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

Briefs D ecember

18, 2001
STATE OF TENN ESSEE v. JAMES LEE P ARTON
Direct Appeal from the Circuit Court for Sevie r County

No. 8158 Richard R. Vance, Judge

No. E2001-00835-CCA-R3-CD Filed April 9, 2002

Defendant

pled guilty to one count of aggravated vehicular homicide, a Class A felony, and two counts of vehicular assault, a Class D felony. Defendant wa s ordered to serve consecutive sentences of twenty-four

years for aggravated vehicular homicide, and three years for each count of vehicular assault, for an effe ctive sentence of thirty years. Defenda nt challenges his sentence, raising the following three issues on a ppeal: (1) whether the trial court erred by r efusing to allow mitigation for Defendant’s severe , debilita ting alcoholism; (2) whether thetrial court erred by imposing the nearm axim um sentence on each conviction; and (3) whethe r the trial court erred by ordering all three sentences to be served consecutively. After a thorough reviewof the record, we affirm the judgment of the trial court. Tenn. R. App.P. 3 Appeal as of Right ; Judgment

of the Cir

cuit Cour

t Affir med.

T HOMAS T. W OODALL , J., deli vered the opinion of the court, in which J OSEPH M. T IPTON , and R OBERT W. W EDEMEYER , JJ., joined.

Edward C. Miller, DistrictPublic De fender; and Susanne Bales, Assistant Public Defender, Dandridge, Tennessee, for the appe llant, James Lee Parton.

Pau l G. Summers, Attorney General and Reporter; Thomas E. Williams, III, A ssistant Attorney Genera l; Al C. Schmutzer, Jr., Distri ct Attorney General; and Charles E. Atchley, Jr., Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
BACKGROUND

On May 16, 2000, at approximately 4:30 p.m., Ray Reynolds a nd his wife Patricia Reynolds
were traveling with their son, Casey, to a little league baseball game. Their car, driven by Mr. Reynolds, was trav eling nor th along H

ighway 41 6, also kno wn as Pittma n Center R

oad. Patr icia-2-

Reynolds was in the

front pa ssenger

seat, an d their

son Casey was in the rear. As the Reynolds approached

a curve in the road known as Mitchell’s Bottom, the couple noticed Defendant’s truck traveling south on Pittman Center Road. Mrs. Reynolds testified that she remembered Defendant’s vehicle because as it rounded Mitchell’s Bottom, the rear wheels “slid off the roa d.” The n, Defendant’s truck veered into their lane of traffic and

collided head-on with their car. Mrs. Reynolds testified that after the i mpact, she was temporarily rendered unconscious. When she regained consciou sness, she looked over and saw he r husb and in a pool of blood and “in very bad shape.” Casey, who was also conscious, witnessed his father’s co ndition. Ray Reynolds died before
em ergency personnel arrived, and Patricia and Casey Reynolds wer e severely injured. After th e accide nt, Casey was hospitalized for appr oximately five to se ven days because

of a torn bowel. Mrs. Reynolds suffered

a broken elbow and a

broken w rist, and her knuc kles wer e crushe d by the imp act. Mrs. Reynolds testified that she still experiences constant pain from her injuries and has not regained much use of her arm. She was also in reha bilitation for three months. Mrs. Reynolds further testified that she h ad been married to Ray Reyn olds for s ixteen ye ars and t hat his death

“devastated [her] life.” She requested that the court impose the maximum possible sentenc e of thirt

y-three years. Trooper William Fox of the Highway Patrol investigated the accident scene. A blood test
r ev ealed that at the time of the accident, Defendant’s blood-alc ohol level was .31. Inside the Defendant’s vehicle, he discovered one partially-filled beer can. He also found

two empty beer cans alongside a beer cooler that was thrown out of the ba ck of Defendant’s truck.

Jim Parton, D efenda

nt’s fath er, te stified on his son’s behalf. Mr. Parton testified that he noticed his son’s alcohol problem at the age of fifteen, and that his addiction to alcohol had grown progres sivelyworse. Mr. Parton testified that when his son was not drinking, he was a loving and caring person w

ho was fa ithful to hi s church and had a “strong faith.” He testified that his son had made many unsuccessful attempts to overcome his addiction in the past, and had been through four rehabilitation programs and a halfway house. He further stated that his son was scheduled to leave for a rehab ili tation prog ram in Alabama, which was to begin on May 17, 2001, the day after the accident. He also stated that his son had been very re morseful over Mr. Reynold’s death.

Also testifying on Defendant’s behalf wer e Rev. C lyde Martin, Defendant’s pastor, and Penny Kassinger, one of Defe ndant’s l ong-time f riends. Both witness es testif ied positiv ely to Defendant’s good character when he was not consuming alc ohol, and of Defendant’s repeated attempts to overcome his addiction. Ms. Kassinger also testified that Defendant stated “ he wished he could give his life in exchange for Mr. Reynolds.”

Leslie Parton, Defendant’s daughter, also testified of how Defendant was a good father and
a loving grandfather. She testified that when Defendant learned that Ray Reynolds had died, he stated, “pray that I die because I don’t want to live knowing that I killed somebody. ” The defense also intro duced evidence

of Defe ndant’s m edical h istory, a nd his seve

re alcoholism.-3-

Although he did not testify, at the close of the evide nce, Mr. Parto n made the following statement in open court: “To the Reynolds family, especially Patricia Reynol ds a nd her son, I’m sorry. I never intentionally meant to hurt anyone and if I could cha nge things I would.”
ANALYSIS

When the defendant challenges the length, range, or manner o f servic e of a se ntence, this Courtconducts a de novo review of the record with a presumption that the determinations made by the sentencing court were correct. See Tenn. Code Ann. §§ 40-35-401(d), -402(d) (1997). "However, the presumption of correctness which accompanies the trial court's action is conditioned upon the affirmative showing in the record that the trial court considered the sentencing principles and all relevant facts and circumstance s." State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). In conducting our revi ew, this c ourt must consid er (a) all the evidence at trial and the sentencing hearing, (b) the presentence re port, (c) the sentencing principles, (d) the arguments of c ounsel, (e) the nature and

characteristic s of the of

fenses, (f) any

statutory mitigating

and enha ncement factor s, (g) any statement that the Defendant made on his own behalf, and (h) the de fendant’s potential for rehabilitation. SeeTenn. Code Ann. §§ 40-35-102, -103, -210(b) (1997). The burden of showing that a sentence was improper is upon the appealing party. See Tenn. Code Ann. § 40-35-401(d), Sentencing Commission Co mm ent s. Because the record in this case indicates that the trial c ourt properly considered the

sentenc ing princ iples and all relevant facts and circumstances, our r eview is de novo with a presumption of correctness.

I. Mitigating Factor

In his first issue, Defendant argues that the trial court erred by refu sing to cons ider his “debilitating alcoholi sm” in mitigation. Specifically, Defendant contends that his alcoholism was
a “mental c ondition th at reduc ed his cul p ability for the o ffense

. . . [and ] his addi ction wasso overwhelming that

as to render the consumption of alcohol involuntary.” See Tenn. Code Ann. § 40-35-113(8) (1997). We disagree.

Tennessee Code Annotated section 40-35-113(8), states that the court may m itigate a defendant’s sentence upon proof that at the time of the offense, “the

defendant was suffering from
a mental or physical condition that significantly reduced the defendant’s culpability for the off ense; however, the voluntary use of intoxicants does not fall within the purview of this factor.” Therefore, Defendant’s alcohol addiction, and voluntary intoxication, was not a mental or physical condition that reduced his culpability under section 40-35-113(8). See State v. Black , 924 S.W.2d 912, 917 (Tenn. Crim. App. 1995). Defendant is not entitled to relief on this issue.

II. Imposition of Sentence Next, Defendant argues that the trial court erred by imposing the near-maximum sentence. Sp eci fically, he contends that the trial court failed to give adequate we ight to the following-4-

mitigating factors: (1) his mental con dit ion, i.e., alcoholism, and (2) his genuine remorse. We disagree.

In sentencing, if no enhan cement or m itigating factors exist, the presumptive sentence for Class B, C, D, or E f

elonies shall be the minimum sentence in the range, and the presumptive sentence for a Class A felony is the midpoint of the range. See Tenn. Code Ann. § 40-35 -210(c) (1997). Where one or more enhance ment factors apply but no mitigating factors exist, the trial court may sentence above the presumptive s entence, but still within the range. See Tenn. Code Ann. § 40-35-210(d) (1997). Should both enha n cement a nd mitigati ng facto

rs exist, t he trial c ourt must begin sentencing at the presumptive sentence (i.e., the midpoint o f the ra nge for C lass A

felonies and the minimum sentence in the range for Class B, C, D, and E felonie s), enha

nce the s entence

within the range as appropriate for the enhanceme nt factors and then reduce the sentence within the range
as appropriate for the mitigating factors. See id. at § 40-35-210(e) (1997). To facilitate meaningful
re view, a trial court’s final sentencing decision must “identify the mitigating and enhance men t factors found, sta

te the specific facts supporting each enhancement factor found, and ar ticulate how the mitigating and enhance ment f actors have been evaluated and ba lanced in determining the sentence.” Statev. Jones , 883 S.W.2d 597, 599-600 (Tenn. 1994). If the trial court's findings of fact
are adequately supported by the record, this court may not modify the sentence even if it would have preferred a differe

nt result. See State v. Fletcher , 805 S.W.2d 785 (Tenn. Crim. App. 1991).

Defendant

was convicted of the offenses of aggra vated vehicula

r homicide , a Class A felony, and two counts of vehicular assault, a Class D felony. Tenn. Code Ann. §§ 39-13-218, 39-13-106 (1997). Defendant was a Range I offe nder. Under Tennessee law, the applicable range for a

Range I, standar d offend er is fif teen to tw enty years f

or a ClassA felony , and two t o four ye ars for

a Class D felony. Tenn. Code Ann. § 40-35-112(a)(1), (4) ( 1997). According to the statute, the trial court began sentencing at the presumptive sentence of twenty year s for the aggravated vehicular homicide, and two years for each count of vehicular assault. See Tenn. Code Ann. § 40-35-210(e). Then, the trial court enhanced within therange as appropriate for the enhancement factors, and then reduc ed the sentences based on the mitigating factors. See id. Considering the foregoing, Def endant w as sentenced to twenty-four years for aggravate d vehicular homicide and three years for each of the two counts of vehicular assault. With resp ect to the presence of mitigating factors, we agree with the trial court’s rejection of Defendant’s alcoholism as a mitigating factor that reduce d his culpability. See Tenn. Code Ann. § 40-35-11 3(8); Stat e v. Black , 924 S.W.2d at 917. The record further reve als that the trial court considered Defendant’s remorse, a nd other factors, in mitigation:

The Court does find that

based upon the testim

ony, the e vidence present ed that th is defe ndant is g enuinely remorseful. He is sorry, not only for what he’s done to the Reynolds family but

what he’ s done to hi s own family by his own co nduct. He is in very po or healt

h. He had

injuries i n this colli sion. He h as very p oor heal th as a result of years of alcohol abuse. He had pre v io usly borne good character as-5-

expressed by the witnesse s and thing s that he h as done. He’s be en a car ing fathe r to his children, a caring grandfather to his grandc hildr en. Those are all to his credit. Although notdirectly challenged by Defendant, our de novo review includes the trial court's application of enhancement factors (1) and ( 8) to determine whether Defendant’s “near-maximum senten ce” was ex cessive. Defendant’s sentence wa s enhanced upon a finding that: (1) Defendant had a previous history of criminal behavior or convictions in addition to those nec essary t

o establis h the appropriate sentencing range, and (8) Defendant had a previou s history o f unwillin gness to complywith the conditions of a sentence involving release into the community. See Tenn . Code Ann. § 40-35-114(1), (8) (1997). The court furthe r stated that each factor alone woul d justif y imposition of the maximumsentence, and that Defendant’s extensive c riminal history was the major sentencing factor.

From a review of the records, we f ind tha t D efendant’s sentence was proper ly enhanced basedupon factors (1) and (8). In regards to enhancement factor (1), the presentence report revea led that Defendant

had an extensive criminal history that spanned thirteen years. Although Defendant had not previously been convicted of any fel onies, he was convicted of misdemeanors including disorder ly conduct, driving on a revoked license, and violating the bad check law. The record also reflec ts that Defendant had been convicted five times for driving under the influence and seven times for public intoxication. Furthermore, the trial court also found that enhancement factor eight (8) was applica ble in that D efend ant committed most of the prior offenses while on probation for other offenses. Essentially, Defendant's argument that the trial court erre d by imposing the near-maximum sentence for eac

h convict ion is an a ssertion t

hat the tr ial cour t errone ously afforded too much weight to the enhancement factors and too little weight to the mitigating factors. Howeve r, it is well-settled that the weigh

t to be af forded s entenci ng facto

rs is left to the tria

l court's d iscr etion so lo ng as it complies with the purposes and principles of the 1989 Sentencing Act and its finding s are ad

equatel y supported by the record. See Tenn. Code Ann. § 40-35-210, Sentencing Commission Co mments; Statev. Hayes , 899 S.W.2d 175, 185 (Tenn. Crim. App. 1995). We find that the t rial court’s decision meets this standard. Therefore, we conclude that the le

ngths of th

e sentences in thiscase were entirely appropriate. Defe ndant is not entitled to relief on this issue.

III. Consecutive Sentencing Finally, Defendant challen g es the tri al court ’s impositio n of conse cutive se ntences

. Tennessee Code Anno tated se ction 40- 35-115 pr ovides ce rtain criteria which authorize consecutive sentencing. The trial court may order consecutive sentencing if a defe ndant is charged with more than one crim

inal offe nse and if it finds, by a preponderance of the evide nce, that one or more of the required statutory criteri a exis t. See Tenn. Code Ann. § 40-35-115, Sentencing Commission Comments (1997). These criteria include a finding by the court that the defendant is a "dangerous offender." Id. at § 40-35 -115(b) (4). A da ngerous o ffende

r is defined as one

"w hose behavior indicates little orno regard for human life, and no hesitation about committing a crime in which the-6-

risk to human lif

e is high." Id. The dangero us offen der cla ssificat ion, as ha s been pr

eviously observed, is subjective in nature. See State v. H owell , 34 S.W.3d 484, 515 (Tenn. Crim. App. 2000).

We agree with the tri al court ’s deter minatio n that Def

endant is a dange

rous off ender w ith littleregard for human life and no hesitation about committing a crime in which the risk to human life is high. The record

reveals that at the time of the accident, Defe ndant was operating a motor vehicle, on a public highw ay, with a blood alcohol content that was three times above the level where intoxication can be inferred. See Tenn . Code Ann. §§ 55-10-401, -408. This act, coupled withDefendant’s lengthy history of drinking and driving, shows that Defendant has little or no regard for human life and no hesitationto commit a crime in which the risk to human life is high. Also, Defendant was scheduled to be admitted to aninpatien t treatme nt progra m for his a

lcoholism
on the day after

the fatal wreck. Defendant’s criminal conduct knowing that he was one day away from “getting help” is further evidence that he is a “dangerous offender.” W hen the trial court uses the “dangerous offender” fa ctor, it must also conclude that co nse cutive se ntences(1) rea sonably relate to the severity of the offenses committed; (2) serve to protect the public from further serious criminal conduct by the offender; and (3) are co ngr uent with general sentencing principles. State v. Wilkerson , 905 S.W.2d 933, 939 (Tenn. 1995); State v. Lane , 3 S.W.3d 456, 461 (Tenn. 1999). We find that a

n aggreg ate thirt

y-year sentenc e bearsa

reasonable relationship to the seriousness of the offenses, in which a life was lost and serious bodily injuries suffered, is nec essary to protect the public from futur e criminal acts by the Defendant, and is congruent with gener al sentencing principle s. See Wilkerson , 905 S.W.2d at 939. Thus, consecutive sentencing was appropriate unde r Tennessee Code Annotated section 40-35-115(b).
CONCLUSION We affirm the judgment of the trial court.

___________________________________ THOMAS T. WOODALL, JUDGE