### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT KNOXVI LLE O ct obe r 28, 200 3 S es sio n

STATE OF TENNESS EE v . MATTHE W ST ALCUP

Appeal f romthe Cr im inal Cou rt for Union Coun ty No. 2171 E. Sh ayne Sexton, Jud ge

No. E2003-00481-CC A-R3- CD April 23, 2004

Th e de fe nd a nt, Ma tth e w St a lc up , p le d g uil ty in the Un ion Cou nty

Cr imi na l Co urt to re c kle ss
ve h i c u l ar h o m i c i d e , a C l a s s C f e l o n y , a n d d r i v i n g u n d e r t h e i n f l u e n c e ( D U I )
, a C la ss A mis de me a no r. Pur su a nt t o th e ple a a g re eme nt , th e tr ia l c ou rt se nte nc e d h im t o e le ve n mo nth s, twenty -nine da y s at s eventy -five perc ent for the DUI conviction and prohibited him from driving for one y ear

. After a sentencing hearing f or the re ckless vehic ular homicide c onviction, the trial court

se nte nc e d h im t o f

ive y e ars to b e se rv e d a s o ne y e ar i n jail and the r e ma ind e r s us pe nd e d u po n h is serving ten y ear s on supervised probation. The trial c ourt also prohibited him from driving for ten y ear s, order ed that the five-y ear sentenc e be serve d consec utively to the eleve n-month, twenty -nineday sentenc e, and or dere d that the ten-y ear driving prohibition be served concurre ntly to the one-y ear prohibition. The defe ndant appe als his sentence for r eckle ss vehicular homicide, claiming (1) that the trial court erre d by

deny ing his re quest for judicia l d i v er s i o n, (2) that the trial court e rre d by deny ing his re quest for full probation, (3) that the trial court improperly weig hed enhanceme nt and mitigating fac tors, (4) that the trial court er red by ordering that he serve the five- y ear sentenc e
consec utively

to the eleve n-month, twenty -nine-day sentenc e, a

n d ( 5 ) th at t h etr ia l c o u r t’ s p r o h ibiting him from driving for ten y ear s is ex cessive. We a ffirm t h e s en t en ce, except we conc lude that the de fe nd a nt s ho uldbe pr oh ibi te d f ro m drivi ng fo r f

ive y e ars

. Tenn. R. App . P . 3 Appeal as of Right; Judgme nt of th e Cr im inal Cou rt Aff irm ed as Modif ied

J OS EP H M. T I PTON , J
., delivere d the opinion of the court, in which G AR Y R. W ADE , P.J ., and A L AN E. G L EN N , J ., joined.

Donald A. B osch and Lisa B. Morton, Knox ville, Tennesse e, for the appe llant, Matthew Stalcup.

Pa ul G . Su mme rs , A tto rn e y Ge ne ral a ndRe po rt e r; John H. B le ds oe , A ssi sta nt A tto rn e y Ge ne ra l; Wil liam Paul Phi llips, Dist rict Attorney Gene ral; and Joh n W

. Ga lloway , J r., De puty District Attorney Gene ral, for

the appe llee, State of Te nnessee

.-2- OP IN ION

This case rela tes to a ca

r wre ck that re sulted in Melba Shoffner ’s death. At the g uiltyplea hearing, the state re lied on evidenc e pre sented at an ea rl i er pretrial he aring . A transc ript of the pretria l hearing r eveals that on J uly 1, 2001, the defe ndant was driving south in the northbound lane on Hig hway

33 in Union Co unty . The de fenda nt’s car hit the victim’s car, w hich was tra veling north. The victim died at the scene , and the defe ndant s uffe red mult iple injuries. A police of fice r inv e sti g a tin g the c ra sh sme lle d a lc oh ol i n the de fe nd a nt’ s c ar, a ndthe de fe nd a nt t olda pa rame dic that he had c onsumed six or seve n beer s. The def endant pled g uiltyto rec kless vehicular homicide and DUI and, pursua nt to the plea ag ree ment, the trial court sentenc ed him f or the DU I

conviction
to e le ve n mo nth s, tw e nty -n ine da y s a t se ve nty -f ive pe rc e nt; or de re d tha t he pa y a thr e e hu nd re d f if ty d ollar fine and costs for the sta te’s expert; and prohibited him from driving f or one y ear . The defe ndant’s sente nce f

o r t he re ckless vehic ular homicide c onviction was to be de termined a fter a

s en t en ci n g h ea ri n g.

At the sentenc ing he aring, Office r Mar k Miller from the B radle y CountySheriff’ s Depa rtment testified that on November 13, 1997, he rec eived a dispatch a bout a re ckless drive r on I nterstate 75. When he arrived at the sc ene, h e s aw a ca r s t o pped in the g rassy median. The defe ndant was sitti ng in the driver’ s seat and slumped over. Offic er Miller ope ned the c ar door , put the c ar i n pa

rk
, a nd turne d of

f the e ng ine . H e g a ve the de fe nd a nt f ie ld s ob ri e ty

te sts a ndarr e ste d h im fo r D UI. O n cr o s s -e x am i n at i o n , h e s ai d t h at t h e d ef en d an twa s co o p er at i v e a n d t h at t h e c h ar ge aga i n s tt h e d ef

en d an tl at erwa s re d u ce d t o re ck l es s d ri v i n g.

The de fenda nt testified that he wa s twenty -three y ear s old, married, ha d a thre e-y ear -old son, and cur rently worke d at Cendant Corpora tion as a hotel re servation and sales ag ent. He sa id he was

a fu ll- tim e stu de nt at Pe lli ssi pp i State Te c hn ic a l Co mmu nit y Col le g e a ndha d a

B a ve ra g e . H e sa id that on J une 30, 2001, he play ed g olf that morning and we nt to the la ke with some friends about 5:30 p.m. He said that he dra nk six or seve n beer s and that he be g an driving home about midnight. He said he re membere d driving on May nardville Highway , turning rig ht, and par amedics w orking on him. He said he suf

fer ed hea d injuries and a c ut knee. He said t h at h i s father told him about the victim’s death and that he felt horrible about it. He said that he had a ha rd time dea ling with the f

act that he ca used the victim ’s death and that he was rec eiving counseling

. He sa id that he had ha d an alcohol proble m for three to f our y ear s and that he was g oing into a six -month inpatient treatment prog ram a t Discovery

Place whe n he g ot out of jail. He said he took his son to day car e and ne eded j u d i ci al d i v er s i o n i n o rd er t o b e wi t h h i s s o n an d fi n i s h h i s ed u ca t i o n

. He s ai d t h at h e w an t ed t o go to work in his father ’s insuranc e business and that a fe lony convict i o n could pre vent him from obtaining a

license to sell insuranc e. He apolog ized to the victim’s family

.

On cr oss-examination, the defendant acknowle dg ed that he had bee n drinking on the nig ht of Nove mber 13, 1997, but said he w as not drunk whe n Offic er Miller found his car stopped in the g ra ssy me dia n. He a lso a c kn ow le dg e d that he ple d g uil ty to r e c kle ss d ri vin g in that c a se a ndthat hi s fathe r wa rned him he c ould have be en convic ted of DU I and lost his driver’s lice nse. He s aid he attended H iwassee College on a baske tball scholarship af ter hig h school but left the school afte r an-3-

“off -ca mpus drinking incide nt.” He a cknowledg ed drinking whil e under ag e and be ing a

rre sted for disorderly conduct. He said that in J uly 1999, he complete d a five -we ek outpatient alc ohol treatment prog ram a t Peninsula Hospital. He said that bef ore he attended the trea tmen t p ro gram, the police

wer e ca lled to his home after he and his father g ot into an ar g ument in which drinking was involved. He a cknowledg ed that all of his leg al and pe rsonal proble ms had involved alcohol. He said that he g ot married a fter the wre ck, that he a nd his wife we re se parated, and that he had not consumed be er for thre e or f

our months.

Tom Gilbertson, a family thera pist, testified that he had be en counse ling the de fenda nt since the wr e c k a nd that he ha d me t wi th the de fe nd a nt abo ut tw e nty -f ive tim e s. He sa id that a s a re su lt of the wr eck, the defe ndant was de presse d and over whelmed with feeling responsible for the cr ash. He said the def

endant a lso felt g uiltyfor what he had put his family throug h. He de scribed the defe ndant as a l at e b l oomer a nd not very focuse d but said the defe ndant had be come more
re sp on sib le a s a re su lt of the c ra sh

. He sa id that he be lie ve d th e de fe nd a nt w ou ld b e c ome a “ pr e tty

so lidc iti zen ” a ndthat he wo uldbe su rp ri se d if the de fe nd a nt w a s in vo lve d in a ny oth e r a lc oh olre la te d in c ide nts

.

B ob Ov e rt on , th e Pr og ra m Co or din a tor fo r D isc ov e ry

Pla c e , te sti fi e d th a t hi s f

a c ili ty us e s a tw e lve -s te p r e c ov e ry

pr og ra m to tr e a t a lc oh ol de pe nd e nc e a nd that patie nts stay a t le a st thirty

da y s. He a cknowledg ed that the de fenda nt completed a thirty -day prog ram s ev en mont hs befor e the vic tim ’s de a th andstate d th a t th e de fe nd a nt c ou ld r e turn f or mor e tr e a tme nt a ft e r s e rv ing his ja il
sentenc e. He said that he ha d desig ned a five-month prog ram for the def endant a nd that the defe ndant could over come his alc ohol addiction. He sa id that the defe ndant wante d to remain sober but that the defe ndant would have to refr ain from a lcohol completely in order to r ecove r.

Dan Stewa

rt, the defe ndant’s uncle, testified that the defe ndant is his only nephew and that they have a close re lationship. He said th e defe ndant was a littl e immature f

or his ag e but had matured since the wre ck. He said the def endant ha d chang ed, wa s ext reme ly remorse ful, and ha d become more disciplined and r esponsible. He said that he had not see n any external evidenc e that the def endant wa s still strug g ling with an a lcohol problem but that h e b elieved the defe ndant strug g led with alcohol interna lly . He sa id he had not seen a ny signs that the de fenda nt drinks and dr ive s. He sa id the de fe nd a nt h a s a su pp ortiv e famil y

a ndis m oti vate d to do we ll.

Mack Stalcup, the defe ndant’s father, testified tha t the defe ndant lived with him and his wife. He sa id the defe ndant was quiet, kept his e motions inside, appea red to be in shoc k afte r the wre ck, and did not want to talk to any one about it. He sa id that the wre ck had ha d a deva stating impac t on his family and that he w as sorry for the victim’s family

. He said the defe ndant had matur ed and w as a g ood fathe r. He said he a nd the def endant ha d talked about the de fenda nt’s joining his insuranc e bu sin e ss a ndg ra du a lly

takin g it o ve r. He sa id a fe lon y on the de fe nd a nt’ s c ri min a l r e c or d c ou ld preve nt the defe ndant from obtaining a license to se ll insura nce. On cr oss-examination, Mr. St alcup testified that he did not know t he def endant ha d a drinking problem for a long time because the defe ndant did not drink at home. He s ai d that afte r the de fenda nt started g etting into trouble, the defe ndant g ot professional he lp. Carol S talcup, the defe ndant’s mot her, testified that the defe ndant-4-

probably started drinking in hig h school and that she hope d t h e d ef en d an t would continue to g et treatment at Discovery Place. She said the defe ndant felt g uilty and had strug g led with depre ssion sin c e the wr e c k. She sa id the de fe nd a nt ha s re c og nize d that he ha s a n a lc oh ol pr ob le m a ndcould become a produc tive citizen.

J ohn L asher , the B ranc h Ex ecutive f or the Ha lls/P owell B oy s and Girls C lub, testified that the def endant wor

ked at the c lub from Octobe r 2001 to April 2002 as a play g round super visor. The defe ndant was patient with the children, a nd they enjoy ed being with him. The de fenda nt was a g ood and depe ndable e mploy ee but c ould not work at the c lub after the wre ck bec ause h e had bee n char g ed with a f

elony

.
Jodie B la c k, the vic tim ’s daug hte r, te sti fi e d th a t sh e didno t be lie ve the de fe nd a nt s ho uld sp e ndy e ars in p ri so n f

or his mis take . Sh e sa id, tho ug h, that g ive n th e de fe nd a nt’ s h ist ory , h e sh ou ld have to se rve some time in conf inement. She said the de fenda nt had other options for a car eer besides selling insurance

.

Acc ording to the defe ndant’s presentenc e report, t he defenda nt is rec eiving counseling for
str e ss a nd de pr e ssi on a nd ha s c omp le te d tw o a lc oh ol tr e a tme nt pr og rams. Th e re po rt sh ow s th a t in 1999, the def

endant c ompleted a f

ive-we ek tre atment prog ram a t Peninsul a Ho s p i t al and that he completed a

thirty -day

prog ram at Discovery

Place in Nove mber 2000. In the re port, the def endant stated that he be g an drinking alcohol whe n he wa s s i x t ee n y ear s old and that he be g an to have a drinking problem whe n he wa s eig hteen. He descr ibed his phy sical health as excellent, his mental health as g ood, and denied using illega l dr ug s. The re port shows that the def endant wa s convicted of re ckless driving in 1997.

I n sentenc ing the defe ndant, the trial c ourt beg an by addre ssing the se ntencing considerations in T.C.A. § 40-35-103(1) , stating that the defe ndant did not have a long history

of criminal conduct and that a pe riod of conf inement would not deter others in the communit y from these types of actions. See T.C.A. § 40- 35-103(1) (A), ( B) . Howeve r, the trial c ourt determined that the defe ndant’s prior c riminal history was suff icient for enhanc ement purposes, apply ing e nhance ment fac tor (2), tha t the defe ndant “has a previous history of criminal convictions or beha vior in addition to those nece ssary

to establish the appropriate rang e.” See T.C.A. § 40-35-114( 2). The trial court mitigated the defe ndant’s sentenc e based upon his re morse. See T .C.A. § 40-35-113(13) . The trial court de termined that the e nhance ment fac tor outweig hed the m i t i gat ing f actor and incr ease d the defe nd an t ’s s en t ence from the pr esumptive three y ear s to five y ear s. I n deciding whether the defe ndant should serve any portion of the sente nce in c onfinement, the tria l court noted th at t he defe ndant had a g ood and supportive fa mily . Howeve r, it also noted that he ha d had “se vera l run-ins wi th the la w a ndwi th s oc ia l pr ob le ms that ari se fr om dri nking .” Th e tr ia l c ou rt state d:

The most troublesome part of this hea ring is the fac t that y ou
e ng a g e d in dr inking a ft e r y ou did wh a t y ou did

. . . . Nu mbe r on e , it does af fec t y ou obviously . You’ve had fa mily run-ins, .

. . y ou’ve ha d social problems that ha s resulted fr om y our eng ag ing i n the use of-5- alcohol.

. . . And second, y ou’ve had leg al trouble, and y o u d i dn’t quit drinking

. And t hat i s the m ost troublesome thi ng . . . forg etting for a mo me n t th a t w e ’ v e h a d a g r e a t tr a g e d y h e r e

. . . . I w ill never be lie ve th at tha t - that c omi ng to C ou rt is s uc h a g re a t e ve nt that it wi l l m ak e y o u q u i td ri n k i n g. I wo u l d
, h o we v er , t h i n k

t h at h av i n g a
wre ck and killing someone would, and it hasn’t. That, in myopinion, it dims y ou r p ro s p ects for reha bilitation . . . . And I ’m at a loss for

re so ur c e s o n h ow I

he lp y ou de a l w ith that. So, what I ’m g etting a

round to say i n g, i s y our re quest for judicial diversion in my opinion is i napprop ri at e. . . . [ The] seriousness of the offe nse cannot be the sole fac tor for this Court not g ra n t i n g y o u d i v e r s i o n

. I a g r e e

. M y s o l e f a c t o r i s , I d o n ’ t s e e it helping y ou.

. . . I see where times have a risen whe re y ou could have chang ed y our conduc t but chose not to.

The tr ia l c o u r t th e n c o n s id e r e d w h e th e r th e d e f e n d a n t s h o u ldr e c e iv e s o me ty p e o f a lt e r n ative
sentenc e. Howe ver, the trial court held that the defe ndant nee ded “to know that there a re
c on se qu e nc e s f

or c e rt a in a c tio ns ” be caus e the rewe re “ c e rt a in t ime s in y ou r l if e wh e re y ou c ou ld have c orre cted this y ourself but didn’ t.” The trial court order ed that the defe ndant serve one y ear of the five-y ear sentenc e in ja il, to run consec utively to the eleve n-month, twenty -nine-day sentenc e for DUI . I t also determined that after completing the one- y ear sentenc e, the re mainder of the five- y ear sentenc e would be se rved a s ten y ear s on supervised probation. Finally
, the trial court prohibited the defe ndant from driving f

or ten y ears. The de fenda nt raises seve ral issues re g arding his sentence

.
Whe n a de fe nd a nt a

pp e a ls the ma nn e r o f s e rv ic e of a se nte nc e imp os e d by the tr ia l c ou rt , th is
court c onducts a de novo revie w of the r ecor d with a pre sumption t hat the trial c ourt’s de te rm inatio ns are c or

re c t. T .C. A. § 4 0- 35 -4 01 (d ). Ho we ve r, the pr e su mpt ion of c or re c tn e ss i s “conditioned upon the a ffirma tive showing in the rec ord that the trial c ourt consider ed the se n tencing principles and a ll releva nt fac ts and circ umstances.” State v. Ashby
, 823 S.W .2d 166, 169 (Tenn. 1991). The bur den is on the appe aling party to show that the senten ce i s i m p ro p er. T.C.A. § 40-35-401( d), Sentenc ing Commission Com ments. This means that if the trial c ourt followed the statutory sentenc ing pr ocedur e, made finding s of fa ct that ar e adequately supported in the re cord, a nd g ave due consideration a nd proper weig ht to the fac tors and princ iples that are rele vant to sentenc ing under the 1989 Sent en cing Act, we may not disturb the sentence even if a diffe rent re sult were pref err ed. State v. F letcher , 805 S.W .2d 785, 789 (Tenn. Crim. App. 1991)

.

I n conducting a de novo r eview, w e must consider ( 1) t he evide nce, if any , rec eived at the trial and sente ncing h ea ri ng , (2) the pr esente nce r eport, (3) the principles of sentenc ing a nd

arg ume nts a s to se nte nc ing a lte rn a tiv e s, (4 ) the natur e a ndc ha ra c te ri sti c s o f thec ri min a l c on du c t, (5) a ny mitigating or st atutory enhanc ement factors, (6) any statement t hat t he defenda nt made on his own behalf, and (7) the pote ntial fo r re h ab i litation or treatment. T.C.A. §§ 40-35- 102, -103, -210; see A shby , 823 S.W .2d at 168; State v. Moss, 727 S.W .2d 229, 236-37 (Te nn. 1986).-6- I. JU DI CI AL DI VE RSI ON

The de fenda nt contends that the trial court e rre d by deny ing his re quest for judicia l diversion. He c on te nd s th a t th e tr ia l c ou rt ig no re d f

a c tor s that it was re qu ir e d to c on sid e r, su c h a s h is

amena bility to c orre ction, the circ umstances of the offe nse, his soc ial history
, and t h e d eter renc e value of incar cer ation, and that the tria l co u rt d i d not adequately state the re asons for de ny ing div e rs ion . H e arg ue s th a t he is e nti tle d to div e rs ion be c a us e he wa s tr uth fu l to the tr ia l c ou rt , h a s a y oung son, is employ ed, attends colleg e, and has a good c hance at re habilitation. The state ar g ues that the trial court considere d all of the re quired fa ctors and that it proper ly denied judicial diver sion. We conclude that the trial court did not er r by deny ing dive rsion.

A de fe nd a nt is e lig ibl e fo r jud ic ia l div e rs ion wh e n he or sh e is f ou ndg uil ty

or ple a ds g uil ty to a Cla ss C , D , o r Efe lon y a ndha s n ot p re vio us ly

be e n c on vic te d o f a fe lon y or a Cla ss A misdemeanor. See T.C.A. § 40-35-313( a)( 1)(B ). Judi cial diver sion allows the trial court to def er further proce eding s without entering a judg ment of g uilt and to pla ce t h e defenda nt on probation

un de r re a so na

ble c on dit ion s. T. C.A . § 40 -3 5- 31 3( a )( 1) (B ). Whe n th e pr ob a tio na ry pe ri ode xpir e s, if the def endant ha s completed probation successfully , then the trial c ourt will d i s char g e the defe ndant an d d i s m i ss the proce eding s ag ainst him with no adjudication of g uilt. S ee T .C.A. § 40-35-313( a)( 2). The de fenda nt may then apply

to have a ll recor ds of the proc eeding s expunged from his o ff

i cial records. See T.C.A. § 40-35-313( b). A pe rson g rante d judicial diversion is not

conv i ct ed of a n offe nse bec ause a judgme nt of g uilt is never enter ed. See T .C.A. § 40-35-313( a)( 1)(A)

.

J udicial diversion is not a sentenc ing a lternative fo r a de fenda nt convicted of an off ense. Se e T. C.A . § 40 -3 5- 10 4( c ). Th e re fo re, ther e is n o p re su mpt ion that a de fe nd a nt i s a

fa vo ra ble candidate for ju d i ci al diversion. See State v. B ingham, 910 S.W .2d 448, 456 (Tenn. Crim. App. 1995). When a de fenda nt challeng es t he manner of serving a sente nce, this court conducts a de novo revie w of the rec ord with a presumption that “the determinations made by the court from which the appea l is taken are corr ect.” T.C.A. § 40-35-401( d). Howeve r, when the acc used challeng es the trial

c ou rt ’s de nia l of

a re qu e st f or jud ic ia l di ve rs ion , a

dif fe re nt s ta nd ard of app ell a te re vie w a pp lie s. B e c a us e the de c isi on to g ra nt jud ic ia l di ve rs ion lie s w ith in the so un d d isc re tio n o f the tr ia l c ou rt , th is

co u rt wi l l n o td i s t u rb t h at d ec i s i o n o n ap p ea l ab s en t an ab u s e of d i s cr et i o n

. S t at e v

. E l ec tro p l at i n g, I nc., 990 S.W.2d 211, 229 (Tenn. Crim. App. 1998); State v. Bone stel, 871 S.W .2d 163, 168 (Tenn. Crim. App. 1993).

I n dete r mi n in g w h e th e r to g r a n t ju d ic ia l d iv e r s io n , th e tria l c o u r t mu s t c o n s id e r ( 1 ) the defe ndant’s ame nability

to corre ction; (2) the c ircumstance s of the offen s e; (3) the defe ndant’s criminal re cord; (4) the def endant’ s social history ; (5) the de fenda nt’s phy sical and me ntal health; (6) the de terre nce value to the defe ndant and others; and ( 7) whe ther judicial diver sion will serve the ends of justice. Ele ctroplating , 990 S.W

. 2 d at 2 2 9; State v. Parker, 932 S.W.2d 945, 958 (Tenn. Crim. App. 1996); Bone stel, 871 S.W .2d at 168. I n addition, “the record must reflec t that the court h a s w e i g h e d a l l o f

t h e f a c t o r s i n r e a c h i n g i t s d e t e r m i n a t i o n

. ” E l e c tr o p l a t i n g , 9 9 0 S

. W

. 2 d a t2 2 9

. If the trial court refuse d to gr ant judicial diversion, it should state in the record “the s pecif ic re asons-7-

for its determinations.” Parker
, 932 S.W .2d at 958-59. I f the trial c ourt “ba sed its determination on only some of t he factors, it must ex plain why these fa ctors outweig h the others.” Electroplating, 990 S.W .2d at 229.

T h e record r efle cts that in deny ing the defe ndant’s re quest for judicia l diversion, the trial

c ou rt c on sid e re d th e re qu ir e d f a c tor s. Al tho ug h th e tr ia l c ou rt didno t a dd re ss th e fac tor s in

se qu e nti a l or de r, ov e r the c ou rs e of e xpla ini ng the de fe nd a nt’ s se nte nc e , th e tr ia l c ou rt a dd re sse d a ll of the fa ctors. I n support of diversion, t he trial c ourt noted that the de fenda nt lacked a leng thy criminal re cord, tha t he came from a g ood and supportive f amily , and that conf

inement would not deter others fr om committi ng the crime. Howeve r, in support of deny ing diversion, the trial court he ld tha t th e de fe nd a nt h a d h a d ma ny famil y a nd so c ia l pr ob le ms a s a re su lt o f h is d ri nking a lc oh ol. The trial c ourt cha

rac terized the wre ck as a “great trag edy ,” indicating that it believed judicial diversion would not serve the ends of justice and that the c ircumstance s of the off ense justi fi ed deny ing diversion. Most telling
, howeve r, was the trial court’s determining that the def endant ha d a low potential for

reha bilitation and that the weig ht of that fac tor alone justified de ny ing dive rsion. Th e tr ia l c ou rt

re pe a te dly

re fe rr e d to the fa c t tha t th e de fe nd a nt c on tin ue d to drink a lc oh ol d e sp ite y ear s of fa milyand social problems and despite causing the victim’s death. We ag ree with the trial court’s r easoning and do not believe that it erre d by deny ing the d ef

en d an t ’s request for judicial diversion.

We note that in the defe ndant’s brie f, he states that in denying dive rsion, the trial court failed to consider a

Sentencing Memorand u m t hat the def ense f iled as evide nce. T he memora ndum de sc ri be s the de fe nd a nt’ s b a c kg ro un d a ndinc lud e s f if ty -s e ve n le tte rs that f

ri e nd s a ndfamil y

wr ote on his behalf. Ac cording to the de fenda nt, there “ is no indication that the court had r ead the submissi on, considere d it in any way as to an y fa ct o r, whether fa vorably or not.” How ever , our
re v i ew o f t h e se n t en ci n g h ea ri n g tra n s cr i p t re v ea l s t h at at t h e b egi n n i n g o f t h e s en t en ci n g h ea ri n g, the def ense a sked the trial c ourt if it had re ad the S en t encing Me morandum and le tters. The tria l

c ou rt state d, “ I ha ve c ur so ri ly , b ut .

. . I

wa nt s ome tim e to g o b a c k th ro ug h th is. ” Af te r the pa rt ie s’

c los ing arg ume nts , th e tr ia l c ou rt state d th a t it wa nte d s ome tim e to c on sid e r the e vid e nc e be c a us e “this is not so me th in g th a t I c a n ju s t p lu c k o u t o f th e a ir b e c a u s e it is a

- - it is a d if f ic u lt matter.” After a re cess, the he aring resumed, and the trial court stated that it had revie wed the f acts a nd applied the f

acts to the law in r eac hing a determination a s to the defe ndant’s sente nce. A lthough the trial court did not spec ifically ref er to the me morandum and le tters, we be lieve the r ecor d de mon str a te s th a t th e tr ia l c ou rt c on sid ered all of

the e vid e nc e in d e nying the de fe nd a nt’ s r e qu e st for judicial diver sion.

II. F UL L P RO BA TIO N

Ne xt, th e de fe nd a nt c on te nd s th a t th e tr ial c ou rt e rr e d b y de nying his re qu e st f

or fu ll pr ob a tio n. He arg ue s th a t a lth ou g h th e tr ial cou rt de te rm ine d th a t c on fi ne me nt w a s n e c e ssa ry in order to avoid depre ciating the seriousne ss of the offense, the trial court stated no specific rea sons to j us tif y that det e rm inatio n. He c on te nd s tha t the vic tim ’s de a th al on e c a nn ot j us tif y app ly ing thi s fa c tor a nd that the fa c tor wa s impr op e rl y app lie d be c a us e the fa c ts o f this c a se we re no t “ e sp e c ia lly-8-

violent, horrify ing, shoc king, r epre hensible, off ensive, or otherwise of an e x cessive or exagg erated degre e. ” S t ate v. Tr avis, 622 S.W .2d 529, 534 (Tenn. 1981) ; State v. Hartley , 818 S.W .2d 370, 374-75 (Te nn. Crim. App. 1991). I n addition, he contends tha t the trial cour t fa i l ed to consider proper ly the fa ctors set out in T.C.A. § 40-35-103, including his potential for rehabilitation, and that the trial court arbitrarily

order ed that he ser ve ten y ear s of supervise d probation. The state ar g ues that t h e trial court pr operly denied the de fenda nt’s reque st for full proba tion. W e ag ree with the state.
When determining if incar cer ation is appropria te, a tria l court should consider w hether (1) confine ment is neede d to protect s ociety by restra ining a

defe ndant who has a

long history

of criminal conduc t, (2) conf inement is neede d to avoid depreciating the seriousness of the offe nse or
con fine me nt i s p art ic ula

rl y su ite d to pr ov ide a n e ff

e c tiv e de te rr e nc e to p e op le lik e ly to c omm it simil ar of fense s, or (3) less restric tive measure s than confine ment have f reque ntly or re cently

been applied unsucc essfully

to the defe ndant. A s h b y , 8 2 3 S.W .2d at 169 (c iting T.C.A. § 40-35-103( 1)(A) -(C)) . The trial c ourt m ay al s o consider the mitigating and enhancing fac tors set forth in T.C.A. §§ 40-35-113 and -114. T.C.A. § 40-35-210( b)(5) ; State v. Boston, 938 S.W.2d 435, 438 (Tenn. Crim. App. 1996) . I n addition, a trial court should c onsider a defe ndant’s potential or lack of potential for r ehabilitation when de termining if an alternative sentence would be appr opriate. T.C.A. § 40-35-103( 5); Boston, 938 S.W.2d at 438.

As previously

stated, whe n a def

endant a ppeals the ma nner of

service of a se ntence imposed by the trial court, this court conducts a de novo revie w of the r ecor d with a pre sumption t hat the trial court’s de terminations are corr ect. T.C.A. § 40- 35-401(d) . Howe v er , this presumption of

corr ectne ss is conditioned upon the aff irmative showing that the trial court considere d the re levant fac ts, circumstanc es, and se ntencing principles. Ashby
, 823 S.W .2d at 169. A def endant se eking full probation bears t he burden on appe al of showing that the sentenc e imposed is improper a nd that full probation will be in the best intere st of t he defenda nt and the public. State v. B aker , 966 S.W .2d 429, 434 (Tenn. Crim. App. 1997) . I n determining whe ther to g rant or deny probation, a trial c ourt should consider the circ umstances of the offe nse, the de fenda nt’s criminal re cord, the defe ndant’s social history

and pre sent condition, and the need for deter renc e. State v. Boy d, 925 S.W .2d 237, 244 (Tenn. Crim. App. 1995)

.
The de fenda nt is corr ect in that the death of t he victim alone is not sufficie nt justi fica tion for deny in g p r o b a ti o n

. Se e St a te v

. B u tl e r , 8 8 0 S. W. 2 d 3 9 5
, 4 0 0

- 0 1 ( T e n n

. Crim

. A p p

. 1 9 94). Howeve r, our revie w of the sentenc ing he aring transcript shows that the trial court conside red ma ny oth e r fa c tor s and de te rm ine d tha t the fa c ts an d cir c ums ta nc e s of the of fe ns e a ndthe ne e d to a vo id depre ciating the s eriousness of the offe nse wa rra nted denying f

ull probation. Reg arding the fa ctors set out in T.C.A. § 40-35-103(1) , the trial court stated that the def endant did not have a long history of criminal convictions and that confine ment would not deter others. S ee T .C.A. § 40-35-103(1) (A), (B ). The trial court did not addre ss fac tor (C), that “me asure s less restrictive tha n confine ment have fre quently

or re cently

been a pplied unsucce ssfully

to the defe n d an t

. ” S ee T .C.A § 40-35-103(C). Howeve r, no evidenc e was prese nted to support this fac tor, and the trial court obviou s l yd i d not consider it as a

basis for de ny ing the defe ndant’s re quest for f ull probation.-9-

As to the defe ndant’s cla im that the trial court “ did not consider Mr. Stalcup’ s potential for reha bilitation or treatment as re quired by the statute,” w e find no me ri t to this st atement. As described in the previous section, t he trial court ex plained ex tensively why , despite B ob Overton’s testimony to the contra

ry , it did not be lieve the defe ndant could overc ome his alcohol addic tion. The trial court de termined that the de fenda nt had a low potential f or re habilitation because he continued to drink despite his family and socia l problems and despite c ausing the victim’s death. We note that the de fe nd a nt ha d c omp le te d tw o a lc oh ol t re a tme nt p ro g rams y e t c on tin ue d to drink . G ive n th e se
c ir c ums ta nc e s, we be lie ve the tr ia l c ou rt pr op e rl y de nie d fu ll pr ob a tio n ba se d up on a ne e d to a vo id depre ciating the seriousne ss of the off ense. We a lso conclude that even if the circumstances of the of fe ns e ha d n ot j us tif

ie d d e ny ing fu ll p ro batio n, so me c on fi ne me nt f or thi s o ff e ns e is a pp ro pria te to emphasize to this defenda nt the seriousness of his a ctions. See B utler, 880 S.W .2d at 401(holding that the circ umstances of the offe nse did not justify a sentenc e of full confineme nt but did warra nt some confine ment to avoid depre ciating the seriousne ss of the off ense)

. Reg arding the def

endant’ s claim t hat t he trial court arbitra rily order ed that he se rve te n y ear s on supervised pr obation, the trial court obviously believed that in light of the def endant’ s repe ated

a lc oh ol ab us e a ndlow po te nti a l f or re ha bil itatio n, te n y e ars of

su pe rv ise d p ro batio n, in w hic h h e wi ll be re qu ir e d to per fo rm

c omm un ity

se rv ic e a ndun de rg o a lc oh ol t e sti ng , is ne c e ssa ry in o rd e r t o
ensure that he re fra ins from alcohol use. The evidence demonstrates tha t the trial court f ollowed the require ments of the law, e x erc ised solid judgment in its determination, prope rl y d enied the defe ndant’s re quest for f

ull probation, and prope rly order ed that he ser ve the r emainderof his fivey ear sentenc e as te n y ear s on supervised pr obation.

III. ENHANCEMENT AND MITIG ATING F ACTORS

T h e d ef en d an tco n t en d s t h at h i s s en t en ce i s ex ce s s i v e be ca u s e th e tr i al co u rt fa i l ed t o we i gh the enha nceme nt and mitigating fac tors proper ly . He also contends that the trial c ourt’s apply ing enhanc ement fa ctor (2) is confusing in light of the fact that the trial court stated that the def endant di d not ha ve a

lon g his tory

of c ri min a l c on du c t. T h e s t a t e c o n t e n d s t h a tt h e tr i a l c o u r tp r op e rl y sentenc ed the de fendant. We ag ree with the state.

Th e rang e of

pu nis hme nt f

or a Ra ng e I de fe nd a nt c on vic te d o f a Cla ss C fe lon y

is thr e e to si x y e ars . T .C. A. § 4 0- 35 -1 12 (a )( 3) . T he se nte nc e to b e imp os e d f or a Cla ss C fe lon y

is presumptively

the min i mum in the rang e unless ther e ar e enhanceme nt fac tors prese nt. T.C.A. § 40-35-210( c). Proc edura lly , the trial court is to incre ase the sentenc e withi n the rang e base d upon the exist ence of enha nceme nt fac tors and, then, reduce the sentenc e as a ppropriate for a ny

mitigating fac tors. T.C.A. § 40-35-210( d), (e). The weig ht to be afforde d an ex isting factor is l eft to the trial court’s discr etion so long a s it complies with the purposes and principles of the 1989 S entenc ing A ct and its findings a

re a dequate ly

supported by

the re cord. T.C. A. § 40-35-210, Sentenc ing Commi ssion Com ments; Moss, 727 S .W.2d at 237; see Ashby , 823 S.W .2d at 169.

After finding that enhanc ement fac tor (2) a nd mitigating fac tor (13) a pplied in this case, the trial court simply

stated that the e nhance ment fac tor outweig hed the mitigating f actor and sente nced-10-

the def endant to five y ear s. As s tated above , as long as the trial c ourt followed the se ntencing purposes a nd principles, the we ight to be af fo rded an exist ing f

actor is left to the trial court’ s discretion. We be lieve the evidenc e justifies the trial court’ s assessment. Althoug h the trial court held t hat t he defenda nt did not possess a long history of criminal conduct for pur poses of de ny ing alternative sentenc ing under T.C.A. § 40-35- 103, g iven that the def endant ha d a prior c onviction for misdemeanor rec kless driving and admitted drinking while under ag e, the tria l court’s a pplication of enhanc ement factor (2) to his sentence was prope r. We conc lude that the def endant’ s sentence is not excessive.

IV. CONSECUTIVE S ENTENCING

The de fenda nt contends that the trial c ourt err ed by ordering c onsecutive se ntencing pursuant to the plea a g ree ment. The state arg ues that consec utive sentenc ing was proper

. After revie wing the plea ag ree ment and the g uilty plea hearing transcript, we c onclude that the de fenda nt ag ree d to the possibili ty

that the trial court could order consec utive sentenc ing.

Th e de fe nd a nt’ s w ri tte n p le a a g re e me nt s ta te s a s f

oll ow s:

Th e Sta te is f

re e to m ake any reco mme nd a tio n a s to the [re c kle ss vehicular homicide] sentenc e in Count 2, except the State ag ree s that if the Court order s the sentenc e in C o u n t 2 to be serve d in the [TDOC] , denying a lternative se ntencing
, that the sentenc e in Count 2 be ser ved conc urre ntly

with the sentenc e in Count 1.

. . . .
The de fenda nt further ag ree s that if the Court place s the defe ndant on probation or CommunityCorrec tions with no split confinement in the county jail, t hen the se ntence on Count 2 shall be served

consec utively

to the DUI s en t ence; but that if split confinement on Count 2 is ordered in conjunction with a lternative sentenc ing then the Court c ould e ither run that sentenc e and sp l i t confine ment

concur rently or conse cutively

with the sent en ce i n C ount 1. I n any event, the de fenda nt would not object that a conse cutive sentenc e wa s not authorized by

[T.C .A.] §40-35-115.

(E mph a sis a dd e d) . F urthe rm or e , a t th e g uil ty ple a he ari ng , th e tr ia l c ou rt

state d a s f

oll ow s:

And it a ppear s that if the Court denies a lternative se ntencing that there ’s an a g ree ment up front that any , any sentenc e ser ved in the p enitentiary

would be, the e leven/twenty -nine (11/29) would run

c on c ur re nt w ith that.-11- . . . .
The de fenda nt further ag ree s that if the Court place s the defe ndant o n probation or c orre ctions with no split confine ment in the county jail that the sentenc e on Count Two will be serve d consec utive to the D.U.I . sentenc e. B ut i f s pli t conf

inem e nt o f C ou nt T wo is o rd e re d in conjunction with alternative sentenc ing, t he Court would either run that se nte nc e of

sp lit c on fi ne me nt c on c ur

re ntl y or c on se c uti ve ly

wi th the sentenc e in Count One.

. . . .
So, we ’r e sa y ing that a lte rn a tiv e sent encin g wo uld , w ou ld possiblyresult in consec utive sentenc ing and the def endant would not ob je c t to that.

[De fe ns e ]: Wel l, if
, if that’ s wh a t th e Cou rt imp os e d, it w ou ld

re su lt i n c on se c uti ve se nte nc ing , b y a g re e me nt.

This court has held t hat consecutive sentencing is subject t o plea ne g otiations. S ee State v. Be njamin Christopher Ashworth, No. 03C01-9902-CC-00065, Blount C ounty , slip op. at 3-4 (Tenn. Crim. App. Oct. 6, 1 999); State v. Houston Gra dy Chapman, No. 01C01-9808-CC-00354, Maury County(Tenn. Crim. App. De c. 11, 1998) ( order ); Patrick Willi ams v. State, No. 0 1 C0 1

- 9 5 0 6

- CR

- 0 0 1 9 0
, D a v id s o n Co u n ty , s li p o p

. a t 9

- 1 0 ( T e n n

. Crim

. A p p

. M a y 9
, 1 9 9 6 )

. We

c on c lud e that th e tr ial c ou rt ’s abil ity to o rd e r c on se c uti ve se nte nc ing up on a se nte nc e of

sp lit confine ment for the r eckle ss vehicular homicide was a

part of the defe ndant’s plea ag ree ment. The de fe nd a nt c a nn ot n ow c omp la in a bo ut a se nte nc e to wh ic h he ha d a g re e d a s p art of his ple a ba rg a in ag ree ment with the state.

V. DR IV IN G P RI VI LEG ES

F ina lly , th e de fe nd a nt c on te nd s that the tr ia l c ou rt e rr e d by pr oh ibi tin g him fr om dri vin g in this state for ten y ear s, the maxi mum allowed by the vehicula

r homicide sta t u t e. Al t h oug h he

a c kn ow le dg e s th a t th e tr ia l c ou rt ha d th e a uth ority to pr oh ibi t him f ro m drivi ng , h e c on te nd s th a t in comparing this c ase with othe r vehicular homicide case s, the fac ts of this case do not wa rra nt such an extensive prohibition. The state does not a ddress thi s issue. We ag ree that the ten-y ear prohibition is ex cessive.

The ve hicular homicide statute requir es the trial c ourt to “prohibit a def endant c onvicted of vehicular homic i d e fr o m driving a vehic le in this state for a pe riod of time not less than three (3) y ear s n o r mo r e th a n te n ( 1 0 ) y e ar s

. ” T

. C. A

. § 3 9

- 1 3

- 2 1 3 ( c )

. T h e s tan d ar d o f r e v ie w for atrial

c o u r t ’ s p r o h i b i t i n g a

d e f e n d a n tf r o md r i v i n g p u r s u a n tt o t h e s t a t u t e h a s n e v e r b e e n s t a t e d s p e c i f

i c a l l y.-12-

Ho we ve r, we no te that T .C. A. § 5 5- 10 -4 03 (a ), the gen e ra l D UI se nte nc ing statut e , a lso re qu ir e s a trial court to prohibit a DU I offe nder f

ro m d ri v i n g in this st ate f or a c erta in period of time and indicates that it is one of

the “pe nalties” for

that offe nse. We conc lude that a tria l court’s prohibiting a DUI defe ndant from driving is a punishment that is subject to de novo revie w wit h a pre sumption of cor rec tness. See T.C.A. § 40-35-401( d). See, e.g ., State v. Stanley
, 729 S.W .2d 686, 689 (Tenn. Crim . App. 1987) (on pe tition t o rehe ar) (holding that the issuance or non-issuanc e of a restric ted operator’s license under the DUI sentenc ing sta tute is a “sente ncing issue” and, the ref ore, r equire s this court t o re view the issue pur suant to T.C.A. § 40-35-401(d) ). More over, g iven that the DUI

se nte nc ing statut e a ndthe ve hic ula r h omi c ide statut e bo th p ro vid e that a tr ia l c ou rt

“ sh a ll p ro hib it a def endant . . . from driving a vehicle in this state” f or a c erta in period of time, we hold that review of a tr ia l c ou rt ’s pr oh ibi tin g a de fe nd a nt fr om dr ivi ng fo r a v e hic ula r h omi c ide c on vic tio n a lso is a
sentenc ing issue that should be revie wed de novo with a pre sumption of corre ctness. I n the pre sent

case , the t ri al court did not specif y its reasons for

prohibiting the de fenda nt from driving for ten y ear s, stating only

that “his license w ill be revoke d for a ten-y ear period, which is the max imum that the law would a llow the C ourt to revoke a license based on this particular off ense.” There fore , we will review this issue de novo with no pre sumption of corre ctness.

The de fenda

ntci t es S t at e v

. M i ch ae l E u gen e K n o x , No

. W 2 0 0 0 -0 0 3 62-CCA-R3-CD, Gibson Cou nty (T e nn . Crim. Ap p. De c . 2 7, 20 00 ), in s up po rt of his c la im. I n tha t ca se , the de fe nd a nt l os t control of his ca

r and cr as h ed i n to an embankme nt, killi ng his passeng er. A fter the wre ck, the defe ndant dra g g ed the passeng er’ s body
, which had been thrown over sixtyfee t from the ca r, bac k to the car and cla imed that the passeng er ha d been driving. The defe ndant, who had bee n drinking and smoking marijuana on the night of the wre ck, later admitted that he had be en the driver a nd pled g uil ty to Cla ss B fe lon y

ve hic ula r h omi c ide . T he tr ia l c ou rt se nte nc e d h im t o e ig ht y e ars in

c on fi ne me nt b ut d id n ot b ar the de fe nd a nt f ro m drivi ng. On app e a l, the state a sk e d th is c ou rt to prohibit the defe ndant from driving for five y ear s. This c ourt stated that g iven the circ umstances of the offe nse, a f

ive-y ear prohibition was rea sonable. I d., slip op. at 9.

I n State v. Bing ham, 910 S.W.2d 448, (Tenn. Crim. App. 1995), t h e d efendant, who wa s under the leg al drinking ag e, spent a n evening drinking at a bar. W hile attempting to drive home, she hit another c ar head-on, killing the other driver, a nd pled g uiltyto rec kless vehicular homicide. Th is c ou rt

no te d that the de fe nd a nt wa s e mpl oy e d, ha d no c ri min a l his tory , liv e d wi th h e r p are nts , a nd ha d an e xce lle nt re pu ta tio n in her c ommun ity a ndpr oh ibi te d h e r f ro m drivi ng fo r thr e e y e ars

. I d. at 452, 457.

I n S t a t e v

. R o b e r tG l e n G r i s s o m , I I I
, N o

. 0 2

- C

- 0 1

- 9 2 0 4

- C C

- 0 0 0 7 6
, H e n d e r s o n C o u nty (Tenn. Crim. App. Mar. 10, 1993), the defe ndant had a head- on collision in which the driver of the other c ar was ki lled. The defenda nt, who admit ted drinking five be ers on the nig ht of the wre ck, wa s
c on vic te d o f r e c kle ss ve hic ula r ho mic ide a nd DU I

. Th e tr ia l c ou rt se nte nc e d him to thr e e y e ars in confine ment but did not prohibit him from d ri v i ng as re quired by the vehicula

r homicide statute. I n ordering that the defe ndant be pr ohibited from driving for f ive y ear s, t h i s court noted that the defe ndant’s driving rec ord showed that he had be en cha rg ed with two earlier accide nts, that he had been c onvicted of spe eding twice, and that he was speeding at t he ti me of the wreck in question. I d.,-13-

slip op. at 16. In State v. J ames C. Wolford, No. 03C01-9708-CR-00319, Hamilton County(Tenn. Crim. App. Feb. 18, 1999)
, app. denied (Tenn. Sept. 20, 1999), the def endant pled g uiltyto vehicular homicide by intox ication afte r striking a pedestria n and leaving the sce ne. The trial court se ntence d him to four y ear s in confinement an d p ro h i b i ted him from driving for one y ear . Noting that the vehicular homicide s tatute required at least a three -y ear prohibition, this court prohibited him from driving for f

our y ear s. I d., slip op. at 14.

I n this case, the de fenda nt is y oung , has a y oung son, attends college , and is employ ed. The le tte rs su bmi tte d to the tr ia l c ou rt ind ic a te that he is love d an d w e ll- lik e d b y his famil y

a ndfrie nd s. Howeve r, the de fenda nt has made two unsuc cessf ul attempts at reha

bilitation and committ ed the offe nses in question only s even months af ter he last rec eived tre atment. Also, as the tria l court noted, he c ontinued to drink alcohol af ter the w rec k in question. W e conc lude that a f ive-y ear driving prohibition is appropriate in this case

.

Ba sed on the for eg oing a nd the re cord a s a whole, w e af firm the leng th and manner of ser vice of the de fe nd a nt’ s se nte nc e , b ut w e mod if y his drivi ng pr oh ibi tio n to fi ve y e ars

.

___________________________________ J OSEPH M. TI PTON, J UDGE