# FILED

August 14, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT KNOXVILLE JANUARY 1998 SESSION

STATE OF TENNESSEE, ) No. 03C01-9704-CC-00119 ) Appellee ) ) BLOUNT COUNTY V. ) ) HON. D. KELLY THOMAS, J R., SHAWN T . O’MALLEY, ) JUDGE ) Appellant. ) (Sentencing) ) )
For the Appellant: For the Appellee: Mack Garner John Knox Walkup District Public Defender Attorney General and Repor ter 419 High Street Maryville, TN 378

04 Marvin E. Clements, Jr. Assistant Attorney Gener al 425 Fifth Avenue North Nashville, TN 37243-0493
Michael L. Flynn District Attorney General Philip H. Morton Assistant District A

ttorney 363 Court Street Maryville, TN 378

04

OPINION FILED: ___________________

AFFIRMED

William M. Barker, Judge1 Appellan t’s blood alc ohol con tent that eve ning was .13%.
2 Tes timo ny at th e sen tenc ing he aring indica ted th at the victim had b een in a se rious mo torcyc le accident sever

al months earli er and was sti ll recu perating f rom his injur ies. Because he st illneeded assistance wi th a number of activiti es, the vi ctim had been li ving wit h appellant

for several

weeks. At the time of thi s incident , the vi ctim was unable t o drive and had

been rely ing on the app ellant for transportation. 2 OPINION
The appellant, Shawn T. O’Mall ey, appeals as of right the sentence he received in the Blount County Cir cuit Court as a result o f his guilty plea to the

offense of vehicular homicide. Appe llant was sentenced to ser ve eight (8) year

s in the Department of Correction as a R ange I offender. On appeal, he contests only the trial court’s den ial of alter

native sent

encing. We affirm. Around 11:00 p.m. on the evening of November 6, 1995, appellant and the victim, Glenn Mill er, were leaving an exotic night club in Knox County. Both appe llant and the victim had been drink ing. Appellant testified at the sentencing hearing th at he drank four beers during the three hours that they spent at the club, while the victim drank substantially mor e. 1 Appellant was the designated driver. 2 As they left the club, the v ictim stated that he needed to use the restroom and said that he was going

to urinate on a police car that was parked in the par king lot. Although appellant cautioned against it, the victim w alked toward the police car. Appellant got into his car and waited for the victim. Suddenly, the vic tim opened the passenger side door and star ted screaming for the appellant to “get the f--- out of there.” Appellant sped out of the pa rking lot as an officer from the Knox County Sheriff’s Department pursued. Appel lant drove down Alcoa Highway and then tur ned on Singleton Station Road. At some point, off icers from the Blount County Sheriff’s Department and the Alcoa Police Department joined the chase, w hich covered approximately six miles. While driving on Singleton Station Road, appellant lost control of his 1986 Camry on the wet roadway and crashed into a utility pole. The victim died as a result of the crash.3 Appellant was indict

ed on two counts al leging al ternative theori es of vehicul ar homicide: ( 1) as the result

of conduct creat ing a substant ial risk of death or ser ious bodil y inj ury to a person; and (2)as the resu lt of the driver’s intoxication

. See Tenn. Code A nn. §39-13-213 (Supp . 1995). 3 Although appellant denied any memory of the crash or w hat happened afterwards, police repor ted that he ran from the scene after the w reck and struggled with officers when apprehe nded. Appellant was later indicted and pled guilty to vehicular homicide by

intoxication. 3 The plea agreement recommended the mini mum eight (8) year sent

ence, with the trial c

ourt to decide the manner of serv ice of the sentence. Following

the sentencing hearing, the trial court ordered the appellant to serve his sentence in the custody of the Department of Cor rection. Appella nt argues on appea l that he wa s entitle d to some form of alternat ive sentencing because the cir cumstances of his offense did not justify a complete denial of pr ob at io n. He

as ks th is Co ur t to g ra nt hi m a se nt en ce

of sp li t c on fi ne me nt . We decline to do so. When a defendant challenges his or her sentence, w e must conduct a de novo review of the record.Tenn. Code Ann. §40-35-401(d) ( 1990). The sentence imposed by the trial court i s accompanied by a presumption of correctness and the appealing party carries the bur

den of showing that the sentenc e is improper. Tenn. Code Ann. §40-35-401 Sentencing Commission Comments. T he presumption, however, is conditioned upon an affirmative show ing in the record that the trial court considered the sentencing principl es and all relevant facts a nd circumstances. State v. Ashby , 823 S.W.2d 166, 16 9 (Tenn. 1991). Because the trial court in this case carefully considered the relevant pr inciples of sentencing, w e afford its decision the presumption of correctness. Initiall y, we note th at altho ugh the ap pellant was eligible for an al ternative sentence, he was not entitl ed to the presumption in favor of al ternative sentencing because he was convict ed of a Class B felony. Tenn. Code Ann. §40-35-102(6) (Supp. 1995); Tenn. Code Ann. §39-13- 213(b) (Supp. 1995). How ever, as the4

recipient of an eight (8) year sentence, appellant w as statutorily elig ible for probation. Tenn. Code Ann. §40-35-303 (Supp. 1995) . While the trial court was req uired to automatically consider appellant for an alternative sentence, including probation, appellant bore the burden of establi shing both his suitabil ity and that an alternativ e to incarceration would “

subserve the ends of justic e and the best interest of both the public and the defendant.” State v. Dykes , 803 S.W.2d 250, 259 (Tenn. Crim. App. 1990) (quoting Hooper v. State , 297 S.W.2d 78, 81 (Tenn. 1956)); State v. Bradley Joe Housewright , No. 03C01-9705-CR-00195 ( Tenn. Crim. App. at Knoxvi lle, December 16, 1997), perm. app. filed (Tenn. Feb. 16, 1998). The trial court found that appellant failed to carry that burden. State v. Boston , 938 S.W.2d 435, 438 (Tenn. Crim. App. 1996). In denying alternativ

e sentencing, the trial c ourt determined that confinement was necessary in or

der to avoid depreciatin g the serious nature of the offense and that measures less restri ctive than confinement had been appli ed unsuccessfully to appellant in the past. See Tenn. Code Ann. §40-35-103(1)(B) , (C) (1990). The trial court’s conclusion in that regard is supported by the factual record before us. In order to deny probation based upon the nature of the offense, the circumstances of the offense must be especi ally violent, shoc king, reprehensible, offensive, or of an exagger ated degree so as to outwei gh all other factors favor ing an alternative sentence. State v. Bingham , 910 S.W.2d 448, 454 (Tenn. Crim. App. 1995) (citations omitted).In this case, appellant took the wheel of his automobile to drive home a disabled friend who trusted him for transportation. W hile knowingly intoxicated, appellant sped out of the parking lot of the dance bar and refused to yield to pursuing police officers for six miles. After the hor rific crash, appellant attempt ed to flee the scene, demonstrating a callous indiff erence for his injured friend. Those circumstances weig h heavily against any factors that favor an alternative sentence. Next, as determined by the trial court, measures less restrictive than confinement have been applied unsucce ssfully to the appellant. Tenn.Code Ann.4 The reco rd als o sho ws th at ap pellan t has a hist ory of failing to ap pea r for c ourt d ates in Arizona. 5 §40-35-103(1)(C) (1990) . In 1984, appellant began ser ving a three (3) y

ear probationary sentence for a c onviction of larceny. He was later sentenced to an additional four (4) months after he failed to report to his probati on officer. In addition, appellant testified that he wa s convicted of D.U.I. in 1986. The commission of the instant offense indicates that he w as not rehabilitated follow ing his previous convictions. Tenn. Code Ann.§ 40-35-103(5) (1990). Furthermore, we note that the appellant was released on bond af ter his arrest in the present case and he subseq uently went to Ariz ona. Following the i ndictments on vehicular homicide, he agreed to submit to Tennessee author ities, but failed to report on the scheduled date. Ov er one month passed before he was final ly arrested at his home in Tucson, Ariz ona, and an additional ten (10) da ys passed before he agreed to waive ex

tradition. 4 The trial court found that such c onduct was indicativ

e of appellant’s poor potential for success if placed on probation. We agree. Although appellant expres sed remorse, has a positiv e employment history, and does not have a lengthy criminal record, he has ne vertheless failed to car ry his burden of demonstrating suitability for an alternative sentence.Accordingly, w e affirm the judgment of the trial court or dering appellant to serv e his eight (8) year

sentence in the Department of Correction.

_______________________________ William M. Barker, Judge

CONCUR:

____________________________ Joseph M. Tipto n, Judge

____________________________ Curwood Wi tt, Judge