IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs April 22, 2008

STATE OF TENNESSEE v. JULIO VILLASANA

 Appeal from the Criminal Court for Davidson County

No. 2006-D-3105 Mark J. Fishburn, Judge

No. M2007-01923-CCA-R3-CD - Filed June 10, 2008

The Defendant, Julio Villasana, pled guilty to one count of aggravated vehicular homicide, a Class

A felony, and to one count of leaving the scene of an accident involving death, a Class E felony. He

was sentenced as a Range I, standard offender to twenty-five years for the former and to two years

for the latter. The sentences were ordered to be served concurrently. On appeal, he argues that the

trial court erred by imposing the maximum sentence for the Class A felony. We affirm the sentences

ordered by the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed

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

ROBERT W. WEDEMEYER, JJ., joined.

Emma Rae Tennent, Assistant Public Defender, Nashville, Tennessee, for the appellant, Julio

Villasana.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel West Harmon, Assistant Attorney

General; Victor S. Johnson, III, District Attorney General; and Kathy Morante, Assistant District

Attorney General, for the appellee, State of Tennessee.

OPINION

Factual Background

At the Defendant’s guilty plea submission hearing, the State set out the factual background

for his offenses. On August 1, 2006, fifty-one-year-old Charlie Darrington (the victim) was riding

his motorcycle in Davidson County. The victim was driving southbound on Briley Parkway, near

Robertson Avenue, when the Defendant hit him head-on. The thirty-four-year-old Defendant was

driving a sport utility vehicle on the wrong side of the roadway—northbound in the southbound lanes

of Briley Parkway. The victim died from injuries sustained in the crash. 
 The offense of aggravated vehicular homicide, as relevant to the Defendant’s case, is defined by Tennessee

1

Code Annotated section 39-13-218(a)(3)(A). Under that section, a person commits the offense of aggravated vehicular

homicide if there was, “at the time of the [vehicular homicide], twenty-hundredths of one percent (.20%), or more, by

weight of alcohol in the defendant’s blood and the defendant has one (1) prior conviction for” driving under the

influence. See Tenn. Code Ann. § 39-13-218(a)(3)(A); see also Tenn. Code Ann. § 39-13-213(a)(2) (providing that one

definition of the offense of vehicular homicide is the reckless killing of another by the operation of an automobile as the

proximate result of the driver’s intoxication). 

-2-

After the wreck, the Defendant did not stop to help the victim; he fled from the scene on foot.

Witnesses at the scene gave police a description of the Defendant, and he was apprehended a short

time later and brought back to the crash site where the witnesses positively identified him as the

driver who killed the victim. 

Because the Defendant exhibited signs of intoxication, field sobriety tests were administered,

and the Defendant failed them. He then signed an implied consent form that was provided to him

in Spanish because his primary language is Spanish. By signing the form, he agreed to give a blood

sample, which revealed that his blood alcohol level was .23 percent.

Additionally, for the purpose of establishing all the elements of aggravated vehicular

homicide, the State announced that the Defendant was previously convicted of driving under the 1

influence (DUI) approximately one year earlier (on July 7, 2005) in Kentucky. 

Following the State’s establishment of the foregoing factual background, the Defendant

agreed that those facts were “true and correct.” 

Subsequent to the guilty plea submission hearing, a sentencing hearing was held during

which the State introduced certified judgments establishing that the Defendant had also been

previously convicted of DUI on two other occasions: December 4, 1991; and October 12, 1996. His

criminal record also included prior convictions for fleeing from a probation officer and assault.

Special Agent Craig Dickhaus of the United States Immigration and Customs Enforcement

Office testified that the Defendant had also been previously arrested and charged with DUI in Texas

on August 14, 1997; at the time of the instant offense, he was released on bail for the Texas DUI,

and it had not been adjudicated. Special Agent Dickhaus further stated that the Defendant had two

prior federal convictions for illegally entering the United States. Further, he had been officially

deported from the United States three times, and, on eleven other occasions, he agreed to voluntarily

return to Mexico rather than appear before an immigration judge. At the time of the sentencing

hearing, the Defendant was also being prosecuted by federal authorities for illegal reentry after

deportation.

The victim’s wife, Susan Darrington, testified that she and the victim were married for

twenty-four years, and they had one daughter. The victim had been an executive at Gibson Guitar

Corporation and a musician. Mrs. Darrington read a prepared statement detailing the extensive,

negative effects her husband’s untimely death has had on her and her daughter’s life. She asked the
-3-

court to impose the maximum sentence possible because the Defendant made the choice to drive

intoxicated, and he “should have to face the consequences of that choice.”

The Defendant testified that he “made a mistake [by] drinking a beer” before driving. He

said he was lost in Nashville and trying to enter Interstate 40 when he turned off of Charlotte Pike

and began traveling the wrong way down Briley Parkway. He apologized to Mrs. Darrington for the

“great pain” he has caused in her life. He said he would have never committed the offense “on

purpose because I am not a bad person, but I made the mistake to drink. I’m guilty.” 

On cross-examination, he denied laughing on the night of the offense when a witness asked

him why he was driving down the wrong side of the road. He also denied running from the scene,

despite the fact that he pled guilty to leaving the scene of an accident involving death. However, he

admitted that he had consumed “six to eight” beers that night. The Defendant also admitted that he

had three previous convictions for DUI and would have had a fourth if he had not been deported

rather than being prosecuted. Further, he agreed that he had illegally reentered this country “on at

least [fifteen] occasions.”

After hearing the arguments of counsel, the trial court sentenced the Defendant as follows:

In determining the appropriate sentence for these offenses, the court has

considered the evidence presented at the sentencing hearing, the presentence report,

the sentencing principles embodied in [Tennessee Code Annotated] 40-35-103, the

arguments made as to the appropriate sentence that should be imposed since

alternative sentencing is not permitted in the aggravated vehicular homicide, the

nature and characteristics of the criminal conduct involved, the evidence and

information offered on enhancement and mitigating factors, the statement made by

the Defendant at the sentencing hearing and the Defendant’s potential for

rehabilitation and treatment, as well as the general purposes contained in [Tennessee

Code Annotated] 40-35-102. The court finds in both cases, counts one and three, that

[the Defendant] is a range one offender, there being no prior felony convictions on

his record. The court has also considered the enhancement factors of [Tennessee

Code Annotated] 40-35-114. The court finds that number one applied, that the

Defendant has a previous history of criminal convictions or criminal behavior in

addition to those necessary to establish the appropriate range. I will agree that none

of those are felonies, but notwithstanding that, [the Defendant] has a lengthy record,

particularly as it relates to motor vehicle offenses involving the use of alcohol having

been convicted in Kentucky on July 7, 2005, and in Texas on two occasions, April

30, 1997 and December 4, 1991. The court finds that to weigh heavily in this

particular case because the case that he’s before this court on today is a vehicular

homicide. I want to make it clear for the record, two of those, I mean, one of those

DUI’s, I cannot consider for enhancement purposes because it’s an element of the

offense, and I’m not going to, but the reality of it is, he had two other ones in addition

to that. The one, almost a year to the day, a year and three weeks prior, in Kentucky,
-4-

prior to the incident that occurred here in Nashville on August 1st of 2006. The court

considers that to be of great significance and places a great deal of weight on that. 

Further, the trial court found that, because a condition of his release in his prior federal cases

was that he live in Mexico, the Defendant had a previous history of unwillingness to comply with

conditions of a sentence involving release in the community. See Tenn. Code Ann. § 40-35-114(8).

The court specifically declined to apply as an enhancement factor that the Defendant had no

hesitation about committing a crime when the risk to human life was high, finding that it was

inherent in the offense of aggravated vehicular homicide. See Tenn. Code Ann. § 40-35-114(10).

As for mitigating factors, the court found that the Defendant had a relatively positive work

history and that he showed “some remorse.” See Tenn. Code Ann. § 40-35-113(13). However, the

court also found that, by denying that he fled from the scene when the evidence clearly established

otherwise, the Defendant lacked candor before the court and was not a credible witness. Further, the

court considered a number of other factors, including his potential for rehabilitation, his character

and social history, family and community support, his history of compliance and non-compliance

with court-ordered programs, the financial support he provided to his family, and available

rehabilitative programs.

Ultimately, the court found that the maximum sentence was necessary in the Defendant’s

case for the following, additional reasons:

[Nothing] short of the maximum sentence [will] protect the citizens from [the

Defendant’s] outright disregard and flagrant violations of the laws of the State of

Tennessee. Though there’s certainly some merit and some good things under the law

that [the Defendant] has demonstrated, they are significantly and greatly outweighed

by his continual and habitual violations of the rules of the road because he

continually drives. Even when he’s sober, he’s illegally driving and therefore I’m

going to sentence [the Defendant] to 25 years as a range one offender. I find that’s

necessary to avoid depreciating the seriousness of the offense, and it is serious not

only because a person died as a result of it, [but also] because . . . of his lengthy

violation of the driving laws of this State, particularly as they relate to the use of

alcohol. I also find that it is necessary to protect society by restraining a defendant

who has a long history of criminal conduct and an obvious propensity to continue in

criminal activities. I also find that it’s necessary because less restrictive measures

have been tried in the past, specifically the Kentucky DUI, when I think the only

thing he received was a fine and short probationary period. 

Lastly, the court ordered that his two-year sentence for leaving the scene of an accident

involving death would be served concurrently.
-5-

ANALYSIS

On appeal, the Defendant argues that the trial court erred in imposing the maximum sentence

allowable by law. Specifically, the Defendant asserts that this Court should find that his sentence

is excessive because the trial court misapplied the enhancement factor regarding his prior criminal

activities, and because it did not lend applicable mitigating factors sufficient weight. 

Before a trial court imposes a sentence upon a convicted criminal defendant, it must consider

(a) the evidence adduced at the trial and the sentencing hearing; (b) the presentence report; (c) the

principles of sentencing and arguments as to sentencing alternatives; (d) the nature and

characteristics of the criminal conduct involved; (e) evidence and information offered by the parties

on the enhancement and mitigating factors set forth in Tennessee Code Annotated sections

40-35-113 and 40-35-114; (f) any statistical information provided by the Administrative Office of

the Courts as to Tennessee sentencing practices for similar offenses; and (g) any statement the

defendant wishes to make in the defendant’s own behalf about sentencing. Tenn. Code Ann. §

40-35-210(b); see also State v. Imfeld, 70 S.W.3d 698, 704 (Tenn. 2002). To facilitate appellate

review, the trial court is required to place on the record its reasons for imposing the specific

sentence, including the identification of the mitigating and enhancement factors found, the specific

facts supporting each enhancement factor found, and the method by which the mitigating and

enhancement factors have been evaluated and balanced in determining the sentence. See State v.

Samuels, 44 S.W.3d 489, 492 (Tenn. 2001).

Upon a challenge to the sentence imposed, 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. See

Tenn. Code Ann. § 40-35-401(d). However, this presumption “is conditioned upon the affirmative

showing in the record that the trial court considered the sentencing principles and all relevant facts

and circumstances.” State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). If our review reflects that

the trial court followed the statutory sentencing procedure, that the court imposed a lawful sentence

after having given due consideration and proper weight to the factors and principles set out under

the sentencing law, and that the trial court’s findings of fact are adequately supported by the record,

then the presumption is applicable, and we may not modify the sentence even if we would have

preferred a different result. See State v. Fletcher, 805 S.W. 2d 785, 789 (Tenn. Crim. App. 1991).

We will uphold the sentence imposed by the trial court if (1) the sentence complies with the purposes

and principles of the 1989 Sentencing Act and (2) the trial court’s findings are adequately supported

by the record. See State v. Arnett, 49 S.W.3d 250, 257 (Tenn. 2001). The burden of showing that

a sentence is improper is upon the appealing party. See Tenn. Code Ann. § 40-35-401, Sentencing

Commission Comments; Arnett, 49 S.W.3d at 257.

First we note that, based on our review of the record, we conclude that the trial court

followed the statutory sentencing procedures, imposed a lawful sentence, gave due consideration and

proper weight to the factors and principles set out under our sentencing law, and that its findings of

fact are adequately supported by the record. Accordingly, we will presume that the determinations

made by the trial court are correct. See Ashby, 823 S.W.2d at 169. 
-6-

The Defendant argues that the trial court misapplied Tennessee Code Annotated section 40-

35-114(1), which states: “The defendant has a previous history of criminal convictions or criminal

behavior, in addition to those necessary to establish the appropriate range.” The Defendant does not

dispute that he was previously convicted of all of the offenses enumerated at his sentencing hearing,

including the three previous DUI convictions. Rather, he asserts that because the State allegedly

failed to supply him with copies of the criminal convictions it intended to use for enhancement

purposes during discovery, the trial court should not have considered them in enhancing his sentence.

We are not persuaded by this argument. First, the record shows that the State made the Defendant’s

criminal record available to him during discovery. Second, the Defendant’s prior record is set forth

in the presentence report. Third, the Defendant testified at his sentencing hearing and admitted the

validity of the criminal history detailed in the presentence report.

Similarly, we are not persuaded by the Defendant’s argument that the trial court erred by not

affording applicable mitigating factors enough weight. Initially, we note that the weight to be given

to enhancement and mitigating factors isleft within the sound discretion of the trial court. See State

v. Terrell Antron Greer, No. W2007-01192-CCA-R3-CD, 2008 WL 886309, at *6–7 (Tenn. Crim.

App., Jackson, Apr. 2, 2008) (explaining that under Tennessee’s new sentencing laws, enacted in

response to Blakely v. Washington, 542 U.S. 296 (2004), statutory mitigation and enhancement

factors are advisory and not mandatory). Further, we conclude that because of the egregiously

reckless nature and seriousness of the Defendant’s crime, the trial court was justified in ruling that

applicable enhancement factors outweighed factors in mitigation. The trial court did not err by

imposing the maximum sentence in this case.

Conclusion

Based on the foregoing authorities and reasoning, we affirm the judgments of the trial court.

 

______________________________

DAVID H. WELLES, JUDGE