# FILED
December 16, 1997 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT KNOXVILLE OCTOBER SESSION, 1997 STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9705- CR-00195 ) Appellee, ) ) ) SULLIVAN COUNTY VS. ) ) HON. R. JERRY BECK BRADLEY JOE ) JUDGE HOUSEWRIGHT, ) ) Appe llant. ) (Sentencing)

ON APPEA L FROM THE JUDGMENT OF THE CRIMINAL COURT OF SULLIVAN COUNTY
FOR THE APPELLANT : FOR THE APPELLEE : RICHARD SPIVEY JOHN KNOX WALKUP 142 Cherokee Street Attorney Generaland Reporter Kingsport, TN 37660 SANDY C. P ATRICK Assistant Attorney General 425 Fifth Avenu e North Nashvill e, TN 37243 GREELEY W ELLS Distri ct Attor ney General ROBERT MONTGOMERY Assistant Distri ct Attor ney General Sullivan County Justi ce Center Blountvi lle, TN 37617
OPINION FILED ________________________ AFFIRMED DAVID H. WELLES , JUD GE-2- 

# OPINION

This is an appeal as of ri ght pursuant t o Rule 3 of the TennesseeRules of Appe llate Proced ure. The Defendant, Bradl ey Joe Housewright , pleaded nolo contende re to five co unts o f assa ult , Class A misdemeanors, and one count of vehicular

homicide, a Class B felony. Pursuant to a pl ea agreement, he was sentenced to eleven month s and tw enty-nine days fo r e ach assault conv iction and eight ye ars for th e vehic ular ho micid e con victio n. The sentences were ordered to be served concurrentl y. The tri al court considered and denied alternative sentencing and ord ered the Defen dant to serve his s entences in t he Department of Correctio n. The Defendant rai ses three intertwin ed issu es in th is appe al: (1) That the trialcourt er r ed by denying t he Defendant’s r equest for alternative sentencing; (2) that the tri al court er red by rej ecting t he propositi on that the fact a

death occurred is not a pr oper factor

to consider

in decid in g alternative senten cing; and (3 ) that t he court err ed by applyi ng the excepti onal circumstancesrule in denying alterna tive senten cing. We affirm the judgment of the trial cou rt.

The record ref lects t hat atapproximatel y 10:00 p.m. on July 8, 199 5, the Defendant was at the home of a friend. The home belonged to the br other of t he victim of the vehi cular homici de, Christopher Colli ns. Colli ns was a lifelong fri end of the Defendant. Collins met the Defendant at this house at approxi mately 9:45 p.m. The Defendant had consumed at l east fiv e beers in four hou rs. Th e Defendant decided to go to a store less than a mile away to g et some m ore beer.-3-

Collinsacco mpa nied th e Def enda nt in a 1981 Toyota automobil e. Collins had also bee n drinking
.
After buying the beer , the Defendant and C ollins hea ded ba ck to the house travel ing west on Bloo mingd ale Pike in Sullivan C ounty at approxi mately 45 to 50 miles per h our. A Ch evrolet B lazer was t raveli ng east on Bloomingdal e Pike, being dri ven by C had B alland cont ain ing fou r pa sse nger s. Some persons in t he Blazer saw the Defendant’s vehi cle approachi ng and stated that theheadligh ts went off just before t he coll ision. T he De fenda nt turne d left on to Bro oklaw n in frontof the Blaze r and the Blazer struck hi s vehicl e. The Blazer overt urned and three passengers

in theback seat

were thr

own from the vehicle. Collins was pinned in the Defendant’s vehic le and was unconsci ous when the police arrived
. He was pronounced dead at the Holston Vall ey Community Hospital . The other victims were injured , but none seriou sly.

The Defendant’s bl ood alcohol r egistered . 15% and Collins’ was .02%. The Defe ndan t was in dicted for one coun t of vehic u lar homici de involv ing intoxi cation and five count s of aggravated assault. Tenn. Code Ann. §§ 55-10- 401; 39-13-213 (a)(2); 39-13-102 (a)(2)(A). On December 13, 1996 and pursuant to a negotiat ed plea agreement, the Defendant pleaded nolo contende re to five counts of si mple assault, Tennessee Code Annotated secti on 39-13-101, and
one count ofvehicular h omicide
. For the vehi cular homici de, the Defendant was sentenced as a R ange I, Stand ard O ffende r to eigh t years , the m inim u m sentence in the rang e for a Cla ss B felon y. Tenn. C ode Ann . §§ 39-13-21 3(b). The Defendant moved for alternati ve sentencin g and a hearing was conduc ted
on January 24, 1997. In an ordercontaini ng lengthy f indings of fact and l egal-4-

analysis, the trial court denied the Defe ndant’s m otion. It is from this denial t hat the Defendant now appeals.

W hile we recognize t he Defendant has presen ted h is appeal i n terms of three issues, b ecaus e of their in terrel atedness, we wi ll addres s them as comp onents of the p rimary issue o f wheth er the tr ial cou rt erred in failing to grant alternative sentencing. When an accused challenges the l ength, range, or the
manner of servic e of a s enten ce, this court ha s a duty to conduct a de novo review of the sentence with a presumption that the determinat ions made by the trialcourt are correct. Tenn. Code Ann. § 40-35-401(d). This p resu mptio n is "conditi oned upon the affirm ative showing in the record that the trial court considered the sentencing pr incipl es and all r elevant facts and circums tances ." State v. Ashby , 823 S.W .2d 166 , 169 (T enn. 19 91).

In conducting a de novo review of a sentence, t his court must consider: (a) t he evidence, if any, r eceived at t he trialand the sentenci ng hearing; ( b) th e presentence report; (c) the principl es of sentenc ing an d argum ents as to sentencing alternat ives; ( d) the natur e and characteri stics of the criminal conduct involved; (e) any

statutor y mitigat ing or

enhancement factor

s; (f) any statement thatthe defe ndant made on his own behalf ; and (g) t he potentialor lack of potentialfor rehab ilitation or treatm ent. Ten n. Cod e Ann. §§ 40-35-102, - 103, and -21 0; see State v. S mith , 735 S.W .2d 859, 863 (Tenn. Crim . App. 1987 ).

If our revi ew reflect

s that thetrialcourt fol lowed the statutory sentencing procedure, imposed a lawful sentence after having gi ven due consider ation and properweightto the factors an d princip les set out under the sentencing law, and-5-

thatthe tri al court' s findi ngs of factare adequately supported by t he record, t hen
we may not m odif y the sentenceeven if we woul d have prefer red a diff erent result. State v. Fletcher , 805 S.W .2d 785, 789 (Tenn. Crim . App. 1991 ).

In 1995, the legislature amended the lawregarding t he offense of vehicular homicide and specified that “ [v]ehicular homicide is a Class C felony, u nless it is the proxima te result of d river intoxicatio n as set fo rth in subd ivision (a)(2), i n which case it i s a Class B fel ony.” Tenn. Code Ann. § 39-13-213(b) (1997). The Defendant was conv icted of veh icu lar

homi cide pursuant to the intox icatio n provisi on and thus, was subj ect to thesentence rangefor a Class B felony. The sentencing range for a st andard offender

for a Class B felonyis eight (8) to twelve (12 ) years. T enn. C ode An n. § 40-3 5-101.

Because vehicular

homicide by

intoxi cation is a Class B felony, t here is no presumption that the Defendant is a suitable candidate foralternat ive sentenci ng options as af

forded t hose convi cted of a Cl ass C, D, or E fel ony. Te nn. Cod e Ann. § 40-35-102(6) . Howev er, probat ion must be automati cally co nsidered by the trialcourt as a sentencing al ternati ve for el igibledefendants. Tenn. Code Ann. § 40-35-303(b) . “A defendant shall be el igiblefor probat ion under the provisi ons of this

chapter if

the sente nce a ctually imposed upon such defendant is eight (8) years or less.” Tenn . Code Ann. § 4 0-35-30 3(a). Furthermore, the burden of establ ishing sui tabili ty for probation rests with the Defendant. Tenn. Code Ann. § 40-35-303( b). Guidanc e in dete rmining what f actors are t

o be considered concerning alternative sentences may be found in Tennessee Code Annotated section 40-35-103(1), whi ch states:-6- Sente nce s involv ing confi nement should be based on t he following considerations: (A) Confinem ent is necess ary to protect society by re stra ini ng a defend ant who has a lon g history of c riminal co nduct; (B) Conf inem ent is n eces sary to avoid depreciati ng the seriou sness of the offense or confinement i s particu larly suited to providean effective deterrent

to others l ikely to commit simila r offenses; or (C) Measures less restrict ive than conf inement have fr equently or recently b een ap plied uns uccess fully to the de fendan t.
See Ashby , 823 S.W.2d at 169. A cour t may also appl y the miti gating and enhancing factors s et fort h in Tennessee Code Annotated s ec t ions 40-35-113 and -114 as they ar

e relevant

to the sect ion 40-35-103 consi derations. Tenn. Code Ann. § 40-35 -210(b)( 5); State v. Zeolia , 928 S.W.2 d 457 , 46 1 (Te nn. Cri m. App. 1996). Final ly, t he potent i al or lack o f potential for rehabilitation of a defendantshould be consi dered in determining whether h e should be granted an alternative sentence. Tenn. Code Ann. § 4 0-35-10 3(5); State v. Boston , 938 S.W .2d 435 , 438 (T enn. C rim. App . 1996).

For a denial to occur based on the c ircumstances of the offens e "as committed, [they] mus t be 'es pecia lly violent , horri fying, shocking, r eprehensibl e, offensiv e, or otherwise of

an excessive or exaggerat ed degree,' and the nature of the offens e mus t outweigh all factors favo ring prob ation." State v. Travis , 622 S.W.2d 529, 53 4 (Ten n. 1981 ); State v. C leavor , 691 S.W.2d 541, 543 (Tenn. 1985). This principle ha s been co dified in section 40-3 5-103(1)(B ) whic h conside r s confinement to avoid depreci ating the seriousness of the offens e. State v. Hartley , 818 S.W.2d 370, 375 (T enn. C rim. App . 1991); see also State
v. Fletcher , 805 S.W.2d 785, 787 (Tenn. Crim. App. 1991). Sentenci ng decisions shou ld not, however, turn on agene ral izati on of thecri me committed, such as the-7-

fact that a dea th occurr ed. State v. Bingham , 910 S.W.2d 448, 456 (Tenn. Crim. A pp. 199 5); but see State v. Ramsey , 90 3 S. W.2d 7 09, 714 (Ten n. C ri m. App. 1995 ).

When a de fen dant

is not aff ord ed t he pr

esum p tion of suitabi lity for alternative sentencing, the defendant bears the burden solely to establ ish that it would “subserve t he ends of justice and th e bes t interes t of both the pu blic and the defendan t.” Bingham , 910 S.W .2d at 456 (quoting State v. Dykes , 803 S.W.2d 250, 259 (Tenn. Cri m. App. 1990). I n the c ase at bar, the trial court determined that alterna ti ve sentencing for the Defendant would not ser

ve the ends of justice. The presentence report indicates that at the time of

the hearing concerning the manner of ser vice of t he sentence, t he Defendan t was twentythree years old, sing le, and lived with his mo ther. He had no prior of fenses as
a juvenile or an a dult. He gradu ated fro m hig h sch ool in 1992, attended a truck drivi ng school afterwa rds, and has been stead ily emplo yed. He admitted to a history of alcoholand marijuanause. The victi m’s mother submitted a statement that she w as not op posed to proba tion for the D efenda nt.

The Defe ndan t testified at the h earing in addition to the afor ementioned facts, that he w as a clos e friend of th e victim. The Defen dant ha d difficulty sleeping after the ac cident an d cried at nig ht. He testified that he mad e a big mistake and that he was willi ng to pay his debt to societ y. The Defendant also admitted thathe had continued to drink al cohol aft er the acci dent. He agreed thathe was feeli ng the effec ts of al cohol when he decided to drive the night of the incident.-8- The trialcourt deni ed alternat ive sentenci ng and docum ented its reas oning in extensive findin gs. In gener al terms, the t rial judge found that the unfavo rable factors considered weighed again st the D efend ant’s p roof tha t he wa s a suita ble candid ate for alternative sentencing. The court consi dered the fact s that (1)the Defendant tur ned off thevehicle’ s headlights; (2) t he dangerto the passen gers in the other

vehicle who were thrown onto the roadway; (3) that victi ms other than the Defen dant we re injured; a nd (4) tha t the Defe ndant’ s blood alcohol l evel of .15% was well over

the legal limit . The tri al judge considered the circ umstances to be reprehensibl e, excess ive and to an exaggerated degr ee such that pr

obation
was not warra nted. Be cause the Defe ndant w as afford ed no p resum pti on tha t he was a suitabl e candidate for alternative sentencing, t he trialjudge was vested with a considerabl e degree of di scretion within t he sentencing gu idelin es to determine the manner of ser vice of t he sentence. We cannot concl ude that the trialjudge erred or abused h is discret ion by de nying an alternative to incarcerat ion.

Howeve r, the Def endant also contends that t he trialcourt err ed by reject ing the propositi on that thefact that a death occurred cannot alone suppor t the deni al of alternative sentencing. S pecifically, a panel of this Co urt has held that the tri al court may n ot con sider fa ctors w hich co nstitute elem ents o f the offe nse in question. See State v. Bingham , 910 S.W.2d 448, 456 (Ten n. C ri m. App. 1995 ). Thus, the fact that a death occurred alonecannot support denial of

probation in
a case where death i s a g eneral el emen t of the offen se. Id. This Cou rt recognizesthe grave nature o f crimes th at involve the death of another per son. Howeve r, we also readi ly acknowled ge thatwe are governed by laws enacted by the legisl ature. The legisl ature has prov ided that a person sentenced to eight (8)-9-

years or less i s eligi ble for pr obation and o ther sen tencin g optio ns, eve n if convicted f

or an offense involv ing the deat h of another per son.
Apparen tly, the legislat ure has co n sidered the nature of t he offense of vehicular

homicide and determined that the proper grade of t he offense is a Class C felony in cases of r ecklessness and a Class B felony in ca ses wher e intoxi cation is involved. Tenn. Code Ann. § 39- 13-213( b ). The legi slature has also specifi ed that persons convicted of Class C fel onies are pres umed favora ble
can didates for alternative sentencing. Tenn. Code Ann. § 40-35-102 (6)

. Therefore, even in a case i nvolvi ng a death, a de fendant m ay receive alternative sentencing, includi ng probation. Here, because the Defendant was convicted by way of intoxicati on, he is a Class B felon who does not possess t he presumption b ut neither i s he precluded f rom receivi ng probation or other sen tencin g alternat ives solely be cau se a de ath occu rred. See Tenn. Code Ann. § 40-35- 303(a). The trial court must consider hi s suitabi lity for probat ion but the burden of proof re mains solely upo n the De fendan t.

In conjuncti on with thi s, the trial court also concluded thatin cases whe re a death occurred, a defendant must demo nstrate exception al circum stance s to establish his or her suit abilit y for alternat ive sentenci ng. He based his r easoning
on cases decided under prior sentenc ing l aw, see State v. S mith , 662 S.W.2d 588, 590 (T enn. 19 83); Kilgore v. State , 58 8 S. W.2d 5 67, 568 (Ten n. C ri m. App. 1979), that appl ied a rule that except ional ci rcumstances must be demonstrated to warrant probation i n a case involv ing the deat h of another person. Again, we recognize the tra g ic and senseles s losses inv olved in cases of vehi cular homicide. However, ther e is nothi ng in the 1989 Sentencing Act t hat provi des for-10-

the applicat ion of an exceptional ci rcumstances doctrine and we must conclude thatany suc h doctrine did not su rvive in our p resent C ode. See State v. Michael D. Frazier , C.C.A. N o. 0C0 1-9602 -CR-0 0084, K nox Co unty (Te nn. Crim . A p p., Knoxvill e, June 4 , 1 997) ; State v. McKinzie Monroe Black , C.C.A. No. 01C01- 9401-CC-00006, Robe rtson Co unty (Ten n. Crim . App., Nash ville, July 14, 1995); but see State v. Ramsey , 903 S.W.2d 7 09, 7 14 (Tenn. Crim. App. 1995). The burden remains up on the De fendant to prove his suitability for alternati ve sentencing but we do not bel ieve that our law mandates an enhanced burden to prove exceptionalcircumstances when a death occurs. Theref ore, we believe that the trial court erred in ap plying this rule to the case at bar.
Nevertheless, we cannot conclude that the t rial j udge abus ed his discr etion in refusi ng to gran t an alternative sentence. The Defendant pr esented proof regarding his appropriaten ess for p robation. The v ictim’s m other w as also in favor of an alternative sentence. Yet , there i s evidence i n the record t ha t the accidentwas violent, re prehe nsible and o ffensive . Multiple victi ms were involved and three of t hose p ersons we re thrown from their vehicle. The trial court determined thatthe circ umstances of the of fense outwei ghed the positive factors submitted by the Defendant such that gra nting a n altern ative se ntenc e wou ld not
serve the ends of j ustice. There being no presu mption for alternative sentencing because the Defen dant was convicte d of a Class B fel ony, the t rial j udge was warranted in using hi s discret ion to determinethe appropriate manner of servi ce of the sentence. Clearly, he was conce rned with depreciati ng the seriousness of the off

ense and the recor

d supports t his fi nding.

There fore, we a ffirm the jud gmen t of the trial cou rt.-11- ____________________________________ DAVID H. WELLES , JUD GE
CONCUR:

___________________________________ GARY R. WADE, JUDGE

___________________________________ JERRY L . SMI TH, J UDGE