# FILED
October 11, 1999 Cecil Crowson, Jr. Appellate Court Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT KNOXVILLE AUGUST 1999 SESSION

STATE OF TENNESSEE, ) ) Appellee, ) No. 03C01-9811-CR-00393

) ) Roane County v. ) ) Honorable E. Eugene Eblen, Jud ge ) DANNY LYNN PORTER , ) (Vehicular homicide due to r ecklessness and ) reckless endangerment) Appellant. ) For the Appellant : For the Appellee : Walter B. Johnson Paul G. Summers Assistant Public Defender Attorney General of Tennessee Post Office Box 334 and Kingston, TN 37748-0334 Elizabeth B. Marney (AT TRIAL) Assistant Attorney Gener al of Tennessee 425 Fifth Avenue North Joe Walker Nashville, TN 37243 Public Defender and J. Scott McCluen Alfred Lee Hathcock, Jr. District Attorney General Assistant Public Defender and Post Office Box 334 Frank Harvey Harriman, Tennessee 37748 Assistant District A ttorney (ON APPEAL) Post Office Box 703 Kingston, TN 37763

OPINION FILED:____________________ AFFIRMED Joseph M. Tipton Judge2 O P I N I O N
The defendant, Danny Lynn Porter, pled guilty in the R oane County Criminal Court to v

ehicular homicide due to recklessness, a Class C fel ony, and to reckless endangerment, a C lass E felony, with the sentences to be determined by the trial court. The court se ntenced him as a Range I, standar d offender to concurrent sentences of three years and one year respectively to be served in the Depar tment of Correctio n. In this appeal a s of right , the def endant c ontends that he sh ould not have been sentenced to incarceratio n. We affirm the sentence imposed by the trial co urt.

The juvenile court transferred the defendan t, who was seventeen years old at the time of the offense, to the Roane County Criminal Court t o be tried as an adult. At the transfer hearing , Trooper Carlton Haley testified that on September 8, 1996, he was dispatched to the scene of a single vehicl e accident. He said that a pickup truck had hit an embankment and overturned on its si de, killing one occupant, Aaron Johnston, and injuring three others. He said he found the defendant in a nearby ditch, the defendant smelled of alcohol, and the defendant’s speech was sl urred and sometimes in coherent. H e admitted tha t he could not

tell if the o

dor of alcohol

came from the defendant’s breath or his body and th at the slurred and incoherent speech could have resulted from inj uries sustained in the acci dent. He testified that the blood alcohol content of the deceased vi ctim was .19 percent.

Christy Crowe testified that on September 8, 1996, the victim drove her, the defendant, and another girl to Rockwood, Tennessee in his truck. She said the defendant had a big bottle of whiskey with him, which he finished in the hour bef ore they left. She said that she t ook one drink of the whiskey but spat it out because she did not like it. She said she did not know if anyone e lse drank from the bottle. She stated that Mr. Johnston felt sick, but she did not know if he was drunk. She said Mr.3

Johnston said that he was abl e to drive, but the defendant had the keys. She said the defendant drove while Mr. Johnston sat in the passenge r’s seat, she rode betw een them, and two others rode in the truck bed.

The record reflects that the defendant had been adjudged delinquent on three prior occasions: for underage consumption on May 7, 1996; for the unauthorized use of a vehicle on May 7 , 1996; and for theft of a vehicle on Jul y 2, 1996. Julie Trent testified that she was the defendant’ s counselor and case manager at Mountain View Youth Development Center. She said that the defend ant had been in her unit for six weeks and had received no negative discipli nary reports. She state d that his behavior was exceptional and that he was pursuing his

GED. She said that Dr. Pi nella of Cherokee Mental Health Sy stems evaluated the defendant and determi ned that the defendant had an I.Q. of 82. She said Dr. Pinella recommended that the defendant participate in a twel

ve-step substance abuse tr eatment program and receiv e individual and group counseling to address the loss of his best friend and his f eelings of guilt arising from that death. On c ross-examination, Ms.Trent testified that the defendant had previously been pl aced in youth facilities on three occasions and that he w as in the community on a weekend pass from one of these facilities when the accident occurred.

The presente nce report reveals that the defe ndant droppe d out of high school after completing the tenth grade. He was employ ed at Miles Hardwood a nd earned six dollars per

hour. His employment his tory consists of two jobs in the fast food industry and a job as a g eneral laborer, none lasti ng longer than four months. The report reveals that the defendant is unmarried and has a y oung daughter for whom he owes child support in the amount of $183.75 per month. The defendant was arrested for assault after his release o n bond for the present offense. The report r eveals that the then nineteen-year-old defendant said he started drinking alcohol at age fifteen and that he presently drank an occ asional beer. He said he us ed cocaine for a brief period and4

used marijuana regularly between ages thirteen and eighteen. He stated that he last used marijuana two months ear lier. The report shows

that the father of the deceased victim opposed probation and requested that the defendant be incar cerated for the maximum sentence.

The defendant initially contends that our review of his sentence should be de novo without a presumption of cor rectness because the trial court failed to make the requisite factual findings. Appellate review of sentencing is de novo on the record with a presumption that the trial c ourt's determinations are c orrect. Tenn. Code Ann. § 40- 35-401(d). As the Sentencing Commission Comments to this s ection note, the burden is now on the defendant to show that the sentence is improper.This means that if the trial court followed the statutory sentencing procedure, made findings of fact that are adequately supported in the record, and gave due co nsideration and proper w eight to the factors and principles tha t are relevant to sentenci ng under the 1989 Sentencing Act, we may not distur

b the sentence even if a different res ult were preferred. State v. Fletcher , 805 S.W.2d 785, 78 9 (Tenn. Crim. App. 1991).

However, “the pres umption of correctness whic h accompanies the trial court's action is conditioned upon the affirmative showi ng in the record that the tr ial court considered the sentencing principles and all relevant facts and circumsta nces.” State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). In this respect, for the purpose of meaningful appellate review,

the trial court must place on the record its reasons for ar riving at the fina l sentenc ing decisi on, iden tify the mitigating and enhancement factors found, state the specific facts supporting each enhancement factor found, and articulate h ow the mitigating and enha ncement factors have been evaluated and balanced in determining the sentence.T.C.A. § 40-35-2 10(f) (1990).5

State v. Jones , 883 S.W.2d 597, 59 9 (Tenn. 1995). In the present case, the state did not seek enhancement, and the defendant filed noti ce of two mitigating fact ors pursuant to Tenn. Code Ann. § 40-35-113:

(6) The defendant, be cause of youth . . ., lacked substa ntial judgment in committing the offense; [ and] (11) The defend ant, although guilty of the crime, committed the offense under such unusual circumst ances th at it is unlikely that a sustained intent to vio late the law motivated the criminal conduct. The trial court did not comment on the defe ndant’s mitigating factors but simply imposed the minimum sentence on each co unt and made the following remark regarding the manner of ser vice: And from the totality of the situat ion, wi th the involvement of alcohol, and where he had been and wher e he was at that time, the Court feels that’s a sentence that needs to be served. We believe that this brief comment fails to meet t he requirements of Tenn. Code Ann. § 40-35-210(f), requiri ng us to review the sentence de novo without the presumption of correctness.
In conducting a de novo review, we mu st consid er (1) the e vidence, if any, received at the trial and sentencing hearing, ( 2) the presentence report, ( 3) the principles of sentencing and arguments as to sentencing alternatives, (4) the natu re and characteristics of the c riminal conduct, (5) any mitigating or statuto ry enhancement factors, (6) any statement that the defendant made on his own behalf and ( 7) the potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40- 35-102, -103, -210;
see Ashby , 823 S.W.2d at 168; State v. Moss , 727 S.W.2d 229 (Tenn. 1986).

The defendant challenges the mann er of service of his sentences. As a Range I, standard offender convi cted of Class C and Class Efelonies, the defendant correctly a sserts th at he is pr esumed t o be a favo rable can didate f or altern ative sentencing options. See Tenn. Code Ann. § 40-35-102(6). The presumption in favor of6

alternative sentencing may be rebutted if (1) “confinement is necessa ry to protect society by restr

aining the defendant who has a l ong history of criminal conduct,” (2) “confinement is necessary t o avoid depreciating the seriousness of the offense or confinement is particularly suited to provide an effectiv e deterrence to others lik ely to commit s imilar of fenses ,” or (3) “me asures le ss restric tive than confine ment have frequently or recently

been applied unsuccessfully to the defendant.” Tenn. Code Ann. § 40-35-103(1)(A)-(C

); see Ashby , 823 S.W.2d at 169. Furthe rmore, the defendant’s potential for rehabilitation or lack thereof should be ex amined when determining whether an alternative sentence is appropriate. Tenn. Code Ann. § 40 -35-103(5).

The defendant argues that his age at the time of the offense, the fact that his juvenile record consists solely of nonv iolent offenses, and his amenability to rehabilitation as evi denced by his progress at Mountain View Youth Development Center all indicate the appropriateness of an alternative sente nce. We believe the fact that the defendant was on a week end pass from state custody at the time of the accident and the defendant’s histor y of substance abuse reveal a reduced potential for rehabilitation in the community. Ms. Crowe testified that she saw the defenda nt drink a bottle of whiskey just

before the accident. The defendant was seventeen years old and on leave from state custody at the time. The defendant had been adjudged del inquent for underage drinking j ust four months before the present offenses. The defendant admitted that at age nineteen, he dr ank an occasional beer and that h e used marijuana regularly after the offenses. The defen dant made these admissions after the juvenile court transferred his case to the Roane County Crimi nal Court and he was rel eased on bond. Thus, the defendant’s substa nce abuse continued even after, and in spite of , his reported good progress in the Mountain View Y outh Development Center. The fact that the defendant made such progress at M ountain View indicates hi s need for a structured environment as is provided by the Department of Correction. W e affirm the trial court’s sentence of incarceration.7 In consideration of the foregoing and the record as a whole , we affirm the judgment of conviction.

__________________________ Joseph M. Tipto n, Judge CONCUR:

________________________ John Everett W illiams, Judge

________________________ Alan E. Glenn, J udge