# FILED
June 30, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT KNOXVILLE OCTOBER 1997 SESSION

STATE OF TENN ESSEE, ) ) NO. 03C01-9703-CR-00101 Appellee, ) ) SULLIVAN COUNTY VS. ) ) HON. R. JERRY BECK, JAMES THOMA

S TANNER, III , ) JUDGE ) Appellant. ) (Sentencing)

FOR THE APPELLANT : NAT H. THO MAS 317 Shelby Street Suite 304 Kingsport, TN 37660-3617 FOR THE APPEL LEE : JOHN KNOX WALKUP Attorney General and Repor ter SANDY C. PATRICK Assistant Attorney Gener al Cordell Hull Buildi ng, 2nd Floor 425 Fifth Avenue North Nashville, TN 37243-0493 H. GREELEY WELLS, JR. District Attorney General ROBERTH. MONTGOMERY, JR. Assistant

District Attorney

General P.O. Box 526 Blountville, TN 37617-0526

OPINION FI LED:

AFFIRMED
JERRY L. SMITH, JUDGE1 EffectiveJune 2, 1995, vehicu lar homicide by

driver intoxication

was elevated to a Class B felony. Public Act 1995, ch. 415 § 2. 2 OPINION

The defendant, James Thomas Tanner, III, pled guilty in the SullivanCounty Criminal Court to one(1) count of vehicular h omicide, aClass C fe lony. 1 The trial court sentenced him as a Range I, s tandard offender

to three (3) years and

denied alternat ive sentencing. On appeal, he claims that

the trial court erred i n refusing to sentence him as an especially mitigated offender and i n denyi ng altern ative sentencing. After a thorough review of the record before this Court, we affirm th e judgment of the trial court.

FACTUAL BA CKGROUND

On December 26, 1994, def endant was driving on Interstate 181 when his vehicle collided with a truck parked in the emergency lane/pav ed shoulder area

of the interstate. The driv er of the t ruck, Lawrence Peters,had pulled off of the traveled portion of the interstate because of car pr oblems. Peters died as a result of injuries received in the accident. Approx imately two hours after the accident, defendant’s blood was tested. The test revealed defendant’s bloo d alcohol content to be 0.26%. Defendant entered a guilty plea to vehicular homicide, a Class C felony at that time. See

Tenn. Code Ann. § 39-13-213(b ) (1991). T he trial court was t o determine the length and manner of defendant’ s sentence. At the sentencing hearing, defendant testified that hewas 38 years old and single. He had a Ph.D. i n chemistry and hadworked for the Tennessee Eastman Company

as a technical service representative for approximately six years. He had no prior criminal record, a good work historyand a stable family envir onment. He denied using drugs and repor ted “infreque nt” alcohol use. At the time of the hearing, he had been under a psychiatrist’s care for depression for approximately2 The trial court stated, “[w]e might nee d to discu ss TCA § 40-35-113, mitigating

factors,the defendant has under subsection thirteen put

forward, and the Court would accept those, at least some of them as mitigating factors . . .” 3 fi ve and one-half (5 1⁄2) years . He acknowledged that,after the accident, h e erroneously told an officer that he drank “three shots of scotch,” when he actually consumed three to four “glasses.” He also expressed remorse to the court and to the victim ’s famil y. Defendant’s father, a friend of defendant’s and a former employ er of defendant’s testified on his behalf at the sentencing hearing. All requested that the trial court grant al ternative sente ncing. The trial court imposed

defendant’s sentence at the hearing and additionally filed extensive findings in a subse quent written order.The trial court determined that defendant would be sentenced as a Range I, standard offender, and not as an especiallymitigated offender. In dete rm ining the length of defendant’s s entence, the trial court fou nd that no factors were applicable to enhance defendant ’s sentence withi n Range I. The trial court did find that mitigating factors were applicable, but did not enumerate those specific factors. 2 The trial court then sente nced defend ant to th ree (3) yea rs, the mi nimum f or a Class C felony withi n Range I. In determining whether al ternative sentencing w

ould be appropriate, the trial court noted that defendant had an “excellent” social history, educational history and
no pri o r convictions. However, the trial court, relying on several pre-1989 cases, determined that because defendant’ s actions resulted in the death of another, exceptional circumstances must be shown in order to support probation. See State
v. Smith , 622 S.W.2d 588, 590 (Tenn. 1983); State v. Windhorst , 635 S.W.2d 706, 708 (Tenn. Crim. App. 1982); Kilgore v. State , 588 S.W.2d 567, 568 (Tenn. Crim. App. 1979). The trial court further found th at vehicul ar homicide by driv er intoxication mandated the application of the “exceptional circumstances” test. The trial court conclud ed that defendant had not demonstrated that ex ceptional circumstances

existed which w

ould require the

court to grant alte rnative sentenc ing, and thus, den ied alternative se ntencing.4 From the trial court’s ruling, defendant brings this appeal.

ESPECIALLY M ITIGATED OFF ENDER

In his first issue, defendant contends that the trial court erred in sentencing him as a Rang e I, standar d offender. He argues that because he has no prior convictions

and the trial court found mitigating but no enhancemen t factors, he should have been sentenced as an especially mitigated off ender. Tenn. Code Ann. § 40-35-109(a) provides that a trial co urt ”may find the defendant is an e specia lly mitigated offender, if: ( 1) [t]he defendant has no prior felony convictions; and (2) [t]he court finds mitigating, but no enhancement factors.” However, whether a defendant is sentenced as an especially mitigated of fender is
a det ermination that rests within the sound discretion of the trial court. State v

. Hicks , 868 S.W .2d 729 , 730-31 (Tenn. Crim. App. 1993); State v. Braden , 867 S.W.2d 750, 762-63 (Tenn. Crim. App. 1993)

. This provis ion is not mandato ry. Braden , 867 S.W.2d at 762-63. Indeed, especially miti gated status is reserved for “instanceswhere the trial ju dge may des ire to depart from even the mini mum sentence for a Range I offender and impose lesser penalties.” Tenn. C ode Ann. § 40-35-109, Sentencing Commission Comments. Considering the nature, facts and circumstances of the offense, we find that the trial court did not abuse its discretion in sentencing de fendant as a Range I, standard offender. This issue is w ithout merit.

ALTERNATIVE SENTENCING

Defendant also contends that the trial court erred in d enying alternat ive sentencing. He asserts that the tri al court erroneo usly appli ed the “exceptional circumstances” doctrine todeny probation in this case. He argues that the state did not overcome the presumption that defendant was a favorable candida te for alternat ive sentencing. He further claims that he quali fies for community corrections5

under the “special needs” provision of Tenn. Code Ann. § 40 -35-106(c). A. This Court’s review of the sentence imposed by the trial court is de novo with
a presumption of correctness. Tenn. Code Ann. § 40-35-401(d). This presumption is conditioned upon an affirmative sho wing in the record that the trial judge considered the sentencing principles and all relevant facts and circumstances. State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). If the trial court fails to comply with the statutory directives, there is no presumptionof correctness and our rev iew is de novo

. State v. Poole , 945 S.W.2d 93, 96 (T enn. 1997). The burden is upon the appealing p arty to show that the

se ntence is improper. Tenn. Code Ann. § 40-35 -401(d ) Sentencing Commission Comments. In conduct ing our revi ew, we are required, pur suant to Tenn. Code Ann. § 40-35- 210, to consid er the following f actors in senten cing: (1) [t]he evidence, if any, r eceived at the trial and the sentencing hearing; (2) [t]he presentence repor t; (3) [t]he principles of sentencin g a nd arguments as to sentencing alternatives; (4) [t]he nature and character istics of the criminal con duct involved; (5) [e]viden ce and inf ormatio n offer ed by t he parties on the enhancement and mitigating factors i n §§ 40-35-113and 40-35-114; and (6) [a]ny statement the

defendant wishes to make in the defendant’s own behalf abo ut sentencing. Under the Crim inal Sentencing Reform Act of 1989, trial judges are encouraged to use alternatives to incarceration. An especially mitigated or standard offenderconvict ed of a Class C, D or E felony is presumed to be a favorable candidate for alternative sentencin g options in the absence of evid ence to the contrary. Tenn. Code Ann. § 40-35-102(6). In determining if incarceration is appr opriate, a trial court may consider the need to protect society by restraining a defendant having a long history of criminal conduct, the need to avoid de preciating the serious ness of the offense, whether confinement is particularly appropriate to effectively deter others like l y to commit6

similar offenses, and whether

less restrictiv

e measures have often or recently been unsuccessfully applied to the defendant. Tenn. Code Ann. § 40-35-103(1); see also State v. Ashby , 823 S.W.2d at 169. Although a defendant may be presumed to b e a favorable candidate for alternative sentencing , the defendant has theburden ofestablishing suitabil ity for total probation. State v. Boggs , 932 S.W.2d 467, 477 (Tenn. Crim. App. 1996); see Tenn. Code An n. § 40-35 -303(b). Even though probation must be automatically considered, “the defendant is not automatically entitl ed to probation as a matter of law.” Tenn. Code Ann. § 40-35-303(b) Sent encing Commission Comments; State v. Hartley , 818 S.W.2d 370, 37 3 (Tenn. Crim. App. 1991). In determining whether to grant or deny probati on, a trial cour t shoul d consider the circumstances of the offense, the defendant's criminal record, the defendant’s social history and present condi tion, the need for deterrence, and th e best interest of the defendant and the public

. State v. Grear , 568 S.W.2d 285, 286 (Tenn. 1978); State v. B oyd , 925 S.W.2d 237, 244 (Tenn. Crim. App. 1995); State v. Black , 924 S.W.2d 912, 91 7 (Tenn. Crim. App. 1995). There is no mathematical equation to be uti lized in determining sentencing alternatives. Not only should the sentence fit the offense, but it should fit the offenderas well. Tenn. Code Ann. § 40- 35-103(2); State v. Boggs , 932 S.W.2d 467 (Tenn. Crim. App. 1996). Indeed, indi vidualized punishment i s the essence of alternat ive sentencing. State v. D owdy , 894 S.W.2d 301, 305 (Tenn. Crim. App. 1994). In summa ry, senten cing must be determ ined on a case-by- case bas is, tailoring each sentence to that particular defendant based upon the facts of that
case and the circumstances of that defendant. State v. Moss , 727 S.W.2d 229, 235 (Tenn. 1986). B. Initiall y, defendant contends that the tria l court erroneously applied the “exceptional circumstances” theory to support the denia l of probation. In Kilgore v. State , this Court held that w here d ea th of another results from a defend ant’s criminal conduct, the defendant must show that exceptional circumstanc es exist to3 Under current law, vehicular homicide by intoxi cation is a Class B felony. See T enn. Code Ann. § 39-13-213(b). Therefore, one convicted of this offense is no long e r presumed t o be a favorab le candidat e for alterna tive sente ncing. 7 support proba tion. 588 S.W.2d at 568. This case was decided pri or to the 1989 Criminal Sentencing Refor m Act. However, under the 1989 Sentencing Act, a defendan t convicted of a Class C, D or E felony

is presumed to be a favorable candidate for alternative s entencing options in the absence of evidence to the contrar y. Tenn. Code Ann. § 40-35- 102(6). There was no similar p rovision under the 1982 Sentencing Act. At the time this offense was committed, the legislature classified vehicular homicide as a Class C felony. 3 Vehicular homicide, by its very nature, involves the deathof another as a result of the defendant’s actions. Therefore, “[ t]o apply a different

standard solely because a death is involved ‘ would fail to comply with the mandates of the 1989 [Sentencing] Act and would condone inconsis tency and unjustified disparity in sentencing unre lated to the purposes of the Act.’” State v. Bingham , 910 S.W.2d 448, 454-55 (Tenn. Crim. App. 1995) ( quoting State v. Hartley , 818 S.W.2d at 374). The fact that

death re sults c annot, b y itse lf, justify

a denial of probation “nor can it be viewed as sufficient

evidence t

o overcome

the presumption” as stated in Tenn. Code Ann. § 40-35-102(6). State v. Butler , 880 S.W.2d 395, 400-01 (Tenn. Crim. App. 1994). Other panels of this Court h ave held that the “exceptional circumstances” doctrine did not survive the 1989 Sentencing Act. St ate v. Bra dley Joe Housewright , C.C.A. No. 03C01-9705- CR-00195, Sullivan County (Tenn. Crim. App

. filed December

16, 1997, at Knoxville

); State v. McKinzie Monroe Black , C.C.A. No. 01C01-9401-CC-00006, Robertson County (Tenn. Crim. App. filed July 14, 1995, at Nashville); but see State v. Ramsey , 903 S.W.2d 709, 714 (Tenn. Crim. App. 1995); State v. Roger D . Hi psher , C.C.A. No. 01C01-9111-CC-00332, Hickman County (Tenn. Crim. App. filed October 8, 1992, at Nashville). We, therefo re, find that the “exceptio nal circum stances ” theory i s no t applicable to offenses occurring after the i nception ofthe 19 89 Sentencing Act. Thus, the trial court err ed in relying upon thi s doctrine to support the deni al of8

probation. Our review is, therefore, de novo without a

presumption of correctness. C. Nevertheless, und e r our po wer of de novo

review, we find that a denial of probation was warranted under the circumstances

of this case. Probation may be denied based solely upon the cir cumstances surrounding the offen se. State v. Bingham , 910 S.W.2d at 456; State v. Hartley , 818 S.W.2d at 374. However, the circumstances

of the offense as committed must be especiall y violen t, horr ifying, shocking, repre hensible , offensive or otherwise of an excessive or ex aggerated degree; and the nature of the offense must outweig h all factors favoring probation. State v. Bingham , 910 S.W.2d at 455; State v. Hartley 818 S.W.2d at 374-75. Approximately two hours after the accident causing th e victim’s death, defendant’s blood alcohol content regi stered 0.26%. Defen dant testified that he
was aware of thedangers and consequences of driving whil e under the influence. Yet, he chose to drive while his blood alcohol level was over two and one-half (2 1⁄2) times the permissible i nference fo r driving under the

influence. See

Tenn. Code Ann. § 55-10-408. We consider these facts to be shoc king, repr ehensib le, off ensive and of an exaggerated degr ee. We acknowledge that defendant has no crimin al record and has an admirable work history and social history. H ow ever, we can not overlook that defendant was 38 years old and held a Ph.D. in chemistry. A pers on of his age and education should recognize the i mplications of consuming an ex cessive amount of alcohol and driving on publi c street s, end angering t he lives of others. W hile we commend defendant’s positive attribu tes, we find that the circumstances of this offense outweigh the other factors in favor of probatio n. In o rder to avoid depreciating the seriousness of the offense, we, therefore, find that the t rial court did not err in denying

probation in this case.

D. D efendant a lso argues that the trial court should have placed him in community

corrections. Defendant is ineligible for community correction s unde r Tenn. Code Ann. § 40-36-106(a)(3) since vehicular homicide is a crime of violence.9

See State v. Braden , 867 S.W.2d at 765. However, he contends that he qualifies forthe “special needs” prov ision ofTenn. Code Ann. § 40-36-106(c). He mai ntains that he has be en under psyc hiatr ic care since 1990, but poses no threat to the
commun ity. He further claimsthat his depression could be st be treated under his present psychiatrist

’s care rather than in a c orrectional institutio n. The Community

Corrections Act establ ishes a program of community-based alternatives

to incarceration for cert ain eligible offenders. See Tenn. Code Ann. § 40-36-1 03. A defendant is eligible for participation in a community c orrections program if the defendant satisfies several minimum eligibility

criteria set for th at Tenn. Code Ann. § 40-36-106(a)(1)-(7). The Act does not provide that all off enders who meet these requirements are entitled to such relief. State v. Grandberry , 803 S. W.2 d 706, 707 (Tenn. Crim. App. 1990). Indeed, Tenn. Code Ann. § 40-36- 106(d) provides

that the eligibility

criteria shall be int

erpreted as minimum standards to guide the court's deter mination of eligibility

of offenders under the Act. An offender who does not meetthe minimum criteria under Tenn.Code Ann. § 40-36-106(a) and is considered unfit for probati on due to substance abuse or mental probl ems may still be eligible for community corrections u nder the special needs provision of Tenn. Code Ann. § 40- 36-106 (c). See State v. Grigsby , 957 S.W.2d 541, 546 (T enn. Crim. App. 1997). However, before a defendant may be sentenced pursuantto Tenn. Code Ann. § 40-36-106(c), he or she must be found eligible for probation. State v. Grigsby , 957 S. W.2d at 546; State v. Staten , 787 S.W.2d 934, 936 (Tenn. Crim. App. 198 9). The trial court must al so find that: (1) the offender has a his tory of chronic alcohol abuse, drug abuse, or mental heal th problems; (2) these factors were rea sonably related to and contributed to th e offender's criminal conduct; (3) the identifiable special need( s) are treatable; and (4) the treatment of the special need(s) could be best served in the community rather than in a correctional institution. State v. Grigsby, 957 S.W.2d at 546-47; State v. Boston , 938 S.W.2d 435, 43 9 (Tenn. Crim. App. 1996). At first bl ush, it would appear th at defend ant is s uited fo r commun ity corrections

under Tenn. Code Ann. § 40-36-106(c). H owever, there is no evidence,10

nor does def endant c ontend, that his d epressio n reason ably r elated to and contributed to his criminal conduct. Defendant’s criminal cond uct was caused by his alcohol use, which de fendant c ontends is merely “soci al” and “infrequent.” Because defendant’s mental status did not contribut e to his criminal co ndu ct, a community

corrections

sentence under

Tenn. Code Ann. § 40-36-106(c) w ould be inappropriate.

CONCLUSION

We find that the trial court did not abuse its d is cretion in sentencing defendant as a Range I, standard offender. Furthermore, we conclude that the trial court’s denial of alternative sentenc ing was not improper under the facts of th i s case. Accordingly , the judgment of the trial cour t is affirmed.

JERRY L. SMITH, JU DGE CONCUR:

GARY R. WA

DE, JUDGE

DAVID H. WELL ES, JUDGE