         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                                     May 18, 2004 Session

                  STATE OF TENNESSEE v. KATHY E. COOPER

                   Direct Appeal from the Circuit Court for Blount County
                         No. C-10576    D. Kelly Thomas, Jr., Judge



                  No. E2003-01575-CCA-R3-CD - Filed September 20, 2004


The defendant appeals her resentencing following the revocation of her eight-year community
corrections sentence for vehicular homicide, a Class B felony, arguing that the trial court erred in
ordering her to serve twelve years in the Department of Correction, following her arrest for DUI.
Based on the subsequent decision of the United States Supreme Court in Blakely v. Washington, 542
U.S. ___, 124 S. Ct. 2531 (2004), we remand this matter to the trial court for reconsideration in light
of its holding.

    Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed and
                                        Remanded

ALAN E. GLENN , J., delivered the opinion of the court, in which JOSEPH M. TIPTON and JOE G.
RILEY , JJ., joined.

Julie A. Rice, Knoxville, Tennessee (on appeal); Raymond Mack Garner, District Public Defender;
and Stacey Nordquist, Assistant District Public Defender, Maryville, Tennessee (at trial), for the
appellant, Kathy E. Cooper.

Paul G. Summers, Attorney General and Reporter; David H. Findley, Assistant Attorney General;
Michael L. Flynn, District Attorney General; and Robert L. Headrick, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                             OPINION

                                               FACTS

        On August 4, 1997, the Blount County Grand Jury indicted the defendant, Kathy E. Cooper,
on one count of vehicular homicide by intoxication and one count of vehicular homicide by reckless
driving based on a September 27, 1996, incident in which the intoxicated defendant caused a traffic
accident that resulted in the death of her passenger, Danny Lee Walker. On January 26, 1998, the
defendant pled guilty to vehicular homicide by intoxication, with the second count of the indictment
merged into the first, in exchange for an eight-year-sentence as a Range I, standard offender.
Pursuant to the plea agreement, the manner of service of the sentence was left to the trial court’s later
determination.

        The defendant testified at the April 20, 1998, sentencing hearing that she was single, 40 years
old, and the mother of two children: twenty-one-year-old Chastity, who was married and had a
fourteen-month-old child, and fourteen-year-old Kelly, who still lived at home. The defendant said
she was physically and mentally disabled, received disability benefits, and did not work. She
received regular counseling from a social worker and was under the care of a physician for her
rheumatoid arthritis, which had resulted from the severe injuries, including multiple broken bones,
she sustained in the accident. In addition, she would never again be able to hear out of her right ear
and was unable to sleep at night because of recurring nightmares.

        The defendant testified she was currently taking Diazepam, or Valium, Hydrocodone, and
Prozac, was taking Diazepam and Prozac during the time the accident occurred, and had taken her
prescribed medication before the accident. She conceded she had also drunk as many as four beers
and smoked crack cocaine that the victim gave her. She said the accident occurred as she was giving
the intoxicated victim a ride at night during a heavy rain. According to her testimony, she swerved
onto the right shoulder and the victim grabbed the steering wheel from her, causing their head-on
collision with a truck. The defendant acknowledged she had been intoxicated at the time of the
accident but denied she had been speeding.

        The defendant testified that the victim was her best friend and had told her he loved her right
before the fatal accident. She said she had frequent nightmares about his death. She did not learn
until after his death that he was married and had since that time contacted his wife and mother to
apologize. The defendant asserted she had changed her life since the accident. She no longer drank
or used illegal drugs, avoided the company of those who did, and regularly attended church. She said
she was the only parent her younger daughter had and requested that the trial court award her
probation so that she could remain home to support and care for her daughter. Among other
evidence the defendant introduced was an eloquent letter from the victim’s wife to the trial court,
in which she requested that the defendant be granted probation with appropriate psychological,
alcohol, and drug counseling in order to prevent the defendant’s younger daughter from suffering
the deprivation of a parent, as had the victim’s two sons.

        The defendant’s daughters, Chastity Vananda and Kelly Cooper, each testified that the
defendant had begun attending church and that they had observed a real change in her since the
accident. Vananda described the defendant as a “wonderful mother” and said she had “straightened
up a lot” and was “doing better for herself.” Cooper, who said she had no father, testified that the
defendant was spending time with her and was “just a lot better now.” Finally, the defendant’s
pastor, Kenny Walker, testified that the defendant had begun attending his church regularly after the
accident and that he believed her remorse and “change and commitment to Christ” were genuine.




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        At the conclusion of the hearing, the trial court imposed a sentence of split confinement,
ordering that the defendant serve forty-seven days in the county jail and the balance of her eight-year
sentence in a community corrections program. Among other factors the trial court considered and
balanced to arrive at its sentencing determinations were the seriousness of the defendant’s crime, her
“almost non-existent” criminal history, the fact that rehabilitation efforts had never previously been
unsuccessfully attempted with her, and her emotional and substance abuse problems, which the trial
court found were treatable in the community.

        On April 22, 2003, approximately five years into her sentence, the defendant was arrested
for driving under the influence, and a community corrections violation warrant was subsequently
issued. At the June 4, 2003, revocation and sentencing hearing, the defendant’s community
corrections officer, Patricia Ballard, testified that the defendant informed her office of her arrest. She
said she was aware the defendant was taking “mood-altering substances” for pain and knew, as did
the defendant, that the medications should not be combined with driving. However, the defendant
had met all the conditions of her community corrections sentence prior to her DUI arrest, and Ballard
therefore recommended leniency, suggesting that the defendant be placed on some sort of house
arrest or electronic monitoring for a period of ninety days, while her medications were reevaluated
in order to remove her from as many mood-altering substances as possible.

        Alcoa Police Officer Rodney Wilson, who made the DUI arrest, testified he was working as
a field training officer on the Alcoa Highway at approximately 5:20 p.m. when several callers
reported the defendant’s reckless driving to dispatch. The traffic was very heavy, and by the time
he reached the defendant, she had already been involved in an accident. Officer Wilson identified
the videotape of his interaction with the defendant, which was admitted as an exhibit to the hearing
and played before the court. The videotape shows that the defendant was unable to stand without
leaning against her vehicle for support and had great difficulty answering routine questions. In
response to repeated queries, she informed the officer that she had taken four “Somas” and that the
“Chastity Vananda” whose name appeared on the prescription bottle she had in her possession was
her daughter. Officer Wilson testified that the defendant was, in his opinion, under the influence of
narcotics at the time of her arrest. He acknowledged on cross-examination that neither the defendant
nor the occupants of the second vehicle involved in the accident were injured, although there was
extensive front-end damage to the defendant’s vehicle.

        Kelly Cooper, the defendant’s younger daughter, testified she was nineteen years old and
currently lived with her older sister but spent a lot of time with the defendant. She said the defendant
had a driver’s license, but she and her sister “usually [took] her places.” She agreed the defendant
was obviously impaired on the videotape but said it was not the “norm,” and she had never before
seen the defendant drive in that condition. Cooper testified her sister had a prescription for Soma,
but she had never known her mother to take Chastity’s medication.

       The defendant testified that after the 1996 accident, her physician prescribed her Lortab, a
pain medication, and Soma, a muscle relaxer, and her psychiatrist prescribed some medication as
well. She acknowledged she took four Somas on the day of her DUI arrest, but insisted it was


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prescribed and denied she took any of her daughter’s medication. She said she was on her way to
sit with the elderly grandmother of a diabetic friend, forgot she had taken her medication, and
thought she was all right to drive. The defendant stated she wanted to be placed back on the
community corrections program because Ballard had “helped [her] more than anything in the world.”
She testified she had realized, during the twenty-two or twenty-three days she had been without her
pain medication in jail, that she could bear the pain without it and promised never again to take any
pain medication or Soma.

        At the conclusion of the hearing, the trial court revoked the defendant’s community
corrections sentence, finding that she had clearly violated its terms by her arrest for DUI. The trial
court found no applicable factors in mitigation but found enhancement factor (9), the defendant has
a previous history of unwillingness to comply with the conditions of release into the community, see
Tenn. Code Ann. § 40-35-114(9) (2003), applicable based on the defendant’s arrest for DUI.
Moreover, because the behavior involved was so similar to that in the vehicular homicide, the trial
court assigned this enhancement factor great weight. The trial court further found that a sentence
less restrictive than confinement would depreciate the seriousness of the offense and that measures
less restrictive than confinement had recently been applied unsuccessfully to the defendant.
Accordingly, the trial court resentenced the defendant to twelve years in the Department of
Correction, with credit for her prior jail service and time spent in the community corrections
program.

                                            ANALYSIS

        The sole issue the defendant raises on appeal is whether the trial court erred in resentencing
her to twelve years in the Department of Correction following the revocation of her community
corrections sentence “when she had been making excellent progress in her rehabilitation.” The
defendant concedes there was sufficient evidence to support the revocation of her community
corrections sentence, but argues the trial court erred in its application of enhancement and mitigating
factors when resentencing her to a longer term of confinement than the sentence originally imposed.
Specifically, she contends that the court inappropriately based the application of enhancement factor
(9) on the DUI arrest that occurred subsequently to the offense for which she was being sentenced
and erroneously failed to consider or apply in mitigation the fact that the DUI, which was her first
violation of her community corrections sentence, resulted from her use of prescription medication
rather than illegal drugs or alcohol and evidenced a moment of poor judgment rather than a sustained
intent to violate the law. The State argues that the record fully supports the trial court’s sentencing
determinations.

        Upon revocation of a community corrections sentence, a trial court may resentence a
defendant to any appropriate sentencing alternative, including incarceration, for any period of time
up to the maximum sentence provided for the offense committed, as long as it gives the defendant
credit for any time already served in any community-based alternative to incarceration. Tenn. Code
Ann. § 40-36-106(e)(4) (2003). However, if the trial court resentences the defendant to a more
severe sentence than originally imposed, it must conduct a sentencing hearing in accordance with


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the Sentencing Act of 1989. State v. Crook, 2 S.W.3d 238, 240 (Tenn. Crim. App. 1998) (citations
omitted). “The purpose of allowing the trial court to impose a new sentence is that the nature,
circumstances and frequency of the defendant’s violations may ‘warrant a different type of
alternative sentence or incarceration.’” Id. (quoting State v. Ervin, 939 S.W.2d 581, 583 (Tenn.
Crim. App. 1996)). The trial court may not arbitrarily increase the length of the defendant’s sentence
and must state on the record its reasons for the sentence imposed. See Tenn. Code Ann. §§ 40-35-
209(c), -210(f)-(g); Ervin, 939 S.W.2d at 583.

         When reviewing the length and manner of service of a sentence, it is the duty of this court
to conduct a de novo review on the record with a presumption that “the determinations made by the
court from which the appeal is taken are correct.” Tenn. Code Ann. § 40-35-401(d) (2003). 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, 823
S.W.2d 166, 169 (Tenn. 1991). In conducting a de novo review of a sentence, this court must
consider (a) any evidence received at the trial and/or sentencing hearing, (b) the presentence report,
(c) the principles of sentencing, (d) the arguments of counsel relative to sentencing alternatives, (e)
the nature and characteristics of the offense, (f) any mitigating or enhancement factors, (g) any
statements made by the accused in his own behalf, and (h) the accused’s potential or lack of potential
for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-103, -210 (2003); State v. Taylor, 63
S.W.3d 400, 411 (Tenn. Crim. App. 2001). The party challenging the sentence imposed by the trial
court has the burden of establishing that the sentence is erroneous. Tenn. Code Ann. § 40-35-401
(2003), Sentencing Commission Cmts.; Ashby, 823 S.W.2d at 169. Because the trial court in this
case stated on the record its findings of fact in support of the sentence imposed, we review the
defendant’s sentence de novo, with a presumption of correctness afforded the trial court’s sentencing
determinations.

       As a Range I offender convicted of a Class B felony, the defendant was subject to a sentence
ranging from eight to twelve years. Tenn. Code Ann. § 40-35-112(a)(2) (2003). The sentence to be
imposed for a Class B felony is presumptively the minimum in the range unless there are
enhancement factors present. Id. § 40-35-210(c). Procedurally, the trial court is to increase the
sentence within the range based upon the existence of any applicable enhancement factors and then
reduce the sentence as appropriate based on applicable mitigating factors. Id. § 40-35-210(d), (e).
The weight to be afforded an existing factor is left to the trial court's discretion so long as it complies
with the purposes and principles of the 1989 Sentencing Act and its findings are adequately
supported by the record. Id. § 40-35-210, Sentencing Commission Cmts.; State v. Moss, 727 S.W.2d
229, 237 (Tenn. 1986).

        Upon resentencing, the trial court increased the defendant’s sentence from the presumptive
minimum sentence to the maximum sentence in the range based on the applicability of enhancement
factor (9). Although the trial court did not address the defendant’s proposed mitigating factors
explicitly, it did so implicitly by issuing the following ruling, explaining its sentencing
determinations, immediately after defense counsel had concluded her argument for the applicability
of the proposed mitigating factors:


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         Based upon the proof, the evidence is clear that [the
defendant] has violated the terms of her Community Correction[s]
agreement. I have listened to the testimony both days, considered
that. I have also reviewed the court file and looked at the plea and the
plea agreement.

        I note that [the defendant] has somewhere in the neighborhood
of five years credit against this sentence. And it was a range-one
sentence. At the time that the judgment was signed, . . . there were no
enhancing factors in the record. There is now. The enhancing factor
that exists now is that [the defendant] has a history of unwillingness
to comply with the conditions of release into the community.

         Given the seriousness of the . . . charged offense of vehicular
homicide, the nature of the violation of the rules of release - - that is,
it’s the same violation as in the original conviction, if not worse. I
looked at the blood alcohol test. It was a .08. From the proof that
I’ve seen today, your impairment out on the Alcoa Highway at 5:15
in the afternoon was greater than it was the day that you had this fatal
wreck with a .08. . . . So, this enhancing factor weighs very, very
heavily, in my judgment.

        And so, in light of that enhancing factor, I am resentencing
you from eight years to twelve years. You’re still a range-one
offender. You still have five years of jail credit and are eligible for
release already. It will be up to the Probation and Parole Board. In
deciding how the sentence is to be served, based on the evidence I’ve
heard today and the evidence from the earlier sentencing agreement,
a lack of confinement would depreciate the seriousness of the offense.

        The sentence should have relationship to the seriousness of
the crime and encourage rehabilitation. That was attempted and was
successful for a period of time, and then totally violated by doing the
same thing that led to the death of the victim in this case. And just by
who knows what -- sheer luck or divine providence -- you or someone
else wasn’t killed out on the Alcoa Highway in rush hour traffic.

        So, I think the potential of lasting rehabilitation at this point
is poor. And one of the considerations in prison sentences is people
have shown a failure of past efforts at rehabilitation. So, that is the
reason.




                                   -6-
       The defendant asserts she had no “previous history of unwillingness to comply with the
conditions of a sentence involving release into the community” at the time of the commission of her
vehicular homicide, and contends that the trial court should not have based the application of
enhancement factor (9) on the DUI that occurred while she was serving her community corrections
sentence for that offense.

        After the parties had submitted their briefs in this matter and oral arguments had been heard,
the United States Supreme Court released its opinion in Blakely v. Washington, 542 U.S.___, 124
S. Ct. 2531 (2004), which held, in brief, that if a sentence is increased beyond its statutory maximum
other than because of a prior conviction, the facts which are the basis for the increase must be
determined by a jury beyond a reasonable doubt. Id. at ___, 124 S. Ct. at 2536. Accordingly, the
parties were instructed to file supplemental briefs, explaining the effect, if any, of the Blakely
decision on the present appeal. Only the State did so, and, in its supplemental brief, it took the
position that the defendant had waived any sentencing claim as to Blakely by not making a timely
claim pursuant to the holding in Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348 (2000),
upon which the Blakely decision was based.

         Absent the Blakely decision, our determination on appeal would have been whether the trial
court erred in concluding that the defendant’s DUI arrest, while in community corrections, could,
itself, constitute a “previous history of unwillingness,” which was the basis for the trial court’s action
resulting in this appeal. However, Blakely inserts the threshold determination, for the trial court as
well as this court, whether a court or only a jury could find the defendant’s conduct to be a “previous
history.” Since the trial court did not have the benefit of the Blakely holding, it did not make this
determination, its resolution of which might have altered its taking action based upon the DUI arrest
before that charge had been resolved. Presumably, that resolution has occurred during the appeal
process. Given all of this, we believe that the most appropriate resolution of this matter is to remand
to the trial court for reconsideration as to the matters set out in this opinion.

                                           CONCLUSION

        Based upon the foregoing authorities and reasoning, we remand this matter to the trial court
for reconsideration in light of the Blakely decision.


                                                         _______________________________
                                                         ALAN E. GLENN, JUDGE




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