FILED

December 8, 1998

Cecil W. Crowson

Appellate Court Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

SEPTEMBER SESSION, 1998

STATE OF TENNESSEE, ) C.C.A. NO. 01C01-9710-CR-00454

)

Appellee, )

) SUMNER COUNTY

V. ) 

)

) HON. JANE WHEATCRAFT, JUDGE

MICHAEL T. KEEN, )

)

Appellant. ) (VEHICULAR HOMICIDE)

FOR THE APPELLANT: FOR THE APPELLEE:

DAVID A. DOYLE JOHN KNOX WALKUP 

District Public Defender Attorney General & Reporter

18th Judicial District

117 East Main Street CLINTON J. MORGAN

Gallatin, TN 37066 Assistant Attorney General

2nd Floor, Cordell Hull Building

425 Fifth Avenue North 

Nashville, TN 37243

LAWRENCE RAY WHITLEY 

District Attorney General

SALLIE WADE BROWN 

Assistant District Attorney General

18th Judicial District

113 West Main Street

Gallatin, TN 37066

OPINION FILED ________________________

AFFIRMED

THOMAS T. WOODALL, JUDGE
-2-

OPINION

Michael T. Keen, the Defendant, appeals as of right following his sentencing

hearing in the Sum ner County Criminal Court. Defendant was indicted for vehicular

homicide and DUI, second offense. In an agreement with the State, Defendant pled

guilty to vehicular homicide, a Class B felony, and agreed to an eight (8) year

sentence, with the trial court to determine the manner of service of the sentence.

Following his sentencing hearing, the trial court ordered Defendant to serve eight (8)

years in the Tennessee Department of Correction. In his appeal, Defendant argues

that the trial court erred in refusing to grant an alternative sentence. We affirm the

judgment of the trial court.

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 circum stances.” 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 arguments 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.
-3-

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

made findings of fact 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).

Defendant was convicted of a Class B felony, thus he is not presumed to be

a favorable candidate for alternative sentencing options. Tenn. Code Ann. § 40-35-

102(6); State v. Smith, 891 S.W.2d 922, 929 (Tenn. Crim. App. 1994). Nor is

Defendant eligible for participation in a community corrections program due to his

conviction for vehicular homicide. Tenn. Code Ann. § 40-36-106(a)(2). However,

as a defendant sentenced to eight (8) years or less, he was statutorily eligible for

probation. Tenn. Code Ann. § 40-35-303. While the trial court was required to

consider the Defendant as a candidate for probation, the Defendant bore the burden

of establishing both his suitability and that an alternative to incarceration would

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

defendant.” State v. Dykes, 803 S.W.2d 250, 259 (Tenn. Crim. App. 1990) (citations

omitted). The trial court found that Defendant failed to carry that burden. See State

v. Boston, 938 S.W .2d 435, 438 (Tenn. Crim. App. 1996). 

When imposing a sentence of total confinement, our Criminal Sentencing

Reform Act mandates the trial court to base its decision on the considerations set
-4-

forth in Tennessee Code Annotated section 40-35-103. These considerations which

militate against alternative sentencing include: the need to protect society by

restraining a defendant having a long history of criminal conduct; whether

confinement is particularly appropriate to effectively deter others likely to commit a

similar offense; the need to avoid depreciating the seriousness of the offense; and

the need to order confinement in cases in which less restrictive measures have often

or recently been unsuccessfully applied to the defendant. Tenn. Code Ann. § 40-35-

103(1).

In determining whether to grant probation , the judge must consider the nature

and circumstances of the offense, the defendant’s criminal record, his background

and social history, his present condition, including his physical and mental condition,

the deterrent effect on other criminal activity, and the likelihood that probation is in

the best interests of both the public and the defendant. Stiller v. State, 516 S.W.2d

617, 620 (Tenn. 1974). The burden is on the defendant to show that the sentence

he received is improper and that he is entitled to probation. Ashby, 823 S.W.2d at

169. 

The record before us justifies the sentence imposed by the trial court. At the

sentencing hearing, the victim’s mother testified that three (3) to four (4) weeks prior

to the night the victim was killed, the Defendant was driving the victim and the

victim’s brother around until the early morning hours while all three (3) were drinking.

She advised the Defendant that she was going to press charges, but Defendant

apologized and promised to never do it again. 
-5-

The presentence report reflects that the Defendant told the police he was

driving his girlfriend, stepbrother and stepsister around while he was drinking.

Defendant admitted that “drinking and driving was something that I was accustomed

to doing” due to his drinking problem. At the time of the accident he was driving

approximately sixty-five (65) miles per hour when he saw that he was going to run

into a tree and tried to cut his vehicle to the left. The Defendant’s stepsister was

killed due to the accident. Defendant testified that the victim’s mother correctly

described that one (1) month prior to the victim’s death, the Defendant had her

children out drinking and driving until 3:30 a.m. 

The presentence report and the probation officer who testified at the

sentencing hearing both indicated that Defendant was employed at the time of the

sentencing hearing and had begun going to AA meetings and Pathfinders, a

drug/alcohol rehabilitation facility. Defendant was described by a supervisor at his

place of employment as “an acceptable employee.” Defendant’s sponsor at AA

described Defendant as “involved” in the program for ten (10) weeks prior to the

sentencing hearing, but not “actively.” During Defendant’s testimony, he admitted

that he missed a full month of AA meetings from April 8, 1997 until May 6, 1997, and

also missed the meetings from May 22, 1997 through June 12, 1997. 

Prior to this offense, Defendant had twice been arrested for DUI. He was first

arrested for DUI on September 1, 1995, and was convicted of DUI on October 16,

1995. Defendant was sentenced to eleven (11) months, twenty-nine (29) days, all

suspended except for forty-eight (48) hours. The second arrest for DUI occurred on

June 10, 1996, while Defendant was on probation from his first DUI conviction, and

resulted in a conviction for reckless driving on August 19, 1996. The reckless driving
-6-

conviction concluded with a sentence of six (6) months, with all except forty-eight

(48) hours suspended. During his testimony, Defendant conceded that he never

sought help for his drinking problem following either of these convictions, and that

he continued to drink and drive. This offense of vehicular homicide was committed

on November 8, 1996, only three (3) months after Defendant’s last conviction. A

violation of probation was pending in General Sessions Court at the time of the

sentencing hearing. 

Other proof at the sentencing hearing included testimony that Defendant was

in a bowling alley on July 4, 1997, just prior to the sentencing hearing for his

vehicular homicide conviction. While at the bowling alley, Defendant tried to

persuade a waitress to serve alcoholic beverages to his girlfriend, who was not of

age to legally consume alcoholic beverages.

With two (2) prior DUI arrests in the two (2) years preceding this offense, the

need to protect society by restraining this Defendant with a history of criminal

conduct is obvious. By his own admission, Defendant has continued to drink and

drive following his previous convictions. As the trial court noted, drinking and driving

is a serious problem in our society and confinement is particularly appropriate to

effectively deter the Defendant. Defendant did not seek any help for his alcohol

problem until as late as February 1997, and between the time of February until the

time of the sentencing hearing he had only attended AA a total of twenty-three (23)

times. The trial court found that Defendant should have attended as many as 143

times since this accident occurred. As described by a probation officer of the court,

this Defendant has twice before been placed on probation. With a hearing for

Defendant’s violation of probation imminent at the time of his sentencing, the need
-7-

to order confinement when less restrictive measures have often and recently been

unsuccessfully applied was also justified by the record. Defendant bore the burden

of establishing his suitability for probation and that an alternative to incarceration

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

defendant. Based upon his continuing criminal conduct, his failure to seek

continuing assistance with his alcohol addiction, and the fact that probation has been

implemented on two (2) prior occasions in the past two (2) years without success,

the Defendant has failed to meet his burden. This issue is without merit.

We affirm the judgment of the trial court.

____________________________________

THOMAS T. W OODALL, Judge

CONCUR:

___________________________________

GARY R. WADE, Presiding Judge

___________________________________

JAMES CURW OOD WITT, JR., Judge