### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT NAS HVILLE A ssi gne d onBr ie fs Apr il 22, 200 8

STATE OF TENNESS EE v . JULI O VIL LASANA
Appeal f rom the Cr im inal Cou rt for Davidson Coun ty No. 2006-D- 3105 Mark J. F ishb urn, Jud ge

No. M2007- 01923-CCA -R3-C D - F iled Jun e 10, 2008

Th e De fe nd ant, Julio Vi lla sana , ple d g uil ty to o ne c ount o f a g g ra vate d v e hic ula

r h omi c ide , a

Cla ss A felony , and to one count of l eaving the s cene of an acc ident involving death, a C lass E felony . He was sente nced a s a Rang e I , standard of fende r to twenty -five year s for the former and to two y ear s for the latter. The se ntence s were order ed to be se rved concur rently

. On appea l, he argues that the trial court e rre d by

imposing the maximum sentenc e for the C lass A fe lony . We affir m the sentenc es
or de re d b y

the tr ia l c ourt

. Tenn. R. App . P . 3 Appeal as of Right; Judgme nts of

the Cr im inal Cou rt A ff irm ed

D AVI D H. W EL L ES , J ., delivere d the opinion of the cour t, in which J A M ES C UR WO OD W I TT , J R ., and R OB E R T W. W EDEMEYER , J J ., joined.

Em ma Ra e Te nn e nt, A ssi sta

nt P ub lic De fe nd e r, Na sh vil le , T e nn e sse e , f or the a pp e lla nt, Julio Villasana.
Robert E. Cooper, Jr., Attorney Gene ral a

nd R ep o rt er ; Rache l West Harmon, Assistant Attorney Ge nera l; Victor S. J ohnson, I I I , District Attorney Gene ral; and K athy

Morante, A ssistant District Attorney Gene ral, for

the appe llee, State of Te nnessee

.

OP IN ION

F ac tu al B ac kgr ound At the Def

endant’ s g uilty

plea submission hearing , the State set out the fa ctual bac kg round for his off enses. On Aug ust 1, 2006, fifty -one- y ear -old Charlie Darring ton (the victim) was r iding his motorcy cle in Da

vidson County . The victim was dr iving southbound on B riley Parkwa y , near Robertson Avenue , when the Def endant hit him head-on. The thirty -four -y ear -old Def endant wa s driving a sport utilit y vehicle on the wrongside of the r oadwa y —northbound in the southbound lanes of B riley Parkwa y . The victim died fr om injuries sustained in the cra sh.T he of f ens e of ag gr ava t ed ve hi cul ar homi ci de, as r el eva nt t o t he D ef endan t ’ s ca s e, i s def

i ned by T enn es s ee 1
C od e Annot at ed s ect i on 39- 13

- 21 8(a) ( 3)( A )

. U nder t hat s ect i on, a per s on comm i t s t he of f ens e of ag gr ava t ed ve hi cul ar h omi ci de i f

t h er e wa s , “ at t h e t i me of t h e [ v eh i cu l ar h omi ci de] , t we n t y
- h u n dr edt h s of on e per ce n t (

. 20% ) , or mor e, by weight of al co ho l i n th e d e fen d ant ’ s b l o o d and t he d ef end ant has o ne (1) pri o r convi ct i o n f o r” dri vi ng unde r t he i nf l uence. See T enn. C o d e A nn. § 3 9

- 1 3

- 2 1 8 (a)( 3 )( A ); s ee al so T enn. C o d e A nn. § 3 9

- 1 3

- 2 1 3 (a)( 2 ) ( p rovidi ng t hat one d ef i ni t i o n of t he o f

f ense of vehi cul ar ho m i ci d e i s t he reckl ess ki l l i ng of ano t her by t he o p erat i o n of an aut o m o b i l e as t he p ro x im a te re su lt o f t h e d riv e r’s into x ic a tio n ).

-2- Af te r t he wr e c k, the De fe nd ant d id n ot s top to h e lp t he vic tim ; he fle d fr om the sc e ne on fo ot. Wit nesses at the scene g ave police a desc ription of the Def endant, a nd he wa s appre hended a

short time later a

nd broug ht back to the c rash site whe re the witnes s es positively identified him as the driver who killed the victim.

Be cau s e th e D e f

e n d ant exhibit ed sig ns of intox ication, field sobrie ty tests were administered,

and the De fe nd ant f

a ile d th e m. H e the n s ig ne d a n im pli e d c on se nt f

or m th a t wa s p ro vid e d to him in Spanish because his primary lang uag e is Spanish. By signing the form, he agr eed to g ive a blood

sampl e , w hic h r e ve a le d th a t hi s b loo d a lc oh ol l e ve l w a s . 23 pe rc e nt.
Additionally , for the pur pose of e stablishing all the e lements of aggr av at ed vehic ular homicide, the State announced t h at t h e Defenda nt was pre viously

convicted of

driving under the 1 influence (DUI ) appr ox imately one y ear ear lier (on July

7, 2005) in Kentuc ky

. Following the State’s es tablishment of the fore g oing f actua l backg round, the De fenda nt ag ree d that those fac ts were “true and cor rec t.”
Subsequent to the g uilty

plea subm i s s i on hear ing, a sentenc ing he aringwas he ld during which the State i n t ro d u ced cer tified judg ments establishing that the Def endant ha d also bee n pr e vio us ly c on vic te d of DU I on tw o oth e r oc c a sio ns : De c e mbe r 4 , 1 99 1; a nd Oc tob e r 1 2, 19 96 . H is

c ri min a l r e c or d a lso inc lud e d p ri or c on vic tio ns fo r f

le e ingfr om a

pr ob a tio n o ff

ic e r a nd a ssa ult

. Special Ag ent CraigDickhaus of the United States Immigration and Customs Enforc ement Offic e testified that the Def endant had also bee n previously arr ested a nd char g ed with DUI

in Texas

o nA u g u s t1 4 , 1 9 9 7 ; a tt h e t i m e o f t h e i n s t an to f

f e n s e , h e w a s r e l e a s e d

o nb a i l f o r t h e T e x a s D U I, and it had not been a djudicated. Spec ial Ag ent Dickha us further stated that the De fenda

nt had two pr ior fe de ra l c on vic tio ns fo r i lle g a lly e nte ri ngthe Un ite d St ate s. F ur the r, he ha d b e e n o ff

ic ia lly de po rt e d f ro m the Un ite d Stat e s thr e e tim e s, and , on ele ve n othe r o c c a sio ns , h e a g re e d to vo lun tari ly return to Me x ico rather than a ppear befo re an i m migr ation judge . At the time of the sente ncing hear ing, the Def

endant wa s also beingprosec uted by fede ral au t h o ri t ies for illeg al re entry afte r deportation.

The victim’s wife , Susan Darr ington, testified that she and the vic tim were ma rried f or twenty -four

y ear s, and they

had one daug hter. The victim ha d been an executive at Gibson Guitar Corporation and a musician. Mrs. Dar ring ton r ead a prepa

red statement detailing t h e e x t en s ive, neg ative ef

fec ts he r husband’s untimely death has had on her and her daug hter’s life. She aske d the-3-

court to impose the maxi mum sentence possible beca use the De fenda

nt made the c hoice to drive intox icated, a

nd he “should have to fa ce the conseque nces of that choice .”

The De fenda

nt testified that he “ma de a mistake [ b y ] d ri n k i n g a bee r” be fore driving . He said he wa s lost in Nashville and trying to e nter Interstate 40 when he tur ned off of Charlotte Pike and beg an traveling the wrongway down Briley Parkwa

y

. He apologized to M rs. Dar ring ton for the “g reat pain” he ha s cause d in h er life. He said he would have neve r committed the off ense “ on purpose be cause Iam not a bad pe rson, but Imade the mistake to drink. I ’m g uilty .”

On cr oss-examination, he denied laug hing on the night of the offe nse when a witness aske d him why he wa s driving down the wr ong side of the r oad. He also denied r unning f rom the sce ne, despite the fac t that he pled guilty to le aving the sce ne of a n acc ident involving death. Howeve r, he admitted that he had c onsumed “six to eig ht” bee rs that nig ht. The De fenda nt also admitted that he had thre e p re v i ous convictions for DU Iand would have had a f ourth if he ha d not been de ported rathe r than be ing prosec uted. Fur ther, he ag ree d that he had illeg ally ree ntere d this country

“on at least [fifteen] occa sions.”

Af te r h e ari ngthe argume nts of c ouns e l, t

he tr ia l c ourt

se nte nc e d th e De fe nd ant a s f oll ow s:

I n deter mining the a

ppropriate sentenc e for

these off

enses, the c ourt has

c on sid e re d th e e vid e nc e pr e se nte d at the se nte nc inghe ari ng , th e pr e se nte nc e re po rt , the sentenc ing pr inciples embodied in [Tennessee Code Annotated] 40-35-103, the arguments made a s to the appropr iate sente nce th at s hould be imposed since alternative sentenc ing is not per mitted in the ag g ravated vehicula r homicide, the nature and cha

rac teristics of the c rim i n al co nduct involved, the evide nce a nd information offe red on e nhance ment and mitigating fac tors, the statement made by the Def endant at the sentenc ing he aringand the De fenda nt’s poten t i al for reha bilitation and treatment, as we ll as the g ener al purposes c ontained in [Tennessee Code Annotated] 40-35-102. The court finds in both ca ses, counts one a nd three , that [t he De fenda

nt] is a rang e one offe nder, there being no prior felony convictions on his recor d. Th e co u rt has also conside red the enhanc ement fa ctors of [Tenne ssee Code Annotated] 4 0 -3 5-114. The c ourt finds that number one applied, that the De fe nd ant has a pr e vio us his tor y of c ri min a l c on vic tio ns or

c ri min a l be havio r i n addition to those nece ssary to establish the appropr iate ra ng e. I will ag ree that none of those ar e fe lonies, but notwithst andingthat, [t he De fenda nt] has a le ng thy

rec ord, particula rly as it relate s to motor vehicle off enses involving the use of a lcohol having be e n c on vic te d in Ke ntu c ky on July 7, 20 05 , a

nd in T e xas o n tw o o c c a sio ns , Apr il 30 , 1 99 7 a

nd De c e mbe r 4 , 1 99 1. Th e court fi nd s th a t to we ig h h e a vil y in t his particula r ca se bec ause the case t h at h e’ s befor e this court on today is a vehicula

r ho mic ide . I

wa nt t o make it c le ar fo r the re c or d, tw o of tho se , I me an, on e of tho se DUI ’s, I cannot c onsider for

enhanc ement purpose s beca use it’s an e lement of

the offe nse, and I ’m not g oing to, but the r eality of it is, he had two other

ones in addition t o t h a t

. T h e o n e , a l m o s ta ye ar t o t h e d ay, a ye ar an d t h r e e w e e k s p r i o r , i nK e n tu c ky,-4-

prior to t he incident that occur red here in Nashville on Aug ust 1st of 2006. The cour t considers that to be of g reat significa nce a nd place s a g reat deal of w eig ht on that.

Fur ther, the trial court found that, beca use a c ondition of his release in his prior fede ral c ases
wa s th a t he liv e in M e xico , th e De fe nd ant ha d a pre vio us his tor y of unwi lli ng ne ss t o c omp ly wi th conditions of a sente nce involving rele ase in the community

. See Te nn. Code Ann. § 40-35- 114(8). T h e co u rt specific ally

declined to a

pply as an e nhance ment fac tor that the De fenda nt had no hesitation about committing a c rime whe n the risk to human life wa s high, fi n d ing that it was inhere nt in the offense of ag g ravated vehicular homicide. See Tenn. Code Ann. § 40-35-114( 10).

As for mitig ating fac tors, the cour t found that the De fenda

nt had a r elatively

positive work history and that he show ed “some remorse .” See T enn. Code Ann. § 40- 35-113(13) . Howeve r, the court a lso found that, by

denying that he fled f

rom the sce ne whe n the evidence clear ly established otherwise, the Def

endant lac ked ca

ndor bef ore the court and was not a cre dible witness. Fur ther, the court c onsidered a

number of other fac tors, including his pote ntial f or re habilitation, his charac ter and s o ci al h istory , family and community

support, his history

of complianc e and non- compliance wi th c ourt -o rd e re d p ro g ra ms, the fi na

ncia l su pp or t he pr ov ide d to his fa

mil y , a nd a va ila ble

re ha bil itativ e pr og ra

ms.

Ultimately , the cour

t found that the maxim um sent en ce was ne cessa ry in the Def

endant’ s
c a se fo r t he fo llo wi ng , a dd iti on a l r e a so ns :

[Nothi ng ] short o f t h e m ax imum sentence [will] protec t the citizens from [t he Def endant’ s] out rig ht disreg ard a n d fl agr ant vi olations of the laws of the State of Tenne ssee. Thoug h there ’s ce rtainly some merit and some g ood things unde r the law that [t he De fenda

nt] has demonstrated, they are signific antly

and g reatly

outweig hed by his continual and habitual violations of the rule s of the roa d beca use he continual l y d ri v es. Even when he’ s sober, he ’s illeg ally driving and ther efor e I ’m g oing to sentenc e [t he Def endant] to 25 y ear s as a r ang e one of fende r. I find that’s

nece ssary to avoid depre ciatingthe seri o u s n es s of the off ense, a nd it is serious not

on ly b e c a u s e a p e r s o n d ie d a s a r e s u lt o f it , [b ut a ls o ] b e c a u s e

. . . of his leng thy violation of the driving laws of this Stat e, particula rly as they relate to the use of alcohol. I also find that it is necessa ry to protect socie ty

by restra ining a

defe ndant wh o h a s a lon g his tor

y of c ri min a l c on du c t and

an o bv iou s p ro pe ns ity to c on tin ue in criminal ac tiviti es. I

also find that it’s nece ssary beca use less re str i ct i v e measures have be e n tr ie d in th e past, s pe c if ic a lly the Ke ntu c ky

DU I , w he n I

thi nk the on ly thing he rec eived wa s a fine a nd short probationar

y period.

L astly , the cour

t ordere d that his two-y ear sentenc e for

leavingthe sce ne of a

n acc ident i n v o l v i n g d e a t h w o u l d

b e s e r v e d c o n c u r r e n t l y.-5- AN AL YSI S On appe al, the De fenda

nt argues t hat t he trial court erre d in imposing t he maximum sentenc e allowable by law. Specifica lly , the Defenda nt asser ts that this Court shoul d find that his sentence is ex cessive be cause the trial cour t misapplied the enhanceme nt fac tor reg ardinghis prior criminal activities, and be cause it did not l end applica ble mitigatingfac tors sufficie nt weig ht.

Be fore a trial court imposes a sentenc e upon a c onvicted cr iminal defenda nt, it mus t consider (a) the evidenc e adduc ed at the tr ial and the sentencing hear ing; (b) the pre sentenc e re port; (c) the principles of se ntencingand ar g uments as to sentenc ing a lternatives; (d) the nature and char acte ristics of the cr iminal c onduct involved; (e) evidenc e and inf ormation offe red by

the par ties on the enhan ce ment and mitigating f actor s set forth in Tenne ssee Code A nnotated sec tions 40-35-113 and 40-35-114; (f) any statistical information provided by the Administrative Off

ice of the Courts as to Tenne ssee se ntencingprac tices for s i m i lar off enses; and ( g ) any

statement the defe ndant wi s h es t o m ake in the de fenda nt’s own beha lf about sentenc ing. T enn. Code Ann. § 40 -3 5- 21 0( b) ; se e a lso State v. I mf e ld, 70 S.W. 3d

69 8, 70 4 ( Te nn . 200 2) . T o f a c ili tate a pp e llate
re vie w, t h e t r i a l c o u rti s r e qu i r e d t o p l a c e o nt h e r e c o r d

i t s r e a s o n s f

o r i mp o s i n g t h e sp e c if

ic

se nte nc e , inc lud ing the ide nti fi c a tio n o f t he mit ig a tin g and

e nh anc e me nt f

a c tor s f ound , th e sp e c if

ic fac ts supporting e ach e nhance ment fac tor found, and the metho d b y wh i ch the mit iga ting a nd enhanc ement fa ctors have been e valuated a nd balanc ed in deter

mining the se ntence . See State v. Samuels, 44 S.W .3d 489, 492 (Tenn. 2001)

. Upon a c halleng e to t he sentence imposed, this Court has a duty to conduct a de novo re view of the sente nce w ith a presumption that the deter minations made by the t rial court are corr ect. See Tenn. Code Ann. § 40- 35-401(d)

. Howeve r, this presumption “is conditioned upon the af firmative sh ow ingin the re c or d th a t th e tr ia l c ourt c on sid e re d th e se nte nc ingpr inc ipl e s and a ll r e le va nt f a c ts and cir cumstance s.” State v. Ashby , 823 S.W .2d 166, 169 (Tenn. 1991)

. I f our r eview r efle cts that the trial cour

t followed the statutory

sentenc ing pr ocedur e, that the court imposed a lawf ul sentence afte r havingg iven due c onsideration and pr oper w eig ht to the fac tors an d principles set out under the sentenc ing la

w, and that the tr ial court’s finding s of fac t a re adequately supported by the re cord, then the pre sumption i s ap p l i ca b l e, and we may not modify

the sentenc e eve n if we w ould have pref err ed a dif

fer ent re sult. S ee State v. Fletc her, 805 S.W. 2d 785, 789 (Tenn. Crim. App. 1991). We will uphold t he sente nce imposed by the trial court if (1) the sentenc e complies with the purposes and principles of the 1989 Sentencing Act and ( 2) the trial c ourt’s finding s are adequately supported by the rec ord. See State v. Ar nett, 49 S.W .3d 250, 257 (Tenn. 2001) . The burde n of showing that a sente nce is improper is upon the appealing party

. See Te nn. Code Ann. § 40-35- 401, Sentencing Commi ssion Com ments; Arnett, 49 S.W.3d at 257.
First we note that, base d on our re view of the rec ord, we conclude that the trial cour t followed the statutory

sentenc ing pr o c e d

u r e s , im posed a la wful sentenc e, g ave due consideration and proper weig ht to the fac tors and principles set out under our sentenc ing law, and that its findings of fac t are adequately

supported by the record. Acc ording ly , we will pre sume that the dete rminations made by the trial cour

t are corr ect. See Ashby , 823 S.W .2d at 169.-6-

The De fenda

nt argues t hat t he trial court mi sapplied Tennessee Code Annotated se ction 40- 35-114(1) , which states: “T he def endant ha s a previous history of cr iminal convictions or criminal behavior , in a ddition to those nece ssary to e stablish the appropr iate rang e.” The De fenda nt does not d i s p u t e t h at h e wa s p re v i o u s l y co n v i ct ed o f al l o f t h e o ff en s es en u m er at ed at h i s s en t en ci n g h ea ri n g, includ ing the thr e e pr e vio us DU Ic on vic tio ns . Rathe r, he a sse rt s th a t be c a us e the State a lle g e dly failed to supply him with copies of the criminal convictions it intende d to use fo r e n h an ceme nt purposes duringdiscovery , the trial cour t should not have consider ed them in enha nc in g h is s e ntence

. We are not persua ded by this argument. First, the rec ord shows that the State made the Def endant’ s
c ri min a l r e c or d ava ila

ble to h im d

ur ingdis c ov e ry . Se c on d, the De fe nd ant’ s p ri or re c or d is se t f

or th in the prese ntence repor

t. Third, the Def

endant testified at his se ntencing hear ing and admitted the

va lid ity of the c ri min a l hi sto ry

de ta ile d in

the pr e se nte nc e re po rt

.
Simi larly , we a

re not pe rsuade d by

the Def endant’ s argument that the trial cour t erre d by not aff ording applicable mitigating fac tors enoug h weig ht. I nitially , we note that the weig ht to be g iven to e nh anc e me nt a

nd mit ig a tin g fa c tor s is le ft wi thi n the so un d d isc re tio n o f t he tr ia l c ourt . Se e State

v. Te rr e ll A ntr on

Gr e e r, No . W2 00 7- 01 19 2- CCA -R 3- CD , 2 00 8 WL 88 63 09 , at *6 –7 (T e nn . Cr im. Ap p. , Jac ks on , Apr . 2 , 2 00 8) (e xpla ini ngthat under Ten ness e e ’s ne w s e nte nc inglaws , e na c te d in response to B lakely v. Washington, 542 U.S. 296 (2004), statutory mitigation and enhance ment fa c tor s are a dv iso ry

and no t ma nd a to ry ). Furt he r, we c on c lud e that be c a us e of the e g re g iou sly

rec kless nature and ser iousness of the De fenda nt’s crime, the trial court was justified in ruling that applicab l e en h an cement fac tors outweig hed fa ctors in mitigation. The trial court did not er r by imposing the maximum sentenc e in this case.

Conclusion B a se d o n th e fo re g oin g a

uth or iti e s and re a so nin g , we a ff ir m the jud g me nts of

the tr ia l c ourt

.

______________________________ DAVI D H. WEL L ES, J UDGE