        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                             AT JACKSON

                        DECEMBER 1997 SESSION
                                                     FILED
                                                       April 24, 1998

STATE OF TENNESSEE,          )                       Cecil Crowson, Jr.
                                                     Appellate C ourt Clerk
                             )
           Appellee,         )    C.C.A. No. 02C01-9708-CC-00299
                             )
v.                           )    Tipton County
                             )
RANDAL A. THIES,             )    Hon. Joseph H. Walker, III, Judge
                             )
           Appellant.        )    (DUI - 3d, Driving while License
                             )    Suspended, Canceled or Revoked,
                                  Vehicular Homicide, Reckless
                                  Endangerment)


FOR THE APPELLANT:                FOR THE APPELLEE:

J. THOMAS CALDWELL                JOHN KNOX WALKUP
Attorney at Law                   Attorney General & Reporter
144 Jefferson St.
Ripley, TN 38063                  ELIZABETH T. RYAN
                                  Assistant Attorney General
                                  450 James Robertson Parkway
                                  Nashville, TN 37243-0493

                                  ELIZABETH T. RICE
                                  Dist. Attorney General

                                  WALT FREELAND
                                  Asst. Dist. Attorney General
                                  302 Market St.
                                  Somerville, TN 38068




OPINION FILED: _____________


AFFIRMED


CURWOOD WITT, JUDGE
                                     OPINION

              The defendant, Randal A. Thies, 1 appeals the length and manner of

sentencing imposed upon him as a result of his convictions of third offense driving

under the influence, driving while license suspended, canceled or revoked, vehicular

homicide and reckless endangerment. Thies is presently incarcerated, serving his

effective four and one-half year sentence consecutively to a previous 11 month, 29

day sentence upon which his probation was revoked as a result of the instant

crimes. His sentence was imposed following a jury trial in the Tipton County Circuit

Court. In this appeal, he raises three issues for our review:

       1.     Whether the trial court erred in the imposition of a four
              and one-half year sentence by applying inappropriate
              enhancement factors.

       2.     Whether the trial court erred in failing to impose an
              alternative sentence.

       3.     Whether the trial court erred in imposing the four and
              one-half year sentence consecutive to a suspended
              sentence revoked because of the instant case.

Having reviewed the record, briefs and arguments of the parties, we affirm.



              On February 24, 1996, Randal Thies had twice been convicted of

driving under the influence. His driver's license was on revoked status, although he

had been granted a restricted privilege to drive to and from work. Nevertheless, that

morning Thies drove to a friend's house to work on a truck. He and the friend spent

the day in each other's company, with the friend driving Thies's truck the rest of the

day. In the late afternoon or early evening hours, Thies and the friend purchased

beer, which they took to a party at the trailer home of a friend.



              After consuming some beer, Thies decided to leave the party with two

young women, Clarissa Dawn Fowler and Melissa Pruett. Although he had been



       1
       We use the defendant's name as stated in the indictment,
notwithstanding its contrary appearance elsewhere in the record. Likewise, we
have used the victims' names as they appear in the indictment, even though
spelled inconsistently in the record.

                                          2
drinking and had a revoked license, the defendant drove his truck with Melissa

Pruett seated to his immediate right and Dawn Fowler on the passenger side.2 At

about 10:05 p.m., Covington Police Chief Clifton Deverell heard an engine revving

and within a few seconds saw the defendant's truck disregarding a stop sign and

making a turn. He began following the truck, which he observed was going "very

fast" in a heavily populated residential area of Covington in which the speed limit

was 30 miles per hour. During his pursuit, in which he never got within 300 feet of

the truck, Chief Deverell reached speeds of about 60 miles per hour, yet he did not

catch up to the defendant's truck. Chief Deverell pursued the truck for 30 to 40

seconds until he lost sight of it as it crossed some railroad tracks. Less than a

minute later, he discovered the defendant's truck wrecked about 3/10 mile from

where he had lost sight of it. Both Fowler and Pruett were lying face down on the

roadway. The defendant was spotted walking out of a ditch shortly thereafter.



              Dawn Fowler, seventeen years old, died from the massive injuries she

sustained in the wreck. Melissa Pruett, eighteen years old, was severely injured.

At first in a coma, she was hospitalized for six weeks. Her numerous injuries

included a head injury, a broken femur which required insertion of a metal rod, and

facial lacerations which have resulted in scarring. After she was discharged from

the hospital, she was a patient at a rehabilitation facility in Arkansas which

specializes in treatment of head injuries.       The defendant's injuries were

comparatively minor, consisting primarily of scratches and scrapes and mild soft

tissue swelling of the head. The defendant was treated and released from the local

hospital in a matter of hours.



              The defendant was 22 years old on February 24, 1996. His criminal

record consisted of two prior DUI convictions in 1993 and 1995 and a speeding

conviction in late 1995. He admitted to the presentence officer that he began


       2
       At trial, the defendant claimed Pruett was driving and he was sitting in the
middle when the group left the party. The jury discredited the defendant's
evidence, and that determination has not been challenged on appeal.

                                        3
drinking alcohol when he was 16 years old and continued to drink a six-pack a

week. He is a high school graduate, and at the time of sentencing had been

employed since graduation by World Color Press. His supervisor testified at the

sentencing hearing about his good work record. The defendant was single and had

resided with his parents until he was incarcerated. His father testified he would do

his best to see that his son complied with the terms of the sentence imposed. Thies

also informed the presentence officer that he had been undergoing treatment for

insomnia and depression since March 1996. A family friend testified as a character

witness, stating the defendant was well-mannered and helpful. The defendant took

the stand at sentencing to profess his remorse and willingness to comply with the

terms of the sentence imposed by the trial court.



                After determining the enhancement and mitigating factors to be

applied, the trial court sentenced the defendant as follows:

       Third offense DUI - 11 months, 29 days, 75% release eligibility,
       suspension of driving privileges for 3 years, fine of $1,100.

       Driving while license suspended, canceled or revoked - 6 months,
       75% release eligibility, suspension of driving privileges for 1 year.

       Vehicular homicide - 4 years, 6 months, suspension of driving
       privileges for 4 years.

       Reckless endangerment - 11 months, 29 days, 75% release eligibility.

All four sentences were imposed concurrently to one another but consecutively to

an earlier DUI sentence upon which Thies's probation had been revoked as a result

of this case.



                In determining whether the trial court has properly sentenced an

individual, this court engages in a de novo review of the record with a presumption

that the trial court's determinations were correct. Tenn. Code Ann. § 40-35-401(d)

(1997). 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

our de novo review, we must consider the evidence at sentencing, the presentence


                                         4
report, the sentencing principles, the arguments of counsel, the statements of the

defendant, the nature and characteristics of the offense, any mitigating and

enhancement factors, and the defendant’s amenability to rehabilitation. Tenn. Code

Ann. §§ 40-35-210(b), 40-35-103(5) (1997); Ashby, 823 S.W.2d at 168. On appeal,

the appellant has the burden of showing the sentence imposed is improper. Tenn.

Code Ann. § 40-35-401(d), Sentencing Comm'n Comments (1997); Ashby, 823

S.W.2d at 169.



             In the case at bar, the trial court engaged in thoughtful consideration

of the relevant variables; however, in reaching its sentencing determination, it

erroneously applied some of the enhancement factors. Accordingly, we must

conduct our review unaccompanied by the presumption of correctness.



                                         I

             First, we consider the issue of the length of the defendant's sentences.

The trial court found the presence of the following enhancement factors:

      (1)    The defendant has a previous history of criminal convictions or
             criminal behavior in addition to those necessary to establish
             the appropriate range;

      (3)    The offense involved more than one (1) victim;

      (6)    The personal injuries inflicted upon or the amount of
             damage to property sustained by or taken from the
             victim was particularly great;

      (8)    The defendant has a previous history of unwillingness
             to comply with the conditions of a sentence involving
             release in the community;

      (13)   The felony was committed while on any of the following
             forms of release if such release is from a prior felony
             conviction . . . probation;

      (16)   The crime was committed under circumstances under
             which the potential for bodily injury to a victim was
             great.


Tenn. Code Ann. § 40-35-114(1), (3), (6), (8), (13)(C), (16) (1997). The court

applied factor (3) only to the conviction of vehicular homicide. The court further

found factors (8) and (13) should be considered as only one factor, indicating it

                                         5
weighed them less heavily.



              In mitigation, the court found that the defendant had a good work

history and work ethic. See Tenn. Code Ann. § 40-35-113(13) (1997).



Enhancement Factor (1)

              We begin our review by examination of the enhancement factors

found by the trial court. The defendant concedes the applicability of factor (1), and

we find this factor particularly appropriate in light of the defendant's recent history

of two DUI convictions and a speeding conviction. Additionally, the defendant

admitted he drove to a friend's house on the morning of the wreck, even though his

license was revoked and he was permitted only to drive to and from work. This

constitutes evidence of further criminal activity. Under the circumstances of this

case, factor (1) was entitled to significant weight.



Enhancement Factor (3)

              Factor (3), on the other hand, should not have been applied. As the

state concedes, this factor is inappropriate where, as here, the state has obtained

separate convictions for each of the multiple victims. State v. Williamson, 919

S.W.2d 69, 82 (Tenn. Crim. App. 1995); State v. Makoka, 885 S.W.2d 366, 373

(Tenn. Crim. App. 1994); State v. Lambert, 741 S.W.2d 127, 134 (Tenn. Crim. App.

1987).



Enhancement Factor (6)

              Turning to factor (6), the state offers the concession that this factor is

inappropriate because the victims' personal injuries have already been taken into

account by the statutory definition of vehicular homicide. See Williamson, 919

S.W.2d at 82; Lambert, 741 S.W.2d at 134. We agree with the state that a "killing"

of another under the vehicular homicide statute is unquestionably inclusive of

particularly great bodily injury as contemplated by factor (6). See Tenn. Code Ann.


                                          6
§ 39-13-213 (1997).



              However, we see nothing prohibiting the application of this factor to

the conviction of reckless endangerment.3 The statutory definition of reckless

endangerment proscribes reckless conduct "which places or may place another

person in imminent danger of death or serious bodily injury." See Tenn. Code Ann.

§ 39-13-103(a) (1997). The offense of reckless endangerment may occur even

though a victim does not suffer actual bodily injury. State v. Ramsey, 903 S.W.2d

709, 712 (Tenn. Crim. App. 1995); State v. Baggett, 836 S.W.2d 593 (Tenn. Crim.

App. 1992). Therefore, factor (6) is an appropriate enhancement factor. Accord

State v. Michael Shane Emmert, No. 03C01-9210-CR-00354, slip op. at 7 (Tenn.

Crim. App., Knoxville, Oct. 5, 1993) (factor (6) applied to reckless endangerment

conviction). But cf. State v. Ivory Brown, No. 02C01-9303-CC-00036, slip op. at 16

(Tenn. Crim. App., Jackson, Dec. 1, 1993) (factor (6) inappropriate for sentencing

on reckless endangerment conviction; however, court did not specify whether it

excluded this factor based upon lack of sufficient supporting evidence of record or

inapplicability as a matter of law).



              Additionally, the application of factor (6) is not prohibited as a matter

of law for the defendant's DUI and driving on revoked license convictions. Those

crimes do not include particularly great bodily injury in their statutory definitions.

See Tenn. Code Ann. §§ 55-10-401, 55-10-403, 55-10-504 (1993 and Supp. 1997).

We find that the trial court incorrectly applied this factor to the vehicular homicide

conviction, but not the other three convictions.



Enhancement Factor (8)

       3
         The defendant claims factor (6) is inapplicable because particularly great
injury is an element of the indicted offense of vehicular assault. The defendant
was convicted of the lesser offense of reckless endangerment. The conviction
offense, not the indicted offense, is scrutinitzed for determining applicable
enhancement factors. See, e.g., State v. Dale Nolan, No. 01C01-9511-CC-
00387, slip op. at 33 (Tenn. Crim. App., Nashville, June 26, 1997); State v.
Michael Shane Emmert, No. 03C01-9210-CR-00354, slip op. at 7 (Tenn. Crim.
App., Knoxville, Oct. 5, 1993); Sills v. State, 884 S.W.2d 139, 145 (Tenn. Crim.
App. 1994) (applying rule to 1982 Sentencing Act). Accordingly, we have
considered the elements of the crime of reckless endangerment.

                                          7
              Next, the defendant disputes the application of factor (8), claiming he

has no "previous" history of unwillingness to comply with a non-incarcerative

sentence simply because he committed these offenses while on probation. In

support of his argument he calls our attention to State v. Hayes, 899 S.W.2d 175

(Tenn. Crim. App. 1995), which would support his argument if he had not

overlooked pertinent additional facts. We are persuaded to a contrary result in part

by Thies's own admission that he violated the law on the morning of February 24,

1996 by driving his truck to a friend's house even though his license was revoked.

Additionally, the presentence report reveals that he was granted a partially

suspended sentence for his first conviction of DUI in 1993. Just over two months

into the term of that 11 month, 29 day sentence, he was again arrested for DUI and

ultimately convicted. He was likewise convicted of speeding during the probationary

period imposed for his second DUI conviction. Unlike the defendant in Hayes, Thies

has a "previous" history of unwillingness to comply with the conditions of sentences

involving release into the community. Application of factor (8) was proper.



Enhancement Factor (10)

              The state claims factor (10) should be applied, even though the trial

court did not consider it. With respect to the crime of vehicular homicide, high risk

to human life is generally considered to be inherent within the offense, although

factor (10) may be applied where facts independent of those relied upon to support

the conviction establish risk to human life other than that of the victim. See, e.g.,

State v. Bingham, 910 S.W.2d 448, 452-53 (Tenn. Crim. App. 1995); Lambert, 741

S.W.2d at 134. This is such a case. The evidence at trial revealed that prior to

driving his truck recklessly and causing it to strike a bridge, the defendant drove

through a heavily populated residential area at an excessive rate of speed and

disregarded a stop sign in order to evade the police chief, who himself had to drive

his patrol vehicle at an excessive rate of speed on residential streets in an attempt

to apprehend the defendant. Thus, an individual other than the victim was in the

immediate vicinity and at risk because of the defendant's unlawful actions. Factor



                                         8
(10) is appropriate for the vehicular homicide conviction.



             Application of enhancement factor (10) to the reckless endangerment

conviction is somewhat more problematic. The factor is generally considered to be

encompassed in the definition of reckless endangerment.           State v. Robert

Chapman, No. 02C01-9510-CR-00304, slip op. at 6 (Tenn. Crim. App., Jackson,

Jan. 14, 1997) (citations omitted), perm. app. denied (Tenn. 1997). Tennessee

Code Annotated section 39-13-103(a) proscribes reckless conduct that "places or

may place another person in imminent danger of death or serious bodily injury."

Tenn. Code Ann. § 39-13-103(a) (1997) (emphasis added). As such, reckless

endangerment may be committed when the other "person" is an unidentified person

or persons, or when the person is a specific, named individual. See, e.g., State v.

Wayne L. Hughes, No. 01C01-9502-CC-00033 (Tenn. Crim. App., Nashville, June

20, 1996) (defendant convicted in one county of reckless endangerment of "Trooper

Rick Smith and others" and convicted in another county of reckless endangerment

of "Trooper Robert Beard") (emphasis added), perm. app. denied (Tenn. 1996). An

indictment which charges reckless endangerment, either as the charged offense or

as a lesser offense of the charged offense, may specify whether a specific person,

an unnamed person, or persons in general were endangered.



             In the present case, the reckless endangerment conviction emanated

from the count charging the vehicular assault upon Melissa Pruett. In order for

reckless endangerment to have been a lesser offense of the charged offense, the

"imminent danger of death or serious bodily injury" must have been directed toward

the same person, Melissa Pruett, who allegedly suffered "serious bodily injury"

under section 39-13-106, the vehicular assault statute. Viewed in this light, the

conviction offense does not embrace the endangerment of persons other than

Melissa Pruett, and accordingly, factor (10) does not include elements of the

conviction offense.




                                         9
              We take this opportunity to harmonize our result with that reached in

prior opinions of this court. See Robert Chapman (shooting in crowded arcade

inside popular shopping mall); Wayne L. Hughes (high speed chase in which

numerous motorists and law enforcement officers were placed at risk); State v.

Arnold V. Porter, No. 01C01-9410-CC-00353 (Tenn. Crim. App., Nashville, Jan. 5,

1996) (high speed interstate chase in which there was evidence of risk to numerous

motorists and law enforcement officers); cf. Ivory Brown, slip op. at 16. Notably, the

Wayne L. Hughes and Arnold V. Porter opinions cited above reflect that the

defendants in those cases were convicted of multiple counts of recklessly

endangering law enforcement officers and "others" during high speed vehicular

chases.   In those cases, the exclusion of factor (10) was justified because,

presumably, all of the individuals placed at risk were covered by the convictions.

There were no individuals other than these "victims" to justify the application of

factor (10). In contrast, the Robert Chapman panel did not identify the victim(s) of

the reckless endangerment conviction. However, the relevant indictment may have

charged the defendant with recklessly endangering all of the patrons of the arcade,

and for that reason we do not find that case controlling. The Ivory Brown opinion

does not reveal whether the panel found factor (10) inapplicable to the defendant's

reckless endangerment conviction because it was unsupported by evidence or

because it was an element of the crime.



              Accordingly, we hold that factor (10) applies to Thies's reckless

endangerment conviction, given the separate risk his reckless driving created prior

to the wreck to the police chief and the residents of the heavily populated street

upon which he drove in excess of 30 miles per hour above the speed limit, as those

individuals were not named as victims in the count of the indictment which resulted

in the reckless endangerment conviction.



              Factor (10) is also applicable to Thies's DUI and driving on a revoked

license convictions. It is not duplicative of the elements of those offenses.



                                         10
Enhancement Factor (13)

              The trial court applied factor (13), and neither party has addressed its

propriety on appeal. Because we are engaged in a de novo review of the sentence,

we feel constrained to address it sua sponte. Factor (13) allows for sentence

enhancement where a felony has been committed while the defendant is on release

status from another felony. On February 24, 1996, the defendant was serving a

partially suspended sentence for driving under the influence, which is a Class A

misdemeanor. Tenn. Code Ann. § 55-10-403(m) (Supp. 1997). Thus, factor (13)

should not have been applied. We acknowledge, however, that the trial court only

considered factor (13) in conjunction with factor (8) and assigned them cumulatively

the weight of one factor.



Enhancement Factor (16)

              The final enhancement factor we must consider is (16), which the

defendant claims is inappropriate because it is inherent in vehicular homicide and

vehicular assault charges.4 The state concedes the factor's inapplicability to the

crime of vehicular homicide based upon this court's holding in Bingham, 910

S.W.2d 448. This court has consistently followed Bingham in this regard. See, e.g.,

State v. Jerry Keith Ivey, No. 03C01-9509-CR-00292, slip op. at 6 (Tenn. Crim.

App., Knoxville, Dec. 3, 1996); State v. Williamson, 919 S.W.2d at 82. As such, we

believe the trial court erred in applying this factor to the defendant's vehicular

homicide conviction.



             On the other hand, we cannot say the same for the remaining

convictions. The definition of the crime of reckless endangerment encompasses the

conduct factor (16) addresses. Robert Chapman, slip op. at 6. However, in this

case, Thies, created risk to persons other than the victim, Melissa Pruett. As



      4
       As discussed above in note 3, the relevant crimes for purposes of
sentence enhancement are the conviction crimes, not the indicted crimes.
Therefore, our analysis of the vehicular assault count of the indictment will focus
on the conviction crime of reckless endangerment.

                                         11
discussed above, the defendant's high speed flight from the police chief through

the residential city streets of Covington created great potential for bodily injury to a

victim. Chief Deverell faced great potential for bodily injury, as did the residents of

the heavily populated street on which the chase took place. W e believe, as we

discussed above in the context of factor (10), that factor (16) should be applied

given the evidence the defendant's conduct posed great potential for bodily injury

to individuals other than the victim. Accord State v. Aaron Eckard, No. 01C01-9610-

CC-00429, slip op. at 9 (Tenn. Crim. App., Nashville, Dec. 12, 1997); State v. Sims,

909 S.W.2d 46, 50 (Tenn. Crim. App. 1995).



              As to Thies's convictions of DUI and driving on a revoked license, the

record clearly establishes not only that he drove while intoxicated and while his

driver's license was revoked, but also that he did so in a way which presented great

potential for bodily injury to a victim. Factor (16) applies to these convictions.



Mitigating Factor

              The state asks us to strip Thies of the benefit of the sole mitigating

factor applied by the trial court, good work ethic and work history. We acknowledge

that we have said, "Every citizen in this state is expected to have a stable work

history if the economy permits the citizen to work, the citizen is not disabled, or the

citizen is not independently wealthy." State v. Keel, 882 S.W.2d 410, 423 (Tenn.

Crim. App. 1994). In this case, however, the evidence demonstrates that the

defendant not only has a stable work history, but also that he was prompt and did

a "real good job." We believe a defendant whose performance has surpassed that

which is expected of him is entitled to some measure of mitigation.



              Our de novo review of the enhancement and mitigating factors yields

six applicable enhancement factors and one relevant mitigating factor, with some

of the enhancement factors applying to less than all of the convictions:

       Conviction                   Applicable Enhancement Factors

       Vehicular Homicide                  (1), (8), (10), (13)

       Reckless Endangerment               (1), (6), (8), (10), (13), (16)


                                          12
       DUI, 3d offense                        (1), (6), (8), (10), (13), (16)

       Driving on Revoked License             (1), (6), (8), (10), (13), (16)



              In weighing the enhancement factors against the mitigating factors,

we find factors (1) and (8) deserving of great weight.             The defendant, twice

convicted of DUI, recently convicted of speeding, and without a driver's license,

disregarded the rules of the road once again, this time with tragic results. We offset

these heavily weighted factors and the other enhancement factors with the

moderately weighted mitigating factor, and we find no error in the sentences

imposed by the trial court, although we have followed a different path to that result.



              For the felony conviction of vehicular homicide, the defendant, a

Range I offender, faced 3 to 6 years for this Class C felony. Tenn. Code Ann. § 39-

13-213 (1997); § 40-35-112 (1997). The trial court imposed a 4-1/2 year sentence

for the vehicular homicide conviction, which is the mid-point of the 3 to 6 year range

applicable to the defendant for that crime. We agree that the applicable factors

support, at a minimum, a mid-range sentence.



              With    respect    to   the     misdemeanor       conviction      of   reckless

endangerment, the defendant faced a sentence of up to 11 months and 29 days,

with release eligibility between 0% and 75%. See Tenn. Code Ann. §§ 40-35-

111(e)(1), 40-35-302(d) (1997).       Applying factors (1) and (8) heavily, finding

additional factors applicable to this conviction which were not available for the

vehicular homicide conviction, and finding these factors heavily outweigh the sole

mitigating factor, we find the maximum 11 month, 29 day sentence at 75% release

eligibility appropriate for this defendant.



              The driving on a revoked license conviction carried a sentence of up

to six months, with a minimum of 2 days confinement. See Tenn. Code Ann. §§ 55-

50-504(a)(1) (1993), 40-35-111 (1997). Again, this sentence deserves substantial



                                            13
enhancement given the defendant's history of prior criminal conduct, and we find

the fact that those prior offenses were committed behind the wheel of a motor

vehicle particularly relevant to this crime. The trial court imposed a sentence of the

maximum length of 6 months, with 75% release eligibility. Though reviewing the

matter de novo, we find no error in the sentence imposed below.



              Finally, on the third offense DUI conviction, Thies faced incarceration

for up to 11 months and 29 days. See Tenn. Code Ann. § 40-35-302(d) (1997);

State v. Palmer, 902 S.W.2d 391 (Tenn. 1995). The trial court imposed the

maximum sentence but allowed the defendant 75% release eligibility. Certainly this

defendant is deserving of a maximum sentence for this offense, given particularly

enhancement factors (1) and (8). The defendant justly deserves no less than the

sentence imposed by the trial court.



              Accordingly, we find no error in the trial court's length of sentence

determinations.



                                           II

              We turn next to the question of alternative sentencing. Again, we

conduct a de novo review, unaccompanied by the presumption of correctness. The

defendant, a Range I offender convicted of crimes of the Class C felony level and

below, is presumed to be a favorable candidate for alternative sentencing. See

Tenn. Code Ann. § 40-35-102(6) (1997). Moreover, he is eligible for probation. See

Tenn. Code Ann. § 40-35-303(a) (1997).



              We find Code section 40-35-103(1)(C) particularly applicable to the

case at bar. From the facts of this case, it is patent that "[m]easures less restrictive

than confinement have frequently or recently been applied unsuccessfully to the

defendant." Tenn. Code Ann. § 40-35-103(1)(C) (1997). The defendant was on

probation from his second DUI conviction when he chose to drive, unlicensed, while



                                          14
under the influence of alcohol. The defendant was allowed leniency on his second

DUI conviction, yet he disregarded the prosecutor's and the court's leniency with

him and committed the same crime for a third time. He had also been convicted of

speeding during this same probationary period, and excessive speed was involved

in the fatal wreck that brings him before this court. Simply put, this defendant is one

who, despite past leniency and opportunities for rehabilitation, has shown neither

respect for the prior reprieves from incarceration nor efforts toward conforming his

conduct to the dictates of the law. Having no regard for measures less restrictive

than confinement, the defendant has through his own actions rebutted the

presumption of his favorable candidacy for alternative sentencing.



              There is no error in disallowing any form of alternative sentencing.



                                          III

              In his last issue, the defendant complains that the trial court imposed

his convictions in this case concurrently to one another but consecutively to the

revoked second offense DUI conviction he was required to serve when his probation

was revoked for that prior offense.5 Thies argues that his having to serve time for

the prior offense coupled with the consecutive sentences from this case is too harsh

because it effectively punishes him twice for the same offense.6



              Because we are reviewing the defendant's sentence de novo

unaccompanied by the presumption of correctness, we observe that the defendant

fits two of the consecutive sentencing categories. First, as found by the trial court,

       5
        We perceive some of the defendant's argument to be directed to what he
believes is injustice in the revocation of probation for the prior conviction. To the
extent that the defendant complains about the revocation itself, that issue is
beyond the scope of this appeal.
       6
        The record reflects on the judgment forms that the DUI and vehicular
homicide sentences were imposed consecutively to the prior DUI conviction;
however, the sentencing order signed by the court and the court's comments in
the transcript of the sentencing hearing reflect that only the vehicular homicide
conviction was imposed consecutively to the prior DUI conviction.



                                          15
the defendant committed this offense while on probation.7 See Tenn. Code Ann.

§ 40-35-115(b)(6) (1997). That the defendant committed his crimes while on

probation is not contested. Additionally, we find the defendant is a dangerous

offender.   See Tenn. Code Ann. § 40-35-115(b)(4) (1997). This defendant's

conduct fits hand-in-glove with the statutory criteria of "behavior indicat[ing] 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)(4). The evidence

shows that the defendant operated a motor vehicle with a blood alcohol

concentration well over the legal limit and without a valid driver's license, causing

death and serious bodily injury. This took place less than eight months into his

second probationary sentence for DUI, with the second offense having taken place

just over two months into the first probationary sentence. Accord State v. Penelope

R. Karnes, No. 01C01-9606-CR-00249, slip op. at 8-9 (Tenn. Crim. App., Nashville,

May 21, 1997) (two previous DUI convictions and a previous driving on revoked

license conviction); State v. Anthony Raymond Bell, No. 03C01-9503-CR-00070,

slip op. at 7-8 (Tenn. Crim. App., Knoxville, Mar. 11, 1996) (second DUI offense

committed while on probation from earlier DUI conviction), perm. app. denied (Tenn.

1996); State v. Wilkerson, 905 S.W.2d 933 (Tenn. 1995) (DUI offense only two

months after previous DUI offense).



              Further, we find that the aggregate sentence imposed reasonably

relates to the severity of the offense, is necessary to protect the public from further

criminal activity by the defendant, and is consistent with the principles of the


       7
         There are two paths by which a defendant may receive consecutive
sentencing for past and present convictions. Code section 40-35-310 empowers
the trial court, upon revocation of a suspended sentence due to criminal conduct
during a period of probation which has resulted in a conviction, to impose the
revoked probationary sentence consecutively to the conviction arising from the
defendant's conduct during the probationary period. Tenn. Code Ann. § 40-35-
310 (1997). Further, upon sentencing a defendant for a conviction resulting from
conduct occurring during a period of probation for a prior crime, the trial court
may use the defendant's status as a probationer at the time of the crime as a
basis for imposing consecutive sentencing. Tenn. Code Ann. § 40-35-115(b)(6)
(1997). The proceeding before us is an appeal of sentencing, not revocation of
probation. Thus, consecutive sentencing, if sustainable on the basis of the
defendant's probationary status, must be based upon section 40-35-115(b)(6).

                                           16
Sentencing Act.     Wilkerson, 905 S.W.2d 933.         A more lengthy sentence is

appropriate for this defendant who has repeated the same unlawful conduct on

multiple occasions and who took the life of a young woman and seriously injured

another on his most recent repetition. The defendant also appears to have a

problem with alcohol. He admitted to the presentence officer that he continued,

even after committing these offenses, to drink the same amount of alcohol weekly

that he has been drinking since age sixteen. The public needs to be protected from

further criminal activity that may result from the defendant's abuse of alcohol.

Accord Anthony Raymond Bell, slip op. at 8. His status as a repeat offender is

illustrative of the fact that lesser terms of punishment have not served to curtail his

conduct. Consecutive sentencing is consistent with the principles of the Sentencing

Act. The defendant has been given the benefit of less lengthy and less restrictive

terms of punishment in the past, yet he has failed to live within the bounds of the

law. See Tenn. Code Ann. § 40-35-103(5) (1997) ("The potential or lack of

potential for rehabilitation or treatment of defendant should be considered in

determining the sentence alternative or length of a term to be imposed."). We find

no error in the trial court's imposition of consecutive sentencing.



               In summary, we find no reversible error and affirm the judgment of the

trial court.


                                                  ____________________________
                                                  CURWOOD WITT, JUDGE

CONCUR:



______________________________
JOE B. JONES, PRESIDING JUDGE



_______________________________
JERRY L. SMITH, JUDGE




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