FILED

December 16, 1997

Cecil Crowson, Jr.

Appellate C ourt Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

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, )

)

Appellant. ) (Sentencing)

ON APPEAL 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 General and Reporter

Kingsport, TN 37660

SANDY C. PATRICK

Assistant Attorney General

425 Fifth Avenue North

Nashville, TN 37243

GREELEY WELLS

District Attorney General

ROBERT MONTGOMERY

Assistant District Attorney General

Sullivan County Justice Center

Blountville, TN 37617

OPINION FILED ________________________

AFFIRMED

DAVID H. WELLES, JUDGE
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OPINION

This is an appeal as of right pursuant to Rule 3 of the Tennessee Rules of

Appellate Procedure. The Defendant, Bradley Joe Housewright, pleaded nolo

contendere to five counts of assault, Class A misdemeanors, and one count of

vehicular homicide, a Class B felony. Pursuant to a plea agreement, he was

sentenced to eleven months and twenty-nine days for each assault conviction

and eight years for the vehicular homicide conviction. The sentences were

ordered to be served concurrently. The trial court considered and denied

alternative sentencing and ordered the Defendant to serve his sentences in the

Department of Correction. The Defendant raises three intertwined issues in this

appeal: (1) That the trial court erred by denying the Defendant’s request for

alternative sentencing; (2) that the trial court erred by rejecting the proposition

that the fact a death occurred is not a proper factor to consider in deciding

alternative sentencing; and (3) that the court erred by applying the exceptional

circumstances rule in denying alternative sentencing. We affirm the judgment of

the trial court.

The record reflects that at approximately 10:00 p.m. on July 8, 1995, the

Defendant was at the home of a friend. The home belonged to the brother of the

victim of the vehicular homicide, Christopher Collins. Collins was a lifelong friend

of the Defendant. Collins met the Defendant at this house at approximately 9:45

p.m. The Defendant had consumed at least five beers in four hours. The

Defendant decided to go to a store less than a mile away to get some m ore beer.
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Collins accompanied the Defendant in a 1981 Toyota automobile. Collins had

also been drinking. 

After buying the beer, the Defendant and Collins headed back to the house

traveling west on Bloomingdale Pike in Sullivan County at approximately 45 to 50

miles per hour. A Chevrolet Blazer was traveling east on Bloomingdale Pike,

being driven by Chad Ball and containing four passengers. Some persons in the

Blazer saw the Defendant’s vehicle approaching and stated that the headlights

went off just before the collision. The Defendant turned left onto Brooklawn in

front of the Blazer and the Blazer struck his vehicle. The Blazer overturned and

three passengers in the back seat were thrown from the vehicle. Collins was

pinned in the Defendant’s vehicle and was unconscious when the police arrived.

He was pronounced dead at the Holston Valley Community Hospital. The other

victims were injured, but none seriously.

The Defendant’s blood alcohol registered .15% and Collins’ was .02%.

The Defendant was indicted for one count of vehicular homicide involving

intoxication and five counts 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 negotiated plea agreement, the Defendant pleaded nolo contendere to five

counts of simple assault, Tennessee Code Annotated section 39-13-101, and

one count of vehicular homicide. For the vehicular homicide, the Defendant was

sentenced as a Range I, Standard Offender to eight years, the minimum

sentence in the range for a Class B felony. Tenn. Code Ann. §§ 39-13-213(b).

 The Defendant moved for alternative sentencing and a hearing was conducted

on January 24, 1997. In an order containing lengthy findings of fact and legal
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analysis, the trial court denied the Defendant’s m otion. It is from this denial that

the Defendant now appeals.

While we recognize the Defendant has presented his appeal in terms of

three issues, because of their interrelatedness, we will address them as

components of the primary issue of whether the trial court erred in failing to grant

alternative sentencing. When an accused challenges the length, range, or the

manner of service of a sentence, 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. Tenn. Code Ann. § 40-35-401(d). 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). 

In conducting a de novo review of a sentence, this court must consider: (a)

the evidence, if any, received at the trial and the sentencing hearing; (b) the

presentence report; (c) the principles of sentencing and argum ents as to

sentencing alternatives; (d) the nature and characteristics of the criminal conduct

involved; (e) any statutory mitigating or enhancement factors; (f) any statement

that the defendant made on his own behalf; and (g) the potential or lack of

potential for rehabilitation or treatm ent. Tenn. Code Ann. §§ 40-35-102, -103,

and -210; see State v. Smith, 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987).

If our review reflects that the trial court followed the statutory sentencing

procedure, imposed a lawful sentence after having given due consideration and

proper weight to the factors and principles set out under the sentencing law, and
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that the trial court's findings of fact are adequately supported by the record, then

we may not modify the sentence even if we would have preferred a different

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

In 1995, the legislature amended the law regarding the offense of vehicular

homicide and specified that “[v]ehicular homicide is a Class C felony, unless it is

the proximate result of driver intoxication as set forth in subdivision (a)(2), in

which case it is a Class B felony.” Tenn. Code Ann. § 39-13-213(b)(1997). The

Defendant was convicted of vehicular homicide pursuant to the intoxication

provision and thus, was subject to the sentence range for a Class B felony. The

sentencing range for a standard offender for a Class B felony is eight (8) to

twelve (12) years. Tenn. Code Ann. § 40-35-101. 

Because vehicular homicide by intoxication is a Class B felony, there is no

presumption that the Defendant is a suitable candidate for alternative sentencing

options as afforded those convicted of a Class C, D, or E felony. Tenn. Code

Ann. § 40-35-102(6). However, probation must be automatically considered by

the trial court as a sentencing alternative for eligible defendants. Tenn. Code

Ann. § 40-35-303(b). “A defendant shall be eligible for probation under the

provisions of this chapter if the sentence actually imposed upon such defendant

is eight (8) years or less.” Tenn. Code Ann. § 40-35-303(a). Furthermore, the

burden of establishing suitability for probation rests with the Defendant. Tenn.

Code Ann. § 40-35-303(b). Guidance in determining what factors are to be

considered concerning alternative sentences may be found in Tennessee Code

Annotated section 40-35-103(1), which states:
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Sentences involving confinement should be based on the following

considerations:

(A) Confinement is necessary to protect society by restraining a

defendant who has a long history of criminal conduct;

(B) Confinement is necessary to avoid depreciating the seriousness of

the offense or confinement is particularly suited to provide an effective

deterrent to others likely to commit similar offenses; or

(C) Measures less restrictive than confinement have frequently or

recently been applied unsuccessfully to the defendant. 

See Ashby, 823 S.W.2d at 169. A court may also apply the mitigating and

enhancing factors set forth in Tennessee Code Annotated sections 40-35-113

and -114 as they are relevant to the section 40-35-103 considerations. Tenn.

Code Ann. § 40-35-210(b)(5); State v. Zeolia, 928 S.W.2d 457, 461 (Tenn. Crim.

App. 1996). Finally, the potential or lack of potential for rehabilitation of a

defendant should be considered in determining whether he should be granted an

alternative sentence. Tenn. Code Ann. § 40-35-103(5); State v. Boston, 938

S.W.2d 435, 438 (Tenn. Crim. App. 1996). 

For a denial to occur based on the circumstances of the offense "as

committed, [they] must be 'especially violent, horrifying, shocking, reprehensible,

offensive, or otherwise of an excessive or exaggerated degree,' and the nature

of the offense must outweigh all factors favoring probation." State v. Travis, 622

S.W.2d 529, 534 (Tenn. 1981); State v. Cleavor, 691 S.W.2d 541, 543 (Tenn.

1985). This principle has been codified in section 40-35-103(1)(B) which

considers confinement to avoid depreciating the seriousness of the offense.

State v. Hartley, 818 S.W.2d 370, 375 (Tenn. Crim. App. 1991); see also State

v. Fletcher, 805 S.W.2d 785, 787 (Tenn. Crim. App. 1991). Sentencing decisions

should not, however, turn on a generalization of the crime committed, such as the
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fact that a death occurred. State v. Bingham, 910 S.W.2d 448, 456 (Tenn.

Crim. App. 1995); but see State v. Ramsey, 903 S.W.2d 709, 714 (Tenn. Crim.

App. 1995).

When a defendant is not afforded the presumption of suitability for

alternative sentencing, the defendant bears the burden solely to establish that it

would “subserve the ends of justice and the best interest of both the public and

the defendant.” Bingham, 910 S.W .2d at 456 (quoting State v. Dykes, 803

S.W.2d 250, 259 (Tenn. Crim. App. 1990). In the case at bar, the trial court

determined that alternative sentencing for the Defendant would not serve the

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

concerning the manner of service of the sentence, the Defendant was twentythree years old, single, and lived with his mother. He had no prior offenses as

a juvenile or an adult. He graduated from high school in 1992, attended a truck

driving school afterwards, and has been steadily employed. He admitted to a

history of alcohol and marijuana use. The victim’s mother submitted a statement

that she was not opposed to probation for the Defendant.

The Defendant testified at the hearing in addition to the aforementioned

facts, that he was a close friend of the victim. The Defendant had difficulty

sleeping after the accident and cried at night. He testified that he made a big

mistake and that he was willing to pay his debt to society. The Defendant also

admitted that he had continued to drink alcohol after the accident. He agreed

that he was feeling the effects of alcohol when he decided to drive the night of the

incident. 
-8-

The trial court denied alternative sentencing and documented its reasoning

in extensive findings. In general terms, the trial judge found that the unfavorable

factors considered weighed against the Defendant’s proof that he was a suitable

candidate for alternative sentencing. The court considered the facts that (1) the

Defendant turned off the vehicle’s headlights; (2) the danger to the passengers

in the other vehicle who were thrown onto the roadway; (3) that victims other than

the Defendant were injured; and (4) that the Defendant’s blood alcohol level of

.15% was well over the legal limit. The trial judge considered the circumstances

to be reprehensible, excessive and to an exaggerated degree such that probation

was not warranted. Because the Defendant was afforded no presumption that

he was a suitable candidate for alternative sentencing, the trial judge was vested

with a considerable degree of discretion within the sentencing guidelines to

determine the manner of service of the sentence. We cannot conclude that the

trial judge erred or abused his discretion by denying an alternative to

incarceration.

However, the Defendant also contends that the trial court erred by rejecting

the proposition that the fact that a death occurred cannot alone support the denial

of alternative sentencing. Specifically, a panel of this Court has held that the trial

court may not consider factors which constitute elements of the offense in

question. See State v. Bingham, 910 S.W.2d 448, 456 (Tenn. Crim. App. 1995).

Thus, the fact that a death occurred alone cannot support denial of probation in

a case where death is a general element of the offense. Id. This Court

recognizes the grave nature of crimes that involve the death of another person.

However, we also readily acknowledge that we are governed by laws enacted by

the legislature. The legislature has provided that a person sentenced to eight (8)
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years or less is eligible for probation and other sentencing options, even if

convicted for an offense involving the death of another person.

Apparently, the legislature has considered the nature of the offense of

vehicular homicide and determined that the proper grade of the offense is a Class

C felony in cases of recklessness and a Class B felony in cases where

intoxication is involved. Tenn. Code Ann. § 39-13-213(b). The legislature has

also specified that persons convicted of Class C felonies are presumed favorable

candidates for alternative sentencing. Tenn. Code Ann. § 40-35-102(6).

Therefore, even in a case involving a death, a defendant may receive alternative

sentencing, including probation. Here, because the Defendant was convicted by

way of intoxication, he is a Class B felon who does not possess the presumption

but neither is he precluded from receiving probation or other sentencing

alternatives solely because a death occurred. See Tenn. Code Ann. § 40-35-

303(a). The trial court must consider his suitability for probation but the burden

of proof remains solely upon the Defendant.

In conjunction with this, the trial court also concluded that in cases where

a death occurred, a defendant must demonstrate exceptional circumstances to

establish his or her suitability for alternative sentencing. He based his reasoning

on cases decided under prior sentencing law, see State v. Smith, 662 S.W.2d

588, 590 (Tenn. 1983); Kilgore v. State, 588 S.W.2d 567, 568 (Tenn. Crim. App.

1979), that applied a rule that exceptional circumstances must be demonstrated

to warrant probation in a case involving the death of another person. Again, we

recognize the tragic and senseless losses involved in cases of vehicular

homicide. However, there is nothing in the 1989 Sentencing Act that provides for
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the application of an exceptional circumstances doctrine and we must conclude

that any such doctrine did not survive in our present Code. See State v. Michael

D. Frazier, C.C.A. No. 0C01-9602-CR-00084, Knox County (Tenn. Crim. App.,

Knoxville, June 4, 1997); State v. McKinzie Monroe Black, C.C.A. No. 01C01-

9401-CC-00006, Robertson County (Tenn. Crim. App., Nashville, July 14, 1995);

but see State v. Ramsey, 903 S.W.2d 709, 714 (Tenn. Crim. App. 1995). The

burden remains upon the Defendant to prove his suitability for alternative

sentencing but we do not believe that our law mandates an enhanced burden to

prove exceptional circumstances when a death occurs. Therefore, we believe

that the trial court erred in applying this rule to the case at bar.

Nevertheless, we cannot conclude that the trial judge abused his discretion

in refusing to grant an alternative sentence. The Defendant presented proof

regarding his appropriateness for probation. The victim’s m other was also in

favor of an alternative sentence. Yet, there is evidence in the record that the

accident was violent, reprehensible and offensive. Multiple victims were involved

and three of those persons were thrown from their vehicle. The trial court

determined that the circumstances of the offense outweighed the positive factors

submitted by the Defendant such that granting an alternative sentence would not

serve the ends of justice. There being no presumption for alternative sentencing

because the Defendant was convicted of a Class B felony, the trial judge was

warranted in using his discretion to determine the appropriate manner of service

of the sentence. Clearly, he was concerned with depreciating the seriousness

of the offense and the record supports this finding.

Therefore, we affirm the judgment of the trial court.
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____________________________________

DAVID H. WELLES, JUDGE

CONCUR:

___________________________________

GARY R. WADE, JUDGE

___________________________________

JERRY L. SMITH, JUDGE