State v. Tanner ( 1998 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
OCTOBER 1997 SESSION June 30, 1998
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, )
) NO. 03C01-9703-CR-00101
Appellee, )
) SULLIVAN COUNTY
VS. )
) HON. R. JERRY BECK,
JAMES THOMAS TANNER, III, ) JUDGE
)
Appellant. ) (Sentencing)
FOR THE APPELLANT: FOR THE APPELLEE:
NAT H. THOMAS JOHN KNOX WALKUP
317 Shelby Street Attorney General and Reporter
Suite 304
Kingsport, TN 37660-3617 SANDY C. PATRICK
Assistant Attorney General
Cordell Hull Building, 2nd Floor
425 Fifth Avenue North
Nashville, TN 37243-0493
H. GREELEY WELLS, JR.
District Attorney General
ROBERT H. MONTGOMERY, JR.
Assistant District Attorney General
P.O. Box 526
Blountville, TN 37617-0526
OPINION FILED:
AFFIRMED
JERRY L. SMITH,
JUDGE
OPINION
The defendant, James Thomas Tanner, III, pled guilty in the Sullivan County
Criminal Court to one (1) count of vehicular homicide, a Class C felony. 1 The trial
court sentenced him as a Range I, standard offender to three (3) years and denied
alternative sentencing. On appeal, he claims that the trial court erred in refusing to
sentence him as an especially mitigated offender and in denying alternative
sentencing. After a thorough review of the record before this Court, we affirm the
judgment of the trial court.
FACTUAL BACKGROUND
On December 26, 1994, defendant was driving on Interstate 181 when his
vehicle collided with a truck parked in the emergency lane/paved shoulder area of
the interstate. The driver of the truck, Lawrence Peters, had pulled off of the
traveled portion of the interstate because of car problems. Peters died as a result
of injuries received in the accident. Approximately two hours after the accident,
defendant’s blood was tested. The test revealed defendant’s blood alcohol content
to be 0.26%.
Defendant entered a guilty plea to vehicular homicide, a Class C felony at
that time. See Tenn. Code Ann. § 39-13-213(b) (1991). The trial court was to
determine the length and manner of defendant’s sentence.
At the sentencing hearing, defendant testified that he was 38 years old and
single. He had a Ph.D. in chemistry and had worked for the Tennessee Eastman
Company as a technical service representative for approximately six years. He had
no prior criminal record, a good work history and a stable family environment. He
denied using drugs and reported “infrequent” alcohol use. At the time of the
hearing, he had been under a psychiatrist’s care for depression for approximately
1
Effective June 2, 1995, vehicular homicide by driver intoxication was elevated to
a Class B felony. Public Act 1995, ch. 415 § 2.
2
five and one-half (5 ½) years. He acknowledged that, after the accident, he
erroneously told an officer that he drank “three shots of scotch,” when he actually
consumed three to four “glasses.” He also expressed remorse to the court and to
the victim’s family.
Defendant’s father, a friend of defendant’s and a former employer of
defendant’s testified on his behalf at the sentencing hearing. All requested that the
trial court grant alternative sentencing.
The trial court imposed defendant’s sentence at the hearing and additionally
filed extensive findings in a subsequent written order. The trial court determined
that defendant would be sentenced as a Range I, standard offender, and not as an
especially mitigated offender. In determining the length of defendant’s sentence,
the trial court found that no factors were applicable to enhance defendant’s
sentence within Range I. The trial court did find that mitigating factors were
applicable, but did not enumerate those specific factors. 2 The trial court then
sentenced defendant to three (3) years, the minimum for a Class C felony within
Range I.
In determining whether alternative sentencing would be appropriate, the trial
court noted that defendant had an “excellent” social history, educational history and
no prior convictions. However, the trial court, relying on several pre-1989 cases,
determined that because defendant’s actions resulted in the death of another,
exceptional circumstances must be shown in order to support probation. See State
v. Smith, 622 S.W.2d 588, 590 (Tenn. 1983); State v. Windhorst, 635 S.W.2d 706,
708 (Tenn. Crim. App. 1982); Kilgore v. State, 588 S.W.2d 567, 568 (Tenn. Crim.
App. 1979). The trial court further found that vehicular homicide by driver
intoxication mandated the application of the “exceptional circumstances” test. The
trial court concluded that defendant had not demonstrated that exceptional
circumstances existed which would require the court to grant alternative sentencing,
and thus, denied alternative sentencing.
2
The trial court stated, “[w]e might need to discuss TCA § 40-35-113, mitigating
factors, the defendant has under subsection thirteen put forward, and the Court would accept
those, at least some of them as mitigating factors . . .”
3
From the trial court’s ruling, defendant brings this appeal.
ESPECIALLY MITIGATED OFFENDER
In his first issue, defendant contends that the trial court erred in sentencing
him as a Range I, standard offender. He argues that because he has no prior
convictions and the trial court found mitigating but no enhancement factors, he
should have been sentenced as an especially mitigated offender.
Tenn. Code Ann. § 40-35-109(a) provides that a trial court ”may find the
defendant is an especially mitigated offender, if: (1) [t]he defendant has no prior
felony convictions; and (2) [t]he court finds mitigating, but no enhancement factors.”
However, whether a defendant is sentenced as an especially mitigated offender is
a determination that rests within the sound discretion of the trial court. State v.
Hicks, 868 S.W.2d 729, 730-31 (Tenn. Crim. App. 1993); State v. Braden, 867
S.W.2d 750, 762-63 (Tenn. Crim. App. 1993). This provision is not mandatory.
Braden, 867 S.W.2d at 762-63. Indeed, especially mitigated status is reserved for
“instances where the trial judge may desire to depart from even the minimum
sentence for a Range I offender and impose lesser penalties.” Tenn. Code Ann. §
40-35-109, Sentencing Commission Comments.
Considering the nature, facts and circumstances of the offense, we find that
the trial court did not abuse its discretion in sentencing defendant as a Range I,
standard offender. This issue is without merit.
ALTERNATIVE SENTENCING
Defendant also contends that the trial court erred in denying alternative
sentencing. He asserts that the trial court erroneously applied the “exceptional
circumstances” doctrine to deny probation in this case. He argues that the state did
not overcome the presumption that defendant was a favorable candidate for
alternative sentencing. He further claims that he qualifies for community corrections
4
under the “special needs” provision of Tenn. Code Ann. § 40-35-106(c).
A.
This Court’s review of the sentence imposed by the trial court is de novo with
a presumption of correctness. Tenn. Code Ann. § 40-35-401(d). This presumption
is conditioned upon an affirmative showing in the record that the trial judge
considered the sentencing principles and all relevant facts and circumstances.
State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). If the trial court fails to comply
with the statutory directives, there is no presumption of correctness and our review
is de novo. State v. Poole, 945 S.W.2d 93, 96 (Tenn. 1997).
The burden is upon the appealing party to show that the sentence is
improper. Tenn. Code Ann. § 40-35-401(d) Sentencing Commission Comments.
In conducting our review, we are required, pursuant to Tenn. Code Ann. § 40-35-
210, to consider the following factors in sentencing:
(1) [t]he evidence, if any, received at the trial and the sentencing
hearing;
(2) [t]he presentence report;
(3) [t]he principles of sentencing and arguments as to sentencing
alternatives;
(4) [t]he nature and characteristics of the criminal conduct involved;
(5) [e]vidence and information offered by the parties on the
enhancement and mitigating factors in §§ 40-35-113 and 40-35-114;
and
(6) [a]ny statement the defendant wishes to make in the defendant’s
own behalf about sentencing.
Under the Criminal Sentencing Reform Act of 1989, trial judges are
encouraged to use alternatives to incarceration. An especially mitigated or standard
offender convicted of a Class C, D or E felony is presumed to be a favorable
candidate for alternative sentencing options in the absence of evidence to the
contrary. Tenn. Code Ann. § 40-35-102(6).
In determining if incarceration is appropriate, a trial court may consider the
need to protect society by restraining a defendant having a long history of criminal
conduct, the need to avoid depreciating the seriousness of the offense, whether
confinement is particularly appropriate to effectively deter others likely to commit
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similar offenses, and whether less restrictive measures have often or recently been
unsuccessfully applied to the defendant. Tenn. Code Ann. § 40-35-103(1); see also
State v. Ashby, 823 S.W.2d at 169.
Although a defendant may be presumed to be a favorable candidate for
alternative sentencing, the defendant has the burden of establishing suitability for
total probation. State v. Boggs, 932 S.W.2d 467, 477 (Tenn. Crim. App. 1996); see
Tenn. Code Ann. § 40-35-303(b). Even though probation must be automatically
considered, “the defendant is not automatically entitled to probation as a matter of
law.” Tenn. Code Ann. § 40-35-303(b) Sentencing Commission Comments; State
v. Hartley, 818 S.W.2d 370, 373 (Tenn. Crim. App. 1991).
In determining whether to grant or deny probation, a trial court should
consider the circumstances of the offense, the defendant's criminal record, the
defendant’s social history and present condition, the need for deterrence, and the
best interest of the defendant and the public. State v. Grear, 568 S.W.2d 285, 286
(Tenn. 1978); State v. Boyd, 925 S.W.2d 237, 244 (Tenn. Crim. App. 1995); State
v. Black, 924 S.W.2d 912, 917 (Tenn. Crim. App. 1995).
There is no mathematical equation to be utilized in determining sentencing
alternatives. Not only should the sentence fit the offense, but it should fit the
offender as well. Tenn. Code Ann. § 40-35-103(2); State v. Boggs, 932 S.W.2d 467(Tenn. Crim. App. 1996). Indeed, individualized punishment is the essence of
alternative sentencing. State v. Dowdy, 894 S.W.2d 301, 305 (Tenn. Crim. App.
1994). In summary, sentencing must be determined on a case-by-case basis,
tailoring each sentence to that particular defendant based upon the facts of that
case and the circumstances of that defendant. State v. Moss, 727 S.W.2d 229, 235
(Tenn. 1986).
B.
Initially, defendant contends that the trial court erroneously applied the
“exceptional circumstances” theory to support the denial of probation. In Kilgore v.
State, this Court held that where death of another results from a defendant’s
criminal conduct, the defendant must show that exceptional circumstances exist to
6
support probation. 588 S.W.2d at 568. This case was decided prior to the 1989
Criminal Sentencing Reform Act.
However, under the 1989 Sentencing Act, a defendant convicted of a Class
C, D or E felony is presumed to be a favorable candidate for alternative sentencing
options in the absence of evidence to the contrary. Tenn. Code Ann. § 40-35-
102(6). There was no similar provision under the 1982 Sentencing Act. At the time
this offense was committed, the legislature classified vehicular homicide as a Class
C felony. 3 Vehicular homicide, by its very nature, involves the death of another as
a result of the defendant’s actions. Therefore, “[t]o apply a different standard solely
because a death is involved ‘would fail to comply with the mandates of the 1989
[Sentencing] Act and would condone inconsistency and unjustified disparity in
sentencing unrelated to the purposes of the Act.’” State v. Bingham, 910 S.W.2d
448, 454-55 (Tenn. Crim. App. 1995) (quoting State v. Hartley, 818 S.W.2d at 374).
The fact that death results cannot, by itself, justify a denial of probation “nor can it
be viewed as sufficient evidence to overcome the presumption” as stated in Tenn.
Code Ann. § 40-35-102(6). State v. Butler, 880 S.W.2d 395, 400-01 (Tenn. Crim.
App. 1994).
Other panels of this Court have held that the “exceptional circumstances”
doctrine did not survive the 1989 Sentencing Act. State v. Bradley Joe
Housewright, C.C.A. No. 03C01-9705-CR-00195, Sullivan County (Tenn. Crim. App.
filed December 16, 1997, at Knoxville); State v. McKinzie Monroe Black, C.C.A. No.
01C01-9401-CC-00006, Robertson County (Tenn. Crim. App. filed July 14, 1995,
at Nashville); but see State v. Ramsey, 903 S.W.2d 709, 714 (Tenn. Crim. App.
1995); State v. Roger D. Hipsher, C.C.A. No. 01C01-9111-CC-00332, Hickman
County (Tenn. Crim. App. filed October 8, 1992, at Nashville).
We, therefore, find that the “exceptional circumstances” theory is not
applicable to offenses occurring after the inception of the 1989 Sentencing Act.
Thus, the trial court erred in relying upon this doctrine to support the denial of
3
Under current law, vehicular homicide by intoxication is a Class B felony. See
Tenn. Code Ann. § 39-13-213(b). Therefore, one convicted of this offense is no longer
presumed to be a favorable candidate for alternative sentencing.
7
probation. Our review is, therefore, de novo without a presumption of correctness.
C.
Nevertheless, under our power of de novo review, we find that a denial of
probation was warranted under the circumstances of this case. Probation may be
denied based solely upon the circumstances surrounding the offense. State v.
Bingham, 910 S.W.2d at 456; State v. Hartley, 818 S.W.2d at 374. However, 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 probation.
State v. Bingham, 910 S.W.2d at 455; State v. Hartley 818 S.W.2d at 374-75.
Approximately two hours after the accident causing the victim’s death,
defendant’s blood alcohol content registered 0.26%. Defendant testified that he
was aware of the dangers and consequences of driving while under the influence.
Yet, he chose to drive while his blood alcohol level was over two and one-half (2 ½)
times the permissible inference for driving under the influence. See Tenn. Code
Ann. § 55-10-408. We consider these facts to be shocking, reprehensible, offensive
and of an exaggerated degree.
We acknowledge that defendant has no criminal record and has an
admirable work history and social history. However, we can not overlook that
defendant was 38 years old and held a Ph.D. in chemistry. A person of his age and
education should recognize the implications of consuming an excessive amount of
alcohol and driving on public streets, endangering the lives of others. W hile we
commend defendant’s positive attributes, we find that the circumstances of this
offense outweigh the other factors in favor of probation. In order to avoid
depreciating the seriousness of the offense, we, therefore, find that the trial court
did not err in denying probation in this case.
D.
Defendant also argues that the trial court should have placed him in
community corrections. Defendant is ineligible for community corrections under
Tenn. Code Ann. § 40-36-106(a)(3) since vehicular homicide is a crime of violence.
8
See State v. Braden, 867 S.W.2d at 765. However, he contends that he qualifies
for the “special needs” provision of Tenn. Code Ann. § 40-36-106(c). He maintains
that he has been under psychiatric care since 1990, but poses no threat to the
community. He further claims that his depression could best be treated under his
present psychiatrist’s care rather than in a correctional institution.
The Community Corrections Act establishes a program of community-based
alternatives to incarceration for certain eligible offenders. See Tenn. Code Ann. §
40-36-103. A defendant is eligible for participation in a community corrections
program if the defendant satisfies several minimum eligibility criteria set forth at
Tenn. Code Ann. § 40-36-106(a)(1)-(7). The Act does not provide that all offenders
who meet these requirements are entitled to such relief. State v. Grandberry, 803
S.W.2d 706, 707 (Tenn. Crim. App. 1990). Indeed, Tenn. Code Ann. § 40-36-
106(d) provides that the eligibility criteria shall be interpreted as minimum standards
to guide the court's determination of eligibility of offenders under the Act.
An offender who does not meet the minimum criteria under Tenn. Code Ann.
§ 40-36-106(a) and is considered unfit for probation due to substance abuse or
mental problems may still be eligible for community corrections under the special
needs provision of Tenn. Code Ann. § 40-36-106(c). See State v. Grigsby, 957
S.W.2d 541, 546 (Tenn. Crim. App. 1997). However, before a defendant may be
sentenced pursuant to Tenn. Code Ann. § 40-36-106(c), he or she must be found
eligible for probation. State v. Grigsby, 957 S.W.2d at 546; State v. Staten, 787
S.W.2d 934, 936 (Tenn. Crim. App. 1989). The trial court must also find that: (1)
the offender has a history of chronic alcohol abuse, drug abuse, or mental health
problems; (2) these factors were reasonably related to and contributed to the
offender's criminal conduct; (3) the identifiable special need(s) are treatable; and (4)
the treatment of the special need(s) could be best served in the community rather
than in a correctional institution. State v. Grigsby, 957 S.W.2d at 546-47; State v.
Boston, 938 S.W.2d 435, 439 (Tenn. Crim. App. 1996).
At first blush, it would appear that defendant is suited for community
corrections under Tenn. Code Ann. § 40-36-106(c). However, there is no evidence,
9
nor does defendant contend, that his depression reasonably related to and
contributed to his criminal conduct. Defendant’s criminal conduct was caused by
his alcohol use, which defendant contends is merely “social” and “infrequent.”
Because defendant’s mental status did not contribute to his criminal conduct, a
community corrections sentence under Tenn. Code Ann. § 40-36-106(c) would be
inappropriate.
CONCLUSION
We find that the trial court did not abuse its discretion in sentencing
defendant as a Range I, standard offender. Furthermore, we conclude that the trial
court’s denial of alternative sentencing was not improper under the facts of this
case. Accordingly, the judgment of the trial court is affirmed.
JERRY L. SMITH, JUDGE
CONCUR:
GARY R. WADE, JUDGE
DAVID H. WELLES, JUDGE
10