### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE Assigned on Briefs J

uly 26, 2000
STATE OF TENNESSEE v. ROBERT HALL WAYMAN
Direct Appeal from the Criminal Court for Loudon County

No. 9431 E. Eugene Eblen, Judge

No. E1999-02042-CCA-R3-CD April 9, 2001

The defendant pled g

uilty to reckless vehicular homicide, simple possession of marijuana, and sa

le of a Schedule VI con trolled substance. The trial court sentenced the defendant to four ye ars incarceration

in the Tennessee Department of Correction (DOC ), and the de fendant appeal s from this sentence, requ

esting probation . We affirm the sen tence of incarc

eration from the t

rial court. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

J OHN E VERETT W ILLI AM S , J., deliver ed the opinion of the court, in which J OSEPH M. T IPTON and R OBERT W. W EDEMEYER , JJ., joined.

Joe H. Walker, Public De fender; Alfred

Lee Hathcoc

k, Jr., Assistant Public

Defender; and Rex A. Dale, Lenoir City, Tennessee, for the a ppellant, Robert Hall Wayman.

Paul G. Summers, Attorne y General & Reporter; Clinto

n J. Morgan, Counse

l for the State; J. Scot

t McCluen, District Attorney General; and Fr

ank A. Harvey

, Ass istant District Attorney, for the appellee, State of Tennessee.

OPINION

The defendant, Robert Hall Wayman, pled guilty in the Loudon County Criminal Court to charges of reckless vehicular homicide, simple possession of marijuana, and sale of a Schedule VI controlled substance. The trial court imposed a four-year sentenc e, per the agreement between the parties, and after a sentencing hearing imposed incarceration. Fr om this sentence of incarceration, the defendant appeals, requesting probation. After careful review, we affirm the sentence. Background

In April 1997, the Lou don Co unty grand jury indicted the de fendant on a seven-count indictment that con ta ined charges of reckless vehicular homicide and simple possession of a-2-

S chedule VI controlled substance, marijuana. Also in that month, the grand jury returned a two -coun t in dictmen t against the defendant that included a Class E felony count of sale of a Schedule VI controlled substance. On September 9, 1999, the trial court accepted negotiated plea agre ements by which all but th ese sp ecified charg es were dismissed

. Therefore, th

e defendant ple

d guilty as a Range I standard offender to: (1) vehicular ho

micide by re

cklessness, a Cla

ss C felony, a

t three yea

rs; (2) simple pos session of marijuana, a Class A misdemeanor, at eleven months and twenty-nine days; and (3) sale of a Schedule VI controlled substance, a Class E felony , at one year.

For these convictions , the State recommended that the first two se

ntences run conc

urrently witheach other and the third sentence run consecutively to the prior two, for an effective sentence of four yea

rs. These pleas w

ere entered wi

thout an agree

ment as to

the manner of service. At the sentencing hear ing in Decem ber 1999, the trial court sentenced the defendant to four yea rs in the DOC. Analysis

The defendant a

rgues that the se

ntence was impro

per in that: (a) it was not imposed in a ccordance with

th e Cri minal Sentencing Reform Act of 1989, consequently removing the presumption of correctness from our de novo appellate review; and (b) enhancing and

mitigating factors were not weighed properly and the sentence is
exces sive un der the considerations prescribed by Tennessee Code Annotated section 40-35-103.

This Court’s review of the sentence imposed by the trial court is de novo with a presumption of correctness. See

Tenn . Code Ann. § 40-35-401(d). This presumption is conditioned upon an affirmative showing in the record that the t r ial judge conside

red the sentenci

ng principles an

d all relevant facts and circumstances. See State v. Ashby , 823 S.W. 2d 166, 169 (Tenn. 1991). If the trial court fails t

o comply with the statutory directives, there is no presumption of correctness and our review is de novo. See State v. Poole , 945 S.W.2d 93, 96 (Tenn. 1997).

The burden is upon the appealing party to show that the sentence is improper. See T enn
. Code Ann. § 40-35-401(d) Sentencing Commission Comments. In conducting our review, we are required, pursuant to Tenn. Code Ann. § 40-35-210, to consider the follow ing factors i n sentencin g: (1) [t]he evidence, i f any, received at the trial an d the senten cing hearing; (2) [t]he presentence

report; (3) [t]he principle

s of sentencing

and arguments a

s to sentencing a

lternatives; (4) [t]he nature and characteristics of the criminal conduct involved; (5) [e]vidence and information of fered by th

e parties on the e nhancement and mitigating factors in §§ 40-35-113 and 40-35-114; and-3-

(6) [a]ny stateme

nt the defendant w

ishes to make in

the defendant’s own behalf about sentencing.

If no mitigating or enhancement factors for sentencing are present, Tenn. Code Ann. § 40-35- 210(c) provides that the presumptive sentence shall be the minimum sentence within the applicable range. See State v. Lavender , 967 S.W.2d 803, 806 (T enn. 1998); State v. Fletcher , 805 S.W.2d 785, 788 (Tenn. Crim. App. 1991). However, if such factors do exist, a trial court should start at the minimum sentence, enhance the minim um sentence within th e range for enhancement factors and then reduce the sente

nce within the ran

ge for the mitig

ating factors. See 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 the trial court complies with the purposes and principle s of the sent encing act an d its find ings are supported by the record. See State v. Moss , 727 S.W.2d 229, 238 (Tenn . 1986); Statev. Leggs , 955 S.W.2d 845, 848 (Tenn. Crim. App. 1997); Statev. Santiago , 914 S.W.2d 116, 125 (Tenn. Crim. App. 1 995); see also Tenn. Code Ann. § 40-35- 210 Sentencing Commission Comments. Ne vertheless, shoul

d there be no mitigating factors, but enhancement factors are present, a trial court may set the sentence above the minimum within the range. See Tenn. Code Ann. § 40-35-210(d); Lavender , 967 S.W.2d at 806; Manning v. State , 883 S.W.2d 635, 638 (Tenn. Crim. App. 1994).

If our review reflects that the trial court followed the statutory sentencing pr ocedur e, imposed
a lawful sentence after giving due consideration and proper weig ht to the factors and principles set out under sentencing law, an d the trial co urt’s findings of fact are adequately supported by the record, then we may not

modify the sentence even if we would have prefer red a different result. See Fletcher , 805 S.W.2d at 789.

In the instant case, the trial court’s conclusions and findings are as

follows: “The Cour

t feels this is a proper case

for incarceration, and makes recommendations for the Special N

eeds Facility withthe penitentiary.” This finding does not indicate that the trial court weighed the considerations mandated by the Tennessee Sentencing Reform Act and does not

indicate the court’s specific factual findings garnered from any record fr om the p lea agreemen

t or from the sente

ncing hearing

s. Therefore, our review is de novo.

The record indicate

s that both

parties a greed to the length of the sentence as part of the defendant’s guilty plea. The only remaining matter, once the trial court acce pted and imposed the recommended

length of sentence, was the manner of service. The defendant challeng es that manner of service, asserting that it was excessive under Tennessee Code Annotated section 40-35-103.
De Novo Review

At the onset, we acknowledge that the defendant pled guilty to three offenses, all of which
are presumed to be favorable for alternative sentencing options in the absence of evidence to the contrary. See

Tenn. Code Ann. § 40-35-102(6).-4-

From our revi ew o f th e rec ord sub mit ted , we not e th e fol low ing c rim ina l hi sto ry: (1) conviction on 11/15/85 for driving with a revoked license; (2) convictions on 9/21/85 for driving with

revoked license, possession of marijuana; (3) conviction on 1 /18/83 for driving under the influen

ce of an intoxicant

; (4) conviction on 1/18/82 for driving under the influence of an intoxicant and driving on revoked license; and (5) conviction on 7

/23/80 for driving

under the influen

ce of an intoxicant

. Further, we note that this de fendant was arr

ested and pled g

uilty to sale

of a Schedule VI controlled substance, and this offense w as committed while h

e was on bond for r

eckless vehicul ar homicide and other charg

es. Though this case

involves a tragic and unfortunate death, such does not relieve a sentencing court from following th

e statutory

guidelines. Death occurring from the offense does not in and of itself preclude alternative sentencing. See State v. Bingham , 910 S.W.2d 448, 454-5 5 (Tenn. Crim. App. 1995) (holding that death resulting from actions constituting reckless vehicular homicide does not bar an alternative sentence).

This defendant’s record “evinces a clear disregard for the laws and

morals of society,” and thus he is not pres umed a favor able candid ate for alte rnative sen tencing. See Tenn. Code Ann. § 40-35-102(5)-(6). However, the sentencing court must still consider an alternative sentence.

We have reviewed the entire record and the sentence de novo in this cause and see no need to alter the sentence imposed by the trial court. In the instant case, the defendant offe rs n o persuasi ve a

rgument for alternative sentencing. Although he apparently suffers from severe physical limitation, such conditions do not merit alternative sentencing, and we agree with the trial court’s recommendation that the defendant be placed in the Special Needs Facility in DOC.
Conclusion We affirm the sentence as imposed by the trial court.

___________________________________ JOHN EVERETT WILLIAMS, JUDGE