IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

November 21, 2000 Session

STATE OF TENNESSEE v. SEAN IMFELD

Direct Appeal from the Criminal Court for Knox County

No. 66960 Mary Beth Leibowitz, Judge

No. E2000-00094-CCA-R3-CD

February 27, 2001

The defendant, Sean Imfeld, pled guilty to one count of driving under the influence and five counts

of aggravated assault by recklessness, a Class D felony. See Tenn. Code Ann. § 39-13-102(d). The

trial court originally imposed an effective sentence of 12 years but later, following a motion to

modify the sentence, reduced the term to nine years. In this appeal of right, the defendant presents

the following issues for review, all of which relate to sentencing: (1) whether the trial court

misapplied statutory enhancement factors; (2) whether the trial court erred by imposing consecutive

sentences; and (3) whether the sentence imposed violated the purposes and intent of the Sentencing

Reform Act of 1989. The judgment of the trial court is affirmed. 

Tenn. R. App. P. 3; Judgment of the Trial Court Affirmed.

GARY R. WADE, P.J., delivered the opinion of the court, in which JOE G. RILEY, J., joined. JOSEPH

M. TIPTON, J., filed a concurring opinion. 

Mark E. Stephens, Knox County Public Defender; Robert C. Edwards, Assistant Public Defender;

and Paula R. Voss, Assistant Public Defender, for the appellant, Sean Imfeld.

Paul G. Summers, Attorney GeneralandReporter; Elizabeth B. Marney, Assistant Attorney General;

Randall E. Nichols, District Attorney General; and Patricia Cristil, Assistant District Attorney

General, for the appellee, State of Tennessee.

OPINION

On July 31, 1997, Jeffrey Hensley, Sr., was driving from a church event with his wife,

Yvonne Hensley, and their six children when the family’s 1988 Ford Econoline van was struck from

behind by a car driven by the defendant. Mr. Hensley testified that when struck, the front of the van

tilted and “started rolling uncontrollably.” While making his way through the wreckage, Hensley

discovered that his wife’s leg was pinned underneath the vehicle. With the aid of several others, he

freed his wife and checked on his children. When certain that his family was safe, Hensley went to

the defendant’s vehicle to offer help. He was eventually able to pull the door latch in order to free
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the defendant. Afterward, Hensley and his family were taken to the hospital for treatment.

Mr. Hensley received light bruises along the right side of his body. Ms. Hensley suffered

minor abrasions and a foot injury. The injuries to the Hensley children, who were listed by age, were

as follows: (1) a cut along the forehead and minor neck pain sustained by the 16-year-old son, Jeffrey

Jr.; (2) major cuts along the face of the eight-year-old son, Jamar; (3) three cuts along the forehead

of the five-year-old son, Joshua; (4) major cuts and gashes requiring skin graft surgery, sustained by

the four-year-old daughter, Jessica; and (5) minor bruises received by the three-year-old son, Justin

Lake. The Hensleys’ eight-month-old baby, Jarvis, sustained no injuries.

The defendant entered pleas of guilt as follows:

Count Offense Victim

1 DUI

5 Aggravated assault Yvonne Hensley

8 Aggravated assault Joshua Hensley 

10 Aggravated assault Jeff Hensley, Sr.

12 Aggravated assault Jamar Hensley

14 Aggravated assault Jeff Hensley, Jr.

At the sentencing hearing, John Baker, a minister and retail sales manager at Fleet Tire

Company, where the defendant worked, described the defendant as a reliable and honest worker.

He testified that the defendant had never had any problems with drugs or alcohol at work. Mr.

Baker, who began counseling the defendant after an arrest on an unrelated charge, stated that the

defendant had shown remorse for the accident. 

The defendant, who was hospitalized for a little more than a day as a result of the accident,

could not recall any of the events surrounding the accident or how it occurred. While acknowledging

that he had a second DUI offense shortly after the accident, the defendant maintained that it was not

until a year after the accident that he realized the extent of the injuries caused to the Hensley

children. He claimed that since then, he no longer drinks alcohol or associates with those who do.

At the conclusion of the hearing, the trial court imposed consecutive sentences of four years

each for three of the aggravated assault convictions and concurrent sentences of three years each for

the others. The 11 months, 29 days for the DUI offense was also ordered concurrent, for an effective

sentence of 12 years. Later, the trial court modified the sentence, reducing the three four-year

sentences to three years each. The three aggravated assault convictions were again ordered to be

served consecutively, for a revised effective sentence of nine years.

I

The defendant initially argues that the trial court erred in calculating the lengths of each

sentence due to the misapplication of statutory enhancement factors. When there is a challenge to
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the length, range, or manner of service of a sentence, it is the duty of this court to conduct a de novo

review 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); see also State v. Jones, 883 S.W.2d 597 (Tenn.

1994). "If the trial court applies inappropriate factors or otherwise fails to follow the 1989

Sentencing Act, the presumption of correctness falls." State v. Shelton, 854 S.W.2d 116, 123 (Tenn.

Crim. App. 1992). The Sentencing Commission Comments provide that the burden is on the

defendant to show the impropriety of the sentence. 

Our review requires an analysis of (1) the evidence, if any, received at the trial and sentencing

hearing; (2) the presentence report; (3) the principles of sentencing and the arguments of counsel

relative to sentencing alternatives; (4) the nature and characteristics of the offense; (5) any mitigating

or enhancing factors; (6) any statements made by the defendant in his own behalf; and (7) the

defendant's potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103, -210;

State v. Smith, 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987). The record in this case demonstrates

that the trial court made adequate findings of fact. 

In calculating the sentence for a Class D felony conviction, the presumptive sentence is the

minimum in the range if there are no enhancement or mitigating factors. Tenn. Code Ann. § 40-35-

210(c). If there are enhancement but no mitigating factors, the trial court may set the sentence above

the minimum, but still within the range. Tenn. Code Ann. § 40-35-210(d). A sentence involving

both enhancement and mitigating factors requires an assignment of relative weight for the

enhancement factors as a means of increasing the sentence. Tenn. Code Ann. § 40-35-210(e). The

sentence must then be reduced within the range by any weight assigned to the mitigating factors

present. Id.

For a Range I offender, the possible range for the offense of aggravated assault by

recklessness, a Class D felony, is from two to four years. See Tenn. Code Ann. § 40-35-112(a)(4).

The maximum sentence for a first offense DUI, a Class A misdemeanor, is 11 months and 29 days.

The trial court found the following enhancement factors applicable, but did not specify

whether the factors applied to each offense:

(1) The defendant has a previous history of criminal convictions

or criminal behavior in addition to those necessary to

establish the appropriate range;

(3) the offense involved more than one (1) victim;

(4) a victim of the offense was particularly vulnerable because of

age or physical or mental disability; 
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(6) the personal injuries inflicted upon or the amount of damage

to property sustained by or taken from the victim was

particularly great; 

(10) the defendant had no hesitation about committing a crime

when the risk to human life was high;

(16) the crime was committed under circumstances under which

the potential for bodily injury to a victim was great; and

(18) a victim, under § 39-15-402, the statute defining aggravated

child abuse and neglect, suffered permanent impairment of

either physical or mental functions as a result of the abuse

inflicted.

Tenn. Code Ann. § 40-35-114.

In mitigation, the trial court considered the following: (1) The defendant’s prior criminal

history is not significant; (2) the defendant has expressed a willingness to make amends; and (3) the

defendant has led a “tough” life. See Tenn. Code Ann. § 40-35-113(13). 

Trial courts must make separate findings as to which enhancement factors apply to which

convictions. State v. Chrisman, 885 S.W.2d 834, 839 (Tenn. Crim. App. 1994). That was not done

in this case. Because the trial court may have intended to apply each of the cited enhancement

factors to all of the defendant’s convictions, the court will consider the propriety of each

enhancement factor as to each offense.

A. Aggravated Assault

First, the defendant argues that the trial court’s application of Tenn. Code. Ann. § 40-35-

114(3), that the offense involved more than one victim, constituted double enhancement. Because

each count is specific to one victim only, the defendant contends that it is a legal impossibility for

there to be more than one victim to any aggravated assaults for which he is charged. We disagree.

Although the defendant was convicted of five counts of aggravated assault, there were two victims

of the accident on behalf of whom charges were never brought: four-year-old Jessica Hensley, who

required skin graft surgery, and three-year-old Justin Lake Hensley. As such, the enhancement factor

was properly applied to each aggravated assault offense.

Second, the defendant argues that the trial court erred by applying Tenn. Code Ann § 40-35-

114(4), that a victim of the offense was particularly vulnerable because of age or physical or mental

disability. Because the state did not present specific proof of the victims’ vulnerability or show that

it was a factor in the commission of the crime, we must agree. The vulnerability enhancement factor

relates more to the natural physical and mental limitations of the victim than to the victim’s age.

State v. Poole, 945 S.W.2d 93, 96 (Tenn. 1997). The state bears the burden of showing that specific
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limitations made a victim particularly vulnerable or that the vulnerability was a factor in the

commission of the crime. Id. Here, there was only a showing that some of the victims were young.

Proof of age, standing alone, is insufficient to establish particular vulnerability. See State v. Collins,

986 S.W.2d 13 (Tenn. Crim. App. 1998). Thus, Tenn. Code Ann. § 40-35-114(4) may not be

applied to any of the aggravated assault offenses. 

Third, the defendant argues that the trial court erred by applying Tenn. Code Ann. § 40-35-

114(6), that the personal injuries inflicted upon or the amount of damage to property sustained by

or taken from the victim was particularly great. Initially, we note that serious bodily injury is not an

element of any of the aggravated assault charges to which the defendant pled in this case. As to

each of the five victims on behalf of whom the state brought charges, the defendant pled guilty to

aggravated assault by use of a deadly weapon. The defendant submits, however, that the record is

devoid of any proof that the injuries sustained by the victims were great. With one exception, we

must agree. Proof of serious bodily injury will always constitute proof of particularly great injury.

See State v. Jones, 883 S.W.2d 597, 602 (Tenn. 1994). “Serious bodily injury” means bodily injury

which involves a substantial risk of death; protracted unconsciousness; extreme physical pain;

protracted or obvious disfigurement; or protracted loss or substantial impairment of a function of a

bodily member, organ, or mental faculty. Id. If a victim suffers significant “emotional injures”

which require counseling it would be proper to use this factor. See State v. McKnight, 900 S.W.2d

36, 54 (Tenn. Crim. App. 1994). Although the Hensley’s four-year-old daughter, who was thrown

from the rear of the passenger van during the accident, suffered serious bodily injury, she was not

one of the victims named in the indictment. As to the victims named in the indictment, only Jamar

Hensley is demonstrated in the record to have sustained serious bodily injury. Eight-year-old Jamar

sustained significant lacerations around his left eye. A professional photograph taken of the Hensley

family in 1998 shows visible and permanent scarring. There is obvious disfigurement to the area of

injury. There is no such evidence with regard to the remaining victims. Moreover, while there is

evidence to suggest that there may have been emotional injuries, there was no testimony regarding

the severity of such injuries or if counseling was required. Photographs introduced at the sentencing

hearing also show damage to the Hensley’s van, but there was no evidence in the record as to the

value of the van, the extent of its damage, or who may have been the title owner of the vehicle. As

such, Tenn. Code Ann. § 40-35-114(6) may only be applied to the conviction for the aggravated

assault of Jamar Hensley, Count 12 of the indictment.

Fourth, the defendant contends that the trial court erred by applying Tenn. Code Ann. § 40-

35-114(10), that the defendant had no hesitation about committing a crime when the risk to human

life was high, and 40-35-114(16), that the crime was committed under circumstances where the

potential for bodily injury to a victim was great. He argues that neither factor is applicable because

both are inherent in the offense of aggravated assault. Although this court has previously held that

enhancement factors (10) and (16) generally cannot be attached to the offense of aggravated assault,

they may be applied when persons other than the victim are nearby and might be subject to injury.

See State v. Sims, 909 S.W.2d 46, 50 (Tenn. Crim. App. 1995). Here, there were two children who

were injured as a result of the accident who were not named as victims in the indictment. Because

other individuals were subject to injury, the trial court properly applied both factors to the

defendant’s aggravated assault convictions. 
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Finally, the defendant argues that the trial court erred by applying Tenn. Code Ann. § 40-35-

114(18), that a victim suffered permanent impairment of either physical or mental functions as a

result of the abuse inflicted, because the factor applies only in cases of child abuse and neglect. See

Tenn. Code Ann. § 39-15-402. We agree. The state contends that the trial court never intended to

apply enhancement factor (18), but used the phrase “suffered permanent impairment” in a different

context. In either case, Tenn. Code Ann. § 40-35-114(18) can only be used for victims of aggravated

child abuse and neglect and, as such, cannot be applied in this case.

In sum, the trial court properly applied enhancement factors (1) and (3) and properly applied

factors (10) and (16) to each of the sentences for aggravated assault. The trial court also properly

applied enhancement factor (6) to the sentence for the aggravated assault of Jamar Hensley. The trial

court misapplied factors (4) and (18) and also misapplied enhancement factor (6) in four of the five

convictions. The presumptive sentence for each conviction is two years, the minimum in the range.

There are four enhancement factors applicable to four of the convictions and five enhancement

factors applicable to the remaining conviction. Under the circumstances, enhancement of the

aggravated assault sentences to three years was appropriate. While the trial court considered the

defendant’s background and willingness to make amends as mitigating factors, it did not assign any

relative weight to those factors. It did, however, assign great weight to enhancement factor (10), thus

warranting a sentence above the minimum. Accordingly, the term of each sentence for aggravated

assault is appropriate at mid-range or three years. 

B. DUI

In misdemeanor sentencing, the court is required to provide the defendant with a reasonable

opportunity to be heard as to the length and manner of the sentence. The sentence must be specific

and consistent with the purposes of the 1989 Act. Tenn. Code Ann. § 40-35-302(a) -(b). No greater

than 75 percent of the sentence should be fixed for service by a misdemeanor offender; however, a

DUI offender may be required to serve the full one hundred percent of his sentence. Tenn. Code

Ann. § 40-35-302(d); Palmer v. State, 902 S.W.2d 391, 393-94 (Tenn. 1995). In determining the

percentage of the sentence to be served, the court must consider enhancement and mitigating factors

as well as the legislative purposes and principles related to sentencing. Tenn. Code Ann. § 40-35-

302(d). 

Upon service of the required percentage, the administrative agency governing the

rehabilitative programs determines which among the lawful programs available is appropriate for

the defendant. The trial court retains the authority to place the defendant on probation either

immediately or after a term of periodic or continuous confinement. Tenn. Code Ann. §

40-35-302(e). The legislature has encouraged courts to consider public or private agencies for

probation supervision prior to directing supervision by the Department of Correction. Tenn. Code

Ann. § 40-35-302(f). The statutory scheme is designed to provide the trial court with continuing

jurisdiction and a wide latitude of flexibility in the misdemeanor case. The misdemeanant, unlike

the felon, is not entitled to the presumption of a minimum sentence. State v. Creasy, 885 S.W.2d

829, 832 (Tenn. Crim. App. 1994). Appellate review of misdemeanor sentencing is de novo with

a presumption of correctness. See State v. Troutman, 979 S.W.2d 271 (Tenn. 1998). 
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The trial court imposed a term of 11 months and 29 days, with a 75 percent release eligibility,

for the defendant’s DUI conviction. As with his aggravated assault sentences, the defendant

challenges the trial court’s application of certain enhancement factors.

The trial court properly applied enhancement factor (3), that the offense involved more than

one victim. Evidence at the sentencing hearing demonstrated that there were at least eight victims

of this accident. The court misapplied enhancement factor (4), that a victim of the offense was

particularly vulnerable because of age or physical or mental disability. The state presented no proof

of any victim’s particular vulnerability or how such vulnerability could have factored into the

commission of the crime. The trial court properly applied enhancement factor (6), that the personal

injuries inflicted upon or the amount of damage to property sustained by or taken from the victim

was particularly great. As already noted, four-year-old Jessica Hensley received severe lacerations

and had to undergo skin graft surgery. The trial court properly applied enhancement factors (10) and

(16). There is evidence that the defendant endangered the lives of at least eight people. Finally,

enhancement factor (18), that a victim suffered permanent impairment of either physical or mental

functions as a result of the abuse afflicted, only applies in cases of child abuse and neglect. 

Here, the trial court properly applied enhancement factors (1), (3), (6), (10) and (16) to the

defendant’s DUI offense. The mitigating factors applied to the defendant’s aggravated assault

sentences would be applicable as well. Even though two enhancement factors may have been

misapplied, the remaining enhancement factors would clearly outweigh the three mitigating factors.

The trial court sentenced the defendant to 11 months and 29 days at 75 percent. The circumstances

of the offense warrant the sentence imposed. 

II

Next, the defendant argues that the trial court erred by requiring that three of the five

sentences for aggravated assault be served consecutively. Prior to the enactment of the Criminal

Sentencing Reform Act of 1989, the limited classifications for the imposition of consecutive

sentences were set out in Gray v. State, 538 S.W.2d 391, 393 (Tenn. 1976). In that case, our

supreme court ruled that aggravating circumstances must be present before placement in any one of

the classifications. Later, in State v. Taylor, 739 S.W.2d 227 (Tenn. 1987), the court established an

additional category for those defendants convicted of two or more statutory offensesinvolving sexual

abuse of minors. There were, however, additional words of caution: 

[C]onsecutive sentences should not routinely be imposed . . . and . .

. the aggregate maximum of consecutive terms must be reasonably

related to the severity of the offenses involved. 

Id. at 230. 

The Sentencing Commission Comments adopted the cautionary language. Tenn. Code Ann.

§ 40-35-115, Sentencing Commission Comments. The 1989 Act is, in essence, the codification of
1

The first four criteria are fo und in Gray. A fifth category in Gray, based on a specific number of prior felony

convictions, may enhanc e the sentence range but is no longer a listed c riterion. See Tenn. Code Ann. § 40-35-115,

Sentencing Commission Comme nts.

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the holdings in Gray and Taylor; consecutive sentences may be imposed in the discretion of the trial

court only upon a determination that one or more of the following criteria1

 exist:

(1) The defendant is a professional criminal who has knowingly

devoted [himself] to criminal acts as a major source of livelihood;

(2) The defendant is an offender whose record of criminal activity is

extensive;

(3) The defendant is a dangerous mentally abnormal person so

declared by a competent psychiatrist who concludes as a result of an

investigation prior to sentencing that the defendant's criminal conduct

has been characterized by a pattern of repetitive or compulsive

behavior with heedless indifference to consequences;

(4) The defendant is a dangerous offender whose behavior indicates

little or no regard for human life, and no hesitation about committing

a crime in which the risk to human life is high; 

(5) The defendant is convicted of two (2) or more statutory offenses

involving sexual abuse of a minor with consideration of the

aggravating circumstances arising from the relationship between the

defendant and victim or victims, the time span of defendant's

undetected sexual activity, the nature and scope of the sexual acts and

the extent of the residual, physical and mental damage to the victim

or victims;

(6) The defendant is sentenced for an offense committed while on

probation; or

(7) The defendant is sentenced for criminal contempt.

Tenn. Code Ann. § 40-35-115(b).

The length of the sentence, when consecutive in nature, must be "justly deserved in relation

to the seriousness of the offense," Tenn. Code Ann. § 40-35-102(1), and "no greater than that

deserved" under the circumstances, Tenn. Code Ann. § 40-35-103(2); see also State v. Lane, 3

S.W.3d 456 (Tenn. 1999). 
-9-

In Gray, our supreme court ruled that consecutive sentencing could be imposed upon the

dangerous offender, considered the most subjective of the classifications and the most difficult to

apply, only when other conditions are present: (a) that the crimes involved aggravating

circumstances; (b) that consecutive sentences are a necessary means to protect the public from the

defendant; and (c) that the term reasonably relates to the severity of the offenses. In State v.

Wilkerson, 905 S.W.2d 933, 938 (Tenn. 1995), our high court reaffirmed those principles, holding

that consecutive sentences cannot be required of the dangerous offender "unless the terms reasonably

relate[] to the severity of the offenses committed and are necessary in order to protect the public

(society) from further criminal acts by those persons who resort to aggravated criminal conduct."

The Wilkerson decision, which modified somewhat the strict factual guidelines for consecutive

sentencing adopted in State v. Woods, 814 S.W.2d 378, 380 (Tenn. Crim. App. 1991), described

sentencing as a "human process that neither can nor should be reduced to a set of fixed and

mechanical rules." Wilkerson, 905 S.W.2d at 938. 

The trial court determined that the defendant was a dangerous offender within the meaning

of Tenn. Code Ann. § 40-35-115(4). As required by Wilkerson, the trial court concluded that

consecutive sentencing was warranted by the necessity to protect the public because of the severity

of the offense:

[Defense attorney], you said [the defendant] wants

rehabilitation. He has not sought any formal rehabilitation, although,

to his credit, he sought out Mr. Baker, and has more than willingly

worked with Mr. Baker, who is very kind to do that, and to offer him

counseling, and to offer him support. That is something that, I think,

has kept [the defendant] going all this time.

[The defendant] has not sought out AA, even though it is

within a possible distance.

Mr. Baker has sought to find ways of helping [the defendant].

But unfortunately, [the defendant] has not.

And I have a problem with that. And the problem I have with

that is, [the defendant] has sort of turned a blind eye to this. He knew

that there was bodily injury. He knew that there was severe injury.

He knew what the charges were. He didn’t look to find out what

exactly he had done, and what he needed to do to correct it.

He didn’t seek the help that he should seek.

And based on that I find that [the defendant] is a significant

danger to the community under the statute as well.

There are three children involved in this accident.
2

As indicated, each of the sentence s was later reduced to three years.

3

The mod ified effective sentence is nine years.

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With regard to those children’s injuries, and they are in counts

8, 12, and 14, [defendant], you are sentenced to four (4) years in the

State Penitentiary in each of those counts.2

Those counts will run consecutively to one another, for a total

effective twelve year sentence.3

* * *

While [the defendant] might . . . do this on work release and

a number of other things, the fact that [the defendant] has picked up

new charges, as you have said, not once, but twice, both driving

charges, one of which, at least, he’s alleged to committed a driving

under the influence, concerns this Court mightily.

For the grace of God . . . the child that was thrown out of the

vehicle, had she landed on her head, might be dead, or so impaired

that her mama would have to carry her the rest of her life.

* * *

I cannot justify in my heart giving [the defendant] a sentence

that is not to serve in the light of the new charges, in light the severity

of the injuries in this case.

In our view, the trial court appropriately considered the applicable sentencing principles, the

order that three of the defendant’s aggravated assault sentences be served consecutively is entitled

to a presumption of correctness. The burden is on the defendant to rebut that presumption.

The defendant asserts that consecutive sentences are improper because the trial court failed

to consider evidence that he is no longer a danger to the public. We disagree. In support of his

argument, the defendant contends that the trial court did not consider his potential for rehabilitation.

In the hearing to modify the defendant’s sentence, however, the trial court noted that the defendant

had a full-time job and had received some help from Mr. Baker. Nevertheless, the court found the

defendant to be a danger to the public:

[The defendant], other than staying home and going to work,

took no steps of his own to attempt to correct [his problems with

alcohol], and, indeed, wound up with other charges.
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* * *

And so that the record is clear, because this appellate court

will get this record, it’s the court’s belief that [the defendant] is, as he

sits here today, while extremely remorseful, and never intentionally

would have done any of this, unable to control his behavior in such

a way that he cannot be safe in the outside community.

* * *

Regretfully, as a result of that the Court found, and still finds,

that [the defendant] is a danger to the community under his present

circumstances, and was at the time of the commission of this offense.

In addition, being a danger, no doubt, to himself

The trial court found that the sentences imposed were necessary to protect society and were

proportionate to the seriousness of the offense. Because the trial court followed the mandates of

Wilkerson, the presumption that the trial court imposed a lawful sentence prevails in this instance.

See State v. Ashby, 823 S.W.2d at 169. In our view, there is a reasonable relationship between the

sentence, as modified, and the gravity of the crimes. As such, this issue is without merit.

III

As his final argument, the defendant submits that the trial court erred because his sentence

does not properly adhere to the purposes and intent of the Sentencing Reform Act of 1989. In

particular, he claims that no defendant found guilty of DUI and vehicular assault by recklessness has

ever been so harshly sentenced. The defendant has cited cases involving similar circumstances.

The defendant first cites State v. Smith, 776 S.W.2d 141 (Tenn. Crim. App. 1989). In Smith,

the defendant, who struck three pedestrians with his car, was charged with a DUI, leaving the scene

of an accident, and three counts of aggravated assault. The trial court imposed a sentence of five

years confinement, followed by a five-year period of probation. That sentence was modified to a

term of split confinement with one year in the Davidson County workhouse followed by a four-year

period of probation.

In State v. Bullington, 702 S.W.2d 580 (Tenn. Crim. App. 1985), the defendant drove his

jeep at a high rate of speed in the wrong lane of the highway. He was convicted of a DUI and two

counts of aggravated assault. One victim suffered a concussion and received other injuries requiring

a two-week hospitalization, a second victim suffered a broken collarbone, and a third experienced

severe pains in his wrist, hips, and knees. The defendant was sentenced to three years on each

aggravated assault and 11 months and 29 days for the DUI. Because all sentences were ordered to

be served concurrently, the defendant’s effective sentence was three years. The trial judge also

ordered periodic confinement so as to allow the defendant to continue his employment. 
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In State v. Glenda Primeaux, No. 4 (Tenn. Crim. App., at Jackson, Jan. 20, 1988), the

defendant was convicted of four counts of aggravated assault and a DUI. She had veered across the

wrong side of the road and struck a vehicle occupied by one adult and three children. She was

sentenced to four concurrent five-year terms on the assault charges and a term of 11 months and 29

days on the DUI charge. The defendant appealed a denial of probation. This court reversed and

remanded because the trial judge erred by failing to give any reasons for denying an alternative

sentence. See Tenn. Code Ann. § 40-35-209(c).

In State v. Danny Ray Webber, No. 188 (Tenn. Crim. App., at Knoxville, Feb. 11, 1988), the

defendant pled guilty to one count of aggravated assault and one count of DUI. The victim, who was

in a coma for 16 months, died a few days before sentencing. For the DUI conviction, the defendant

received a sentence of 11 months and 29 days and a fine of $250.00. The trial court ordered him

to serve 48 hours of the sentence and placed the defendant on probation for the balance of the term.

For the assault, the defendant received a sentence of two years in the Department of Correction.

Probation was denied.

In State v. Richard D. Reagan, No. 03C01-9901-CC-00019 (Tenn. Crim. App., at Knoxville,

July 26, 1999), the defendant pled guilty to public intoxication, DUI, a Habitual Motor Vehicle

Offender Act offense (HMVO), and two counts of aggravated assault. The trial court sentenced him

to 10 days for the public intoxication, 11 months and 29 days for the DUI, one year for the HMVO,

and three years for each of the aggravated assaults. The trial court ordered these sentences to be

served consecutively, but the DUI and HMVO sentences were to be served concurrently with each

other and consecutively to all other sentences. Thus, the defendant received an effective sentence

of seven years and 10 days. The trial court granted immediate intensive probation on all counts.

Afterward, the defendant violated the terms of his probation and the trial court ordered that the

remainder of his sentence be served in the Department of Correction. 

Here, the defendant contends that the sentence imposed was disparate – greater than the

sentences imposed upon any of the other defendants identified in his brief. He argues that the trial

court violated the statutory principles governing sentencing. We disagree. None of the sentences

in the other cases involved five counts of aggravated assault. The defendant in Primeaux, who was

convicted of four counts of aggravated assault, was sentenced to five years, but the sentence was

remanded because the trial judge did not state any reasons for denying probation. So, the result is

unknown. In any event, the probation officer recommended probation because the defendant was

middle-aged, was a first time offender, had children at home, and suffered from a chronic medical

condition. By contrast, the defendant in this case has a criminal history, does not suffer from any

physical ailments, and committed a second DUI shortly after this incident. None of the cases cited

by the defendant involve aggravating circumstances. Here, the defendant’s sentence was enhanced

because he had a prior criminal record and because he inflicted serious injuries.

The Criminal Sentencing Act was passed to "[a]ssure fair and consistent treatment of all

defendants by eliminating unjustified disparity in sentences," Tenn. Code Ann. § 40-35-102(2),

which clearly implies that some differences are justified, depending on the particular crime and the

individual criminal. State v. Moss, 727 S.W.2d 229, 235 (Tenn. 1986). This is consistent with the
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case by case approach contemplated by the Act. Id. Reasonable discretion in sentencing decisions

is required to impose the sentence the defendant deserves in relation to the crime committed. Tenn.

Code Ann. § 40-35-102(1). The result may be some disparity in sentencing, but each case will be

treated fairly and consistently based on the procedures and principles that guide sentencing

determinations and an assessment of the facts and circumstances presented. Moss, 727 S.W.2d at

235. In our view, the trial court acted in compliance with the 1989 Act.

___________________________________ 

GARY R. WADE, PRESIDING JUDGE