        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                         Assigned on Briefs October 6, 2015

            STATE OF TENNESSEE v. JEREMY GLEN NICHOLS

                Appeal from the Circuit Court for Henderson County
                       No. 140983    Nathan B. Pride, Judge


                No. W2014-02276-CCA-R3-CD - Filed June 10, 2016
                        _____________________________

Defendant, Jeremy Glen Nichols, pleaded guilty to the vehicular homicides of A.D.
(Count 1) and Teri Ann David (Count 2), the aggravated vehicular homicides of Teri Ann
David (Count 3) and A.D. (Count 4), driving under the influence of an intoxicant
(DUI)(Count 5), third offense DUI (Count 6), failure to yield resulting in death (Count 7),
driving on a revoked license (DORL) (Count 8), DORL with a prior DUI (Count 9), and
fourth offense DORL (Count 10). The trial court imposed an effective sentence of 44
years, 11 months, and 29 days. On appeal, Defendant argues that his sentence is
excessive. After a thorough review, we affirm the sentence imposed by the trial court.
However, we remand the case to the trial court for entry of separate judgment forms for
each conviction, including those that must be merged, in light of the supreme court‟s
order in State v. Marquize Berry, No. W2014-00785-SC-R11-CD, slip op. at 5 (Tenn.
Nov. 16, 2015)(order granting Tenn. R. App. P. Rule 11).

  Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed;
               Remanded for Entry of Additional Judgment Forms

THOMAS T. WOODALL, P.J., delivered the opinion of the Court, in which CAMILLE R.
MCMULLEN and ROBERT L. HOLLOWAY, JR., JJ., joined.

Michael Thorne, Jackson, Tennessee, for the Appellant, Jeremy Glen Nichols.

Herbert H. Slatery III, Attorney General and Reporter; Caitlin Smith, Assistant Attorney
General, James G. (Jerry) Woodall, District Attorney General; Matthew Floyd and
Christopher W. Post, Assistant District Attorneys General, for the Appellee, State of
Tennessee.
                                       OPINION

Sentencing Hearing

        Christopher Crownover testified that at approximately 5:00 p.m. on May 20, 2013,
he was parked in the parking lot of the Sand Ridge Baptist Church in Lexington waiting
to meet a friend. The sky was clear, and the sun was still out. He was parked in the front
lot of the church facing Highway 412. Mr. Crownover testified that as he was waiting in
the parking lot, he heard a “loud ruckus coming from Sand Ridge Road behind the
church. It sounded like a vehicle.” Mr. Crownover said that the vehicle, which was
being driven southward by Defendant, passed him at a high rate of speed. He testified
that Defendant crossed the westbound lanes of Highway 412, without yielding or
stopping at a stop sign. Mr. Crownover testified that Defendant‟s vehicle then crossed the
median of Highway 412 and failed to yield to the vehicle being driven eastbound on
Highway 412 by twenty-one-year-old Teri Ann David. Teri Ann David was twenty-nine
weeks pregnant with her daughter, A.D. (It is this Court‟s policy not to reveal the names
of minor victims). Mr. Crownover testified that Defendant‟s vehicle struck the side of
Ms. David‟s vehicle “in a T-bone effect,” and both cars went over the guardrail into a
“ditch [or] ravine.”

      Teri Ann David was transported to the hospital and died as a result of her injuries.
Her daughter, A.D., was delivered by Cesarean Section but the placenta had detached,
and she died a few hours later.

       Trooper Maureen Velez of the Tennessee Highway Patrol (THP) testified that she
works with the Critical Incident Response Team, “a specialized unit that assists the
troopers with the investigation of fatality crashes and felony crashes. Trooper Velez was
declared an expert in “traffic crash reconstruction.”

       Trooper Velez testified that she responded to the scene of the wreck on May 20,
2013, at approximately 8:00 to 8:30 p.m. Both vehicles were still in their “final rest
positions.” She observed the roadway and evidence pertaining to the crash. She later
returned to the area during daytime hours to “map the scene.” Trooper Velez testified
there was a stop sign at the intersection of Sand Ridge Road and Highway 412 to stop
southbound vehicles on Sand Ridge Road before they enter “the westbound lanes of 412”
and that there was a “yield sign at the paved crossover” of the median instructing drivers
“who had crossed over the westbound lanes of Highway 412” to yield before entering the
eastbound lanes of Highway 412. She noted that both drivers would have had full view
of the intersection. Based on her observations and on witness statements, Trooper Velez
determined that Defendant caused the wreck when he failed to yield to Ms. David‟s
vehicle, which was traveling eastbound. She noted that speed was not a factor in the
                                             2
crash. It was her opinion that Ms. David‟s vehicle was in the intersection at the time of
the collision.

       Special Agent Bethany McBride, a forensic scientist with the Tennessee Bureau of
Investigation (TBI), testified that she tested a sample of Defendant‟s blood and found that
it contained THC ,“which is an inactive metabolite for marijuana use,” Diazepam and its
metabolite Nordiazepam, and Tramadol. Special Agent McBride explained that
Diazepam or Nordiazepam is a more common name for Valium. She testified that
Valium is a central nervous system (CNS) depressant, “so it depresses most of the body‟s
functions” and “puts a person in a relaxed state[.]” Special Agent McBride testified that
Tramadol is a synthetic opioid, an analgesic that relieves moderate to severe pain. She
said that when combined with Valium, Tramadol enhances the effects of Valium such as
drowsiness and sleepiness. The blood sample was sent for further testing which revealed
the presence of morphine. Special Agent McBride testified that morphine is an opiate
which depresses the CNS and gives a person a relaxed feeling. She said that some of the
effects of morphine include “drowsiness, the slow reaction time, not being able to think
clearly, those are some of the side effects.” Special Agent McBride testified that
combining all of the medications would enhance the side effects of each drug. It was her
personal opinion that individuals with those levels of drugs in their system should not be
driving.

       Sergeant Dwayne Stanford of the THP testified that in May of 2013, he was
assigned to the Criminal Interdiction Unit. On May 20, 2013, at approximately 6:48
p.m., he was dispatched to the emergency room of the Henderson County Community
Hospital where he advised Defendant of his Miranda rights. Defendant waived his right
to counsel and spoke to Sergeant Stanford. Sergeant Stanford testified:

        During my contact with [Defendant] I observed that his eyelids were
        droopy. He displayed low, slow, and slurred speech. He was lethargic,
        displayed a flushed face.

        He also seemed to be indifferent about the situation that he was involved
        in. He was concerned about other obligations that were going on at the
        time such as his daughter‟s graduation.

Sergeant Stanford testified that Defendant also appeared to be “on the nod, which is
basically an indicator of a narcotic analgesic, which was present within the blood system
for the eventual test.” He felt that Defendant was under the influence of a depressant and
a narcotic analgesic. Sergeant Stanford did not recall if the hospital staff had
administered any medication to Defendant.

                                            3
       Several of Teri Ann David‟s family and friends testified at the sentencing hearing.
They were devastated by the deaths of Ms. David and A.D. They felt that Defendant
should be sentenced to the maximum sentence for his offenses. Ms. David‟s step-mother,
Angela David, testified that Ms. David‟s father, Todd David, had cancer at the time of the
victims‟ deaths, and their deaths were very hard on him. Mr. David passed away
approximately six months after their deaths.

       Defendant testified that he is thirty-six years old and has three children that he was
supporting prior to the accident. The children now reside with their grandparents.
Defendant testified that he dropped out of school in the twelfth grade and began working
in construction work. He said that he developed back and knee pain and sought medical
treatment. Defendant testified that he was prescribed pain medication that he took for
several years. In the presentence report, Defendant admitted to having a problem with
“illegal drugs, marijuana, meth, and has a history of abusing pain pills.” Defendant
admitted that he regularly smoked marijuana. He was using other medications at the time
of the accident because he had run out of the pain medicine.

        Defendant testified that his arrests for driving without a license occurred because
he had to get to work. He said that he had been going to a pain clinic but he was
dismissed for failing a drug test by testing positive for marijuana. Defendant testified
that he had been enrolled in two previous treatment programs but they did not work
because he has an “addictive personality.” He was using methamphetamine and
“occasionally pain pills” at the time that he was enrolled in the programs. Defendant was
on probation for domestic assault and driving on a revoked license at the time of the
accident in this case. He said that since his sixteen-month incarceration for the probation
violation and the offenses in this case, he no longer has a desire to drive or use drugs.
Defendant testified that he had taken morphine and valium the day before the accident
because his back had been “bothering” him. He had purchased the drugs illegally on “the
street.” Defendant testified that he had been at work earlier in the day before the
accident.

       Defendant claimed that on the day of the accident, he stopped before entering
Highway 412 and that he pulled out in front of Ms. David‟s car because he didn‟t see it.
He said that he got out of the car and checked on Ms. David after the accident, and she
appeared to be unconscious. Defendant testified that he was given a shot of pain
medicine after he was taken to the hospital by ambulance and that Sergeant Stanford was
there when a second shot of morphine was administered to Defendant. He said that
Sergeant Stanford interviewed him after the shots were given. When asked if Sergeant
Stanford‟s description of Defendant‟s physical condition was accurate, Defendant
replied, “[n]ot to my knowledge.” Defendant testified that he was arrested four days after

                                             4
being released from the hospital. He did not recall if there were any other vehicles near
the intersection of Sand Ridge Road and Highway 412 at the time of the accident.

        On cross-examination, Defendant testified that his probation for domestic assault
and driving on a revoked license was violated due to the crash in this case and because he
failed to report to his probation officer. He also failed to show proof of counseling and
pay court costs and supervision fees. Defendant admitted that during a previous incident
of DUI, his second offense, the arrest warrant indicated that he nearly caused a head-on
collision because he was driving on the wrong side of the road. He later pled guilty to
that DUI. Defendant admitted that he had taken Valium, morphine, Tramadol, and he
smoked marijuana at some point prior to the accident. He did not have prescriptions for
the Valium, morphine, or Tramadol. He said that he took Valium and smoked marijuana
not for pain but because he liked the way it made him feel. Defendant agreed that his
criminal history was extensive. Defendant agreed that he has not had a valid driver‟s
license since 1998. Despite this, he admitted that he has continued to drive. Concerning
the accident, Defendant testified that he stopped at the stop sign but then drove through
the median because he did not see any vehicles coming.

Analysis

      Defendant challenges both the length of his sentences and the trial court‟s order of
consecutive sentencing.

        Appellate review of the length, range, or manner of service of a sentence imposed
by the trial court are to be reviewed under an abuse of discretion standard with a
presumption of reasonableness. State v. Bise, 380 S.W.3d 682, 708 (Tenn. 2012). In
sentencing a defendant, the trial court shall consider the following factors: (1) the
evidence, if any, received at the trial and the sentencing hearing; (2) the presentence
report; (3) the principles of sentencing and arguments as to sentencing alternatives; (4)
the nature and characteristics of the criminal conduct involved; (5) evidence and
information offered by the parties on enhancement and mitigating factors; (6) any
statistical information provided by the administrative office of the courts as to sentencing
practices for similar offenses in Tennessee; (7) any statement by the appellant in his own
behalf; and (8) the potential for rehabilitation or treatment. See Tenn. Code Ann. §§ 40-
35-102, -103, -210; see also Bise, 380 S.W.3d at 697-98. The burden is on the appellant
to demonstrate the impropriety of his sentence. See Tenn. Code Ann. § 40-35-401,
Sentencing Comm‟n Cmts.

      In determining a specific sentence within a range of punishment, the trial court
should consider, but is not bound by, the following advisory guidelines:

                                             5
        (1) The minimum sentence within the range of punishment is the
        sentence that should be imposed, because the general assembly set the
        minimum length of sentence for each felony class to reflect the relative
        seriousness of each criminal offense in the felony classifications; and

        (2) The sentence length within the range should be adjusted, as
        appropriate, by the presence or absence of mitigating and enhancement
        factors set out in §§ 40-35-113 and 40-35-114.

T.C.A. § 40-35-210(c).

        Although the trial court should consider enhancement and mitigating factors, the
statutory enhancement factors are advisory only. See Tenn. Code Ann. § 40-35-114; see
also Bise, 380 S.W.3d at 701; State v. Carter, 254 S.W.3d 335, 343 (Tenn. 2008). Our
supreme court has stated that “a trial court‟s weighing of various mitigating and
enhancement factors [is] left to the trial court‟s sound discretion.” Carter, 254 S.W.3d at
345. In other words, “the trial court is free to select any sentence within the applicable
range so long as the length of the sentence is „consistent with the purposes and principles
of [the Sentencing Act].‟” Id. at 343 (emphasis added). Appellate courts are “bound by a
trial court‟s decision as to the length of the sentence imposed so long as it is imposed in a
manner consistent with the purposes and principles set out in sections -102 and -103 of
the Sentencing Act.” Id. at 346.

       In his brief, Defendant challenges only the length of the sentence imposed for his
two convictions for aggravated vehicular homicide. The applicable sentencing range for a
Range I offender convicted of a Class A felony is 15 to 25 years. The trial court imposed
a sentence of 22 years for each count of aggravated vehicular homicide.

       The trial court stated on the record its findings regarding applicable enhancement
and mitigating factors. The trial court found five enhancement factors applicable to
Defendant: (1) that Defendant has a previous history of criminal convictions or behavior,
in addition to those necessary to establish the appropriate range; (2) that the personal
injuries inflicted upon the victim were particularly great; (3) that the offense involved a
victim and was committed to gratify Defendant‟s desire for pleasure and excitement; (4)
that Defendant had no hesitation about committing a crime when the risk to human life
was high; and (5) that Defendant was on probation at the time of the offenses for driving
on a suspended license and domestic violence. T.C.A. § 40-35-114 (1), (6), (7), (10), and
(13)(C). The trial court found one mitigating factor applicable: that Defendant had
pleaded guilty to avoid putting the victims‟ family through the trauma of a trial, and he
had indicated that he was remorseful. T.C.A. § 40-35-113(13). Defendant contends that
the “record does not support a sentence enhanced seven (7) years above the minimum
                                             6
sentence of the range of punishment.” More specifically, Defendant argues that “the
sentence imposed was arbitrarily applied at twenty-two (22) years for each of the Class A
felony convictions because the record is devoid of any specific weight given to each
enhancement and mitigating factors applied.” We note that the trial court improperly
applied enhancement factors (6) to Defendant‟s aggravated vehicular homicide
convictions as this is an element of the charged offenses. See T.C.A. § 40-35-114(6);
See also State v. Williamson, 919 S.W.2d 69, 83 (Tenn. Crim. App. 1995).

      In Bise our supreme court held:

        We hold, therefore, that a trial court‟s misapplication of an enhancement
        or mitigating factor does not invalidate the sentence imposed unless the
        trial court wholly departed from the 1989 Act, as amended in 2005. So
        long as there are other reasons consistent with the purposes and
        principles of sentencing, as provided by statute, a sentence imposed by
        the trial court within the appropriate range should be upheld.

Bise, 380 S.W.3d at 706 (emphasis added). In its conclusion, the supreme court pointed
out that in sentences involving misapplication of enhancement factors (even in those
cases where no enhancement factor actually applies) the sentences must still be affirmed
if the sentences imposed are within the appropriate range, and the sentences are in
compliance with statutory sentencing purposes and principles. Id. at 710.

       Our General Assembly has enacted twenty-five (25) statutory sentencing
enhancement factors; however, they are not binding upon the trial courts. T.C.A. § 40-
35-114 (Supp. 2015). The standard of review established in Bise provides that the
minimum sentence can be imposed even if the trial court correctly applies all twenty-five
enhancement factors, or the maximum sentence imposed even if no statutory
enhancement factors are applicable, as long as the sentence is within the correct range
and the sentence complies with other sentencing purposes and principles. Accordingly,
appellate review of enhancement factor issues is arguably superfluous when reviewing
the length of a sentence.

        Having reviewed the record before us, we conclude that the trial court clearly
stated on the record its reasons for the sentences imposed, and all of Defendant‟s
sentences are within the appropriate ranges. The record reflects that the trial court
considered the purposes and principles of the Sentencing Act. Defendant argues that the
trial court improperly applied enhancement factors 7 and 10 to his sentences, and we
found that enhancement factor (6) does not apply. However, even though the trial court
improperly applied enhancement factor (6), under Bise, we would still lack grounds to

                                           7
reverse Defendant‟s sentences. Therefore, the trial court‟s imposition of 22 years for
each count of aggravated vehicular homicide is presumed reasonable.

       Our supreme court has also extended the standard of review enunciated in State v.
Bise, abuse of discretion with a presumption of reasonableness, to consecutive sentencing
determinations. State v. Pollard, 432 S.W.3d 851, 860 (Tenn. 2013). Tennessee Code
Annotated section 40-35-115 sets forth the factors that are relevant in determining
whether sentences should run concurrently or consecutively. The trial court may order
consecutive sentences if it finds by a preponderance of the evidence that one or more of
the seven statutory factors exist. Id. § -115(b). Imposition of consecutive sentences must
be “justly deserved in relation to the seriousness of the offense.” T.C.A. § 40-35-102(1).
The length of the resulting sentence must be “no greater than that deserved for the
offense committed.” T.C.A. § 40-35-103(2).

       Tennessee Code Annotated section 40-35-115(b) provides that a trial court may
order sentences to run consecutively if it finds any one of the following criteria by a
preponderance of the evidence:

        (1) The defendant is a professional criminal who has knowingly devoted
        the defendant‟s life to criminal acts as a major source of livelihood;

        (2) The defendant is an offender whose record of criminal activity is
        extensive;

        (3) The defendant is a dangerous mentally abnormal person so declared
        by a competent psychiatrist who concludes as a result of an investigation
        prior to sentencing that the defendant‟s criminal conduct has been
        characterized by a pattern of repetitive or compulsive behavior with
        heedless indifference to consequences;

        (4) The defendant is a dangerous offender whose behavior indicates little
        or no regard for human life, and no hesitation about committing a crime
        in which the risk to human life is high;

        (5) The defendant is convicted of two (2) or more statutory offenses
        involving sexual abuse of a minor with consideration of the aggravating
        circumstances arising from the relationship between the defendant and
        victim or victims, the time span of defendant‟s undetected sexual
        activity, the nature and scope of the sexual acts and the extent of the
        residual, physical and mental damage to the victim or victims;

                                            8
        (6) The defendant is sentenced for an offense committed while on
        probation;
        or

        (7) The defendant is sentenced for criminal contempt.

T.C.A. § 40-35-115(b).

        In Pollard, the court reiterated that “[a]ny one of these grounds is a sufficient basis
for the imposition of consecutive sentences.” 432 S.W.3d at 862. “So long as a trial
court properly articulates its reasons for ordering consecutive sentences, thereby
providing a basis for meaningful appellate review, the sentences will be presumed
reasonable and, absent an abuse of discretion, upheld on appeal.” Id.; Bise, 380 S.W.3d
at 705.

       In this case, the trial court found two statutory factors. The trial court found that
Defendant was an offender whose record of criminal activity is extensive and that
Defendant was a dangerous offender whose behavior indicates little or no regard for
human life and no hesitation about committing a crime in which the risk to human life is
high. With regard to the court‟s finding that Defendant‟s record of criminal activity is
extensive, the trial court stated:

        Starting at the age of 18 and going forward with criminal activity, so half
        of his life - - he‟s 36 now - - he‟s been doing criminal activity. And it‟s
        gone from intoxication all the way up to now homicide, vehicular
        homicide. So it‟s gotten worse and it‟s extensive.

        This is a - - This the Court feels is every parent‟s nightmare. And we all
        have children, those that have children, and they‟re 16, 17, 18, 19, 20,
        21, young children, when the phone rings at night you hope that that‟s
        not the phone call that you‟re going to get that says my child has been in
        an accident and my child has had something happen to them. And
        certainly you don‟t want it to be as a result of a person who has an
        extensive record.

        And the Court wants to point out that the factors that are most significant
        [are] the two prior DUIs that Defendant had which took his license,
        require[d] counseling, required him to go to some things that would have
        perhaps pointed out the error of taking drugs and alcohol and getting
        behind the vehicle (sic) of a car, yet he did that.

                                              9
The trial court also pointed out that Defendant was on probation with a pending violation
of probation at the time he committed the offenses in this case.

       Defendant‟s criminal record is indeed extensive. He has a total of twenty-one
prior convictions: one for driving while impaired, two DUIs, six driving on a revoked or
suspended license convictions, two simple domestic assaults, three public intoxications,
one attempted vehicle burglary, two theft of properties under 500 dollars, two reckless
driving, one simple possession of marijuana, and one disorderly conduct conviction. Ten
of the convictions are Class A misdemeanors. Defendant contends that the trial court
improperly applied this factor because all of his prior convictions are misdemeanors.
However, this court has previously found that a criminal record consisting only of
misdemeanors supports the imposition of consecutive sentencing. State v. Marquon
Lanorris Green, No. W2012-01654-CCA-R3-CD, 2013 WL 2405217, at *7 (Tenn. Crim.
App. May 30, 2013). This factor alone supports consecutive sentencing.

       As for no hesitation about committing a crime in which the risk to human life is
high, the trial court found:

        Lastly - - and the State has asked the Court to look at the Defendant
        being a dangerous offender[] whose behavior indicates little or no regard
        for human life and no hesitation about committing a crime in which the
        risk to human life is high. And the Court must apply all three of these
        following factors in order to use this particular ground as an enhancing
        factor.

        First of all the Court believes any time [Defendant] ingests illegal drugs
        and/or alcohol that he becomes a dangerous offender, and his history
        indicates that.

        Any time he operates a vehicle, which apparently he did on a regular
        basis, indicates little or no regard for human life, because any time he
        does that it‟s just a matter of time.

        And I think even from some of the criminal history that we have here,
        just by the grace of God nobody else was hurt. So he had no hesitation
        about committing a crime, that crime being driving on suspended,
        revoked, or canceled license. And any time he did that he placed human
        life at risk.

      The trial court found the loss of the two victims‟ lives were an aggravating
circumstance in this case as well as disregarding a stop sign on a highway known to have
                                           10
high traffic driving at 65 miles per hour. The trial court also found that confinement in
Defendant‟s case for an extended period of time is necessary to protect society from
Defendant‟s unwillingness to lead a productive life and Defendant‟s “resort to criminal
activity in furtherance of a antisocial lifestyle.” The trial court stated:

        It‟s clear from the record that [Defendant] has been using drugs and
        alcohol for at least 18 years. The Court has a duty to protect all citizens
        in Henderson County and Madison County, anywhere in this state from
        those who over and over and over again show an unwillingness to
        comply with instructions from the Court, number one, and those deemed
        necessary to lead a productive life.

        He works, he has a family. His mother obviously loves him quite a - -
        quite a bit and has done apparently everything she can within her power
        to try to get [Defendant] to turn from what‟s been a nonproductive life in
        terms of his use of - - continued use of drugs and alcohol to a productive
        life, just caring for himself and his children. But it didn‟t happen, and it
        didn‟t happen on May 20, 2013.

        [Defendant] voluntarily has led this criminal life and taken these drugs.
        Nobody put a gun to his head. Nobody made him do it. I don‟t think
        any of these cases - - I think one of those - - I think the theft charge had a
        codefendant in it, but even in that case he broke into somebody‟s house
        with the purpose of stealing to sell the items to get drugs.

       The trial court further found that consecutive sentencing reasonably related to the
severity of the offenses. The court pointed out that two people were killed by
Defendant‟s actions, and that it is impossible to value a life. The court also found that
consecutive sentences would not constitute cruel punishment and that it was not
unwarranted in this case.

       The record supports the trial court‟s findings. Defendant has at least two other
convictions for DUI, and he has not had a valid driver‟s license since 1998. During one
of Defendant‟s previous incidents of DUI, he crossed four lanes into oncoming traffic and
nearly caused a head-on collision with another vehicle. He admitted that this experience
had not “scared him straight” as he has continued to drive on a revoked license while
under the influence of an intoxicant.

      We conclude that the trial court did not abuse its discretion in sentencing
Defendant to an effective sentence of forty-four years, eleven months, and twenty-nine

                                             11
days for his two convictions for aggravated vehicular homicide, failure to yield resulting
in death, and fourth offense driving on a revoked license with a prior DUI.

       Although not raised by either party, we point out that the trial court did not enter a
judgment for each conviction in this case. In addition, the trial court erred in its
determinations of what convictions must be merged. The trial court‟s announcement
from the bench of the sentences imposed is as follows:

        In Counts Four, Five, and Six, the Court‟s going to sentence [Defendant]
        to 22 years in the Tennessee Department of Corrections. [sic]

        In Counts Two, Three, Five [sic], and six [sic], the Court will sentence
        [Defendant] to 22 years in the Tennessee Department of Corrections
        [sic].

        These are to be consecutive sentences.

        The Court in Count Seven sentences [Defendant] to 11 months and 29
        days.

        The Court in Counts Eight, Nine, and Ten, sentences [Defendant] to 11
        months and 29 days. And these are to be consecutive to each other.

        Later in its ruling from the bench, at the urging of Defendant‟s counsel, the trial
court stated that it would “take it under advisement, sentencing as to Counts Seven,
Eight, Nine, and Ten, as to whether or not they should be - - or whether or not the Court
can, because there are some - -.” The transcript reflects that the trial judge never finished
this pronouncement because the Assistant District Attorney General interrupted to request
clarification on whether the trial court ordered drug treatment for Defendant during his
period of incarceration. However, the trial judge had already stated that he might “be
required” to merge the DUI convictions that are reflected in Counts 5 and 6, even though
the discussion in court was about Counts 8-10.

        The trial court requested the State to prepare the judgments (as is required by
statute, T.C.A. § 40-35-209(e)(1)(A)-(S)), to which the Assistant District Attorney
agreed. The judgments were filed November 3, 2014. The best way to describe the
judgments in the kindest way is to simply state that they are a mess.

       First, there is no separate order in the appellate record, concerning the trial court‟s
ruling on merger of certain offenses that was promised by the trial court when it took the
issue under advisement. Second, there is not a judgment for each individual charge in the
                                             12
indictment, as required. See State v. Marquize Berry, No. W2014-00785-SC-R11-CD,
slip op. at 5 (Tenn. Nov. 16, 2015)(order granting Tenn. R. App. P. Rule 11).

       Third, the trial court in its ruling from the bench, and also in the judgments, failed
to specifically impose any sentences for the DUI convictions and the vehicular homicide
convictions. The trial court attempted to impose a sentence of 22 years for each
aggravated vehicular homicide conviction that included the convictions for DUI and
vehicular homicide.

       The trial court referred to the numbers in the indictment in pronouncing the
sentence. We will insert the actual offenses referenced for the sentencing structure
announced by the trial court. First, this is a list of convictions by the count numbers in
the indictment:

Count 1       Vehicular homicide of A.D., a Class B felony
Count 2       Vehicular homicide of Teri Ann David, a Class B felony
Count 3       Aggravated vehicular homicide of Teri Ann David, a Class A felony
Count 4       Aggravated vehicular homicide of A.D., a Class A felony
Count 5       DUI, a Class A misdemeanor
Count 6       DUI, third offense, a Class A misdemeanor
Count 7       Failure to yield resulting in death, a Class A misdemeanor
Count 8       Driving on canceled, suspended, or revoked license, a Class B
              misdemeanor
Count 9       Driving on canceled, suspended, or revoked license, and the license was
              canceled, suspended, or revoked because of a DUI conviction, a Class B
              misdemeanor
Count 10      Driving on canceled, suspended, or revoked license with three prior
              convictions for driving on a canceled, suspended, or revoked license with
              three prior convictions for driving on a canceled, suspended, or revoked
              license, a Class A misdemeanor.

       The trial court announced from the bench that for the convictions of aggravated
vehicular homicide of A.D., DUI, and DUI, third offense, Defendant was sentenced “to
22 years in the Tennessee Department of Correction[].” Further, the trial court noted that
for the vehicular homicide of Teri Ann David, the aggravated vehicular homicide of Teri
Ann David, the DUI, and the DUI, third offense, Defendant was sentenced “to 22 years in
the Tennessee Department of Correction[s],” with the two sentences of 22 years to be
served consecutively to each other.

        The trial court sentenced Defendant to 11 months and 29 days for the conviction
of failure to yield resulting in death, and to 11 months and 29 days for each driving on a
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canceled, suspended, or revoked license. These sentences for Counts 8 and 9 are illegal,
as the maximum sentence for a Class B misdemeanor is six months, and the sentences for
Counts 8 and 9 must be modified accordingly.

       The judgments entered by the trial court are somewhat different than what was
announced in open court. In one judgment which purportedly deals with the convictions
for vehicular homicide of A.D., aggravated vehicular homicide of A.D., DUI and DUI,
third offense, the judgment reflects that the only conviction offense is aggravated
vehicular homicide of A.D. with a sentence of 22 years. The second judgment is
identical, except that it references the convictions as to the death of Teri Ann David. In
open court, the trial court overlooked the conviction in Count 1 for vehicular homicide of
A.D.

       The identical information is contained in the “Special Conditions” section of each
of these judgments. It states:

        To serve.     Both Aggravated Vehicular Homicide charges are
        consecutive. The Failure to Yield Resulting in Death and DORL 4th w/ a
        Prior DUI charges are concurrent to each other but are consecutive to the
        Aggravated Vehicular Homicide charges. Total effective sentence is 44
        years 11 months 29 days. Driving privileges are revoked for 10 years.
        Recommend special treatment. Counts 1, 4, 5, 6 merge. Counts 2, 3, 5,
        6 merge. Counts 8, 9, 10 merge.

There is a separate judgment for Count 7, with 11 months 29 days to serve, concurrent
with the sentence in Counts 8, 9, and 10, and one judgment purportedly disposing of all
three convictions under Counts 8, 9, and 10, with a sentence of 11 months and 29 days to
serve by incarceration.

       Our supreme court in State v. Marquize Berry, addressed the issue of judgment
forms for multiple convictions. The court stated as follows:

        [W]hen two jury verdicts are merged into a single conviction, the trial
        court should complete a uniform judgment document for each count.
        The judgment document for the greater (or surviving) conviction should
        reflect the jury verdict on the greater count and the sentence imposed by
        the trial court. The judgment document for the lesser (or merged)
        conviction should reflect the jury verdict on the lesser count and the
        sentence imposed by the trial court. Additionally, the judgment
        document should indicate in the “Special Conditions” box that the
        conviction merges with the greater conviction. To avoid confusion, the
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        merger also should be noted in the “Special Conditions” box on the
        uniform judgment document for the greater or surviving conviction.

           *        *       *

        When the jury returns guilty verdicts on multiple offenses that eventually
        will be merged, the best practice is for the trial court to impose a
        sentence on each count and reflect the sentence on the respective
        uniform judgment document.

No. W2014-00785-SC-R11-CD, slip op. at 5(emphasis in original).

       Thus, the trial court in this case erred by not entering separate judgments for each
of Defendant‟s convictions for vehicular homicides of A.D. (Count 1) and Teri Ann
David (Count 2), the aggravated vehicular homicides of Teri Ann David (Count 3) and
A.D. (Count 4), DUI (Count 5), third offense DUI (Count 6), DORL (Count 8), DORL
with a prior DUI (Count 9), and fourth offense DORL (Count 10).

       While we affirm the total effective sentence of 44 years, 11 months and 29 days,
in order for the judgments to conform with Marquize Berry, and the requirements of
merger of offenses which are alternative theories or lesser included offenses of other
convictions, see State v. Addison, 973 S.W.2d 260, 266-67 (Tenn. Crim. App.
1997)(overruled by implication on other grounds by Marquize Berry) we remand this
case for the trial court to enter a judgment for each count of the indictment. The trial
court‟s failure to order a specific sentence for each DUI conviction and each vehicular
homicide conviction also mandates that a sentence be imposed in those convictions in the
judgments pursuant to Marquize Berry. Also, the sentences for driving on suspended,
canceled, or revoked licenses in Counts 8 and 9 must be within the parameters for a Class
B misdemeanor conviction.

       The special conditions box of each of the ten judgments must reflect any merger
applicable to that conviction. In the judgments, the following mergers of convictions
must be accomplished:

   (a) Count 1, vehicular homicide of A.D., must merge with Count 4, aggravated
       vehicular homicide of A.D.

   (b) Count 2, vehicular homicide of Teri Ann David, must merge with Count 3,
       aggravated vehicular homicide of Teri Ann David.

   (c) Count 5, DUI, must merge with Count 6, DUI, third offense.
                                            15
   (d) Count 6, DUI, third offense, with Count 5 merged with it, must in turn be merged
      with Count 3, aggravated vehicular homicide of Teri Ann David and Count 4,
      aggravated vehicular homicide of A.D.

   (e) Count 8, driving on canceled, suspended or revoked license, must merge with
       Count 10, driving on canceled, suspended, or revoked license with three prior
       convictions for driving on a canceled, suspended, or revoked license.

   (f) Count 9, driving on a canceled, suspended or revoked license because of a prior
       DUI conviction must also merge with Count 10.

   In order to implement the total effective sentence which we affirm, the judgments
must provide that the sentence in Count 4 must be served consecutive to the sentence in
Count 3; and the sentences in Count 7 and Count 10 must be served concurrently with
each other but consecutively to the sentence in Count 4. The trial court shall also impose
sentences for the convictions in Counts 1, 2, 5, 6, 8, and 9 prior to the merger.

Conclusion

       The total effective sentence of 44 years, 11 months and 29 days is affirmed.
However, the case is remanded for entry of a judgment for each of the ten counts of the
indictment consistent with this opinion and for sentencing in Counts 1, 2, 5, 6, 8, and 9.


                                  ____________________________________________
                                  THOMAS T. WOODALL, PRESIDING JUDGE




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