# FILED
May 21, 1997 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT NASHVILLE MARCH 1997 SESS ION

STATE OF TENN ESSEE, ) ) NO. 01C01-9606-CR-00249 Appellee, ) ) WILSON COUNTY VS. ) ) Hon. J.O. Bond, Judge PENELOPE R. KA RNES, ) ) (Vehicular Assau lt - Sentencing) Appellant. )

FOR THE APPELLANT : FOR THE APPEL LEE : COMER L. DONNELL CHARLES W. BU RSON District Public Defender Attorney General and Repor ter KAREN G. CHAFFIN M. ALLISON THOMPSON Assistant Public Defender Assistant Attorney Gener al 213 North Cumberland Street 450 James Robertson Parkwa y P.O. Box 888 Nashville, TN 37243-0493 Lebanon, TN 37087 TOM P. THOMPSON, JR. District Attorney General DOUG HALL Assistant

District Attorney General 111 Cherry Street Lebanon, TN 37087

OPINION FI LED:

AFFIRMED
JOE G. RILEY, JUDGE2 OPINION

The appellant, Penelope R. Karnes, appeals the sentences imposed by the Criminal Court of Wilson Co unty follow ing her guilty pl ea to two (2) counts of vehicular assault. The trial court ordered her to serve four ( 4) years on each count in the Tennessee Department of Correction to be served consecutively. On appeal, Karnes claims that the tria l court er red by: (1) imposing excessive sentences ; (2) denying probatio n; and (3) ordering t hat the s entence s be served consecut ively. We affirm the judgment of the trial court.

FACTS

In March 1994, Karnes was driving her vehi cle in the wrong lane on Highway 109 in Wilson County, Tennessee. Her car collided w ith a car driven by J ames McDermo

t t, causing serious injuries to McDermott and his passenger, Bruce Silverman. Karnes admitted to the officer responding to the acc ident thatshe had been dr inking. Subsequent blood tests revealed that Karnes’ blood alcohol level was .26. Karnes was indicted on two (2) counts of aggravated assault, third offense driving under the influence of an intoxicant, driv ing on a revoked lic

ense, violation of registrationlaw, and driving on the wrong side of a ro adway. She

pled guilty to two (2) counts of the amended charg e of vehicular assault, and the state entered nolle prosequi

orders on the remaining c ounts of the indictment. After a sentencing hearing, K arnes was sentenced as a Range I, Standard Offenderto four (4 ) years on each count of vehicular assault. The trial court ordered that the sentences were to be s erved consecutively. Furthermore, the trial court denied any form of sentencing alternative.

REVIEW OF SENTENCING3 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 presu mption is conditioned upon an affirmative showing in the re cord tha t the trial judge considered the sentencing principles and all relevant facts and circumstances. State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1 9 91). The burden is upon the appealing party to show that the sentence is improper. Tenn. Code Ann. § 40-35- 401(d) Sentencing Commission Comments

. In conducting our review, we are required, pursu ant to Tenn. Code Ann. § 40-35-210, to consi der the following factors in sent encing: (1) [t]he evidence, if an y, received at the tr ial and the sentencing hearing; (2) [t]he presentence repor t; (3) [t]he principles o

f sentencing and a rgu ments as to sentencing alter natives; (4) [t]he natur e and characteristics of the criminal conduct involved; (5 ) [e]vidence and information offered by

the parties on the enhancement and mitigating factors in §§ 40-3 5-113 a nd 40-35-114; and (6) [a]ny statement the defendant wishes to make in [h er] own behalf a bout sentenc ing. If our review reflect

s that the trial court foll owed the statutory sent encing procedure, imposed a lawful sentence after g iving due consi deration and proper weight to the factors and principles set out under sentencing l aw, and the trial court’s findings of fact are adequately supported by the record, then we may not modify the sentence even if we w ould have preferred a different r esult. State v. Fletcher , 805 S.W.2d 785, 78 9 (Tenn. Crim. App. 1991).

EXCESSIVE SENTENCES

Karnes contends that the trial court erred in imposing the maximum sentence of four(4) years for each count of vehicular assault, a C lass D felony. She cla ims that the trial court was not justified in r

elying upon her past criminal conv ictions because those convictions were merely for misdemeanor d rivin g offenses. Therefor e, she argues that the sentence imposed was not the “least severe
measure necessary to achiev e the purpose s for which the sentence is imposed.” See Tenn. Code Ann. § 40-35-103(4).4 If no mitigating or enhanci ng factors for sentencing ar e present, Tenn. Code Ann. § 40-35-210(c) provi des thatthe presumptive sentence shall be the minimum sentence within the applicable range. See State v. F letcher , 805 S.W.2d at 788. However, if such factors do exist, a trial co urt should start at the mini mum sentence, enhance the minimum sentence within the range foraggravating factor s and then reduce the sentence within the range for th e mitigating factors. Tenn.Code Ann. § 40-35-210(e). No particular weight for each factor is prescribed by the statute, as the weight

given to each factor

is left to the discretion of the trial court as long as its findings are supported by the recor d. State v. Moss , 727 S.W.2d 229, 238 (Tenn. 1986); State v. Santiago , 914 S.W.2d 116, 125 (Tenn. Crim. App. 1995); see Tenn. Code Ann. § 40-35-210 Sentencing Commission Comment s. Nevertheless, should there be no mitigating fact ors, but enhancement factors are present, a trial court mayset the sentence above the minimum within the range. Tenn. Code Ann. § 40- 35-210(d); see Manning v. State , 883 S.W.2d 635, 63 8 (Tenn. Crim. App. 1994). A fterthe sentencing hearing, the t rial court found that five enhanc ement factors applied in this case: (1) Karnes had a previous hi story of criminal conv ictions
orcrimi nal behavior in addition to those necessary to estab lish the appropriate range; (2) the offense involved mor e than one victim; (3) th e personal injuries inflicted upon the vi ctimswere particularly great; (4) Karnes had a previous history of unwillingness to

comply with the condi

tions ofa sentence involving release in the
commun ity; and (5) she had n o hesitation ab out committin g a crime when the risk to human life was high. See Tenn. Code Ann. § 40-35-114(1), (3), (6), (8) and (10). The trial court found that no mitigating factors applied. The trial court properlyapplied enhancement factor (1) in this case. Karnes has two prior DUI conv

ictions plus

a prior conviction fordriving on a rev oked license. Although these are misdemeanor convictions, the statute does not requir e the prior convictions

to be felonies. Tenn. Code Ann. § 40-35-114(1). Furthermore, Karnes testified that she had continued to drive since 1990 even though she did not have a license, evidencing previous criminal behavior. The trial court found that Karnes had no hesita tion about co mmitting a crime5

when the risk to human life was high. Ten n. Code Ann. § 40-35-114(10). Enhancementfactor (10) may be applied in instances where individuals other than the victim are in the area o f the d efendant’s criminal conduct and ar e subject to injury. State v. Sims , 909 S.W.2d 46, 50 (Tenn. Crim. App. 1995); see also State
v. Bingham , 910 S.W.2d 448, 453 (Tenn. Crim. App. 1995). However, this factor is inapplicable where the only risk to human life is the risk to the victim. See State v. Hicks , 868 S.W.2d 729, 73 2 (Tenn. Crim. App. 1993). The testimony at the sentencing h earing and the pre-sentence report showed that Karn es was driving in the wrong lane on a highway in Wilson County w ith a blood alcohol content of .26. There is no direct ev idence in the record that she endangered the lives of other s aside from the victims. The trial court erroneously applied this enhancement factor. The trial court misapplied the enhancement factor that the offense involved
more than one victim. Tenn. Code Ann

. § 40-35-114(3). This enhancement factor maynot be applied when the a ppella nt is separately convicted of the offense committed against each victim. State v. W illiam son , 919 S.W.2d 69, 82 (Tenn. Crim. App. 1995); State v. Clabo , 905 S.W.2d 197, 2 06 (Tenn. Crim. App. 1995); State v. McKnight , 900 S.W.2d 36, 54 (T enn. Crim. App. 1994). The trial court found that Tenn. Code A nn . § 40-35 -114(6) was an appropriate enhancement factor. However, in State v. Jones , 883 S.W.2d 597, 602 (Tenn. 1994), the Ten nessee Supre me Court held that “proof of serious bodily injury will always constitute proof of particularly gr eat injury.” Therefore, because serious bodilyinjury is an e lement o f vehicular assault, par ticularly great injuries to the victims is not an appro p riate enhancement factor. State v. Rhodes , 917 S.W.2d 708, 714 (Tenn. Crim. App. 1995); see also State v. Williamson , 919 S.W.2d at 82- 83; State v. Cr owe , 914 S.W.2d 933, 94 0 (Tenn. Crim. App. 1995). The trial court further found that K arnes has a previous his tory of unwillingness to co mply with the conditions of a sent ence involving r

elease in the
commun ity. Tenn. Code Ann. § 40-35-114(8). Although Karnes admitted to driving afterher license was revoked, it is unclear whether she drove on a revoked license6

while on probation. This enhancement factor was erroneous ly applied. Alt hou gh the trial court erroneously applied some enhancement fa ctors, Karnes is not automatically entitl ed to a reduction in her sentences. State v. Keel , 882 S.W.2d 410, 423 (Tenn. Crim. App. 1994). It is evident from the record that the trial court placed great w eight on Karnes’ prior convictions andprio r criminal behavior. Indeed, her prior convi ctions resulted from the same criminal conduct that caused her to commit the present offenses; namely, driving under the influence of
an intoxicant. Therefore, w e find that the four- year sentences imposed are not excessive.

DENIAL OF PROBATION

Karnes conte nds t hat the trial judge abused hi s discretion in denyi ng probation. She argues that she is pres umably entitled to probation and the state did not attempt to overcome the statutory presumption.As a result, she claims that the trial court committed reversible error. An especially mitigated or standard offender convicted of a Class C, D or E felony is presumed to be a favorable candidate for alternative s enten cing in t he absence of evidence to the contrary . Tenn. Code An n. § 40-3 5-102(6). A defendant is eligible for probation if the sentence received by the defendant is eight years or less, subject to some s tatutor y e xclusions. Tenn. Code Ann. § 40-35- 303(a). A trial court must presume that a defendant sentence d to eight years or less and who is not

an offender for w

hom incarcer ation is a priority is subject to alternative sentencing

. State v. Byrd , 861 S.W.2d 377, 379-80 (Tenn. Crim. App. 1993). It is further presumed that a sentence other than incarcera tion would result in successful rehabilitation unless rebutted by sufficient evidence in the record. Id

. at 380. How

ever, a lthoug h a defe ndant ma y b e presumed to be a favorable candidate for alternative sentencin g, the defendant hasthe burden ofestablishing suitability

for total probation. State v. Boggs , 932 S.W.2d 467, 477 (Tenn. Crim

.7

App. 1996); see

Tenn. Code Ann. § 40-35-303(b). Even though probation must be automatically considered , “the defendant is not automaticall y entitled to probation
as a matter of law.” Tenn. Code An n. § 40-35-303(b) Sentencing Commission Comments; State v. Hartley , 818 S.W.2d 370, 37 3 (Tenn. Crim. App. 1991). In determining whether to gran t or de ny probation, a trial court should consider the circumstances of the offense, the defendant's criminal record, the defendant’s social history and pr esent condition, the need for deterrence, and the best interest of the defendant and the public. State v. Grear , 568 S.W.2d 285, 286 (Tenn. 1978); State v. Boyd , 925 S.W.2d 237, 244 (Tenn. Crim. App. 1995); State
v. Black , 924 S

. W.2d 912, 917 (Ten n. Crim. App. 1995). In determining if incarceration is appropriate, a trial court may consi der the need to protect society byrestraining a defendant hav ing a long history

of criminal conduct, the n eed to avoid depreciating the seriou sness of the offens e, whether confinement is particularlyappropriate to effectively deter others likely to commit similar offenses, and whether less restricti ve measur es have often or recently been unsuccessfully applied to the defendant . Te nn . Code Ann. § 40-35-103(1); see also State v. Ashby , 823 S.W.2d at 169. There is no mathematical equation to be uti lized in determining sentencing alt ernatives. Not only should the sent ence fit the offense, but it should fit th e offenderas well. Tenn. Code Ann. § 40-35-103(2); State v. Boggs , 932 S.W.2d at 477. Indeed, individualiz ed punishment i s the essence of alternative sent encing. Sta te v. Dowdy , 894 S.W .2d 301, 305 (Ten n. Crim. A pp. 1994 ). In summ ary, sentencing must be determined on a case-by-case basis, tailoring each sentence to that particular defendan t based upo n the facts of that case and the circumstances of that defendant. State v. Moss , 727 S.W.2d at 235. At the sentenci ng hearing , the trial court focused on Karnes’ past crimi na l behavior. The trial judge note d that Karnes had been convicted of DUI on t wo previousoccasions, and she continued to drink and drive. Karnes conceded that she had been admitted to a thirty

day treatme nt facility

for her alco holism, but that she “would slip back.” Even thoug h she has been diagnosed as a chronic alcoholic,8

she testified that she is still drin king. For her previ ous DUI conv ictions, Ka rnes received minimal time in jail, with the balance of her sentences to be served on probation. Appa rently, these
measures were unsuccessful. Fur thermore, she has shown a l ack of potential for rehabilitation in lig ht of the fact that she is still dri nking. No d oubt her destruct ive behavior would have continued had it not culminated in this accident which seriously injured two people . Accordin gly, we find that the trial court w as within its discretion in denying probation.

CONSECUTIVE SENTENCING
Finally, Karnes insists that the trial court was

in error in imposing consecut ive sentences. She argues tha t the tria l court cou ld not ha ve found by a preponderance of the evidence that the conse cutive sen tencing cr iteria ha ve been met. See

Tenn. Code Ann. § 40-35-115(b). She also suggests that the trial court erred in considering the same factors to enhance her sentence a s well as to support
consecu tive sentencing. Therefore, she maintains that her sentences should run
concurre ntly. Initiall y, we must note that this Court has previously held thatthere is nothing in the 1989 Sentencing Act w hich would prohibi t consideration of the same facts and circumstances both to enhance s entences and to require those sentences to be served consecutivel y. State v. Melvin , 913 S.W.2d 195, 205 (Tenn. Crim. App. 1995); State v. Meeks , 867 S.W.2d 361, 37 7 (Tenn. Crim. App. 1993). A court may order sentences to run consecutively if the court fi nds by a preponderance of the evidence that “[t]he defendant is a dangerous offe nder whose behavior indicates little or no regard for human life, and no hesitation about committing a crime in which the r isk to human life is high.” Tenn. Code Ann. § 40- 35-115(b)(4). The trial court spe cificall y found that Karnes was a danger ous offenderwhose behavio r indicat es little or no regard for human life. The record supports that finding, especially consi d ering her history of driving whil e under the9

influence of an intoxicant. Furthermore, the court is require d to determine wh ether th e consecu tive sentences (1) are reasonably related to the severity of the offenses c ommitted; (2)
serve to protect the public from further criminal conduct by the of fender; and (3) are congruent

with general prin ciples of se ntencing. State v. Wilkerson , 905 S.W.2d 933, 939 (Tenn. 1995). In this case, Karnes

severely injured two people after hav ing been convicted of driving under the i nfluence on two previous occasions. There is no indication in the record that Karnesintends to stop drinking . Although she claims that she does not want to drive agai n, she is physically able to do so. Addi tionally , two DUI convictions

did not deter her from drinking and driving. Ev

en after prior involv

ement with the crimina l justice s ystem, she continued to disregard our laws and severely injured t wo innocent victims as well as herself. As a result, we conclude that
consecu tive sentences are reasonably related to the severity of these offenses and serve to protect the publi c from further criminal conduct.

CONCLUSION

In conclusion, Karnes has not s hown that the sentences she re ceived are improper. As a multiple DUI offender w ho has shown little potential for rehabilitation, she unfortunately is a dang er to the pu blic. The trial court w as warranted in imposing four (4) y ear consecutive senten ces fo r two counts of vehicular assault. The judgment of the trial court i s affirmed.

JOE G. RILEY, JUDGE

CONCUR:10

JOSEPH M. TIPTON, JUDG E

THOMAS T. WOOD

ALL, JUDGE