# FILED
December 8, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT NASHVILLE SEPTEMBE R SESSION, 1998
STATE OF TENNESSEE, ) C.C.A.NO. 01C01-9710-CR-00454 ) Appellee, ) ) SUMNER COUNTY V. ) ) ) HON.JANE WHE ATCRA FT, J UDGE MICHAEL T . KEEN, ) ) Appe llant. ) (VE HICULAR HOMICI DE)

FOR THE APPELLANT : FOR THE APPELLEE : DAVID A. DOYLE JOHN KNOX WALKUP Distri ct Public

Defender Attorney General& Reporter 18th Judicial Dist rict 117 East Main Stre et CLINT ON J. M ORG AN Gallati n, TN 37066 Assistant Attorney General 2nd Floor, Cordel l Hull Bui lding 425 Fifth Avenue North Nashvill e, TN 37243 LAWRENCE RAY WHITLEY Distri ct Attor ney General SALLI E WADE BROWN Assistant Distri ct Attor ney General 18th Judicial Dist rict 113 West Main Street Gallati n, TN 37066

OPINION FILED ________________________ AFFIRMED THOMAS T. WOODALL, J UDGE-2- 

# OPINION

Michael T. Keen, the Defendant , appeals as of right f ollowing his sentenci ng hearing in the Sum ner Co unty Criminal Court . Defendant was i ndicted for vehicul ar homicide and D UI, seco nd offen se. In an agreementwith the State, Defendant pled guilty to vehicula r homic ide, a C lass B fel ony, and agreed to an eight (8 ) year sentence, with the t rial cour t to determine the manner of ser vice of the sente nce. Following his sentencing hearing, the trial court orde red Defen dant to serve eight (8) years in the Tennessee Depart ment of Correct ion. In his appeal, Defendant argues thatthe trial court erred in refusing to grant an alterna tive sentence. We affi rm the judgm ent of the tria l court.

When an accused chall enges the lengt h, range or the ma nner of s ervice of a sentence, this court has a duty to conduc t a de novo review of

the sentence wi th a presumption that the determinati ons made by the trial court are correct . Tenn. Code Ann. § 40-35 -401( d). Th is presumption i s “condit ioned upon the af firmati ve showing in the record t hat the trialcourt consi dered the sentenci ng princi ples and allrelevant facts and circum stances.” State v. Ashby , 823 S.W .2d 166 , 169 (T enn. 19 91).

In conducting a de novo review of a sentence, this co urt must con sider: (a) the evidence, if any, received at the tri al and the sentencing heari ng; (b) the presentence report; (c) the principl es of sentencing and ar guments as to sentenc ing alternativ es; (d) the nature and chara cteristics of the criminal co nduct involved; (e) an y statutory mitigati ng or enhancement factor s; (f) any statement t hat the defen dant m ade o n his
own behalf; an d (g) the p otential or lac k of poten tial for rehab ilitation or treatm ent.-3-

Tenn. C ode An n. §§ 40 -35-102 , -103, an d -210; see State v. S mith , 735 S.W .2 d 859, 863 (T enn. Crim. A pp. 1987).

If our rev iew refle cts tha t the trial court followed the statut

ory sentenci ng procedure, imposed a lawful sentence after hav ing given due considerati on and properweight to the factors and princi ples set out under the s entencing l aw, and made findings of fact adequatel y supported by therecord, then we may no t modify the senten ce even if we wou ld have p referred a different res ult. State v . F letcher , 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 favorabl e candidate for alternative sentencing opti ons. Tenn. Code Ann. § 40-35- 102(6); S tate v. S mith , 891 S .W .2d 92 2, 929 (Ten n. Crim . App. 1 994). N or is Defendant eli gib le for pa rticipatio n in a co mm unity co rrection s prog ram d ue to h is convicti on for vehicula r homic ide. Ten n. Cod e Ann. § 40-36-1 06(a)(2) . H owev er, as a defendant sentenced to eight (8) yea r s or less, he was statutorily eligi ble for probati on. Te nn. Co de Ann . § 40-35 -303. W hile the trial co urt was re quired to consider

the Defendant asa candidate for probati on, the Defendant bore the burden of establishing both hi s suitab ilit y and th at an a lternativ e to inc arcera tion wo uld “subserve the ends of justice a nd the best intere st of both the publi c and the defend ant.” State v. Dykes , 803 S.W.2d 250, 259 (Tenn. Crim. App. 1990) (citations omitted). The trialcourt foundthat Defe ndant fa iled to carry th at burde n. See State v. Boston , 938 S.W .2d 435 , 438 (T enn. C rim. App . 1996).

When imposing a sentence of totalco nfinement, ou r Criminal Sentencing Reform Act ma ndates the trial cour t t o base its decision on t he considerat ions set-4-

forth in Tennessee Code Annotated s ection 4 0-35-103. These considerations which
m ilitate against al ternati ve sentencin g include: the need to pr otect soci ety by restrai ning a defendant havi ng a long history of crimi nal conduct; whether confinementis partic ularly ap propr iate to e ffectively deter o thers lik ely to com mit a similar offense; the need to avoi d depreciati ng the seri ousness of the of fense; and the need to order confinement in cases i n which less restri ctive measures have often
or recently

been unsuccessful ly appli ed to the defendant. Tenn. Code Ann. § 40-35- 103(1).

In determining whether to gr ant probati on , the j udge must consider the nature and circumstancesof the offense, the defendant’ s criminalrecord, hi s background and social history, his present condi tion, i ncluding hi s physicaland mental condit ion, the deterr

ent effect

on other cri minal acti vity, and the like lihood that pro bation is in the best in terests of both the pu blic and the defend ant. Stiller v. State , 516 S.W.2d 617, 620 (Ten n. 1974). The b urden is on the defendant to show that the sentence he received is improp er and th at he is en titled to probatio n. Ashby , 823 S.W.2d at 169.

The record before us j ustifi es the sentence i mposed by the tr ial court . At the sentencing hearing, t he victi m’s mother test ified t hat three (3) to four (4) weeks pri or to the night

the vict im was kill ed, the D efendan t was driv ing the vi ctim and the victim’s brothe r aroun d until the early morn ing hours wh ile all three (3) were drinking
. She advised the Defendant that she was going to pr ess cha rges, bu t Defendant apolog ized and promis ed to ne ver do it aga in.-5- The present ence report reflects that the Defendant told the poli ce he was drivi ng his girlfriend, s tepbroth er and s tepsiste r a round while he was drinki ng. Defendant admitted t hat “drinki ng and drivi ng was something that I was accustomed to doing” due to his dri nking problem. At the ti me of the accident he was dr iving approxima tely sixty-five (65) miles per hour when he saw t hat he was going to run into a tree and tried to cut his vehic le to the le ft. The Defendant’s stepsi ster was kill ed due to the acci dent. Defendan t testified that the victim’s moth er corr ectly described that one (1 ) month prior to the vic tim’s dea th, the De fe n dant had her children o ut drinking and driving until 3:30 a .m.

The presen tence re port and the prob ation office r who tes ti fied at the sentencing hearing both indi cated that Defendant was employed at the time of t he sentencing hearin g and had b egun going to AA mee tings a nd Pa thfin d ers, a drug/alcoholrehabilitation facility. Defendant was desc ribed b y a sup ervisor at his place of emp loymen t as “an ac ceptab le emp loyee.” Defe ndant’ s sponso r at AA d escribed Defendant as “i nvolved” i n the program for ten (10) weeks prior to the sentencing hearing, but no t “actively.” During Defen dant’s testimon y, he admitted thathe missed a fullmonth of AA meetingsfrom A pril 8, 19 97 un til May 6, 1997, and also m issed the meetin gs from May 22 , 1997 thr ough J une 12 , 1997.

Prior to this offense, Defendant had twi ce been arrested for DUI. He was fir st arrested for DUI on Septe mber 1, 1995, and was conv icted of

DUI on October 16, 1995. Defendant was sentenced to eleven (11) months, twenty -nine (2 9) day s, all suspended exceptfor forty-eight (48) hours. The second arrest f or DUI occurred on June 10, 1996, while Defendant was on probati on from his f irst DUI conviction , and resulted in a convict ion for reckl ess drivi ng on August 19, 1996. The reckless dr iving-6-

convicti on concluded wit h a sentence of six (6) months, with allexcept for ty-ei ght (48) hours suspended. Dur ing his testimony, Defendant concede d that he never sought he lp for his drinking problem foll owing either of these conv iction s, and that he continued to drink and d rive. Th is offense of vehicular

homicide was committed
on No vember 8, 1996, only three (3) months after Defendant’s last convi ct ion. A violat ion of probation wa s pending in G enera l S essions Court at the time of

the senten cing hea ring.

Otherproof at t he sentencing hearing incl uded testi mony that Defendant was in a bowling al ley on Jul y 4, 199 7, just p rior to the sente ncing hearin g for his
v ehicu la r homic ide conv iction. W hile at the b owling alle y, Defen dant tried to persuade a w aitress t o serve alcohol ic beverages t o his gir lfri end, who was not of age to legally consume alcoholi c beverages.

With two (2) pr ior DUI arrests in t he two (2) years precedingthis of fense, the
n eed to protect

society by restra ining th is Defendant wi th a history of cr iminal conduct is obv ious. By hi s own admission, Defendant has conti nued to drink and drive fol lowi ng hisprevi ous conv ict ions. As the tri al court noted, drinkingand drivi ng is a serio us pro blem in o ur society a nd con fineme nt is particula rly approp riate to effective ly deter the Defendan t. Defendant did not seek any

help for hi s alcohol problem until as late as Febr uary 1997, and between the ti me of February unt il the ti me of the sentencing hearing he had only attended AA a total of twenty-t hree (23) times. The trial court found that Defendant should hav e attended as many as143 times since this acciden t occurred. As d escribed by a probation officer of the court, this Defendant has twi ce before been pl aced on probati on. With a he a ring for Defe ndan t’s violat ion of probati on imminent at t he time of hi s sentencing, the need-7-

to orderconfinement when less restri ctive measures have often and r

ecently been
unsu cces sfully applied was also just ified by the recor d. Defendant bor

e the burden of establish ing his su itability f or probati on and that an al ternati ve to incar ceration would subserve the ends of justi ce and the best interest of bot h the publi c and the defend ant. Base d upo n hi s co nti nui ng c ri mi na l conduct, his fai lure to see k continui ng assistance with his al cohol addiction, and t he fact thatprobation has been implemented on two (2 ) prior occa sions in th e p ast two (2) years wit hout success, the De fendan t has failed to mee t his burde n. This iss ue is witho ut merit.

We affirm the ju dgme nt of the trial co urt.

____________________________________ THOMAS T. W OODALL, Judge

CONCUR:

___________________________________ GARY R. WA DE, Presiding J udge

___________________________________ JAMES CURW OOD W ITT, JR., Judge