          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT NASHVILLE          FILED
                            AUGUST 1999 SESSION
                                                    September 24, 1999

                                                     Cecil Crowson, Jr.
                                                    Appellate Court Clerk
STATE OF TENNESSEE,                  )
                                     )     NO. 01C01-9805-CC-00231
      Appellee,                      )
                                     )     MONTGOMERY COUNTY
VS.                                  )
                                     )     HON. JOHN H. GASAWAY III,
JOHN D. NEBLETT,                     )     JUDGE
                                     )
      Appellant.                     )     (Aggravated Vehicular Homicide,
                                     )     Vehicular Assault, Driving On
                                     )     Revoked License)



FOR THE APPELLANT:                         FOR THE APPELLEE:

MICHAEL R. JONES                           PAUL G. SUMMERS
District Public Defender                   Attorney General and Reporter

COLLIER W. GOODLETT                        KIM R. HELPER
Assistant Public Defender                  Assistant Attorney General
109 South Second Street                    Cordell Hull Building, 2nd Floor
Clarksville, TN 37040                      425 Fifth Avenue North
                                           Nashville, TN 37243-0493

                                           JOHN WESLEY CARNEY, JR.
                                           District Attorney General

                                           C. DANIEL BROLLIER
                                           Assistant District Attorney General
                                           204 Franklin Street, Suite 200
                                           Clarksville, TN 37040-3420




OPINION FILED:



AFFIRMED



JOE G. RILEY, JUDGE




                                 OPINION
        Defendant, John D. Neblett, pled guilty to aggravated vehicular homicide, a

Class A felony; vehicular assault, a Class D felony; and second-offense driving on

a revoked driver’s license (DORL), a Class A misdemeanor. 1 The trial court

sentenced defendant to 20 years for the aggravated vehicular homicide; 4 years for

the vehicular assault, to be served consecutively; and 11 months and 29 days for

DORL, to be served concurrently. In this appeal as of right, defendant raises the

following sentencing issues:2

        1.     whether the trial court erred in its application of
               enhancement factors § 40-35-114(6) and (16);

        2.     whether the trial court erred in its imposition of
               consecutive sentencing; and

        3.     whether the trial court erred in admitting victim impact
               testimony.

After a complete review of the record before us, we AFFIRM the judgment of the

trial court.




                                       I. FACTS



        In August 1997, while driving intoxicated, defendant failed to observe a stop

sign at a highway intersection in Montgomery County. As a result, he hit a car

driven by Glenda Atkins. Glenda Atkins’ husband, Stephen Atkins, was killed;

Glenda Atkins suffered injuries which required an overnight stay in the hospital and

surgery to remove glass that lodged next to the bone in her leg. Her hospital bills

were between $6,000 and $7,000.



        Defendant admitted driving while intoxicated and acknowledged his


        1
         Defendant was also indicted for two counts of driving under the influence. One
count was dismissed as part of a plea agreement; the other was merged by the trial judge
into the greater offense of aggravated vehicular homicide at sentencing.
        2
        We have framed and addressed defendant’s issues differently than they were
presented in his brief.

                                            2
responsibility for Stephen Atkins’ death in a statement to the Tennessee Highway

Patrol. He pled guilty to aggravated vehicular homicide related to the death of

Stephen Atkins; vehicular assault related to the serious injuries suffered by Glenda

Atkins; and second offense DORL.




                                 II. SENTENCING



       Defendant challenges the sentences imposed in this case. He asserts the

trial court erred in its application of enhancement factors (6) and (16), its imposition

of consecutive sentencing, and its consideration of victim impact testimony by

Glenda Atkins.



                              A. Sentencing Hearing

       The trial court began its sentencing determination by establishing defendant

as a Range I standard offender facing a sentence between 15 and 25 years for

aggravated vehicular homicide, between 2 and 4 years for vehicular assault, and

up to 11 months and 29 days for the DORL. It recited a list of considerations to be

taken into account in reaching its decision which included: evidence from the

sentencing hearing, victim impact testimony, the presentence report, and the

principles of sentencing.



       The court found several applicable statutory enhancement factors. It found

defendant’s extensive criminal history applicable to enhance all three sentences.

See Tenn. Code Ann. § 40-35-114(1). It found the occurrence of defendant’s

criminal conduct at the intersection of a state highway resulted in a great potential

for bodily injury to unsuspecting motorists applicable to enhance the sentences for

aggravated vehicular homicide and vehicular assault. See Tenn. Code Ann. § 40-

35-114(16). And, it found the particularly great injuries suffered by Glenda Atkins

applicable to enhance the sentence for vehicular assault. See Tenn. Code Ann. §


                                           3
40-35-114(6).



       The trial court also acknowledged the existence of mitigating factors under

Tenn. Code Ann. § 40-35-113(13); namely, defendant’s immediate admission of

criminal conduct, and his willingness to plead guilty to avoid the unpleasantness of

a trial for the Atkins’ family.



                                  B. Standard of Review

       This Court’s review of the sentence imposed by the trial court is de novo with

a presumption of correctness, Tenn. Code Ann. § 40-35-401(d), provided there is

an affirmative showing in the record that the trial judge considered the sentencing

principles and all relevant facts and circumstances. State v. Ashby, 823 S.W.2d

166, 169 (Tenn. 1991). If the trial court fails to comply with the statutory directives,

there is no presumption of correctness and our review is de novo. State v. Poole,

945 S.W.2d 93, 96 (Tenn. 1997).



       The burden is upon the appealing party to show that the sentence is

improper. Tenn. Code Ann. § 40-35-401(d) Sentencing Commission Comments.

In conducting our review, we are required, pursuant to Tenn. Code Ann. § 40-35-

210, to consider the following factors in sentencing:

       (1) [t]he evidence, if any, received at the trial and the sentencing
       hearing; (2) [t]he presentence report; (3) [t]he principles of sentencing
       and arguments as to sentencing alternatives; (4) [t]he nature and
       characteristics of the criminal conduct involved; (5) [e]vidence and
       information offered by the parties on the enhancement and mitigating
       factors in §§ 40-35-113 and 40-35-114; and (6) [a]ny statement the
       defendant wishes to make in the defendant’s own behalf about
       sentencing.



       If no mitigating or enhancement factors for sentencing are present, Tenn.

Code Ann. § 40-35-210(c) provides that the presumptive sentence shall be the

minimum sentence within the applicable range, except for Class A felonies where

the presumptive sentence is the midpoint of the range. See State v. Lavender, 967

S.W.2d 803, 806 (Tenn. 1998); State v. Fletcher, 805 S.W.2d 785, 788 (Tenn. Crim.

                                            4
App. 1991). No particular weight for each mitigating or enhancement factor is

prescribed by the statute, as the weight given to each factor is left to the discretion

of the trial court as long as the trial court complies with the purposes and principles

of the sentencing act and its findings are supported by the record. State v. Moss,

727 S.W.2d 229, 238 (Tenn. 1986); State v. Leggs, 955 S.W.2d 845, 848 (Tenn.

Crim. App. 1997); State v. Santiago, 914 S.W.2d 116, 125 (Tenn. Crim. App. 1995);

see Tenn. Code Ann. § 40-35-210 Sentencing Commission Comments.



       The state concedes the misapplication of some enhancement factors by the

trial court. Furthermore, the trial court mistakenly began its sentencing

determination for the aggravated vehicular homicide at the minimum sentence of

fifteen years, rather than the presumptive twenty-year midpoint. See State v.

Chance, 952 S.W.2d 848, 850-51 (Tenn. Crim. App. 1997); Tenn. Code Ann. § 40-

35-210(c). Thus, this Court’s review shall be de novo without a presumption of

correctness.




          III. ENHANCEMENT FACTORS / LENGTH OF SENTENCE



       We begin by noting the clear applicability of Tenn. Code Ann. § 40-35-114(1)

to all three sentences. Defendant’s record includes convictions for: five public

intoxications, four DUI’s, reckless driving, first-offense DORL, joyriding, and writing

bad checks. Even excluding the prior DUI convictions, which may not be used to

enhance the aggravated vehicular homicide sentence since having two or more DUI

convictions is an element of the offense, defendant has a lengthy history of criminal

convictions. His history includes numerous misdemeanors, a large percentage of

which are alcohol related.     Factor (1) may be properly used to enhance the

aggravated vehicular homicide, vehicular assault, and DORL sentences.



                       A. Aggravated Vehicular Homicide



                                          5
       The record does not support the trial court’s enhancement of defendant’s

sentence for aggravated vehicular homicide by use of Tenn. Code Ann. § 40-35-

114(16) for a crime committed under circumstances with a great potential for bodily

injury to a victim. Ordinarily, this factor is inappropriate since it is an element of

aggravated vehicular homicide. Here, the trial court stated, “the potential for bodily

injury to others was great given the location of the incident.” The evidence showed

the accident took place at the intersection of a state highway. However, the record

is silent as to whether other motorists were actually present at the intersection and

subject to injury. See generally State v. Sims, 909 S.W.2d 46, 50 (Tenn. Crim.

App. 1995). Thus, this factor does not apply.3



       Alternatively, the state suggests the application of Tenn. Code Ann. § 40-35-

114(10) for commission of a crime where the risk to human life is high. This factor

is not applicable to the aggravated vehicular homicide conviction for the same

reasons stated in the preceding paragraph.



       The trial court’s error in application of factor (16) does not necessarily call for

a reduction in sentence. State v. Lavender, 967 S.W.2d 803, 809 (Tenn. 1998).

Given defendant’s lengthy criminal history, the presumptive 20-year sentence is not

excessive for the aggravated vehicular homicide.



                                 B. Vehicular Assault

       As with the aggravated vehicular homicide sentence, the record does not

support the application of Tenn. Code Ann. §§ 40-35-114(16) or (10). Additionally,

application of Tenn. Code Ann. § 40-35-114(6) based upon the infliction of

particularly great injuries on Glenda Atkins was improper as serious bodily injury is


       3
        The record shows that the trial court considered evidence from the sentencing
hearing in reaching this determination. The transcript from the guilty plea hearing is not
before this Court; however, there is no indication that the trial court considered evidence
from that hearing. Otherwise, there would be a waiver of this issue. See State v. Ricky
Dale Keen, C.C.A. No. 01C01-9802-CR-00074, Sumner County, slip op. at 4 (Tenn.
Crim. App. filed January 19,1999, at Knoxville), perm. to app. denied (Tenn. June 21,
1999).

                                             6
an element of the offense.



       Nonetheless, factor (6) is an applicable enhancement factor based upon “the

amount of damage to property.” Tenn. Code Ann. § 40-35-114(6). Glenda Atkins

testified that her car, valued at approximately $8,000, was totaled as a result of the

accident with defendant. This evidence supports the application of factor (6) for

particularly great property damage sustained by the victim. Id.; State v. George

Blake Kelly, C.C.A. No. 01C01-9610-CC-0048, Warren County (Tenn. Crim. App.

filed October 13, 1998, at Nashville).



       In this instance, defendant’s criminal history, combined with the great amount

of property damage, should be given considerable weight. We conclude the

enhancement factors greatly outweigh the applicable mitigating factors and clearly

support the imposition of a maximum 4-year sentence for vehicular assault.



                         C. Driving on Revoked License

       Misdemeanor sentencing is controlled by Tenn. Code Ann. § 40-35-302,

which provides in part that the trial court shall impose a specific sentence consistent

with the purposes and principles of the 1989 Criminal Sentencing Reform Act. See

State v. Palmer, 902 S.W.2d 391, 393 (Tenn. 1995). The trial court has more

flexibility in misdemeanor sentencing than in felony sentencing. State v. Troutman,

979 S.W.2d 271, 273 (Tenn. 1998).




       Given the applicable enhancement factors addressed above and the

flexibility associated with misdemeanor sentencing, the imposition of a maximum

11 month and 29 day sentence for second-offense DORL is appropriate.




                        IV. CONSECUTIVE SENTENCING



                                          7
         The trial court ordered defendant’s 4-year sentence for vehicular assault to

run consecutively to the 20-year sentence for aggravated vehicular homicide,

resulting in an effective sentence of 24 years.



         A court may order sentences to run consecutively if the court finds by a

preponderance of the evidence that defendant is an offender whose record of

criminal activity is extensive or 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. Tenn. Code Ann. § 40-35-115(b)(2), (4); see

also State v. Black, 924 S.W.2d 912 (Tenn. Crim. App. 1995). Furthermore, the

court is required to determine whether the consecutive sentences (1) are

reasonably related to the severity of the offenses committed; (2) serve to protect the

public from further criminal conduct by the offender; and (3) are congruent with

general principles of sentencing. State v. Wilkerson, 905 S.W.2d 933, 939 (Tenn.

1995).



         Defendant, unquestionably, qualifies for consecutive sentencing under Tenn.

Code Ann. § 40-35-115(b). His presentence report reveals an extensive record of

criminal activity which includes convictions for: five public intoxications, three

DUI’s,4 reckless driving, first-offense DORL, joyriding, and bad checks. It also

indicates little regard for human life and no hesitation about committing a crime

where the risk to human life is high.



         We conclude that a 24-year sentence is reasonably related to the severity of

these offenses which resulted in the death of Stephen Atkins and serious injury to

Glenda Atkins. Given defendant’s history of alcohol abuse and alcohol-related

offenses, we also conclude that consecutive sentencing serves to protect the public




         4
        The state presented a certified copy of a fourth DUI conviction at the start of
sentencing.

                                             8
from further criminal conduct by a defendant who obviously cannot stop himself

from drinking and driving.




                        V. VICTIM IMPACT TESTIMONY



      Over defendant’s objection, the trial court heard victim impact testimony from

Glenda Atkins regarding the effect of her husband’s death on her and her son.

Defendant asserts that this was improper.



      The Victims’ Bill of Rights, Tenn. Code Ann. § 40-38-101, et. seq., provides

for the presentation and consideration of victim impact testimony at sentencing

hearings. Tenn. Code Ann. §§ 40-38-103(a)(2), -202. A recent panel of this Court

determined victim impact evidence to be admissible in non-capital cases. See State

v. Paul Carr Moss, Jr., C.C.A. No. 01C01-9803-CC-00118, Robertson County

(Tenn. Crim. App. filed June 1, 1999, at Nashville).



      In this case, Glenda Atkins prepared and presented a victim impact

statement which discussed the circumstances, financial impact, and emotional

impact of the accident and her husband’s death.         The trial court overruled

defendant’s objection to Atkins’ testimony and considered a copy of her written

victim impact statement “in determining whether the factors in §§ 40-35-113 and 40-

35-114 apply.” Tenn. Code Ann. § 40-38-207.



      The trial court properly admitted Glenda Atkins’ testimony pursuant to Tenn.

Code Ann. § 40-38-207 with a properly limited scope and purpose. This issue is

without merit.




                               VI. CONCLUSION


                                        9
     Based upon the foregoing, we AFFIRM the judgment of the trial court.




                                           ____________________________
                                            JOE G. RILEY, JUDGE




CONCUR:




____________________________
DAVID G. HAYES, JUDGE




____________________________
L.T. LAFFERTY, SENIOR JUDGE




                                    10
