        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                             Assigned on Briefs July 26, 2000

            STATE OF TENNESSEE v. ROBERT HALL WAYMAN

                 Direct Appeal from the Criminal Court for Loudon County
                            No. 9431 E. Eugene Eblen, Judge



                                No. E1999-02042-CCA-R3-CD
                                        April 9, 2001

The defendant pled guilty to reckless vehicular homicide, simple possession of marijuana, and sale
of a Schedule VI controlled substance. The trial court sentenced the defendant to four years
incarceration in the Tennessee Department of Correction (DOC), and the defendant appeals from this
sentence, requesting probation. We affirm the sentence of incarceration from the trial court.

     Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

JOHN EVERETT WILLIAMS , J., delivered the opinion of the court, in which JOSEPH M. TIPTON and
ROBERT W. WEDEMEYER , JJ., joined.

Joe H. Walker, Public Defender; Alfred Lee Hathcock, Jr., Assistant Public Defender; and Rex A.
Dale, Lenoir City, Tennessee, for the appellant, Robert Hall Wayman.

Paul G. Summers, Attorney General & Reporter; Clinton J. Morgan, Counsel for the State; J. Scott
McCluen, District Attorney General; and Frank A. Harvey, Assistant District Attorney, for the
appellee, State of Tennessee.


                                           OPINION

        The defendant, Robert Hall Wayman, pled guilty in the Loudon County Criminal Court to
charges of reckless vehicular homicide, simple possession of marijuana, and sale of a Schedule VI
controlled substance. The trial court imposed a four-year sentence, per the agreement between the
parties, and after a sentencing hearing imposed incarceration. From this sentence of incarceration,
the defendant appeals, requesting probation. After careful review, we affirm the sentence.

                                          Background

       In April 1997, the Loudon County grand jury indicted the defendant on a seven-count
indictment that contained charges of reckless vehicular homicide and simple possession of a
Schedule VI controlled substance, marijuana. Also in that month, the grand jury returned a two-count
indictment against the defendant that included a Class E felony count of sale of a Schedule VI
controlled substance. On September 9, 1999, the trial court accepted negotiated plea agreements by
which all but these specified charges were dismissed. Therefore, the defendant pled guilty as a
Range I standard offender to:
        (1) vehicular homicide by recklessness, a Class C felony, at three years;
        (2) simple possession of marijuana, a Class A misdemeanor, at eleven months and
            twenty-nine days; and
        (3) sale of a Schedule VI controlled substance, a Class E felony, at one year.

        For these convictions, the State recommended that the first two sentences run concurrently
with each other and the third sentence run consecutively to the prior two, for an effective sentence
of four years. These pleas were entered without an agreement as to the manner of service. At the
sentencing hearing in December 1999, the trial court sentenced the defendant to four years in the
DOC.

                                             Analysis

       The defendant argues that the sentence was improper in that:
       (a) it was not imposed in accordance with the Criminal Sentencing Reform Act of
           1989, consequently removing the presumption of correctness from our de novo
           appellate review; and
       (b) enhancing and mitigating factors were not weighed properly and the sentence is
           excessive under the considerations prescribed by Tennessee Code Annotated
           section 40-35-103.

        This Court’s review of the sentence imposed by the trial court is de novo with a presumption
of correctness. See 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. See 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. See 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. See 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



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        (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. See State v. Lavender, 967 S.W.2d 803, 806 (Tenn. 1998); State v. Fletcher, 805 S.W.2d 785,
788 (Tenn. Crim. App. 1991). However, if such factors do exist, a trial court should start at the
minimum sentence, enhance the minimum sentence within the range for enhancement factors and
then reduce the sentence within the range for the mitigating factors. See Tenn. Code Ann. § 40-35-
210(e). No particular weight for each 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. See 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 also Tenn. Code Ann. § 40-35-
210 Sentencing Commission Comments. Nevertheless, should there be no mitigating factors, but
enhancement factors are present, a trial court may set the sentence above the minimum within the
range. See Tenn. Code Ann. § 40-35-210(d); Lavender, 967 S.W.2d at 806; Manning v. State, 883
S.W.2d 635, 638 (Tenn. Crim. App. 1994).

        If our review reflects that the trial court followed the statutory sentencing procedure, imposed
a lawful sentence after giving due consideration and proper weight to the factors and principles set
out under sentencing law, and the trial court’s findings of fact are adequately supported by the
record, then we may not modify the sentence even if we would have preferred a different result. See
Fletcher, 805 S.W.2d at 789.

         In the instant case, the trial court’s conclusions and findings are as follows: “The Court feels
this is a proper case for incarceration, and makes recommendations for the Special Needs Facility
with the penitentiary.” This finding does not indicate that the trial court weighed the considerations
mandated by the Tennessee Sentencing Reform Act and does not indicate the court’s specific factual
findings garnered from any record from the plea agreement or from the sentencing hearings.
Therefore, our review is de novo.

        The record indicates that both parties agreed to the length of the sentence as part of the
defendant’s guilty plea. The only remaining matter, once the trial court accepted and imposed the
recommended length of sentence, was the manner of service. The defendant challenges that manner
of service, asserting that it was excessive under Tennessee Code Annotated section 40-35-103.

                                           De Novo Review

       At the onset, we acknowledge that the defendant pled guilty to three offenses, all of which
are presumed to be favorable for alternative sentencing options in the absence of evidence to the
contrary. See Tenn. Code Ann. § 40-35-102(6).



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       From our review of the record submitted, we note the following criminal history:
       (1) conviction on 11/15/85 for driving with a revoked license;
       (2) convictions on 9/21/85 for driving with revoked license, possession of marijuana;
       (3) conviction on 1/18/83 for driving under the influence of an intoxicant;
       (4) conviction on 1/18/82 for driving under the influence of an intoxicant and driving
           on revoked license; and
       (5) conviction on 7/23/80 for driving under the influence of an intoxicant.
Further, we note that this defendant was arrested and pled guilty to sale of a Schedule VI controlled
substance, and this offense was committed while he was on bond for reckless vehicular homicide
and other charges.

         Though this case involves a tragic and unfortunate death, such does not relieve a sentencing
court from following the statutory guidelines. Death occurring from the offense does not in and of
itself preclude alternative sentencing. See State v. Bingham, 910 S.W.2d 448, 454-55 (Tenn. Crim.
App. 1995) (holding that death resulting from actions constituting reckless vehicular homicide does
not bar an alternative sentence).

        This defendant’s record “evinces a clear disregard for the laws and morals of society,” and
thus he is not presumed a favorable candidate for alternative sentencing. See Tenn. Code Ann. §
40-35-102(5)-(6). However, the sentencing court must still consider an alternative sentence.

        We have reviewed the entire record and the sentence de novo in this cause and see no need
to alter the sentence imposed by the trial court. In the instant case, the defendant offers no
persuasive argument for alternative sentencing. Although he apparently suffers from severe physical
limitation, such conditions do not merit alternative sentencing, and we agree with the trial court’s
recommendation that the defendant be placed in the Special Needs Facility in DOC.

                                            Conclusion

       We affirm the sentence as imposed by the trial court.




                                                      ___________________________________
                                                        JOHN EVERETT WILLIAMS, JUDGE




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