         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                            AT KNOXVILLE         FILED
                       OCTOBER 1997 SESSION          June 30, 1998

                                                Cecil Crowson, Jr.
                                                 Appellate C ourt Clerk
STATE OF TENNESSEE,              )
                                 )    NO. 03C01-9703-CR-00101
      Appellee,                  )
                                 )    SULLIVAN COUNTY
VS.                              )
                                 )    HON. R. JERRY BECK,
JAMES THOMAS TANNER, III,        )    JUDGE
                                 )
      Appellant.                 )    (Sentencing)



FOR THE APPELLANT:                    FOR THE APPELLEE:

NAT H. THOMAS                         JOHN KNOX WALKUP
317 Shelby Street                     Attorney General and Reporter
Suite 304
Kingsport, TN 37660-3617              SANDY C. PATRICK
                                      Assistant Attorney General
                                      Cordell Hull Building, 2nd Floor
                                      425 Fifth Avenue North
                                      Nashville, TN 37243-0493

                                      H. GREELEY WELLS, JR.
                                      District Attorney General

                                      ROBERT H. MONTGOMERY, JR.
                                      Assistant District Attorney General
                                      P.O. Box 526
                                      Blountville, TN 37617-0526




OPINION FILED:



AFFIRMED



JERRY L. SMITH,
JUDGE
                                       OPINION



       The defendant, James Thomas Tanner, III, pled guilty in the Sullivan County

Criminal Court to one (1) count of vehicular homicide, a Class C felony. 1 The trial

court sentenced him as a Range I, standard offender to three (3) years and denied

alternative sentencing. On appeal, he claims that the trial court erred in refusing to

sentence him as an especially mitigated offender and in denying alternative

sentencing. After a thorough review of the record before this Court, we affirm the

judgment of the trial court.



                               FACTUAL BACKGROUND



       On December 26, 1994, defendant was driving on Interstate 181 when his

vehicle collided with a truck parked in the emergency lane/paved shoulder area of

the interstate. The driver of the truck, Lawrence Peters, had pulled off of the

traveled portion of the interstate because of car problems. Peters died as a result

of injuries received in the accident. Approximately two hours after the accident,

defendant’s blood was tested. The test revealed defendant’s blood alcohol content

to be 0.26%.

       Defendant entered a guilty plea to vehicular homicide, a Class C felony at

that time. See Tenn. Code Ann. § 39-13-213(b) (1991). The trial court was to

determine the length and manner of defendant’s sentence.

       At the sentencing hearing, defendant testified that he was 38 years old and

single. He had a Ph.D. in chemistry and had worked for the Tennessee Eastman

Company as a technical service representative for approximately six years. He had

no prior criminal record, a good work history and a stable family environment. He

denied using drugs and reported “infrequent” alcohol use. At the time of the

hearing, he had been under a psychiatrist’s care for depression for approximately



       1
         Effective June 2, 1995, vehicular homicide by driver intoxication was elevated to
a Class B felony. Public Act 1995, ch. 415 § 2.

                                            2
five and one-half (5 ½) years. He acknowledged that, after the accident, he

erroneously told an officer that he drank “three shots of scotch,” when he actually

consumed three to four “glasses.” He also expressed remorse to the court and to

the victim’s family.

       Defendant’s father, a friend of defendant’s and a former employer of

defendant’s testified on his behalf at the sentencing hearing. All requested that the

trial court grant alternative sentencing.

       The trial court imposed defendant’s sentence at the hearing and additionally

filed extensive findings in a subsequent written order. The trial court determined

that defendant would be sentenced as a Range I, standard offender, and not as an

especially mitigated offender. In determining the length of defendant’s sentence,

the trial court found that no factors were applicable to enhance defendant’s

sentence within Range I. The trial court did find that mitigating factors were

applicable, but did not enumerate those specific factors. 2 The trial court then

sentenced defendant to three (3) years, the minimum for a Class C felony within

Range I.

       In determining whether alternative sentencing would be appropriate, the trial

court noted that defendant had an “excellent” social history, educational history and

no prior convictions. However, the trial court, relying on several pre-1989 cases,

determined that because defendant’s actions resulted in the death of another,

exceptional circumstances must be shown in order to support probation. See State

v. Smith, 622 S.W.2d 588, 590 (Tenn. 1983); State v. Windhorst, 635 S.W.2d 706,

708 (Tenn. Crim. App. 1982); Kilgore v. State, 588 S.W.2d 567, 568 (Tenn. Crim.

App. 1979).     The trial court further found that vehicular homicide by driver

intoxication mandated the application of the “exceptional circumstances” test. The

trial court concluded that defendant had not demonstrated that exceptional

circumstances existed which would require the court to grant alternative sentencing,

and thus, denied alternative sentencing.


       2
          The trial court stated, “[w]e might need to discuss TCA § 40-35-113, mitigating
factors, the defendant has under subsection thirteen put forward, and the Court would accept
those, at least some of them as mitigating factors . . .”

                                             3
       From the trial court’s ruling, defendant brings this appeal.



                     ESPECIALLY MITIGATED OFFENDER



       In his first issue, defendant contends that the trial court erred in sentencing

him as a Range I, standard offender. He argues that because he has no prior

convictions and the trial court found mitigating but no enhancement factors, he

should have been sentenced as an especially mitigated offender.

       Tenn. Code Ann. § 40-35-109(a) provides that a trial court ”may find the

defendant is an especially mitigated offender, if: (1) [t]he defendant has no prior

felony convictions; and (2) [t]he court finds mitigating, but no enhancement factors.”

However, whether a defendant is sentenced as an especially mitigated offender is

a determination that rests within the sound discretion of the trial court. State v.

Hicks, 868 S.W.2d 729, 730-31 (Tenn. Crim. App. 1993); State v. Braden, 867

S.W.2d 750, 762-63 (Tenn. Crim. App. 1993). This provision is not mandatory.

Braden, 867 S.W.2d at 762-63. Indeed, especially mitigated status is reserved for

“instances where the trial judge may desire to depart from even the minimum

sentence for a Range I offender and impose lesser penalties.” Tenn. Code Ann. §

40-35-109, Sentencing Commission Comments.

       Considering the nature, facts and circumstances of the offense, we find that

the trial court did not abuse its discretion in sentencing defendant as a Range I,

standard offender. This issue is without merit.



                          ALTERNATIVE SENTENCING



       Defendant also contends that the trial court erred in denying alternative

sentencing. He asserts that the trial court erroneously applied the “exceptional

circumstances” doctrine to deny probation in this case. He argues that the state did

not overcome the presumption that defendant was a favorable candidate for

alternative sentencing. He further claims that he qualifies for community corrections



                                          4
under the “special needs” provision of Tenn. Code Ann. § 40-35-106(c).

                                         A.

       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). This presumption

is conditioned upon 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.

       Under the Criminal Sentencing Reform Act of 1989, trial judges are

encouraged to use alternatives to incarceration. An especially mitigated or standard

offender convicted of a Class C, D or E felony is presumed to be a favorable

candidate for alternative sentencing options in the absence of evidence to the

contrary. Tenn. Code Ann. § 40-35-102(6).

       In determining if incarceration is appropriate, a trial court may consider the

need to protect society by restraining a defendant having a long history of criminal

conduct, the need to avoid depreciating the seriousness of the offense, whether

confinement is particularly appropriate to effectively deter others likely to commit

                                         5
similar offenses, and whether less restrictive measures have often or recently been

unsuccessfully applied to the defendant. Tenn. Code Ann. § 40-35-103(1); see also

State v. Ashby, 823 S.W.2d at 169.

      Although a defendant may be presumed to be a favorable candidate for

alternative sentencing, the defendant has the burden of establishing suitability for

total probation. State v. Boggs, 932 S.W.2d 467, 477 (Tenn. Crim. App. 1996); see

Tenn. Code Ann. § 40-35-303(b). Even though probation must be automatically

considered, “the defendant is not automatically entitled to probation as a matter of

law.” Tenn. Code Ann. § 40-35-303(b) Sentencing Commission Comments; State

v. Hartley, 818 S.W.2d 370, 373 (Tenn. Crim. App. 1991).

      In determining whether to grant or deny probation, a trial court should

consider the circumstances of the offense, the defendant's criminal record, the

defendant’s social history and present condition, the need for deterrence, and the

best interest of the defendant and the public. State v. Grear, 568 S.W.2d 285, 286

(Tenn. 1978); State v. Boyd, 925 S.W.2d 237, 244 (Tenn. Crim. App. 1995); State

v. Black, 924 S.W.2d 912, 917 (Tenn. Crim. App. 1995).

      There is no mathematical equation to be utilized in determining sentencing

alternatives. Not only should the sentence fit the offense, but it should fit the

offender as well. Tenn. Code Ann. § 40-35-103(2); State v. Boggs, 932 S.W.2d 467

(Tenn. Crim. App. 1996). Indeed, individualized punishment is the essence of

alternative sentencing. State v. Dowdy, 894 S.W.2d 301, 305 (Tenn. Crim. App.

1994). In summary, sentencing must be determined on a case-by-case basis,

tailoring each sentence to that particular defendant based upon the facts of that

case and the circumstances of that defendant. State v. Moss, 727 S.W.2d 229, 235

(Tenn. 1986).

                                        B.

       Initially, defendant contends that the trial court erroneously applied the

“exceptional circumstances” theory to support the denial of probation. In Kilgore v.

State, this Court held that where death of another results from a defendant’s

criminal conduct, the defendant must show that exceptional circumstances exist to



                                         6
support probation. 588 S.W.2d at 568. This case was decided prior to the 1989

Criminal Sentencing Reform Act.

       However, under the 1989 Sentencing Act, a defendant convicted of a Class

C, D or E felony is presumed to be a favorable candidate for alternative sentencing

options in the absence of evidence to the contrary. Tenn. Code Ann. § 40-35-

102(6). There was no similar provision under the 1982 Sentencing Act. At the time

this offense was committed, the legislature classified vehicular homicide as a Class

C felony. 3 Vehicular homicide, by its very nature, involves the death of another as

a result of the defendant’s actions. Therefore, “[t]o apply a different standard solely

because a death is involved ‘would fail to comply with the mandates of the 1989

[Sentencing] Act and would condone inconsistency and unjustified disparity in

sentencing unrelated to the purposes of the Act.’” State v. Bingham, 910 S.W.2d

448, 454-55 (Tenn. Crim. App. 1995) (quoting State v. Hartley, 818 S.W.2d at 374).

The fact that death results cannot, by itself, justify a denial of probation “nor can it

be viewed as sufficient evidence to overcome the presumption” as stated in Tenn.

Code Ann. § 40-35-102(6). State v. Butler, 880 S.W.2d 395, 400-01 (Tenn. Crim.

App. 1994).

       Other panels of this Court have held that the “exceptional circumstances”

doctrine did not survive the 1989 Sentencing Act.              State v. Bradley Joe

Housewright, C.C.A. No. 03C01-9705-CR-00195, Sullivan County (Tenn. Crim. App.

filed December 16, 1997, at Knoxville); State v. McKinzie Monroe Black, C.C.A. No.

01C01-9401-CC-00006, Robertson County (Tenn. Crim. App. filed July 14, 1995,

at Nashville); but see State v. Ramsey, 903 S.W.2d 709, 714 (Tenn. Crim. App.

1995); State v. Roger D. Hipsher, C.C.A. No. 01C01-9111-CC-00332, Hickman

County (Tenn. Crim. App. filed October 8, 1992, at Nashville).

       We, therefore, find that the “exceptional circumstances” theory is not

applicable to offenses occurring after the inception of the 1989 Sentencing Act.

Thus, the trial court erred in relying upon this doctrine to support the denial of


       3
        Under current law, vehicular homicide by intoxication is a Class B felony. See
Tenn. Code Ann. § 39-13-213(b). Therefore, one convicted of this offense is no longer
presumed to be a favorable candidate for alternative sentencing.

                                           7
probation. Our review is, therefore, de novo without a presumption of correctness.

                                         C.

       Nevertheless, under our power of de novo review, we find that a denial of

probation was warranted under the circumstances of this case. Probation may be

denied based solely upon the circumstances surrounding the offense. State v.

Bingham, 910 S.W.2d at 456; State v. Hartley, 818 S.W.2d at 374. However, the

circumstances of the offense as committed 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. Bingham, 910 S.W.2d at 455; State v. Hartley 818 S.W.2d at 374-75.

       Approximately two hours after the accident causing the victim’s death,

defendant’s blood alcohol content registered 0.26%. Defendant testified that he

was aware of the dangers and consequences of driving while under the influence.

Yet, he chose to drive while his blood alcohol level was over two and one-half (2 ½)

times the permissible inference for driving under the influence. See Tenn. Code

Ann. § 55-10-408. We consider these facts to be shocking, reprehensible, offensive

and of an exaggerated degree.

       We acknowledge that defendant has no criminal record and has an

admirable work history and social history. However, we can not overlook that

defendant was 38 years old and held a Ph.D. in chemistry. A person of his age and

education should recognize the implications of consuming an excessive amount of

alcohol and driving on public streets, endangering the lives of others. W hile we

commend defendant’s positive attributes, we find that the circumstances of this

offense outweigh the other factors in favor of probation.        In order to avoid

depreciating the seriousness of the offense, we, therefore, find that the trial court

did not err in denying probation in this case.

                                         D.

       Defendant also argues that the trial court should have placed him in

community corrections. Defendant is ineligible for community corrections under

Tenn. Code Ann. § 40-36-106(a)(3) since vehicular homicide is a crime of violence.


                                         8
See State v. Braden, 867 S.W.2d at 765. However, he contends that he qualifies

for the “special needs” provision of Tenn. Code Ann. § 40-36-106(c). He maintains

that he has been under psychiatric care since 1990, but poses no threat to the

community. He further claims that his depression could best be treated under his

present psychiatrist’s care rather than in a correctional institution.

       The Community Corrections Act establishes a program of community-based

alternatives to incarceration for certain eligible offenders. See Tenn. Code Ann. §

40-36-103. A defendant is eligible for participation in a community corrections

program if the defendant satisfies several minimum eligibility criteria set forth at

Tenn. Code Ann. § 40-36-106(a)(1)-(7). The Act does not provide that all offenders

who meet these requirements are entitled to such relief. State v. Grandberry, 803

S.W.2d 706, 707 (Tenn. Crim. App. 1990). Indeed, Tenn. Code Ann. § 40-36-

106(d) provides that the eligibility criteria shall be interpreted as minimum standards

to guide the court's determination of eligibility of offenders under the Act.

       An offender who does not meet the minimum criteria under Tenn. Code Ann.

§ 40-36-106(a) and is considered unfit for probation due to substance abuse or

mental problems may still be eligible for community corrections under the special

needs provision of Tenn. Code Ann. § 40-36-106(c). See State v. Grigsby, 957

S.W.2d 541, 546 (Tenn. Crim. App. 1997). However, before a defendant may be

sentenced pursuant to Tenn. Code Ann. § 40-36-106(c), he or she must be found

eligible for probation. State v. Grigsby, 957 S.W.2d at 546; State v. Staten, 787

S.W.2d 934, 936 (Tenn. Crim. App. 1989). The trial court must also find that: (1)

the offender has a history of chronic alcohol abuse, drug abuse, or mental health

problems; (2) these factors were reasonably related to and contributed to the

offender's criminal conduct; (3) the identifiable special need(s) are treatable; and (4)

the treatment of the special need(s) could be best served in the community rather

than in a correctional institution. State v. Grigsby, 957 S.W.2d at 546-47; State v.

Boston, 938 S.W.2d 435, 439 (Tenn. Crim. App. 1996).

       At first blush, it would appear that defendant is suited for community

corrections under Tenn. Code Ann. § 40-36-106(c). However, there is no evidence,



                                           9
nor does defendant contend, that his depression reasonably related to and

contributed to his criminal conduct. Defendant’s criminal conduct was caused by

his alcohol use, which defendant contends is merely “social” and “infrequent.”

Because defendant’s mental status did not contribute to his criminal conduct, a

community corrections sentence under Tenn. Code Ann. § 40-36-106(c) would be

inappropriate.



                                  CONCLUSION



       We find that the trial court did not abuse its discretion in sentencing

defendant as a Range I, standard offender. Furthermore, we conclude that the trial

court’s denial of alternative sentencing was not improper under the facts of this

case. Accordingly, the judgment of the trial court is affirmed.




                                                 JERRY L. SMITH, JUDGE

CONCUR:




GARY R. WADE, JUDGE




DAVID H. WELLES, JUDGE




                                        10
