         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                          Assigned on Briefs December 18, 2001

                STATE OF TENNESSEE v. JAMES LEE PARTON

                   Direct Appeal from the Circuit Court for Sevier County
                            No. 8158 Richard R. Vance, Judge



                     No. E2001-00835-CCA-R3-CD             Filed April 9, 2002


Defendant pled guilty to one count of aggravated vehicular homicide, a Class A felony, and two
counts of vehicular assault, a Class D felony. Defendant was ordered to serve consecutive sentences
of twenty-four years for aggravated vehicular homicide, and three years for each count of vehicular
assault, for an effective sentence of thirty years. Defendant challenges his sentence, raising the
following three issues on appeal: (1) whether the trial court erred by refusing to allow mitigation for
Defendant’s severe, debilitating alcoholism; (2) whether the trial court erred by imposing the near-
maximum sentence on each conviction; and (3) whether the trial court erred by ordering all three
sentences to be served consecutively. After a thorough review of the record, we affirm the judgment
of the trial court.

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

THOMAS T. WOODALL , J., delivered the opinion of the court, in which JOSEPH M. TIPTON, and
ROBERT W. WEDEMEYER , JJ., joined.

Edward C. Miller, District Public Defender; and Susanne Bales, Assistant Public Defender,
Dandridge, Tennessee, for the appellant, James Lee Parton.

Paul G. Summers, Attorney General and Reporter; Thomas E. Williams, III, Assistant Attorney
General; Al C. Schmutzer, Jr., District Attorney General; and Charles E. Atchley, Jr., Assistant
District Attorney General, for the appellee, State of Tennessee.

                                             OPINION

                                         BACKGROUND

       On May 16, 2000, at approximately 4:30 p.m., Ray Reynolds and his wife Patricia Reynolds
were traveling with their son, Casey, to a little league baseball game. Their car, driven by Mr.
Reynolds, was traveling north along Highway 416, also known as Pittman Center Road. Patricia
Reynolds was in the front passenger seat, and their son Casey was in the rear. As the Reynolds
approached a curve in the road known as Mitchell’s Bottom, the couple noticed Defendant’s truck
traveling south on Pittman Center Road. Mrs. Reynolds testified that she remembered Defendant’s
vehicle because as it rounded Mitchell’s Bottom, the rear wheels “slid off the road.” Then,
Defendant’s truck veered into their lane of traffic and collided head-on with their car. Mrs. Reynolds
testified that after the impact, she was temporarily rendered unconscious. When she regained
consciousness, she looked over and saw her husband in a pool of blood and “in very bad shape.”
Casey, who was also conscious, witnessed his father’s condition. Ray Reynolds died before
emergency personnel arrived, and Patricia and Casey Reynolds were severely injured. After the
accident, Casey was hospitalized for approximately five to seven days because of a torn bowel. Mrs.
Reynolds suffered a broken elbow and a broken wrist, and her knuckles were crushed by the impact.
Mrs. Reynolds testified that she still experiences constant pain from her injuries and has not regained
much use of her arm. She was also in rehabilitation for three months. Mrs. Reynolds further
testified that she had been married to Ray Reynolds for sixteen years and that his death “devastated
[her] life.” She requested that the court impose the maximum possible sentence of thirty-three years.

       Trooper William Fox of the Highway Patrol investigated the accident scene. A blood test
revealed that at the time of the accident, Defendant’s blood-alcohol level was .31. Inside the
Defendant’s vehicle, he discovered one partially-filled beer can. He also found two empty beer cans
alongside a beer cooler that was thrown out of the back of Defendant’s truck.

        Jim Parton, Defendant’s father, testified on his son’s behalf. Mr. Parton testified that he
noticed his son’s alcohol problem at the age of fifteen, and that his addiction to alcohol had grown
progressively worse. Mr. Parton testified that when his son was not drinking, he was a loving and
caring person who was faithful to his church and had a “strong faith.” He testified that his son had
made many unsuccessful attempts to overcome his addiction in the past, and had been through four
rehabilitation programs and a halfway house. He further stated that his son was scheduled to leave
for a rehabilitation program in Alabama, which was to begin on May 17, 2001, the day after the
accident. He also stated that his son had been very remorseful over Mr. Reynold’s death.

       Also testifying on Defendant’s behalf were Rev. Clyde Martin, Defendant’s pastor, and
Penny Kassinger, one of Defendant’s long-time friends. Both witnesses testified positively to
Defendant’s good character when he was not consuming alcohol, and of Defendant’s repeated
attempts to overcome his addiction. Ms. Kassinger also testified that Defendant stated “he wished
he could give his life in exchange for Mr. Reynolds.”

        Leslie Parton, Defendant’s daughter, also testified of how Defendant was a good father and
a loving grandfather. She testified that when Defendant learned that Ray Reynolds had died, he
stated, “pray that I die because I don’t want to live knowing that I killed somebody.” The defense
also introduced evidence of Defendant’s medical history, and his severe alcoholism.




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        Although he did not testify, at the close of the evidence, Mr. Parton made the following
statement in open court: “To the Reynolds family, especially Patricia Reynolds and her son, I’m
sorry. I never intentionally meant to hurt anyone and if I could change things I would.”

                                            ANALYSIS

        When the defendant challenges the length, range, or manner of service of a sentence, this
Court conducts a de novo review of the record with a presumption that the determinations made by
the sentencing court were correct. See Tenn. Code Ann. §§ 40-35-401(d), -402(d) (1997).
"However, the presumption of correctness which accompanies the trial court's action 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 review, this court must consider (a) all the evidence at trial and the sentencing
hearing, (b) the presentence report, (c) the sentencing principles, (d) the arguments of counsel, (e)
the nature and characteristics of the offenses, (f) any statutory mitigating and enhancement factors,
(g) any statement that the Defendant made on his own behalf, and (h) the defendant’s potential for
rehabilitation. See Tenn. Code Ann. §§ 40-35-102, -103, -210(b) (1997). The burden of showing
that a sentence was improper is upon the appealing party. See Tenn. Code Ann. § 40-35-401(d),
Sentencing Commission Comments. Because the record in this case indicates that the trial court
properly considered the sentencing principles and all relevant facts and circumstances, our review
is de novo with a presumption of correctness.

I.     Mitigating Factor

        In his first issue, Defendant argues that the trial court erred by refusing to consider his
“debilitating alcoholism” in mitigation. Specifically, Defendant contends that his alcoholism was
a “mental condition that reduced his culpability for the offense . . . [and] his addiction was so
overwhelming that as to render the consumption of alcohol involuntary.” See Tenn. Code Ann. §
40-35-113(8) (1997). We disagree.

        Tennessee Code Annotated section 40-35-113(8), states that the court may mitigate a
defendant’s sentence upon proof that at the time of the offense, “the defendant was suffering from
a mental or physical condition that significantly reduced the defendant’s culpability for the offense;
however, the voluntary use of intoxicants does not fall within the purview of this factor.” Therefore,
Defendant’s alcohol addiction, and voluntary intoxication, was not a mental or physical condition
that reduced his culpability under section 40-35-113(8). See State v. Black, 924 S.W.2d 912, 917
(Tenn. Crim. App. 1995). Defendant is not entitled to relief on this issue.

II.    Imposition of Sentence

       Next, Defendant argues that the trial court erred by imposing the near-maximum sentence.
Specifically, he contends that the trial court failed to give adequate weight to the following


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mitigating factors: (1) his mental condition, i.e., alcoholism, and (2) his genuine remorse. We
disagree.

        In sentencing, if no enhancement or mitigating factors exist, the presumptive sentence for
Class B, C, D, or E felonies shall be the minimum sentence in the range, and the presumptive
sentence for a Class A felony is the midpoint of the range. See Tenn. Code Ann. § 40-35-210(c)
(1997). Where one or more enhancement factors apply but no mitigating factors exist, the trial court
may sentence above the presumptive sentence, but still within the range. See Tenn. Code Ann. §
40-35-210(d) (1997). Should both enhancement and mitigating factors exist, the trial court must
begin sentencing at the presumptive sentence (i.e., the midpoint of the range for Class A felonies and
the minimum sentence in the range for Class B, C, D, and E felonies), enhance the sentence within
the range as appropriate for the enhancement factors and then reduce the sentence within the range
as appropriate for the mitigating factors. See id. at § 40-35-210(e) (1997). To facilitate meaningful
review, a trial court’s final sentencing decision must “identify the mitigating and enhancement
factors found, state the specific facts supporting each enhancement factor found, and articulate how
the mitigating and enhancement factors have been evaluated and balanced in determining the
sentence.” State v. Jones, 883 S.W.2d 597, 599-600 (Tenn. 1994). If the trial court's findings of fact
are adequately supported by the record, this court may not modify the sentence even if it would have
preferred a different result. See State v. Fletcher, 805 S.W.2d 785 (Tenn. Crim. App. 1991).

        Defendant was convicted of the offenses of aggravated vehicular homicide, a Class A felony,
and two counts of vehicular assault, a Class D felony. Tenn. Code Ann. §§ 39-13-218, 39-13-106
(1997). Defendant was a Range I offender. Under Tennessee law, the applicable range for a Range
I, standard offender is fifteen to twenty years for a Class A felony, and two to four years for a Class
D felony. Tenn. Code Ann. § 40-35-112(a)(1), (4) (1997). According to the statute, the trial court
began sentencing at the presumptive sentence of twenty years for the aggravated vehicular homicide,
and two years for each count of vehicular assault. See Tenn. Code Ann. § 40-35-210(e). Then, the
trial court enhanced within the range as appropriate for the enhancement factors, and then reduced
the sentences based on the mitigating factors. See id. Considering the foregoing, Defendant was
sentenced to twenty-four years for aggravated vehicular homicide and three years for each of the two
counts of vehicular assault.

       With respect to the presence of mitigating factors, we agree with the trial court’s rejection
of Defendant’s alcoholism as a mitigating factor that reduced his culpability. See Tenn. Code Ann.
§ 40-35-113(8); State v. Black, 924 S.W.2d at 917. The record further reveals that the trial court
considered Defendant’s remorse, and other factors, in mitigation:

       The Court does find that based upon the testimony, the evidence presented that this
       defendant is genuinely remorseful. He is sorry, not only for what he’s done to the
       Reynolds family but what he’s done to his own family by his own conduct. He is in
       very poor health. He had injuries in this collision. He has very poor health as a
       result of years of alcohol abuse. He had previously borne good character as


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       expressed by the witnesses and things that he has done. He’s been a caring father to
       his children, a caring grandfather to his grandchildren. Those are all to his credit.

        Although not directly challenged by Defendant, our de novo review includes the trial court's
application of enhancement factors (1) and (8) to determine whether Defendant’s “near-maximum
sentence” was excessive. Defendant’s sentence was enhanced upon a finding that: (1) Defendant
had a previous history of criminal behavior or convictions in addition to those necessary to establish
the appropriate sentencing range, and (8) Defendant had a previous history of unwillingness to
comply with the conditions of a sentence involving release into the community. See Tenn. Code
Ann. § 40-35-114(1), (8) (1997). The court further stated that each factor alone would justify
imposition of the maximum sentence, and that Defendant’s extensive criminal history was the major
sentencing factor.

        From a review of the records, we find that Defendant’s sentence was properly enhanced
based upon factors (1) and (8). In regards to enhancement factor (1), the presentence report revealed
that Defendant had an extensive criminal history that spanned thirteen years. Although Defendant
had not previously been convicted of any felonies, he was convicted of misdemeanors including
disorderly conduct, driving on a revoked license, and violating the bad check law. The record also
reflects that Defendant had been convicted five times for driving under the influence and seven times
for public intoxication. Furthermore, the trial court also found that enhancement factor eight (8) was
applicable in that Defendant committed most of the prior offenses while on probation for other
offenses.

        Essentially, Defendant's argument that the trial court erred by imposing the near-maximum
sentence for each conviction is an assertion that the trial court erroneously afforded too much weight
to the enhancement factors and too little weight to the mitigating factors. However, it is well-settled
that the weight to be afforded sentencing factors is left to the trial court's discretion so long as it
complies with the purposes and principles of the 1989 Sentencing Act and its findings are adequately
supported by the record. See Tenn. Code Ann. § 40-35-210, Sentencing Commission Comments;
State v. Hayes, 899 S.W.2d 175, 185 (Tenn. Crim. App. 1995). We find that the trial court’s
decision meets this standard. Therefore, we conclude that the lengths of the sentences in this case
were entirely appropriate. Defendant is not entitled to relief on this issue.

III.   Consecutive Sentencing

        Finally, Defendant challenges the trial court’s imposition of consecutive sentences.
Tennessee Code Annotated section 40-35-115 provides certain criteria which authorize consecutive
sentencing. The trial court may order consecutive sentencing if a defendant is charged with more
than one criminal offense and if it finds, by a preponderance of the evidence, that one or more of the
required statutory criteria exist. See Tenn. Code Ann. § 40-35-115, Sentencing Commission
Comments (1997). These criteria include a finding by the court that the defendant is a "dangerous
offender." Id. at § 40-35-115(b)(4). A dangerous offender is defined as one "whose behavior
indicates little or no regard for human life, and no hesitation about committing a crime in which the

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risk to human life is high." Id. The dangerous offender classification, as has been previously
observed, is subjective in nature. See State v. Howell, 34 S.W.3d 484, 515 (Tenn. Crim. App. 2000).

         We agree with the trial court’s determination that Defendant is a dangerous offender with
little regard for human life and no hesitation about committing a crime in which the risk to human
life is high. The record reveals that at the time of the accident, Defendant was operating a motor
vehicle, on a public highway, with a blood alcohol content that was three times above the level
where intoxication can be inferred. See Tenn. Code Ann. §§ 55-10-401, -408. This act, coupled
with Defendant’s lengthy history of drinking and driving, shows that Defendant has little or no
regard for human life and no hesitation to commit a crime in which the risk to human life is high.
Also, Defendant was scheduled to be admitted to an inpatient treatment program for his alcoholism
on the day after the fatal wreck. Defendant’s criminal conduct knowing that he was one day away
from “getting help” is further evidence that he is a “dangerous offender.” When the trial court uses
the “dangerous offender” factor, it must also conclude that consecutive sentences (1) reasonably
relate to the severity of the offenses committed; (2) serve to protect the public from further serious
criminal conduct by the offender; and (3) are congruent with general sentencing principles. State
v. Wilkerson, 905 S.W.2d 933, 939 (Tenn. 1995); State v. Lane, 3 S.W.3d 456, 461 (Tenn. 1999).
We find that an aggregate thirty-year sentence bears a reasonable relationship to the seriousness of
the offenses, in which a life was lost and serious bodily injuries suffered, is necessary to protect the
public from future criminal acts by the Defendant, and is congruent with general sentencing
principles. See Wilkerson, 905 S.W.2d at 939. Thus, consecutive sentencing was appropriate under
Tennessee Code Annotated section 40-35-115(b).

                                          CONCLUSION

        We affirm the judgment of the trial court.

                                                        ___________________________________
                                                        THOMAS T. WOODALL, JUDGE




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