# FILED
April 24, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT JA CKSON DECEMBER 1997 SESSION

STATE OF TENN ESSEE, ) ) Appellee, ) C.C.A. No. 02C01-9708-CC-00299

) v. ) Tipton County ) RANDAL A. THIES, ) Hon. Joseph H. Walker, III, Judge ) Appellant. ) (DUI - 3d, Driving while License

) Suspended, Canceled or Revoked, Vehicular Homicide, Reckless Endangerment)
FOR THE APPELLANT: FOR THE APPEL LEE: J. THOMAS CALDWELL JOHN KNOX WALKUP Attorney at Law Attorney General & Repor ter 144 Jefferson St. Ripley, TN 38063 ELIZABETH T. RYAN Assistant Attorney Gener al 450 James Robertson Parkwa y Nashville, TN 37243-0493 ELIZABETH T. RICE Dist. Attorney General WALT FREELAND Asst. Dist. Attorney General 302 Market St. Somerville, TN 38068

OPINION FILED: _____________
AFFIRMED CURWOOD WITT, JUDGE1 We use the defendant's name as stated in the indictment,

notwithst anding it s contrar y appeara nce elsewh ere in the record. Li kewise, we have used the victim s' names as they a ppear in the ind ictment, even th ough spelled inconsistently

in the record. 2

OPINION The defendant, Randal A. Thies, 1 appeals the length and manner of sentencing imposed upon him as a result of his convictions of thir d offense driving under the influence, driving

while license suspend ed, c anceled or revoke d, vehicular homicide and reckless endangerment.Thies is presently incarcerated, serving his effect ive four and one-half year sentence c onsecutively to a

previous 11 month, 29 day sentence upon which his probation was revoked as a re sult of the instant crimes. His sentence was imp osed following a jury trial in the Tipton County Circuit Court. In this appe al, he rai ses three issues fo r our review: 1. Whether the trial court erred in the imposition of a four and one-half year sente nce by apply ing inappropriate enhancement factors. 2. Whether t he trial court erred i n failing to impose an alternative sentence. 3. Whether the trial court erred i n imposing the four and one-half year s ent ence consecutive to a suspen ded sentence revoked because of the i nstant case. Having r eviewed the record, b riefs and arg uments of the pa rties, we affirm.

On February 24, 1996, Randal Thies had twice been convic ted of drivingunder the influence. His driver 's license was on

revoked status, althoug h he had been granted a

restricted privi lege to drive to and from work. Never

theless, that morning Thies drove to a friend's house to work on a truck. He and the friend spent the day in each other's company, with the friend driv ing Thies's truck the

rest of the day. In the late afternoon or ear ly evening hours,Thies and the friend purchased beer, which they took

to a party at the trail er home of a friend.

After consuming some beer, Thiesdecided to leave th e party with two young w omen, Clari ssa Dawn Fowler and Melissa Pruett. Altho ugh he had been2 At trial, the defendant claimed Pr uett was driving

and he was sitting i n the middle when the group left the party. The jury discredited the defenda nt's evidence, and that determination has not been cha llenged on appeal. 3 drinking and had a revoked license, the defendant drove his truck with Melissa Pruettseated to his immediate rig ht and Dawn Fowler on the passenger side. 2 At about 10:05 p.m., Covington Police Chief Clifton Deverell heard an engine revving and within a few seconds s aw the defendant's truck dis regarding a stop si gn and making a turn. He began following the truck, whic h he observed was going "very fast " in a heavily populated residential area of Covington in which the speed limit
was 30 miles per hour. Duri ng his pursuit, in w hich he never got w

ithin 300 feet of the truck, Chief

Deverell reached speeds of about 60 miles per hour, yet he di d not catch up to the defendant's tru ck. Chief Deverell pursued the truck for 30 to 40 seconds until he lost sight of it as it crossed some ra ilroad tracks. Less than a minute later, he di scovered the defendant's truck wr ecked about 3/10 mi le from where he had lost sig ht of it. Both Fowler and Pruett

were lying face dow

n on the roadway. The defendant was spotted walking out of a ditch shortly thereafter.

Dawn Fowler, seventeen years old, died from the massive i njuries she sustained in the wreck. Meli ssa Pruett, e ighteen years old, w as severely injur

ed. At first in a coma, she was hospitalized for si x we eks. Her numerous injuri es included a head injury, a broken femur which required insertion of a met al rod, and facial lacerations which hav e resulted in scarring

. After she was discharged from the hospital, she was a pati ent at a r ehabilitation facility in Arkansas which specializes

in treatment of head injuries. The defen dant's i njuries w ere comparativelyminor, co nsis ting pr imarily of scr

atches and scra pes and m ild soft tissue swelling of the

head. The defendant was treated and relea sed from the local hospital in a matter of hours.

The defendant was 22 years old on February 24, 1996. His criminal record consisted of two pri or DU I convictions in 1993 and 1995 and a speeding
con victi on in late 1995. He admitted to the presentence officer that he began4

drinking alcohol when he was 1 6 years old and continu ed to drink a six-pack a week. He is a high sch ool gr aduate, and at the time of sentencing h ad been employed since graduation by World Color Press. His sup ervisor testified at the sentencing hearing about his good w ork record. The

defendant was single and had resided with his parents unti l he was incarcerated.His father testified he would do his best to see that his soncomplied with the terms of the sentence imposed. Thies also informed the presentence officer that he ha d been under going treatment for insomnia and depression since Marc h 1996. A family friend testified as a character witness, stating the defendant was well-mann ered and helpful. The defendant took the stand at sentencing to pr ofess his remorse and wil lingness to comply with the terms of the sentence imposed by th e trial court.

After determi nin g the enhancement and mitigating factors to be applied, the trial court sentenced the defend ant as follows: Third offense DUI - 11 months, 29 days, 75 % release eligibilit y, suspension of driving pr ivileges for 3 year

s, fine of $1,100. Drivingwhile license suspended, cance led o r revoked - 6 months, 75% release eligibility, suspension of driving privileges for 1 year. Vehicular

hom icide - 4 years, 6 months, suspen sion of driving privileges for 4 years. Reckless endangerment - 11 month s, 29 days, 75% relea se eligibi lity. All four sentences were imposed concurrently to

one another but consecutivel y to
an earlier

DUI sentence upon which Thies's probation had been revoked as a result of this case.

In determining whether the tri al court has properly sentenced an individual, this court engages in a de novo review of the record with a presumption that the trial court's determinations were correct. Tenn. Code Ann. § 40-35-401(d) (1997). This presumption is "condi tioned u pon the a ffirma tive showing in the record that the trial court c

onsi dered the sentencing principles and all relevant facts and circumstances.” State v. Ashby , 823 S.W.2d 166, 16 9 (Tenn. 1991). In conducting
our de novo review, we must conside r the evidence at s entencing, the presentence5

report, the sentencing principles, the argument s of counsel, the statements of the defenda nt, the nature and characteristi cs of the offense, any mitigating an d enhancementfactors, and the defendant’s amenabilit y to rehab ilitation. Tenn. Code Ann. §§ 40-35-210(b), 40-35-103( 5) (1997); Ashby , 823 S.W.2d at 168. On appeal, the appellant has the burdenof showing the sentence impos ed is improper. Tenn. Code Ann. § 40-35-401(d), Sentenci ng Comm'n C ommen ts (1997); Ashby , 823 S.W.2d at 169.

In the case at bar, the trial co urt engaged in thoughtful c onsideration of the relevant variab les; however, in reac hing its sentenci ng de termination, it erroneously applied some of the enhancement fact ors. Accordingly, we must conduct our review unaccompanied by the presumption of correctness.

I F irst, we consider the issue of the length of the defendant's sente nces . The trial court found the presence of the f ollowing enhancement factors: (1) The defendant has a previous historyof criminal convictions or criminal behavio r i n addition to those necessary to establish the appropriate range; (3) The offense inv

olved more than one (1) victim; (6) The personal injuries infli cted u pon o r the amount of damage to proper ty s ustain ed by or taken from the victim was parti cularly great; (8) The defendant ha s a p revious history of unwillingness to comply with the condi tions of a sentenc e invo lving release i n the com munity; (13) The felony was committed while on any of the following forms of relea se i f such release is from a prior felony conviction . . . probati on; (16) The crime was committed under c ircumstances unde r which th e po tential for bodily injur y to a victim w

as great.
Tenn. Code Ann. § 40-35- 114(1), (3) , (6), (8), (13)(C), (16) (1997). The court applied factor (3) o nly t o the conviction of vehic ular homicide. The court further found factors (8) and (13) should be considered as only one factor, indicating it6

weighed th em less he avily.

In mitigation, the court found that the defen dant had a good work history and work e

thic. See Tenn. Code Ann. § 40-35-113(13) (1997).
Enhancement Factor (1)

We begin our r

eview by examinatio n of the enhance me nt fact ors found by the trial court. The defendant concedes the appli cability of factor (1), and we find this factor particularly appropriate i n light of the defendant's recent history of two DUI c onvictions and a speeding conviction. Additional ly, the defendant admitted he drove to a friend's house on the morning of the wreck, even thou gh his license was revoked and he w as permitted only to dri ve to and from work. Thi s constitutesevidence of further criminal ac tivity. Under the circumstances of this case, factor (1) was enti tled to significant we ight.
Enhancement Factor (3)

Factor (3), on the other hand, should not have been applied. As the state concedes, this factor is inappropriate w here, as here, the state has obtained separate convictions for each of the multiple victims. State v. Williamso n , 919 S.W.2d 69, 82 (Tenn. Crim. App. 1995); State v. Ma koka , 885 S.W.2d 366, 373 (Tenn. Crim. App. 1994); State v. Lambert , 741 S.W.2d 127, 134 (Tenn. Crim. App. 1987).
Enhancement Factor (6)

Turning to factor (6), the state offers the concession that this factor is inappropriatebecause the victims' per sonal injuries have al ready been t aken into accountby the statutory definition of vehi cular homicide. See Williamson , 919 S.W.2d at 82; Lambert , 741 S. W.2 d a t 1 34 . We

agree with the state

that a "killing" of another under the vehic ular homicide statute is unq uestionably inclusiv e of particularlygreat bodily injur y as contemplated by factor (6). See Tenn. Code Ann.3 The defendant claims factor (6) is i napplicable because particul arly great

injury is an element of the i ndicted offense of vehicular assault. The defendant was convicted of the les ser offense of reckless endangerment. The conviction offense, not the indicted off ense, is scrutinitzed for determining applicable enhancement factors. See, e.g. , State v. Dale Nolan , No. 01C01-9511-CC00387, slip op. at 33 (Tenn. Cri m. App., Nashville, June 26, 1997); State v. Michael Shane Emmert , No. 03C01-9210-CR-00 354, slip op . at 7 (Tenn. C rim. App., Knoxville, Oct . 5, 1993); Sills v. State , 884 S.W.2d 139, 145 (Tenn. Crim. App. 199 4) (applyin g rule to 19 82 Sente ncing Act) . Accordin gly, we have considered the elements of the cri me of reckless endangerment. 7 § 39-13-213 (1997).

However, we see nothing prohibi ting the application of this factor to the conviction of reckless endangerment. 3 The stat utory d efiniti on of r eckless endangerment

proscribes reckless

condu ct "whi ch places or may place another person in imminent danger of death or serious bodily injury." See Tenn. Code Ann. § 39-13-103(a) (1997). The offense of reckless enda ngerment may occur eve n though a victim do es not suf fer actu al bodily in jury. State v. Ramsey , 903 S.W.2d 709, 712 (Tenn. Crim. App. 1995); State v. Baggett , 836 S.W.2d 593 (Tenn. Cr im. App. 1992). Therefore, factor (6) is an appropriate enhancemen t f actor. Accord State v. Michael Shane Emmert , No. 03C01-9210-CR-00354, slip op. at 7 (Tenn. Crim. App., Knoxville, Oc t. 5, 1993) (factor (6) appli ed to reckless enda nge rment conviction). But cf. State v. Ivo ry Brown , No. 02C01-9303-CC-00036, slip op. at 16 (Tenn. Crim. App., Jackson, Dec. 1, 1993) (factor (6) inappropriate for sentencing
on reckless endangerment conviction; however, court did not specify whether it excluded this factor based upon lack of sufficient supporting evidence of record or inapplicability as a

matter of law).

Addition ally, the application of factor (6) is not prohibit ed as a matter of law for

the defendant's DUI and driv ing on revoked licens

e convictions. Those crimes do not include particularly great bodily injury in their statutory definitions. See Tenn. Code Ann. §§ 55-10-401, 55-10-403, 55-10-504 (1993 and Supp. 1997 ). We find that the trial court i ncorrectly applied thi s factor to the vehicular homicide conviction, but not the other three convictions.
Enhancement Factor (8)8 Next, the defendant disputesthe application of factor (8), claiming he has no "previous" history of unwillingness to comply with a non- incarcer ative sentence simply because he c ommi tted these offenses while on probation. In support of his argument he calls our attent io n to State v. Hayes , 899 S.W.2d 175 (Tenn. Crim. App. 1995), whi ch would support his argument if he had n ot overlooked pertinent additional facts. W e are persuaded to a contrary result in part by Thies's own admissi on that he violated the law on the morning of February 24, 1996 by driving

his truck to a friend's house even though his license was revo ked. Addition ally, the p resentence report reveals that he was granted a partially suspended sentence for his first c onviction of DUI in 1993. Just over two months into the term of that 11 month, 29 day sentence, he w as again arrested for DUIand ultimately convicted. He was likewise c onvicted of speeding during the probationary period imposed for his second DUI conviction. Unlike the defendant in Hayes , Thies has a "previous" history of unwillingness to comply with the c onditions of

sentences involving release into the community. Application of factor (8) was proper.
Enhancement Factor (10 ) The state claim s factor (10) sho uld be applied , even though the trial court did not consider it. With respect to the crime of vehicular homicide, high risk to human life is generally considered to be inherent wit hin the offens e, although factor (10) may be applied w

here facts independent of those relied upon to support the conviction establish risk to human life other than that of th e vic tim. See, e.g. , State v. Bingham , 910 S.W.2d 448, 452-53 (Tenn. Crim. App. 1995); Lambert , 741 S .W.2d at 134. T his is such a case. The ev idence at trial reveal ed that prior to drivinghis truck recklessl y and causing it to st rike a bridge, the defe ndant dr ove through a heavily

pop ulated residential area at an excessive rate of speed and disregarded a stop sign in order to evade the police ch ief, who h imself h ad to drive his patrol vehicle at an ex cessive rate of speed on res idential streets in an attempt to apprehend the def en dant. Thus, an individual other than the victim w as in the immediate vicinity and at risk because of the defendant 's unlawful actions. Factor9

(10) is appropriate for the vehicular homicide conv iction.
Application of enhancement factor (10) to the reckless endangerment conviction is somewhat more problematic. The factor is generally cons idered to be encompassed in the definition of reckless endangerment. State v. R obert Chapman , No. 02C01-9510-CR-00304, s lip op. at 6 (Te nn. Crim. App., Jackson, Jan. 14, 1997) ( citations omitted), perm. app. denied (Tenn. 1997). Tennessee Code Annotated section 39-13-103(a) proscribes reckless

conduct that "places

or mayplace another person in imminent dang er of death or serious bodily injury." Tenn. Code Ann. § 39-13-103(a) (1997) (emphasis added). As such, reckless endangerment

may be committed when the other "person" is an unidentified person or persons, or when the person is a specific, named individual. See, e.g. , State v. Wayne L. Hughes , No. 01C01-9502-CC-00 033 (Tenn. Cr

im. App., Nashville, June 20, 1996) (defendant convicted in one county of reckless endangerment of "Trooper Rick Smith and others " and convicted in another county of reckless endangerment of "Trooper Robert Beard")(emphasis added), perm. app. denied (Tenn. 1996). An indictment

which charges reckless endangerment, either as the charged offense or
as a lesser offense of

the charged offense, may specify whether a specific person, an unnamed person, or persons in general were endangered.

In the present case, the reckles s endangerment convictio n emanated from the count charging the veh icular assault upon Meli ssa Pruett. In order for reckless endangerment to have been a lesser offense of the charged offense, the "imminentdanger of death or serious bodily inju ry" must have been directed toward the same pe rson, Meli ssa Pruet t, who alle gedly suff ered "se rious bod ily injury" under section 39-13-106, the vehi cular assaul t stat ute. Viewed in this li ght, the conviction offense does n ot embrac e the endangerment of persons other than Melissa Pruett, and accord ingly, f actor (10) does not include elements of the conviction offense.10 We take this opportunity to harmonize our result with that reached in pr ior opinions of this court. See Robert Chapman (shooting in crow ded arcad e inside po pul ar shopping mall); Wayne L. Hughes (high speed chase in which
numerous motorists an d law enforcement officers wer e placed at risk); State v. Arnold V. Porter , No. 01C01-9410-CC-00353 (Tenn. C rim. App., Nashville,Jan. 5, 1996) (high speed interstate chase in which there was ev idence of risk to numerous motoristsand law enforcement officers); cf

. Ivory Brown , slip op. at 16. Notably, the Wayne L. Hughesand Arnold V. Porter opinions cited above reflec t that the de fendan ts in those cases were convicted of multiple counts of recklessly endangering law enforcement officers and "ot hers" d uring high speed vehi cular chases. In those cases, the excl usion of factor (10) was ju stified because, presuma bly, all of the ind ividuals placed at risk were covered by the convictions. There w ere n o individuals other than these "victims" to justi fy the application of factor (10). In contrast, the Robert Chapman panel did not identify the v ictim(s) of the reckless endangerment conviction. However, th e relevant indictme nt may have charged the defendant with recklessly endanger ing all of the patrons of

the arcade, and for that reason we do n ot find that case controlling . The Ivory Brown opinion does not reveal whether the panel found factor (10) inapplicable to

the defendant's reckless endangerment conviction be c ause it was unsupported by evidence or because it was an element of the crime.

Accordin gly, we hold that factor (10) applies to Thie s's rec kless endangerment

conviction, giv

en the separate risk his r eckless driving

created prior to the w reck to the police chief and the residents of the heavily populated s tree t upon which he drove in ex cess of 30 miles per

hour above the speedlimit, as those individuals were not named as victims in the count of the indictment w hich resulted in the reckless endanger ment conviction.

Factor (10) is also applicabl e to Thies's DUI and driving on a rev oked license convictions. It is not duplicative of the elements of those of fenses.4 As discussed above in note 3, the relevant crimes for purposes of sentence enhancement are the convi ction crimes, not the indic ted crimes. Therefore, our analysis of the v ehicular assault count of the i ndictment will focus on the conviction crime of reckless endangerment. 11 Enhancement Factor (13 ) The trial court applied factor (13), and neither part y has addressed its propriety on appeal. Because we are engaged in a de novo review of the sentence,
we feel constrained to addr ess it sua sponte . Factor (13) allows for sentence enhancementwhere a felony has been committed while the defendant is on release status from another

felony

. On February 24, 199 6, the defen dant was serving a partiallysuspended sentence for driving under the influence, which is a Class A misdemeanor. Tenn. Code Ann. § 55-10-403(m) (Supp. 1997). Thus, factor (13) should not have been applied. We acknowledge,however, that the trial court only considered factor (13) in conjunction with factor (8) and assigned them cumulatively the weight of one factor.
Enhancement Factor (16 ) The final enhancement factor we must consider is (1 6) , which the defendant claims is inappropriat e because it is inherent in vehicular homicide and vehicular assault charges. 4 The state concedes the factor's i napplicability to the crimeof vehicular homicide based u p on this court's holding in Bingham , 910 S.W.2d 448. This court has consist ently followed Bingham in this regard. See, e.g. , State v. Jerry Keith I vey , No. 03C01-9509-CR-00292,slip op. at 6 (Tenn. C rim. App., Knoxville, Dec. 3, 1996); State v. Williamson , 919 S.W.2d at 82. As such, we believe the trial court erred in applying this factor t o the def endant's vehicular homicide conviction.

On the other hand, we cannot say the same for the remain ing convictions. The definitio n of the crime of reckless endangerment

encomp asses t he conduct factor (16) addresses. Robert Chapman , slip op. at 6. However, in this
c ase, Thie s, created risk to pers ons other than the victim, Melissa Pruett. As12

discussed above, the defen dant's h igh speed flight fr om the police chief through the residential city s

treets of Covington created great potential for bodily injury to a victim. Chief Deve rell face d great po tential f or bodily in jury, as did the residents of the heavily populated street on which the c hase too k place. W e believe, as we di scussed abov e in the context of factor (10) , that factor (16) should be appl ied given the evidence the defendant's conduct posed great potential for bodily injury to individuals other than the victim. Accord State v. Aaron Eckard , No. 01C01-9610- CC-00429, slip op. at 9 (Tenn. Crim. App., Nashville, Dec. 12, 1997); State v. Sims , 909 S.W.2d 46, 50 (T enn. Crim. App. 1995).

As to Thies's convictions of DUI and driving on a rev oked license, the record clearly establishes not only that he drove while intoxicated and while his driver's license was revo ked, but also that he did so in a way whi ch presented great potential for bodily injury to a victim. Factor (16) applies to these convictions.
Mitigating Factor

The state asks u s to strip Th ies of th e benefit of the sole mitigating factor applied by the trial

court, good work

ethic and work histo ry. We ackno wledge t hat we have said, "Ever y citizen in this

state is expected to hav e a stable wor k historyif the economy permits the citizen to work, the citiz en is not disabled, or

the citizen is not independently w ealthy." Sta te v. Keel , 882 S.W.2d 410, 423 (Tenn. Crim. App. 1994). In this case, how ever, theevidence demonstrates that the defendant not only has a stable work history, b ut also that he was prompt and did
a "real good job." We believe a defendant whose performance has surpassed that which is expected of hi m is entitled to some measure of miti gation.

Our de novo review of the enhancement and mitigating factors yields six applicab le enhan cement f actors an d one rele va nt mitigatin g factor, w ith some of the enhancement factors app lying to less than all of the convictions: Conviction Applicable Enhancement Factors Vehicular Homicide (1), (8), (10), (13) Reckless Endangerment (1), (6), (8), (10) , (13), (16)13 DUI, 3d offense (1), (6), (8), (10) , (13), (16) Driving on Revoked License (1), (6), (8), (10) , (13), (16)

In we ig hing the enhancement factors against the mitigating fact ors, we fi nd fac tors (1) and (8) deserving of great weight. The defendant, twice convicted of DUI, recently conv icted of speeding, and without a driver's l icense, disregarded the rules of th e r oa d o nce a ga in , t hi s t im e w it h t ra gi c r es ul ts . We

offset these heavily weighted factors and the other enhancement factors with the moderately weighted mitigati ng factor, and we find no err or in the sentences imposed by the tria l court, a lthough we have followed a different path to that result.

For the felony conviction of veh icular homicide, the defendant, a Range I offender, faced 3 to 6 years for this Class C felony. Tenn. Code Ann. § 39- 13-213 (1997); § 40-35-112 (1997). The trial court imposed a 4-1/2 year sentence forthe vehicular homicide conviction, which is the mid-point of the 3 to 6 year range applicable to the def e ndant for that crime. We agree that the applicable factors support, at a minimum, a mid-range sentence.

With resp e ct to the misdemeanor conviction of reckless endangerment, the defendant faced asent ence of up to 11 months and 29 days, with release eligibility between 0% and 75%

. S ee Tenn. Code Ann. §§ 40-35- 111(e)(1), 40-35-302(d) (19 9 7). Applying factors (1) and (8) heavily, finding additional facto rs applicable to this con viction which w

ere not available for the vehicular homicide conv iction, and finding these factors heavily outweigh the sole mitigatingfactor, we find the maximum 11 month, 29 day sentence at 75% release eligibility appr

opriate for this defendant.

The driving on a rev

oked license conviction carried a sentence of up to six months, with a minimum of 2 day s confinement. See Tenn. Code Ann. §§ 55- 50-504(a)(1) (1993), 40-35-111 (1997). Again, this s entence deserves substantia l14

enhancementgiven the defendant's histor y of prior criminal c

onduct, and we find the fact that those prior offenses wer e committed behind the wheel of a motor vehicle particularly rel evant to this crime. The trial court imposed a sentence of the
ma ximum length of 6 months, with 75% release eligibility. Though revie wing th e matter de novo , we find n o error in t he sente nce impo sed belo w.

Finally, on the third offense DUI conviction, Thies faced incarceration forup to 1 1 month s and 29 days. See Tenn. Code Ann. § 40-35-302(d) (1997); State v. Palmer , 902 S.W.2d 3 91 (Ten n. 1995). The trial court i mposed the maximum sentence but allowed the defendant 75% release eligibility. Certainly this defendant is deserving of a max imum sentence for this offense, giv en particularly enhancement factors (1) and (8). The defendant justly deserv es no less than the sentence imposed by the tria l court.

Accordin gly, we find no error in the trial court's l ength of s entence determinations.

II

We turn next to the questi on of alternative sentencing . Again, w e conduct a de novo review, unaccompanied by the presumption of correctness. The defendant, a Range I offender convicted of crimes of the Class C felony level and below, is presumed to be a fav orable cand idate for alternative senten cing. See Tenn. Code Ann. § 40-35-102(6) (1997). Moreover, he is eligible for probation. See Tenn. Code Ann. § 40-35-303(a) (1 997).

We find Code section 40-35-103(1)(C) particula rly app licable to the
case at bar. From the facts of this case, it is patent t hat "[m] easures l ess restri ctive than confinement have frequently or recently been applied unsuccess fully to the defendant." Tenn. Code Ann. § 40-35-103(1)( C) (1997). Thedefen dant was on probation from his second DUI conviction when he chose to drive, unlicensed, while5 We perceive some of the defendant's argument to be dir ected to what he believes is injusti ce in the revocation of probation for the prior convic tion. To the extent that the defendant complains abo ut the revocation itself, that issue is beyond the scope of this appeal.

6 The record reflects on the judg ment forms that the DUI and vehic ular homicide sentences were i mposed consecutively to the prior DUI convi ction; however, the sentencing order signed by the court and the court's comments in the transcript of the sentencing hearing reflect that only the vehicular homicide conviction was impos

ed consecutively to the prior DUI convic tion.

15 under the influence of alcohol. The defendant w as allowed leniency

on his second DUI conviction, yet he di sregarded the pr os ecutor's and the court's l eniency with him and committed

the same cri me for a third time. He had also been convicted of speeding during thi s sameprobatio nary perio d, and exc essive speed was involv ed in the fatal wreck that brings him before this court. Simpl y put, this defendant

is one who, despite past leniency and opport un ities for rehabilitation, has shown neither respect for the prior reprieves from incarceration nor efforts toward confo rming his conduct to the dic tates of the law. Having no regar d formeasure s less rest rictive than confinement, the defendan t has through his o wn actio ns rebutted the presumption o f his favorable candidacy for al ternative sente ncing.

There is no error in disallowing any fo rm of alternat ive sentencing.

III In his last issue, the defendant complains that the trial court imposed his convictions in this

cas e concurr ently to one another but consec utively to the revoked second offense DUI conviction he was required to serve when his probation was revoked for that pr ior offense. 5 Thies argu es that his h aving to s erve time

for the prior offens e couple d with the c onsecut ive sentences from this case is too harsh because it effectively puni shes him twice for the same offense. 6

Because we are review ing the defendant's senten ce de novo unaccompanied by the presumption of correc tness, we observe that

the defendant fits two of the consecutive sentencin g categories. Fir st, as found by the trial c ourt,7 There ar e two path s by which a d efenda nt may rece ive consec utive

sentencing for past and present convictions. Code section 40-35-310 empowers the trial court, upon revocation of a suspended sentence due to criminal conduct during a period of probation w hich has resulted in a conv iction, to impose the revoked probationary sentence consecutively to the conviction aris ing from the defendant's conduct during the pr obationary period. Tenn. Cod e Ann. § 40-35- 310 (1997). Further, upon sent encing a defendant for a conviction resulting from conduct occurring during a period of probation for a prior crime, the trial court may use the defendant's status as a probatione r at the time of the crime as a basis for imposing consecuti ve sentencing. Tenn. Code A nn. § 40-35-115(b)(6) (1997). The proceeding before us is an appeal of sentencing, not revocation of probation. Thus, consecutiv e sentencing, if sustainable on the basis of the defendant's probationary status, must be base d upon section 40-35-115(b)(6). 16 the defendant

committ ed this offe nse whil e on probation. 7 SeeTenn. Code Ann. § 40-35-115(b)(6) (1997 ) . That the defendant committed his crimes while on pro bation is not contested. Additional ly, we find the defendant is a dangerou s offender. See Tenn. Code Ann. § 40-35-115(b)(4) (1997). This defen dant's conduct fits hand-in-glove with the statutorycriteria of "behavior indicat[ing] little

or no regard for

human life, and no hesitation about com mitting a crime in which the risk to h u man life is high." Tenn. Code Ann. § 40-35-115(b)(4). The evidence shows that the defendant operated a mo tor vehicle wit h a b lood alcohol concentration well over the legal limit and without a valid d river's license, causing death and serious bodily in jury. This took place less than eight months into his second probationary sentence for DUI, with the second offense having takenplace just over two months into the first probationary sentence. Accord State v. Penelope R. Karnes , No. 01C01-9606-CR-00249, slip op. at 8-9 (Tenn. Crim. App., Nashvil le, May 21, 1997) (two previ ous DUI convicti ons and a p revious driving on revoked license conviction); Stat e v . Anthony Raymond Bell , No. 03C01-9503-CR-00070, sli p op. at 7-8 (Tenn. Crim. App., Knoxville, Mar. 11, 1996) (second DUI offense committed while on probation from earlier DU I c onviction), perm. app. denied (Tenn. 1996); State v. Wilkerson , 905 S.W.2d 933 (Ten n. 1995) (DUI off ense onl y two months after previous DUI offense).

Further, we find th at the aggregate sentence imposed reasonably relates to the severity of the offense, i s necessary to protect the public from further criminal acti vity by the defendant, and is consistent w ith the principles of the17

Sentencing Act. Wilkerson , 905 S.W.2d 9 33. A more lengthy sentence is
a ppropriatefor this defendant who has repeated the same unlawful conduct o n multiple occasions and who took the life of a young woman and seriously injure d
ano theron his most recent repetition.The defendant also appears to have a problem with alcohol. He admitte d to the presentence officer that he continued,
even after committing these offenses, to dr ink the same amountof alcohol weekly that he has been drinking since age sixteen. The public needs to be protected fr om fur thercrim inal activity that may result from the defendant's abuse of alco hol. Accord Anthony Raymond Bell , slip op . at 8. Hi s status as a repeat offender is illustrat ive of the fact thatlesser ter ms of pu nishmen t have not served to curtail his conduct. Consecutive sentencing is consistent with the pr inciples of theSentencing Act. The defendant has been giventhe benefit of less le ngthy and l ess restri ctive termsof punishment in the past, yet he has failed to live within the bounds of the law. Se e Tenn. Code Ann. § 40-35-103(5) (1997) ("The potential or lack of potential for rehabilitation or tre atment of defendant should b e considered in determining the sent ence alte rnative or length of a term to be imposed."). We find no error in the tria l court's imposit ion of consecu tive sentencing.

In summary, we find no rev ersible error

and affirm the judgment of the trial court.

________ ______________

_____ _ CURWOOD WITT, JUDGE CONCUR:

______________________________ JOE B. JONES, PRESIDING JUDGE

_______________________________ JERRY L. SMITH, JUD GE