# FILED
January 26, 1999 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT NASHVILLE DECEMBER 1998 SESSION

STATE OF TENN ESSEE, ) ) C.C.A. NO. 01C 01-9711-CR-00519 Appellee, ) ) PUTNAM COUNTY VS. ) ) HON. LEON BURNS, JR ., LAWRENCE PAUL WEBB, ) JUDGE ) Appellant. ) (Sentencing)

FOR THE APPE LLANT: FOR THE APPELLEE:
EDWIN G. SADLE R JOHN KNOX WALKUP 1 South Jefferson Ave. Attorney General & Repor ter Cookeville, TN 38501 TIM OTH Y BEH AN Asst. Attorney General John Sevier Bldg. 425 Fifth Ave., North Nashville, TN 37243-0493 WILLIAM E. GIBSON District Attorney General LESLIE ANN SELLS-andBEN FANN Asst. District Attor

neys General 145 South Jefferson Ave. Cookeville, TN 38501 OPINION FILED:____________________

AFFIRMED JOHN H. PEAY, Judge2 

### O P I N I O N

The defendan t was charged by indictment w ith vehicular homicide

by intoxication and two counts of vehicular ass ault. Following a jur y trial and sentencing hearing, he was fou nd g uilty as charged and s entenced to an effective sentence of eleven years incarceratio n. The defendant now challenges his sentence, arguing that the trial court erred in failing to apply a mitigatingfactor, that his sentence w as excessive, and that the trial court erred in denying him alternative sentencing. Finding no merit to these complaints,we affirm.

On the evening of January 26, 1996, the defendant was drinking

beer at a local bar. At the end of the evening, he agreed to drive Lori Neal, a w oman who worked at the bar, and her boyfriend, R oger Warden, home. On the way home, before droppi ng Neal and Warden off, the defendant’s car struck a car dri ven by Paul Allen . Neal was killed in the wreck, and both Warden and Allen were severel y injured. Warden lost nearly half of one of his legs, ruptured his spleen, and sust ained a broken pelvis, multiple leg fractur es, a torn liver, and a punc tured lung. Allen broke his hip, several ri bs, and h i s pelvis and sustained severe nerv e damage in one of his legs and a head injury. Allen testified at trial that he constantly endures pain as a result of the wreck. Just prior to the sentencing hearing, he c ommitted suicide.

The defendant, who was forty- one years old at the

time of the sentencing hearing, h ad a prio r criminal record of tw o worthless check char ges and one speeding ticket. Military records confirm some disciplinary problems while se rving in the Navy, although he receivedan honorable discharge. The evidenc e also shows the defendant has admitted to y

ears of alcoh ol and drug abuse. Th e defenda nt did not accept3

responsibility at the sentencing hearing for his actions.

In sente ncing the defendant, the trial judge placed great emphasis o n enhancementfactor T.C.A. § 40-35-114(1), finding tha t while the defendant had “no sign ifi cant criminal record,” he had a “significant admission of criminal behavior in consumption of illegal drugs.” With regard to the vehicu lar assault coun ts, the trial judge applied enhancement factor T.C.A. 40-35-114(6) , that the personal injuries sust ained by the victims were particularly great. Although the tria l judg e found that no statutory mitigation factors were applicable, he noted that the defendant had a good employment record. The trial judge sentenced t he defendant as a Range I standard offender to eleve n years i ncarceration on the vehicular homicide conviction and four years inc arcerati on on each of the vehicular ass ault convictions, all

terms to be served
concurre ntly. This was a near-maximum sentence on the vehicular homici de conviction, which has a sentencingrange of eight to twelve years for a Range I standard offender, T.C.A. §§ 39-13-213 (b), 40-35- 112(a)(2),and a maximum sente nce for vehicular assault, which has a sentencing range of tw o to four years for

a Range I standard offender, T.C.A. §§ 39-13-106(b), 40-35-112(a) (4).

Citing State v. Jerrell C.Livingston , No. 01C01-9012-CR-00337, Davidson County (Tenn. Crim. App. filed September 1 7, 1991, at Nashville), aff’d , 907 S.W.2d 392 (Tenn. 1995)(not addressi ng sen tencing issues), and State v. Richard Rober ts , No. 03C01-9208-CR-00270, Cumberl and Co unty (Tenn. Crim. App. filed May 26, 1993, at Knoxville), the defen d ant first argues that the trial court erred in failing to consider his “insignificant

prior criminal record” as a mitigatingfactor under T.C.A. § 40-35-113(13). “Although absence of a prior criminal rec ord may be considered under the catch-all provision of Tennessee Code Annotated section 40-35-113(13), this court is not required4

to consider this as a mitigat ing fa ctor.” State v. Williams , 920 S.W.2d 247, 261 (Tenn. Crim. App. 1995)(citati ons om itted); see State v. John D. Joslin , No. 03C01-9510-CR00299, Knox County (Tenn. Cr im. App. filed Septem b er 22 , 1 99 7, at

Kn ox vi ll e) (“ We agree that the lack of a criminal hi sto ry may be considered as a mitigating factor . . . . Given the Defendant’s prior misdemeanor convictions, howev

er, we do not

f ind this mitigatingfactor to be applica ble in his case.”)(cit ations omitted). Moreov er, in light of the fact the trial judge proper ly applied and placed

great emphasis on the enhancement factor that the d efenda nt has a “s ignifica nt” histo ry of crimi nal beha vior, it woul d have been inappropriate to also apply the defendant’s “insignificant prio r criminal record” a s a mitigation factor. State v. Robe rt L. O ’Neal , No. 01C01-9610-CC-00438, Marshall County (Tenn. Crim. App. filed December 20, 1997, at Nashville). This issue is without merit.

Next, the defendant argues that “based upon the mitigating factors present and th e lack of enhancement factors, he was entitled to th e presumptive minim u m sentence of 8 years” for his vehicu la r homicide conviction.The defendant does not specify which “mitigating

factors” he believes ar e present, so we assume he is referr ing to the “insignificant pri or criminal record” he argued w as applicable in his firs

t issue. As
we have determined, this miti gation factor is not applicable in this case. Moreover, the trial court properly applied enhancement factor T.C.A. § 40 -35-114(1), that the defendant has a history of criminal behavior, and the court w as within its di scretion to give this enhancementfactor great weight

. State v. Shelton , 854 S.W.2d 116, 123 (Tenn. Cr im. App. 1992)(stating that the w eight to be given each factor is left t o the trial c ourt’s discretion). An eleven year sentenc e forvehicular

homicide was appropriat e under the circumstances of this case.5 Finally, the defen dant arg ues that “if this Court reduces the defendant’s sentence to the presumptive minimum sent ence of 8 years, the defendant woul d be eligible for probation or split confinement pursuant t o Tenn. Co de Ann. § 40-35-307.” Even assuming this w

as true, the defendant’s argument is moot because we affirm the imposed sentence of eleven years o n the v e hicular homicide convi ction. See T.C.A. § 40-35-303(a)(a defendant is eligible for probation only if his or her actual sentence is eightyears or less). The defendant’s sentences on his vehicular assault convictions are also affirmed.

_______________________________ JOHN H. PEAY, Judge
CONCUR:

______________________________ JOSEPH M. TIPT ON, Judge

______________________________ NORMA McGEE OGLE, Judge