OPINION
This is an appeal as of right pursuant to Rule 3 of the Tennessee Rules of Appellate Procedure. The Defendant, Bradley Joe Housewright, pleaded nolo contendere to five counts of assault, Class A misdemeanors, and one count of vehicular homicide, a Class B felony. Pursuant to a plea agreement, he was sentenced to eleven months and twenty-nine days for each assault conviction and eight years for the vehicular homicide conviction. The sentences were ordered to be served concurrently. The trial court considered and denied alternative sentencing and ordered the Defendant to serve his sentences in the Department of Correction. The Defendant raises three intertwined issues in this appeal: (1) That the trial court erred by denying the Defendant’s request for alternative sentencing; (2) that the trial court erred by rejecting the proposition that the fact a deаth occurred is not a proper factor to consider in deciding alternative sentencing; and (3) that the court erred by applying the exceptional circumstances rule in denying alternative sentencing. We affirm the judgment of the trial court.
The record reflects that at approximately 10:00 p.m. on July 8, 1995, the Defendant was at the home of a friend. The home belonged to the brother of the victim of the vehicular homicide, Christopher Collins. Collins was a lifelong friend of the Defendant. Collins met the Defendant at this house at approximately 9:45 p.m. The Defendant had consumed at least five beеrs in four hours. The Defendant decided to go to a store less than a mile away to get some more beer. Collins accompanied the Defendant in a 1981 Toyota automobile. Collins had also been drinking.
After buying the beer, the Defendant and Collins headed back to the house traveling west on Bloomingdаle Pike in Sullivan County at approximately 45 to 50 miles per hour. A Chevrolet Blazer was traveling east on Bloomingdale Pike, being driven by Chad Ball and containing four passengers. Some persons in the Blazer saw the Defendant’s vehicle approaching and stated that the headlights went off just before the сollision. The Defendant turned left onto Brooklawn in front of the Blazer and the Blazer struck his vehicle. The Blazer overturned and three passengers in the back seat were thrown from the vehicle. Collins was pinned in the Defendant’s vehicle and was unconscious when the police arrived. He was pronounced dead at the Holston Valley Community Hospital. The other victims were injured, but none seriously.
The Defendant’s blood alcohol registered .15% and Collins’ was .02%. The Defendant was indicted for one count of vehicular homicide involving intoxication and five counts of aggravated assault. Tenn.Code Ann. §§ 55-10-401; 39-13-213(a)(2); 39-13-102(a)(2)(A). On December 13, 1996 and pursuant to a negotiated plea agreement, the Defendant pleaded
nolo contendere
to five counts of simple assault, Tennessee Code Annotated
While we recognize the Defendant has presented his appeal in terms of three issues, because of their interrelatedness, we will address them as components of the primary issue of whether the trial court erred in failing to grant alternative sentencing. When an accused challenges the length, range, or the manner of service of a sentence, this court has a duty to conduct a
de novo
review of the sentence with a presumption that the determinations made by the trial court are correct. Tenn.Code Ann. § 40-35-401(d). This presumption is “conditioned upon the affirmative showing in the record that the trial court considered the sentencing principles and all relevant facts and circumstances.”
State v. Ashby,
In conducting a
de novo
review of a sentence, this court must consider: (a) the evidence, if any, received at the trial and the sentencing hearing; (b) the presentence report; (c) the principles of sentencing and arguments as to sentencing alternatives; (d) the nature and characteristics of the criminal conduct involved; (e) any statutory mitigating or enhancement factors; (f) any statement that the defendant made on his own behalf; and (g) the potential or lack of potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103, and -210;
see State v. Smith,
If our review reflects that the trial court followed the statutory sentencing procedure, imposed a lawful sentence after having given due consideration and proper weight to the factors and principles set out under the sentencing law, and that the trial court’s findings of fact are аdequately supported by the record, then we may not modify the sentence even if we would have preferred a different result.
State v. Fletcher,
In 1995, the legislature amended the law regarding the offense of vehicular homicide and specified that “[vjehicular homicide is a Class C felony, unless it is the proximate result of driver intoxication as set forth in subdivision (a)(2), in which case it is a Class B felony.” Tenn.Code Ann. § 39-13-213(b)(1997). The Defendant was convicted of vehicular homicide pursuant to the intoxication provision and thus, was subject to the sentence range for a Class B felony. The sentencing range for a standard offender for a Clаss B felony is eight (8) to twelve (12) years. Tenn.Code Ann. § 40-35-101.
Because vehicular homicide by intoxication is a Class B felony, there is no presumption that the Defendant is a suitable candidate for alternative sentencing options as afforded those convicted of a Class C, D, or E felony. Tenn.Code Ann. § 40-35-102(6). Howevеr, probation must be automatically considered by the trial court as a sentencing alternative for eligible defendants. Tenn.Code Ann. § 40-35-303(b). “A defendant shall be eligible for probation under the provisions of this chapter if the sentence actually imposed upon such defendant is eight (8) years or less.” Tenn.Code Ann. § 40-35-303(a). Furthermore, the burden of establishing suitability for probation rests with the Defendant. Tenn.Code Ann. § 40-35-303(b). Guidance in determining what factors are to be considered concerning alternative sentences may be found in Tennessee Code Annotated section 40-35-103(1), which states:
Sentences involving confinement should be based on the following considerations:
(A) Confinement is necessary to protect society by restraining a defendant who has a long history of criminal conduct;
(B) Confinement is necessary to avoid depreciating the seriousness of the offense or confinement is particularly suited to provide an effective deterrent to others likely to commit similar offenses; or
(C) Measures less restrictive than confinement have frequently or recently been applied unsuccessfully to the defendant.
See Ashby,
For a denial to occur based on the circumstances of the offense “as committed, [they] must be ‘especially violent, horrifying, shocking, reprehensible, offensive, or otherwise of an excessive or exaggerated degree,’ and the nature of the offense must outweigh all factors favoring probation.”
State v. Travis,
When a defendant is not afforded the presumption of suitability for alternative sentencing, the defendant bears the burden solely to establish that it would “subserve the ends of justice and the best interest of both the public and the defendant.”
Bingham,
The Defendant testified at the hearing in addition to the aforementioned facts, that he was a close friend of the victim. The Defendant had difficulty sleeping after the accident and cried at night. He testified that he made a big mistake and that he was willing to pay his debt to society. The Defendant also admitted that he had continued to drink alcohol after the accident. He agreed that he was feeling the effects of alcohol when he decided to drive the night of the incident.
The trial court denied alternative sentencing and documented its reasoning in extensive findings. In general terms, the trial judge found that the unfavorable factors considered weighed against the Defendant’s proof that he was a suitable candidate for alternative sentencing. The court considered the facts that (1) the Defendant turned off the vehicle’s headlights; (2) the danger to the passengers in the other vеhicle who were thrown onto the roadway; (3) that victims other than the Defendant were injured; and (4) that the Defendant’s blood alcohol level of .15% was well over the legal limit. The trial judge considered the circumstances to be reprehensible, excessive and to an exaggerated degreе such that probation was not warranted. Because the Defendant was afforded no presumption that he was a suitable candidate for alternative sentencing, the trial judge was vested with a considerable degree of discretion within the sentencing guidelines to determine the manner of service of the sentence. We cannot conclude that the trial judge erred or abused his discretion by denying an alternative to incarceration.
However, the Defendant also contends that the trial court erred by rejecting the proposition that the fact that a death occurred сannot alone support the denial of
Apparently, the legislature has considered the nature of the offense of vehicular homicide and determined that the proper grade of the offense is a Class C felony in cases of recklessness and a Class B felony in cases where intoxication is involved. Tenn.Code Ann. § 39-13-213(b). The legislature has also specified that persons convicted of Class C felоnies are presumed favorable candidates for alternative sentencing. Tenn.Code Ann. § 40-35-102(6). Therefore, even in a case involving a death, a defendant may receive alternative sentencing, including probation. Here, because the Defendant was convicted by way of intoxicatiоn, he is a Class B felon who does not possess the presumption but neither is he precluded from receiving probation or other sentencing alternatives solely because a death occurred. See Tenn.Code Ann. § 40-35-303(a). The trial court must consider his suitability for probation but the burden of proof remains sоlely upon the Defendant.
In conjunction with this, the trial court also concluded that in cases where a death occurred, a defendant must demonstrate exceptional circumstances to establish his or her suitability for alternative sentencing. He based his reasoning on cases decided under prior sentencing law,
see State v. Smith,
Nevertheless, we cannot conclude that the trial judge abused his discretion in refusing to grant an alternative sentence. The Defendant presented proof regarding his appropriateness for probation. The victim’s mother was also in favor of an alternative sentence. Yet, there is evidence in the record that the accident was violent, reprehensible and offensive. Multiple victims were involved and three of those persons were thrown from their vehicle. The trial court determined that the circumstances of the offense outweighed the positive factors submitted by the Defendant such that granting an alternative sentence would not serve the ends of justice. There being no presumption for alternative sentencing because the Defendant was convicted of a Class B felony, the trial judge was warranted in using his discretion to determine the appropriate manner of service of the sentence. Clearly, he was concerned with depreciating the seriousness of the offense and the record supports this finding.
Therefore, we affirm the judgment of the trial court.