicide conviction, and five (5) of the enhancement factors in that statute applied to the vehicular assau lt conviction.
W e find that the trial court properly applied enhancement factor number (1)
in this case. The Defendant has at least four (4) prior arrests and three (3) prior convictions for offenses involving alcohol or drugs. Two of the offenses also involve unlawful conduct while operating a motor vehicle. Even though all of these prior offenses were misdemeanors, the statute does not require the prior record to be comprised of felonies. Tenn. Code Ann. § 40-35-114(1). We also find that enhancement factor number (8) was properly applied by the trial cour t. Defendant was on probation for a DUI conviction when he was arrested and convicted of public drunkenness only a few weeks before the commission of the offenses under re view in this ca se. The refore, it is clear th at De fenda nt is unwilling to comp ly with cond itions involving release in to the com munity.
W e find that the trial court erred by applying enhancement factor number (6) to the vehicular assault conviction. In State v. Jones, 883 S.W.2d 597 (Tenn. 1994), our suprem e court held that “pro of of serious bodily injury will always constitute proof o f particu larly gre at injury.” 883 S.W.2d at 602. In State v. Rhodes, 917 S.W .2d 708 (Tenn . Crim. A pp. 199 5), our co urt held th at in a vehicular assault case, the enhancement factor found at Tennessee Code Annotated section 40-35-114(6) was an element of the offense requiring serious bodily injury. 9 17 S.W .2d at 714 .
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In addition, we find that the trial court erroneously applied enhancement factor (13)(C). That statute plainly states as follows:
(13) T he felo ny was com mitted while on any of the following forms of release status if suc h release is from a prior felony conviction ...
(C) Probation ...
Tenn. C ode Ann . § 40-35-114 (13)(C) (em phasis add ed).
Since Defendant was not on probation from a prior felony conviction at the time of the commission of the present offenses, this particular enhancement factor cannot be applied.
The Defendant also argues that the trial court improperly applied enhancement factor (10) to the v ehicu lar ass ault co nviction . It is true th at this factor is inapplicable to a vehicular assault conviction where th e only risk to human life is the risk to th e victim. See State v. Hicks, 868 S.W.2d 729, 732 (Tenn. Crim. App . 1993). How ever, the factor may be applied in circumstances where individu als oth er 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. 19 95).
The trial cou rt did no t spec ifically elaborate upon what facts were involved in this case which caused the court to believe that factor (10) was applicable. Howeve r, we note from this record that the wre ck occu rred on a n interstate highway within the city limits of an urban area. The proof indicates a head-on collision wherein the Defendant crossed from the eastb ound la nes of Inte rstate 24 to the westbound lanes of Interstate 24. It was undisputed that his blood alcoho l content fo llowing the wreck w as .281 .
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As stated above, this case proceeded to a sentencing hearing following guilty pleas en tered by the Defendant. Rule 11(f) in the Tennessee Rules of Criminal Procedure states that “Notwithstanding the acceptance of a plea of guilty, the court should not enter a judgment upon such plea without making such inquiry as shall satisfy it that there is a factual basis for the plea.” The transcript of the guilty plea hearing was not includ ed in th e reco rd on a ppea l in this case. It is the appe llant’s duty to have prepared an adequate record in order to allow a meaningful review on appea l. Tenn. R . App. P. 2 4(b); State v. R oberts, 755 S.W.2d 833, 836 (Tenn. Crim. App. 1988); State v. Bunch, 646 S.W.2d 158, 160 (Tenn. 1983). It would h ave bee n muc h simp ler and e asier for this Court to review this issue if the entire traffic accident report had been included within the pre-sentence report, or if the State had elicited further proof as to the particular circumstances of the offen se at the s entenc ing hea ring. How ever, we must assume that the trial court did n ot allow a ju dgme nt to be ente red upo n the gu ilty pleas without finding a factual basis for the pleas. This would normally include the particular circumstances of this offense. In addition, we are able to glean from this record , as stated above, th at the wre ck occu rred on a n interstate highway within the city limits of an urban area after the Defendant had left the eastbound lanes and entered the westbound portion of the highway. Without the guilty plea hearing being m ade a p art of the tran script, we a re unab le to say that the trial court erred in applying factor (10). We are able to reach this conclusion even thoug h from this rec ord it is clear that enhancement factors (6) and (13)(C) are not a pplicable by their very n ature.
The Defendant argues that the trial court erre d by failing to find that he was remorseful under miscellaneous mitigating factor (13). Tenn. Code Ann. § 40-35-
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113(13). At the sentencing hearing, the Defendant expressed his sympathy to the victims ’ family and said he would trade places with their son, Timothy, if he could. Although the record does reflect some expressions of remorse, the trial court heard the evid ence, saw the Defendant firsthand, and then ruled based upon its observation. Wh en a fa ctual iss ue is involved, we must generally defer to the asse ssme nt of the trial co urt. Even if some evidence of mitigation did exist, where the mitigation factors are strongly outweighed by the enhancement factors, the maximum sentence w ould still be w arranted . State v. Ruane, 912 S.W.2d 766, 785 (T enn. Crim. A pp. 1995).
We therefore find that there was no error in the trial court’s application of enhancement factors (1) and (8) to both convictions, and in addition the application of enhancement factor (10) to the vehicular assault conviction. Under the circumstances of this case, great weight shou ld be placed upon enhancement factors (1) and (8). As stated above, Defendant pled guilty to DUI in early 1995. W hile on probation for this offense , he co mm itted the offens e of pu blic intoxication . While on probation for both of these alcohol related offenses, one of which also involve d operation of a motor vehicle, he committed the offenses which led to the present conviction s on ap peal. W e also no te the reco rd reflects that when a rrested fo r public intox ication in Ju ne of 19 95, he was passed out inside his vehicle. We hold that the three (3) applicable enhancement factors, along with a finding of no mitigating factors, justifies the sentences imposed by the trial cou rt. This issu e is withou t merit.
II. CONSECUTIVE SENTENCING
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The trial court ordered consecutive sentencing after making a finding that Defendant is a dangerous offender whose behavior indicates little or no regard for human life, and no hesitation about co mm itting a crime in which th e risk to human life is high. Tenn. Code Ann. § 4 0-35-11 5(4). The trial court also noted on the consecutive sentencing issue that Defendant was on probation at the time of the comm ission of the offenses of vehicula r homic ide and vehicular a ssault.
Defendant strongly argues that he is not a dangerous offender as defined by the statute and case law, and as such, the trial court’s orde r of consecutive sentencing should be re versed. How ever, there is no dispute that Defendant was on proba tion at th e time of the c omm ission of the o ffense s. Unlik e the enhancement factor found in Tennessee Code Annotated section 40-35- 114(13)(C) in whic h there is a requirement that the Defendant be on probation from a felony conviction, Tennessee Code Annotated section 40-35-115(6) mere ly requires that to justify co nsecu tive senten cing, the Defenda nt is sentenced for “an offense committed while on probation.” We also find from the record that consecutive sentencing is necessary to protect the public against further criminal conduct by the Defendant and th at con secu tive sen tencin g is reaso nably related to th e severity of the offens es com mitted. State v. Wilkerson, 905 S.W .2d 933 , 939 (T enn. 19 95).
This issu e is withou t merit.
We affirm the ju dgme nt of the trial co urt.
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THOMAS T. W OODALL, Judge
CONCUR:
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DAVID H. WELLES , Judge
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JOHN K. BYERS, Senior Judge