State v. Penelope Karnes

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
MARCH 1997 SESSION
May 21, 1997
Cecil W. Crowson
Appellate Court Clerk
STATE OF TENNESSEE, )
) NO. 01C01-9606-CR-00249
Appellee, )
) WILSON COUNTY
VS. )
) Hon. J.O. Bond, Judge
PENELOPE R. KARNES, )
) (Vehicular Assault - Sentencing)
Appellant. )
FOR THE APPELLANT: FOR THE APPELLEE:
COMER L. DONNELL CHARLES W. BURSON
District Public Defender Attorney General and Reporter
KAREN G. CHAFFIN M. ALLISON THOMPSON
Assistant Public Defender Assistant Attorney General
213 North Cumberland Street 450 James Robertson Parkway
P.O. Box 888 Nashville, TN 37243-0493
Lebanon, TN 37087
TOM P. THOMPSON, JR.
District Attorney General
DOUG HALL
Assistant District Attorney General
111 Cherry Street
Lebanon, TN 37087
OPINION FILED:
AFFIRMED
JOE G. RILEY,
JUDGE
OPINION
The appellant, Penelope R. Karnes, appeals the sentences imposed by the
Criminal Court of Wilson County following her guilty plea to two (2) counts of
vehicular assault. The trial court ordered her to serve four (4) years on each count
in the Tennessee Department of Correction to be served consecutively. On appeal,
Karnes claims that the trial court erred by: (1) imposing excessive sentences; (2)
denying probation; and (3) ordering that the sentences be served consecutively.
We affirm the judgment of the trial court.
FACTS
In March 1994, Karnes was driving her vehicle in the wrong lane on Highway
109 in Wilson County, Tennessee. Her car collided with a car driven by James
McDermott, causing serious injuries to McDermott and his passenger, Bruce
Silverman. Karnes admitted to the officer responding to the accident that she had
been drinking. Subsequent blood tests revealed that Karnes’ blood alcohol level
was .26.
Karnes was indicted on two (2) counts of aggravated assault, third offense
driving under the influence of an intoxicant, driving on a revoked license, violation
of registration law, and driving on the wrong side of a roadway. She pled guilty to
two (2) counts of the amended charge of vehicular assault, and the state entered
nolle prosequi orders on the remaining counts of the indictment.
After a sentencing hearing, Karnes was sentenced as a Range I, Standard
Offender to four (4) years on each count of vehicular assault. The trial court
ordered that the sentences were to be served consecutively. Furthermore, the trial
court denied any form of sentencing alternative.
REVIEW OF SENTENCING
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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). 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 [her] own behalf about sentencing.
If our review reflects that the trial court followed the statutory sentencing
procedure, imposed a lawful sentence after giving due consideration and proper
weight to the factors and principles set out under sentencing law, and the trial
court’s findings of fact are adequately 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 (Tenn. Crim. App. 1991).
EXCESSIVE SENTENCES
Karnes contends that the trial court erred in imposing the maximum sentence
of four (4) years for each count of vehicular assault, a Class D felony. She claims
that the trial court was not justified in relying upon her past criminal convictions
because those convictions were merely for misdemeanor driving offenses.
Therefore, she argues that the sentence imposed was not the “least severe
measure necessary to achieve the purposes for which the sentence is imposed.”
See Tenn. Code Ann. § 40-35-103(4).
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If no mitigating or enhancing factors for sentencing are present, Tenn. Code
Ann. § 40-35-210(c) provides that the presumptive sentence shall be the minimum
sentence within the applicable range. See State v. Fletcher, 805 S.W.2d at 788.
However, if such factors do exist, a trial court should start at the minimum sentence,
enhance the minimum sentence within the range for aggravating factors and then
reduce the sentence within the range for the mitigating factors. Tenn. Code Ann.
§ 40-35-210(e). No particular weight for each factor is prescribed by the statute, as
the weight given to each factor is left to the discretion of the trial court as long as its
findings are supported by the record. State v. Moss, 727 S.W.2d 229, 238 (Tenn.
1986); State v. Santiago, 914 S.W.2d 116, 125 (Tenn. Crim. App. 1995); see Tenn.
Code Ann. § 40-35-210 Sentencing Commission Comments. Nevertheless, should
there be no mitigating factors, but enhancement factors are present, a trial court
may set the sentence above the minimum within the range. Tenn. Code Ann. § 40-
35-210(d); see Manning v. State, 883 S.W.2d 635, 638 (Tenn. Crim. App. 1994).
After the sentencing hearing, the trial court found that five enhancement
factors applied in this case: (1) Karnes had 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 the victims were particularly great; (4) Karnes had a previous history
of unwillingness to comply with the conditions of a sentence involving release in the
community; and (5) she had no hesitation about committing a crime when the risk
to human life was high. See Tenn. Code Ann. § 40-35-114(1), (3), (6), (8) and (10).
The trial court found that no mitigating factors applied.
The trial court properly applied enhancement factor (1) in this case. Karnes
has two prior DUI convictions plus a prior conviction for driving on a revoked license.
Although these are misdemeanor convictions, the statute does not require the prior
convictions to be felonies. Tenn. Code Ann. § 40-35-114(1). Furthermore, Karnes
testified that she had continued to drive since 1990 even though she did not have
a license, evidencing previous criminal behavior.
The trial court found that Karnes had no hesitation about committing a crime
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when the risk to human life was high. Tenn. Code Ann. § 40-35-114(10).
Enhancement factor (10) may be applied in instances 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); see also State
v. Bingham, 910 S.W.2d 448, 453 (Tenn. Crim. App. 1995). However, this factor is
inapplicable where the only risk to human life is the risk to the victim. See State v.
Hicks, 868 S.W.2d 729, 732 (Tenn. Crim. App. 1993).
The testimony at the sentencing hearing and the pre-sentence report showed
that Karnes was driving in the wrong lane on a highway in Wilson County with a
blood alcohol content of .26. There is no direct evidence in the record that she
endangered the lives of others aside from the victims. The trial court erroneously
applied this enhancement factor.
The trial court misapplied the enhancement factor that the offense involved
more than one victim. Tenn. Code Ann. § 40-35-114(3). This enhancement factor
may not be applied when the appellant is separately convicted of the offense
committed against each victim. State v. Williamson, 919 S.W.2d 69, 82 (Tenn.
Crim. App. 1995); State v. Clabo, 905 S.W.2d 197, 206 (Tenn. Crim. App. 1995);
State v. McKnight, 900 S.W.2d 36, 54 (Tenn. Crim. App. 1994).
The trial court found that Tenn. Code Ann. § 40-35-114(6) was an
appropriate enhancement factor. However, in State v. Jones, 883 S.W.2d 597, 602
(Tenn. 1994), the Tennessee Supreme Court held that “proof of serious bodily injury
will always constitute proof of particularly great injury.” Therefore, because serious
bodily injury is an element of vehicular assault, particularly great injuries to the
victims is not an appropriate enhancement factor. State v. Rhodes, 917 S.W.2d
708, 714 (Tenn. Crim. App. 1995); see also State v. Williamson, 919 S.W.2d at 82-
83; State v. Crowe, 914 S.W.2d 933, 940 (Tenn. Crim. App. 1995).
The trial court further found that Karnes has a previous history of
unwillingness to comply with the conditions of a sentence involving release in the
community. Tenn. Code Ann. § 40-35-114(8). Although Karnes admitted to driving
after her license was revoked, it is unclear whether she drove on a revoked license
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while on probation. This enhancement factor was erroneously applied.
Although the trial court erroneously applied some enhancement factors,
Karnes is not automatically entitled to a reduction in her sentences. State v. Keel,
882 S.W.2d 410, 423 (Tenn. Crim. App. 1994). It is evident from the record that the
trial court placed great weight on Karnes’ prior convictions and prior criminal
behavior. Indeed, her prior convictions resulted from the same criminal conduct that
caused her to commit the present offenses; namely, driving under the influence of
an intoxicant. Therefore, we find that the four-year sentences imposed are not
excessive.
DENIAL OF PROBATION
Karnes contends that the trial judge abused his discretion in denying
probation. She argues that she is presumably entitled to probation and the state did
not attempt to overcome the statutory presumption. As a result, she claims that the
trial court committed reversible error.
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 in the
absence of evidence to the contrary. Tenn. Code Ann. § 40-35-102(6). A
defendant is eligible for probation if the sentence received by the defendant is eight
years or less, subject to some statutory exclusions. Tenn. Code Ann. § 40-35-
303(a).
A trial court must presume that a defendant sentenced to eight years or less
and who is not an offender for whom incarceration is a priority is subject to
alternative sentencing. State v. Byrd, 861 S.W.2d 377, 379-80 (Tenn. Crim. App.
1993). It is further presumed that a sentence other than incarceration would result
in successful rehabilitation unless rebutted by sufficient evidence in the record. Id.
at 380. However, 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.
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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). 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 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.
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 at
477. 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 at 235.
At the sentencing hearing, the trial court focused on Karnes’ past criminal
behavior. The trial judge noted that Karnes had been convicted of DUI on two
previous occasions, and she continued to drink and drive. Karnes conceded that
she had been admitted to a thirty day treatment facility for her alcoholism, but that
she “would slip back.” Even though she has been diagnosed as a chronic alcoholic,
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she testified that she is still drinking.
For her previous DUI convictions, Karnes received minimal time in jail, with
the balance of her sentences to be served on probation. Apparently, these
measures were unsuccessful. Furthermore, she has shown a lack of potential for
rehabilitation in light of the fact that she is still drinking. No doubt her destructive
behavior would have continued had it not culminated in this accident which seriously
injured two people. Accordingly, we find that the trial court was within its discretion
in denying probation.
CONSECUTIVE SENTENCING
Finally, Karnes insists that the trial court was in error in imposing consecutive
sentences. She argues that the trial court could not have found by a
preponderance of the evidence that the consecutive sentencing criteria have been
met. See Tenn. Code Ann. § 40-35-115(b). She also suggests that the trial court
erred in considering the same factors to enhance her sentence as well as to support
consecutive sentencing. Therefore, she maintains that her sentences should run
concurrently.
Initially, we must note that this Court has previously held that there is nothing
in the 1989 Sentencing Act which would prohibit consideration of the same facts
and circumstances both to enhance sentences and to require those sentences to
be served consecutively. State v. Melvin, 913 S.W.2d 195, 205 (Tenn. Crim. App.
1995); State v. Meeks, 867 S.W.2d 361, 377 (Tenn. Crim. App. 1993).
A court may order sentences to run consecutively if the court finds by a
preponderance of the evidence that “[t]he 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 high.” Tenn. Code Ann. § 40-
35-115(b)(4). The trial court specifically found that Karnes was a dangerous
offender whose behavior indicates little or no regard for human life. The record
supports that finding, especially considering her history of driving while under the
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influence of an intoxicant.
Furthermore, the court is required to determine whether the consecutive
sentences (1) are reasonably related to the severity of the offenses committed; (2)
serve to protect the public from further criminal conduct by the offender; and (3) are
congruent with general principles of sentencing. State v. Wilkerson, 905 S.W.2d
933, 939 (Tenn. 1995).
In this case, Karnes severely injured two people after having been convicted
of driving under the influence on two previous occasions. There is no indication in
the record that Karnes intends to stop drinking. Although she claims that she does
not want to drive again, she is physically able to do so. Additionally, two DUI
convictions did not deter her from drinking and driving. Even after prior involvement
with the criminal justice system, she continued to disregard our laws and severely
injured two innocent victims as well as herself. As a result, we conclude that
consecutive sentences are reasonably related to the severity of these offenses and
serve to protect the public from further criminal conduct.
CONCLUSION
In conclusion, Karnes has not shown that the sentences she received are
improper. As a multiple DUI offender who has shown little potential for
rehabilitation, she unfortunately is a danger to the public. The trial court was
warranted in imposing four (4) year consecutive sentences for two counts of
vehicular assault.
The judgment of the trial court is affirmed.
JOE G. RILEY, JUDGE
CONCUR:
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JOSEPH M. TIPTON, JUDGE
THOMAS T. WOODALL, JUDGE
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