### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE November 21,

2000 Session
STATE OF TENNESSEE v. SEAN IMF ELD
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 unde r the influence and fi

ve counts of aggravated assault by recklessne ss, a Class D felony. See Tenn. Code Ann. § 39-13-102(d). The trial court originall

y imposed an eff

ective sentence

of 12 year

s but later, follow

ing a motion to modify the sentence, redu

ced the term to nin

e years. In this appea

l of right, the de

fendant presen

ts the following issues for review, all of which relate to sentencing: (1) whet her 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; Ju

dgment of the Trial

Court Affirmed.

G ARY R. W ADE , P.J., delivered the opinion of the court, in which J OE G. R ILEY , J., joined. J OSEPH M. T IPTON , J., filed a concurring opinion.

Mark E. Stephens, Knox Coun ty Public Defender

; Robert C. Edwards, Assistant Public Defender; and Paula R. Voss, Assistant Public Defender, for the appellant, Sean Imfeld.

Paul G. Summers, Attorne y General and Report er; Elizabeth B. Ma rney, Assis

tant Attorney

General; Randall E. Nichols, District Attorney General; and Patri cia Cristi l, Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION

On July 31, 1997, Jef

frey Hens ley, Sr., wa

s driving from a

church eve nt 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 uncontrollab ly .” 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 chec

ked on hischildren. When certain that his family wa

s safe, Hensley

went to the defendant’s vehicle to offer help. He was eventually able to pull the door latch in order to fre e-2-

the defendant. Afterward, Hensley and his family were taken to the hospi tal for t reatment.

Mr. Hensley re

ceived light bru

ises along the ri

ght s ide of his body. Ms. Hensley suffered minor abra sio ns a nd a foo t in jur y. The injuries to the Hensley children, who were listed by age, were as follows: (1) a cut along

the forehead a

nd minor neck pain

sustained by the 16-year-old son, Jeffre y Jr.; (2) major cuts alo

ng the face of

the eight-y

ear-old son, Jamar; (3) three cuts along the forehead of the fiv e-yea r-o ld s on, Jos hua ; (4 ) ma jor cut s an d gas hes requ iri ng sk in gr aft sur gery, sustained by the four-yea

r-old daughter

, Jessica; and (5) mi

nor bruises rece

ived by the th

ree-yea r-old son, Justin Lake. The He

nsleys’ eig

ht-month-old baby

, Jarvis, sustained n

o injuries.

The defendant e

ntered pleas of g

uilt as follows:

Count Offense Victim

1 DUI 5 Aggravated assault Yvonne Hensley 8 Aggravated assault Jos hua Hen sle y 10 Aggravated assault Jeff Hensley, Sr. 12 Aggravated assault Jamar Hensley 14 Aggravated assault Jeff Hensley, Jr.

At the sentencing hearing, John Baker, a mini ster and retail sales manager at Fleet Tire Com pan y, where the defendant worked, de scribed the defendant as a reliable and honest worker. He testified that the defendant had never had any problems with drugs or al cohol at w ork. Mr. Baker, who beg an cou nseling the defendant after an arrest on an unrelated charg e, stated that the defendant had shown remorse for the accident.

The defendant, who was hospitalized for a little more than a

day as a re

sult of the accident, could notrecall any of the events surrounding the accide nt or how it occurred. While acknowledging that he had a secondDUI offense shortly after the a ccident, the defendant maintained that it was not until a year after the accident that he rea lized the ex tent of the injuries caused to the Hensley children. He claimed that sincethen, 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 eachfor 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 a n effective sentence of 12 years. Later, the trial court modified the sentence, red

ucing the three four-year sentences to three years each. The three ag gravated assault convictions were again ordered t o be served consecu

tively, for a revised effe

ctive sentence o

f nine year

s.
I

The defendant initially argues that the trial co urt erred in calculating the lengths of each sentence due to the misapplication of statutory enhancement factors. When there is a challenge t

o-3-

the length, range, or manner of service of a sen

tence, 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). T

his presumption is

"conditioned upon the affirmative showing in the record that the trial courtconsidered the sentencing principles and all relevant facts and circumstances." Statev. Ashby , 823 S.W.2d 166, 169 (T enn. 1991); see also Statev. Jones , 883 S.W.2d 597 (Tenn. 1994). "If the trial court applies inappropriate factors or otherwise fa ils to follow the 1989 Sentencing Act, the presumption of corr ectness 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 require

s an analysi

s of (1) the eviden

ce, if any, received at the trial and sentencing hearin g; (2) the p resentence report; (3) the principles of sentencing and the arguments of c ounsel 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 defe ndant's potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103, -21 0 ; Statev. 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 C

lass D felony conviction, the presumptive sentence is the minimum in the range if there are no enhancement or mitigating fac tors. Tenn. Code Ann. § 40-35- 210(c). If there are enhancement but no mitigating factor s, the trial court

may set the sentence above the minimum, but still within t he range. Tenn. Code Ann. § 40-35-210(d). A sentence involving bothenhancement an

d miti gati ng 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 off ense of aggravated assault by recklessness,

a Cl ass D fel ony, is from two to four years. See Tenn. Code Ann. § 40-35-112(a)(4). The maximum sentence fo r a first offense

DUI, a Class A

misdemeanor, is 11 months and 29 day s.
The trial court found the following enhanc eme nt 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 i n addi tion to those neces sary to establish the appropriate range;
(3) the offense invol

ved more than one

(1) victim; (4) a victim of the off

ense was partic

ularly vulne

rable because

of age or phy

sical or mental dis

ability;-4- (6) the personal injuries inflicted upon or the amount of

damage to property su

stained by or

taken from the vic

ti m wa s particularly

great; (10) the def

endant had no hesitation about committing a crim e when the risk to human life was high;
(16) the crime was committed under circumstances underwhi ch the potential for bodily injury to a victim was grea t; and (18) a victim, under § 39-15-402, the statute defining aggravated child abuse and neglect, suffered pe rmanent impairment of either physical or

mental functi

ons a s a result of the a

buse inflicted.
Tenn. Code Ann. § 40-35-114.

In mitigation, the tr

ial court conside

red the following : (1) The defend ant’s pr ior 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 cou rts mus t ma ke s epar ate fin din gs as to w hic h en han cem ent fact ors app ly t o wh ich 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 t he cited enha ncement factors to all of the defe ndant’s convic

tions, the court will consider the propriety of each enhancement factor as to each offense. A. Aggravate

d Assault
First, the defendant argues that the trial court’s application of Tenn. Code. Ann. § 40-3 5- 114(3), that the offense

involved more than

one victim, constitu

ted double enhanc

ement. Because each count

is specific to one victim only, the defendant contends that it is a legal impossibility f or there to be more than one victim to any aggravated assa ults 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 b

ehalf of w hom char ges w ere n ever bro ught : fo ur- year- old Jes sic a Hen sle y, who required skin graft surgery, and three-year-old Justin Lake Hensley . As such, the enhancement factor was properly applied to each aggr avated assault offense.
Second, the defendant

argues that the trial court erred by apply ing Tenn. Code Ann § 40-35- 114(4), that a

victim of the offense was particularly vulnerable because of age or physical or mental dis abi lit y. 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 natura l physical a

nd mental limitations

of the victim than to the victim’s age. Statev. Poole

, 945 S.W.2d 93, 96 (Tenn. 1997). The state bears the burden of show ing that specifi

c-5-

limitations made a vi ctim part icularly vulnerable or that the vulnerability w as a factor in the commission of the crime. Id. Here, there w as only a showi ng that some of the vict ims 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 , Te nn. Code Ann. § 40-35-114(4) may not be applied to any of the aggravated assa ult offenses.
Third, the defendant argues that the trial court erred by apply ing 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 vic

tim was particularl

y great. Initially, we note that serious bodily injury is not an element of any of the aggravated assa ult charges to which the de fendant pled in this case. As to eachof the five victims

on behalf of whom t

he state brough

t charges, the

defendant p led guilty t

o aggravated

assault by

use of a deadly weapon. The defendant submits, however,

that the record i

s devoid of any proof

that the injuries sustained by the victims were great. With one exception, we must agree. Proof of serious bod ily i nju ry wi ll a lwa ys co nst itu te p roo f ofpart icu lar ly gre at i nju ry. See Statev. 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 inj ures ” which require counse

ling it would be pr

oper touse this factor. See State v. McKnight , 900 S.W.2d 36, 54 (Tenn. Crim. App. 1994). Although the Hensley’s four-y ear-old daughter, who

was thrown from the rear of the passenger van during the accident, suffer ed 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 demonstratedin the record to have sustained serious bodily injury. Eig ht-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 inj ury. There is no such evidenc e with regard t

o the remaining v

ictims. Moreover, while there is evidence to suggest that t

here may ha

ve been emotiona

l 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, b ut 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 appl ied to the conviction for the aggravated assault of Jamar He

nsley, Count 1 2 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 w as c ommitted under circumstances where the potential for bodily injury to a victim was great. He argues that neither factor is applica

ble because bothare 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 ag

gravated assa

ult, they may be applied when per sons other than the victim are nea rby and mig

ht be subject to

inj ury. 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 t

he indictment. Be

cause other individuals were s

ubject to injury

, the trial court pr

operly applied bo th factors to the defendant’s aggravated assault convictions.-6-

Fin all y, the defendant argues that the trial court erred by applying Tenn. Code Ann. § 40-35- 114(18), that a victim suffere d permanent impair ment of either phy

sical or mental fu

nctions as a result of the abuse infli

cted, because t

he factor applie

s only in case

s of child abuse and negle

ct. See Tenn. Code Ann. § 39-15-402. We agree. The state conten ds that the trial co

urt never intende

d to apply enhancement fa

ctor (18), but use

d 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 fo

r aggravate

d assault. The tria

l court also prope

rly appliedenhancement 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 t he circu mstances, enhancement of the aggravated

assault sentences to three years was appropriate. While the trial cour t 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 weig ht to enhancement factor

(10), thus warranting a sentence abov e the minimum. Accordingly, the term of each sentence f or aggravated assault is appropriate at mid-range or three yea rs.
B. DUI

In misdemeanor sent encing, the cou

rt is required to

provide the defe

ndant with a reas

onable opportunity

to be heard as to the le

ngth and manner

of the sentence.

The sentence mus

t be specific andconsistent with the purposes of the 1989 Act. Tenn. Code Ann. § 40-35-302(a) -(b). No greater than 75 percent of thesentence should be fixed for service by a misdemeanor offender; howeve r, a DUI offender may be required to serve the full one hundre d percent of hi s 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 p ercenta ge, the administrative agency gove rning the rehabilitative programs determines which among the lawful programs available is appropriate for the defend ant. The trial court retains the authority to place the defendant on probation either im mediately

or after a term of periodic or continuous confinement. Tenn. Code Ann. § 40-35-302(e). Th e leg islature 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

sc heme is de signed to provide the trial court with continuing jurisdiction and a wide latitude of flexibili ty in the misdemeanor case. The misdemeanant, unlike the felon, is not entitled to the presumption of a minimum sentence. State v. C r easy , 885 S.W.2d 829, 832 (Tenn. Crim. App. 1994). Appellate review of misdemeanor se ntencing is de novo with a presumption of correctness. See State v. Troutman , 979 S.W.2d 271 (Tenn. 1998).-7-

The trial court imposeda term of 11 months and 29 days, with a 75 percent rel ease eli gibi lit y, fo r the defendant’s DUI conviction. As with his aggravated assa ult sentences, the def

endan t challenges the

trial court’s app

lication of certa

in enhancement f

actors.
The trial court properly applied enhancement factor (3), tha t the offense involved morethan
one victim. Evidence at

the sentencing

hearing demons

trated that there

were at least ei

ght victims of this accident. The c ourt misapplied enhancement factor (4), that a victim of the offense was particularly

vul nera ble beca use of ag e or p hysi cal or m ent al d isa bil ity. The state presented no proof of any victim’s par ticular vulnerability or how such vulnerability could have factored into the commission of the crime. The trial court properly applied enhancement f actor (6), that the personal injuries in f

licted upon or the a

mount 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 andhad to undergo sk

in graft surge

ry. The tria

l court properly

applied enhancement factors (10) and (16). There is ev idence th at t he d efen dan t en dan gere d th e li ves of at lea st e ight peo ple . Fi nal ly, 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 fa ctors (1), (3), (6), (10) and (16) to the defen dant’s DUI offense. The mitigating factors applied

to the defendant’ s aggravate d ass aul t sentences would be applicable as well. Even though two enhancement fa ctors may have been misapplied, the remaining enhancement factors would clearly outweigh the three mitigating fac tors. The trial court sentenced the defe nda nt t o 11 mon ths and 29 d ays at 75 percent. The circumstances of the offense warrant the sentence imposed.

II
Next, the defendant argues that the trial court erre d by req uiring that three of the five sentences for aggravated a ssault be served consecutively. Prior to the enactment of the Criminal Sentencing Reform Act of 1989 , the limited classif ic ati ons for the imposition of consecutive sentences were set out in Gr ay v. S tate , 538 S.W.2d 391, 393 (Tenn. 1976). In that case, our supreme court ruled that a

ggravating

circumstances mu

st 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 addit ional category

for those defend

ants convicted of

two or more statuto

ry offense s involving sexua l abuse of minors. T

here were, how

ever, additional

words of caution: [C]onsecutive sentences should not routinely be imposed . . . and

. .

. the aggregate maximum of consecutive terms must be rea sonabl y related to the severity of the offenses involved.

Id. at 230.

The Sentencing Commis sion Comments adopted the cautionary language. Te nn. Code Ann. § 40-35-115, Sentencing Commission Comments. The 1989 Act is, in essence, the codification of1 The first four criteria are fo und in Gray . A fift h 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 Com mission Comme nts. -8- the holdings in Gray

andTaylor ; consecutive sentences may be imposed in the discretion of the trial court only up

on a determinatio

n that one or more o

f the following c

riteria 1 exist: (1) The defendant is a professiona l cri minal who has knowin gly devoted [himself] to criminal acts as a major source of livelihood; (2) The defendant is an offender whose record of criminal activ

ity is extensive;
(3) Th e defendant is a d angerous menta

lly abnorma

l person so declared by a competent psychiatrist who concludes as a result of an investigation prior to sentenc ing that the defendant's criminal conduct has been characterized by a pattern of repetitive or c ompul siv e behavior with hee

dless indifferen

ce to consequenc

es; (4) The defendant is a dangerous offender whose behavior indicates littleor no regard for

human life, and no hesitation about committing a crime in which th

e 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 de fendant and victim or victim

s, the time span of d

efendant' s undetected

sexual activity, the nature andscope of the sexual acts and the extent of

the residual, phy

sical and mental d

amage to the vic

tim or victims; (6) The defendant is sent enced for an offense committed while on probation; or (7) The defenda

nt is sentenced fo

r criminal contem

pt. 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 grea ter th an that deserved" under the circum stances, Tenn. Co

de Ann. § 40-35-10

3(2); see also State v. Lane , 3 S.W.3d 456 (Tenn. 1999).-9-

In Gray , our supreme cou rt ruled that cons

ecutive se

nte ncing could be imposed upon the dangerous offender, cons idered the most sub

jective of the cla

ssifications and th

e most diffi cult to app ly, on ly when other conditions are present: (a) that the crimes involved ag grava tin g circumstances;

(b) that consecu

tive sentences a

re a necessary

means to protect the public from the defendant;and (c) that the term reasonably relates to the severity of the offe nses . In State v. Wilkerson , 905 S.W.2 d 933, 938 ( Tenn. 1995 ), our high court reaffirmed those principles, holding that consecutive sen

tences cannot be

required of the d

angerous o

ffen der "unless the t

erms reasonably rel ate[] to the severity

of the offenses c

ommitted and are n

ecessary in order to protec

t the public (so cie ty) from further cr

iminal acts by

those persons who r

esort to aggravate

d criminal conduct." T he Wilkerson decision, which modified somewhat the strict factual guidelines for cons ecutiv e sentencing adopted in State v. Woods , 814 S. W.2d 378, 3 80 (Tenn. Crim. App. 1991), described senten cing 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 Ten n. C ode Ann . § 4 0-3 5-1 15( 4). As r equ ire d by Wilkerson , the trial court conc lu ded that consecutive sentencing was warranted by

the necessity

to protect the publ

ic because of the

severity of the offense:
[Def ense attorney], you said [the defendant] wan t s rehabilitation. He has not sought any

formal rehabilitation, although, to his credit, he sought out Mr. Baker, and ha s more t han willingly workedwith Mr. Baker, who is very kind to do that, and to offer

him counselin g, and to offer him support. That is something t hat, I think, has kept [the defendant] going all this time.
[The defendant ] has not sought out A A, even though it

is within a possible distance.

Mr. Baker has sought to find ways of helping [the defe ndant]. But unfortunate

ly, [the defe

ndant] has not.

And I have a problem wi

th 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 bodil

y injur y. He kne w th at t here was sev ere i nju ry. H e knew w hat the charges were. He didn’t look to find out what exactly he ha

d done, and what he

needed to do to cor

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

And based on that I find

that [t he defendant] is a significant danger to the c

ommunity unde

r the statute as we

ll.

There are thre

e children involve

d 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.
-10-

With regard to those

children’s injuri

es, and they

are in counts 8, 12, and 14 , [defend

ant], you are sentenced to four (4) y ears in the State Penitentiary

in each of those c

ounts. 2

Those counts will

run consecutively to one another, for a total effective twelve year sentence. 3

* * *
While [the defenda

nt] might . . . do this

on work release and
a number of other th

ings, the fact th

at [the defendant

] has picked up
new char ges, as yo u have s aid, not once, but twice, both driving charges, one of which, at least, he’s alleged to committed a driving und er t he i nfl uen ce, c onc erns thi s Co urt mig hti ly.

For the grace of

God . . . the child that was thrown out of the vehicle, had she landed on her head, might be de a d, 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 charg

es, in light the severi

ty of the injuries in this case.

In our view, the trial court appro priately 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.

T he defendant asse

rts that consecut

ive sentences ar

e improper beca

use the trial court failed to consider evidence that he is no longer a danger to the public . We disagree. I n 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 hada 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

homeandgoing to work, took no steps of his own to

attempt to correc

t [his prob lems with alcohol], and, indeed, wound up with other charges

.-11- * * *

And so that the record is cl ear , 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 remorse ful, and never

intentionally would have done any of this, unable to con trol his behavior in such a way t hat he ca nno t be saf e in the out sid e com mun ity.

* * * Regr etf ull y, as a result of that the Court found, an

d 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, be

ing a danger,

no doubt, to himself

The trial court found tha t the sentences imposed were necessary to protect society and were proporti onateto 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 v iew, there is a

reasonable relationship between the sentence, as mod

ified, and the g

ravity of th

e crimes. As such

, this issue is without m

erit.

III As his final argument, the defendant submits that the trial court erred because his sentence does not pro perly adhere to the purposes and intent of the Sentencing Reform Ac t of 1989. I n particular, he claims that no defendant found guilty of D

UI and vehic

ular assault

by recklessness has ever been so harshly sentenced . The defendant h as cited cases in

volving similar ci

rcumstances.
The defendant first

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

truck three pede

strians 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,

f ollowed by a five-year

period of probation. That sentence was modified to a termof split confineme

nt with one ye

ar in the Davidson County

workhouse

followed by a four-yea

r period of probation.

In State v. Bullington , 702 S.W.2d 580 (Tenn. Crim. App. 1985), t he defendant d

rove his jeep at a high ra

te 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, hi ps, and knees. The

defendant was sent enced to three years on each aggravated

assault and 11 months and 29 days for the DUI. Beca

use all sentences were

ordered to be served concurrently, the defendant’s effe ctive sentence was three years. The trial jud ge also ordered periodic confinement so as to allow the defendant to continue his employment.-12-

In State v. Glenda Primeaux , No. 4 (Tenn. Crim. App., at Jackson, J an. 20, 1988), the defendant was convicted

of four counts of

aggravated assault and a DUI. She had vee red across the wrong side of the road and struck a vehicle occupied by one adult and thre e childr en. S he was sentenced to four concurrent five-year terms on the assault char ges and a term

of 11 months and 29 days on the DUI ch arge. The de fendant appealed a denial of probation. This court reversed and remanded because the t

rial judg e erred by failing to give any reasons for denying an alternative sentence. SeeTenn. 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 month

s, 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 or dered him to serve 48 hours of the sentence and placed the defendant on

probation for the

balance of the te

rm. For th e assaul t, the defendant received a sentence of two ye ars 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 pl ed guil ty to public in toxication, DUI

, a Habitual Motor V

ehicle Offender Act offense (HMVO), and two counts of aggravated

assault. The tria

l court sentence

d him to 10 d ays for the public intoxication, 11 months and 29 days for the DUI, one y ear for the HMVO, andthree yea

rs for each of th

e aggravate

d assaults. The trial cour t ordered these sentences to be served consecutively, but the DUI and HMVO sentences were to be served concurrently with each other and consec

utively to all other

sentences. Thus, the defendant received an effective sentence of seven years and

10 days. The

trial court gra

nted immediate inte

nsive probation on

all counts

. Afterward, the defendant violated the terms of his probation and the trial court or dered that the remainder of his sentence be served in the Department of Correction.
Here, the def

endant 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 disag ree. None of the sentences in the other

cases involved five counts of aggravated assault. The defendant in Primeaux, who was convictedof four counts of a ggravated a

ssault, was senten

ced tofive years, but the sentence was remanded beca

use the trial judg

e did not state any

reasons for den

ying proba

tion. So, the result i

s unknown. In any event, the probation officer recommended probation bec ause the defendant was middle-aged, was a first time offender, had children

at home, and suffered from a chronic medical condition. By contra

st, the defendan

t in this case has a

criminal history

, does not s uffe r from any physical ailments, and committed a second DUI shortly after this incident. None of the c ases cited by the defendant involve aggravating circumstances. Here, the defendant’s sentence was enhanced because he had a

prior criminal re

cord and becaus

e he inflicted se

rious injuries.

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

by eliminating unjustified disparity in sentences," Te nn. 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-13-

case by case ap

proach contempla

ted by the Ac

t. Id. Reasonable

discretion in sentencing decisions is required to impose the sentence the defendant dese

rves 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 proc edures 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, th

e trial court act

ed in compliance w

ith the 1989 Act.

___________________________________ GARY R. WADE, PRESIDING JUDGE