IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED DECEMBER 1998 SESSION January 26, 1999
Cecil W. Crowson Appellate Court Clerk STATE OF TENNESSEE, ) ) C.C.A. NO. 01C01-9711-CR-00519 Appellee, ) ) PUTNAM COUNTY VS. ) ) HON. LEON BURNS, JR., LAWRENCE PAUL WEBB, ) JUDGE ) Appellant. ) (Sentencing)
FOR THE APPELLANT: FOR THE APPELLEE:
EDWIN G. SADLER JOHN KNOX WALKUP 1 South Jefferson Ave. Attorney General & Reporter Cookeville, TN 38501 TIMOTHY BEHAN Asst. Attorney General John Sevier Bldg. 425 Fifth Ave., North Nashville, TN 37243-0493
WILLIAM E. GIBSON District Attorney General
LESLIE ANN SELLS -and- BEN FANN Asst. District Attorneys General 145 South Jefferson Ave. Cookeville, TN 38501
OPINION FILED:____________________
AFFIRMED
JOHN H. PEAY, Judge OPINION
The defendant was charged by indictment with vehicular homicide by
intoxication and two counts of vehicular assault. Following a jury trial and sentencing
hearing, he was found guilty as charged and sentenced to an effective sentence of
eleven years incarceration. The defendant now challenges his sentence, arguing that the
trial court erred in failing to apply a mitigating factor, that his sentence was excessive, and
that the trial court erred in denying him alternative sentencing. Finding no merit to these
complaints, we affirm.
On the evening of January 26, 1996, the defendant was drinking beer at a
local bar. At the end of the evening, he agreed to drive Lori Neal, a woman who worked
at the bar, and her boyfriend, Roger Warden, home. On the way home, before dropping
Neal and Warden off, the defendant’s car struck a car driven by Paul Allen. Neal was
killed in the wreck, and both Warden and Allen were severely injured. Warden lost nearly
half of one of his legs, ruptured his spleen, and sustained a broken pelvis, multiple leg
fractures, a torn liver, and a punctured lung. Allen broke his hip, several ribs, and his
pelvis and sustained severe nerve damage in one of his legs and a head injury. Allen
testified at trial that he constantly endures pain as a result of the wreck. Just prior to the
sentencing hearing, he committed suicide.
The defendant, who was forty-one years old at the time of the sentencing
hearing, had a prior criminal record of two worthless check charges and one speeding
ticket. Military records confirm some disciplinary problems while serving in the Navy,
although he received an honorable discharge. The evidence also shows the defendant
has admitted to years of alcohol and drug abuse. The defendant did not accept
2 responsibility at the sentencing hearing for his actions.
In sentencing the defendant, the trial judge placed great emphasis on
enhancement factor T.C.A. § 40-35-114(1), finding that while the defendant had “no
significant criminal record,” he had a “significant admission of criminal behavior in
consumption of illegal drugs.” With regard to the vehicular assault counts, the trial judge
applied enhancement factor T.C.A. 40-35-114(6), that the personal injuries sustained by
the victims were particularly great. Although the trial judge found that no statutory
mitigation factors were applicable, he noted that the defendant had a good employment
record. The trial judge sentenced the defendant as a Range I standard offender to
eleven years incarceration on the vehicular homicide conviction and four years
incarceration on each of the vehicular assault convictions, all terms to be served
concurrently. This was a near-maximum sentence on the vehicular homicide conviction,
which has a sentencing range of eight to twelve years for a Range I standard offender,
T.C.A. §§ 39-13-213(b), 40-35-112(a)(2), and a maximum sentence for vehicular assault,
which has a sentencing range of two to four years for a Range I standard offender, T.C.A.
§§ 39-13-106(b), 40-35-112(a)(4).
Citing State v. Jerrell C. Livingston, No. 01C01-9012-CR-00337, Davidson
County (Tenn. Crim. App. filed September 17, 1991, at Nashville), aff’d, 907 S.W.2d 392
(Tenn. 1995)(not addressing sentencing issues), and State v. Richard Roberts, No.
03C01-9208-CR-00270, Cumberland County (Tenn. Crim. App. filed May 26, 1993, at
Knoxville), the defendant first argues that the trial court erred in failing to consider his
“insignificant prior criminal record” as a mitigating factor under T.C.A. § 40-35-113(13).
“Although absence of a prior criminal record may be considered under the catch-all
provision of Tennessee Code Annotated section 40-35-113(13), this court is not required
3 to consider this as a mitigating factor.” State v. Williams, 920 S.W.2d 247, 261 (Tenn.
Crim. App. 1995)(citations omitted); see State v. John D. Joslin, No. 03C01-9510-CR-
00299, Knox County (Tenn. Crim. App. filed September 22, 1997, at Knoxville)(“We
agree that the lack of a criminal history may be considered as a mitigating factor . . . .
Given the Defendant’s prior misdemeanor convictions, however, we do not find this
mitigating factor to be applicable in his case.”)(citations omitted). Moreover, in light of
the fact the trial judge properly applied and placed great emphasis on the enhancement
factor that the defendant has a “significant” history of criminal behavior, it would have
been inappropriate to also apply the defendant’s “insignificant prior criminal record” as
a mitigation factor. State v. Robert L. O’Neal, No. 01C01-9610-CC-00438, Marshall
County (Tenn. Crim. App. filed December 20, 1997, at Nashville). This issue is without
merit.
Next, the defendant argues that “based upon the mitigating factors present
and the lack of enhancement factors, he was entitled to the presumptive minimum
sentence of 8 years” for his vehicular homicide conviction. The defendant does not
specify which “mitigating factors” he believes are present, so we assume he is referring
to the “insignificant prior criminal record” he argued was applicable in his first issue. As
we have determined, this mitigation factor is not applicable in this case. Moreover, the
trial court properly applied enhancement factor T.C.A. § 40-35-114(1), that the defendant
has a history of criminal behavior, and the court was within its discretion to give this
enhancement factor great weight. State v. Shelton, 854 S.W.2d 116, 123 (Tenn. Crim.
App. 1992)(stating that the weight to be given each factor is left to the trial court’s
discretion). An eleven year sentence for vehicular homicide was appropriate under the
circumstances of this case.
4 Finally, the defendant argues that “if this Court reduces the defendant’s
sentence to the presumptive minimum sentence of 8 years, the defendant would be
eligible for probation or split confinement pursuant to Tenn. Code Ann.
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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED DECEMBER 1998 SESSION January 26, 1999
Cecil W. Crowson Appellate Court Clerk STATE OF TENNESSEE, ) ) C.C.A. NO. 01C01-9711-CR-00519 Appellee, ) ) PUTNAM COUNTY VS. ) ) HON. LEON BURNS, JR., LAWRENCE PAUL WEBB, ) JUDGE ) Appellant. ) (Sentencing)
FOR THE APPELLANT: FOR THE APPELLEE:
EDWIN G. SADLER JOHN KNOX WALKUP 1 South Jefferson Ave. Attorney General & Reporter Cookeville, TN 38501 TIMOTHY BEHAN Asst. Attorney General John Sevier Bldg. 425 Fifth Ave., North Nashville, TN 37243-0493
WILLIAM E. GIBSON District Attorney General
LESLIE ANN SELLS -and- BEN FANN Asst. District Attorneys General 145 South Jefferson Ave. Cookeville, TN 38501
OPINION FILED:____________________
AFFIRMED
JOHN H. PEAY, Judge OPINION
The defendant was charged by indictment with vehicular homicide by
intoxication and two counts of vehicular assault. Following a jury trial and sentencing
hearing, he was found guilty as charged and sentenced to an effective sentence of
eleven years incarceration. The defendant now challenges his sentence, arguing that the
trial court erred in failing to apply a mitigating factor, that his sentence was excessive, and
that the trial court erred in denying him alternative sentencing. Finding no merit to these
complaints, we affirm.
On the evening of January 26, 1996, the defendant was drinking beer at a
local bar. At the end of the evening, he agreed to drive Lori Neal, a woman who worked
at the bar, and her boyfriend, Roger Warden, home. On the way home, before dropping
Neal and Warden off, the defendant’s car struck a car driven by Paul Allen. Neal was
killed in the wreck, and both Warden and Allen were severely injured. Warden lost nearly
half of one of his legs, ruptured his spleen, and sustained a broken pelvis, multiple leg
fractures, a torn liver, and a punctured lung. Allen broke his hip, several ribs, and his
pelvis and sustained severe nerve damage in one of his legs and a head injury. Allen
testified at trial that he constantly endures pain as a result of the wreck. Just prior to the
sentencing hearing, he committed suicide.
The defendant, who was forty-one years old at the time of the sentencing
hearing, had a prior criminal record of two worthless check charges and one speeding
ticket. Military records confirm some disciplinary problems while serving in the Navy,
although he received an honorable discharge. The evidence also shows the defendant
has admitted to years of alcohol and drug abuse. The defendant did not accept
2 responsibility at the sentencing hearing for his actions.
In sentencing the defendant, the trial judge placed great emphasis on
enhancement factor T.C.A. § 40-35-114(1), finding that while the defendant had “no
significant criminal record,” he had a “significant admission of criminal behavior in
consumption of illegal drugs.” With regard to the vehicular assault counts, the trial judge
applied enhancement factor T.C.A. 40-35-114(6), that the personal injuries sustained by
the victims were particularly great. Although the trial judge found that no statutory
mitigation factors were applicable, he noted that the defendant had a good employment
record. The trial judge sentenced the defendant as a Range I standard offender to
eleven years incarceration on the vehicular homicide conviction and four years
incarceration on each of the vehicular assault convictions, all terms to be served
concurrently. This was a near-maximum sentence on the vehicular homicide conviction,
which has a sentencing range of eight to twelve years for a Range I standard offender,
T.C.A. §§ 39-13-213(b), 40-35-112(a)(2), and a maximum sentence for vehicular assault,
which has a sentencing range of two to four years for a Range I standard offender, T.C.A.
§§ 39-13-106(b), 40-35-112(a)(4).
Citing State v. Jerrell C. Livingston, No. 01C01-9012-CR-00337, Davidson
County (Tenn. Crim. App. filed September 17, 1991, at Nashville), aff’d, 907 S.W.2d 392
(Tenn. 1995)(not addressing sentencing issues), and State v. Richard Roberts, No.
03C01-9208-CR-00270, Cumberland County (Tenn. Crim. App. filed May 26, 1993, at
Knoxville), the defendant first argues that the trial court erred in failing to consider his
“insignificant prior criminal record” as a mitigating factor under T.C.A. § 40-35-113(13).
“Although absence of a prior criminal record may be considered under the catch-all
provision of Tennessee Code Annotated section 40-35-113(13), this court is not required
3 to consider this as a mitigating factor.” State v. Williams, 920 S.W.2d 247, 261 (Tenn.
Crim. App. 1995)(citations omitted); see State v. John D. Joslin, No. 03C01-9510-CR-
00299, Knox County (Tenn. Crim. App. filed September 22, 1997, at Knoxville)(“We
agree that the lack of a criminal history may be considered as a mitigating factor . . . .
Given the Defendant’s prior misdemeanor convictions, however, we do not find this
mitigating factor to be applicable in his case.”)(citations omitted). Moreover, in light of
the fact the trial judge properly applied and placed great emphasis on the enhancement
factor that the defendant has a “significant” history of criminal behavior, it would have
been inappropriate to also apply the defendant’s “insignificant prior criminal record” as
a mitigation factor. State v. Robert L. O’Neal, No. 01C01-9610-CC-00438, Marshall
County (Tenn. Crim. App. filed December 20, 1997, at Nashville). This issue is without
merit.
Next, the defendant argues that “based upon the mitigating factors present
and the lack of enhancement factors, he was entitled to the presumptive minimum
sentence of 8 years” for his vehicular homicide conviction. The defendant does not
specify which “mitigating factors” he believes are present, so we assume he is referring
to the “insignificant prior criminal record” he argued was applicable in his first issue. As
we have determined, this mitigation factor is not applicable in this case. Moreover, the
trial court properly applied enhancement factor T.C.A. § 40-35-114(1), that the defendant
has a history of criminal behavior, and the court was within its discretion to give this
enhancement factor great weight. State v. Shelton, 854 S.W.2d 116, 123 (Tenn. Crim.
App. 1992)(stating that the weight to be given each factor is left to the trial court’s
discretion). An eleven year sentence for vehicular homicide was appropriate under the
circumstances of this case.
4 Finally, the defendant argues that “if this Court reduces the defendant’s
sentence to the presumptive minimum sentence of 8 years, the defendant would be
eligible for probation or split confinement pursuant to Tenn. Code Ann. § 40-35-307.”
Even assuming this was true, the defendant’s argument is moot because we affirm the
imposed sentence of eleven years on the vehicular homicide conviction. See T.C.A. §
40-35-303(a)(a defendant is eligible for probation only if his or her actual sentence is
eight years or less). The defendant’s sentences on his vehicular assault convictions are
also affirmed.
_______________________________ JOHN H. PEAY, Judge
CONCUR:
______________________________ JOSEPH M. TIPTON, Judge
______________________________ NORMA McGEE OGLE, Judge