         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                                   October 28, 2003 Session

                STATE OF TENNESSEE v. MATTHEW STALCUP

                       Appeal from the Criminal Court for Union County
                            No. 2171    E. Shayne Sexton, Judge



                                 No. E2003-00481-CCA-R3-CD
                                        April 23, 2004

The defendant, Matthew Stalcup, pled guilty in the Union County Criminal Court to reckless
vehicular homicide, a Class C felony, and driving under the influence (DUI), a Class A
misdemeanor. Pursuant to the plea agreement, the trial court sentenced him to eleven months,
twenty-nine days at seventy-five percent for the DUI conviction and prohibited him from driving for
one year. After a sentencing hearing for the reckless vehicular homicide conviction, the trial court
sentenced him to five years to be served as one year in jail and the remainder suspended upon his
serving ten years on supervised probation. The trial court also prohibited him from driving for ten
years, ordered that the five-year sentence be served consecutively to the eleven-month, twenty-nine-
day sentence, and ordered that the ten-year driving prohibition be served concurrently to the one-year
prohibition. The defendant appeals his sentence for reckless vehicular homicide, claiming (1) that
the trial court erred by denying his request for judicial diversion, (2) that the trial court erred by
denying his request for full probation, (3) that the trial court improperly weighed enhancement and
mitigating factors, (4) that the trial court erred by ordering that he serve the five-year sentence
consecutively to the eleven-month, twenty-nine-day sentence, and (5) that the trial court’s prohibiting
him from driving for ten years is excessive. We affirm the sentence, except we conclude that the
defendant should be prohibited from driving for five years.

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

JOSEPH M. TIPTON , J., delivered the opinion of the court, in which GARY R. WADE, P.J., and ALAN
E. GLENN , J., joined.

Donald A. Bosch and Lisa B. Morton, Knoxville, Tennessee, for the appellant, Matthew Stalcup.

Paul G. Summers, Attorney General and Reporter; John H. Bledsoe, Assistant Attorney General;
William Paul Phillips, District Attorney General; and John W. Galloway, Jr., Deputy District
Attorney General, for the appellee, State of Tennessee.
                                              OPINION

         This case relates to a car wreck that resulted in Melba Shoffner’s death. At the guilty plea
hearing, the state relied on evidence presented at an earlier pretrial hearing. A transcript of the
pretrial hearing reveals that on July 1, 2001, the defendant was driving south in the northbound lane
on Highway 33 in Union County. The defendant’s car hit the victim’s car, which was traveling
north. The victim died at the scene, and the defendant suffered multiple injuries. A police officer
investigating the crash smelled alcohol in the defendant’s car, and the defendant told a paramedic
that he had consumed six or seven beers. The defendant pled guilty to reckless vehicular homicide
and DUI and, pursuant to the plea agreement, the trial court sentenced him for the DUI conviction
to eleven months, twenty-nine days at seventy-five percent; ordered that he pay a three hundred fifty
dollar fine and costs for the state’s expert; and prohibited him from driving for one year. The
defendant’s sentence for the reckless vehicular homicide conviction was to be determined after a
sentencing hearing.

         At the sentencing hearing, Officer Mark Miller from the Bradley County Sheriff’s
Department testified that on November 13, 1997, he received a dispatch about a reckless driver on
Interstate 75. When he arrived at the scene, he saw a car stopped in the grassy median. The
defendant was sitting in the driver’s seat and slumped over. Officer Miller opened the car door, put
the car in park, and turned off the engine. He gave the defendant field sobriety tests and arrested him
for DUI. On cross-examination, he said that the defendant was cooperative and that the charge
against the defendant later was reduced to reckless driving.

         The defendant testified that he was twenty-three years old, married, had a three-year-old son,
and currently worked at Cendant Corporation as a hotel reservation and sales agent. He said he was
a full-time student at Pellissippi State Technical Community College and had a B average. He said
that on June 30, 2001, he played golf that morning and went to the lake with some friends about 5:30
p.m. He said that he drank six or seven beers and that he began driving home about midnight. He
said he remembered driving on Maynardville Highway, turning right, and paramedics working on
him. He said he suffered head injuries and a cut knee. He said that his father told him about the
victim’s death and that he felt horrible about it. He said that he had a hard time dealing with the fact
that he caused the victim’s death and that he was receiving counseling. He said that he had had an
alcohol problem for three to four years and that he was going into a six-month inpatient treatment
program at Discovery Place when he got out of jail. He said he took his son to daycare and needed
judicial diversion in order to be with his son and finish his education. He said that he wanted to go
to work in his father’s insurance business and that a felony conviction could prevent him from
obtaining a license to sell insurance. He apologized to the victim’s family.

        On cross-examination, the defendant acknowledged that he had been drinking on the night
of November 13, 1997, but said he was not drunk when Officer Miller found his car stopped in the
grassy median. He also acknowledged that he pled guilty to reckless driving in that case and that his
father warned him he could have been convicted of DUI and lost his driver’s license. He said he
attended Hiwassee College on a basketball scholarship after high school but left the school after an


                                                  -2-
“off-campus drinking incident.” He acknowledged drinking while under age and being arrested for
disorderly conduct. He said that in July 1999, he completed a five-week outpatient alcohol treatment
program at Peninsula Hospital. He said that before he attended the treatment program, the police
were called to his home after he and his father got into an argument in which drinking was involved.
He acknowledged that all of his legal and personal problems had involved alcohol. He said that he
got married after the wreck, that he and his wife were separated, and that he had not consumed beer
for three or four months.

        Tom Gilbertson, a family therapist, testified that he had been counseling the defendant since
the wreck and that he had met with the defendant about twenty-five times. He said that as a result
of the wreck, the defendant was depressed and overwhelmed with feeling responsible for the crash.
He said the defendant also felt guilty for what he had put his family through. He described the
defendant as a late bloomer and not very focused but said the defendant had become more
responsible as a result of the crash. He said that he believed the defendant would become a “pretty
solid citizen” and that he would be surprised if the defendant was involved in any other alcohol-
related incidents.

        Bob Overton, the Program Coordinator for Discovery Place, testified that his facility uses a
twelve-step recovery program to treat alcohol dependence and that patients stay at least thirty days.
He acknowledged that the defendant completed a thirty-day program seven months before the
victim’s death and stated that the defendant could return for more treatment after serving his jail
sentence. He said that he had designed a five-month program for the defendant and that the
defendant could overcome his alcohol addiction. He said that the defendant wanted to remain sober
but that the defendant would have to refrain from alcohol completely in order to recover.

        Dan Stewart, the defendant’s uncle, testified that the defendant is his only nephew and that
they have a close relationship. He said the defendant was a little immature for his age but had
matured since the wreck. He said the defendant had changed, was extremely remorseful, and had
become more disciplined and responsible. He said that he had not seen any external evidence that
the defendant was still struggling with an alcohol problem but that he believed the defendant
struggled with alcohol internally. He said he had not seen any signs that the defendant drinks and
drives. He said the defendant has a supportive family and is motivated to do well.

         Mack Stalcup, the defendant’s father, testified that the defendant lived with him and his wife.
He said the defendant was quiet, kept his emotions inside, appeared to be in shock after the wreck,
and did not want to talk to anyone about it. He said that the wreck had had a devastating impact on
his family and that he was sorry for the victim’s family. He said the defendant had matured and was
a good father. He said he and the defendant had talked about the defendant’s joining his insurance
business and gradually taking it over. He said a felony on the defendant’s criminal record could
prevent the defendant from obtaining a license to sell insurance. On cross-examination, Mr. Stalcup
testified that he did not know the defendant had a drinking problem for a long time because the
defendant did not drink at home. He said that after the defendant started getting into trouble, the
defendant got professional help. Carol Stalcup, the defendant’s mother, testified that the defendant


                                                  -3-
probably started drinking in high school and that she hoped the defendant would continue to get
treatment at Discovery Place. She said the defendant felt guilty and had struggled with depression
since the wreck. She said the defendant has recognized that he has an alcohol problem and could
become a productive citizen.

        John Lasher, the Branch Executive for the Halls/Powell Boys and Girls Club, testified that
the defendant worked at the club from October 2001 to April 2002 as a playground supervisor. The
defendant was patient with the children, and they enjoyed being with him. The defendant was a good
and dependable employee but could not work at the club after the wreck because he had been
charged with a felony.

       Jodie Black, the victim’s daughter, testified that she did not believe the defendant should
spend years in prison for his mistake. She said, though, that given the defendant’s history, he should
have to serve some time in confinement. She said the defendant had other options for a career
besides selling insurance.

        According to the defendant’s presentence report, the defendant is receiving counseling for
stress and depression and has completed two alcohol treatment programs. The report shows that in
1999, the defendant completed a five-week treatment program at Peninsula Hospital and that he
completed a thirty-day program at Discovery Place in November 2000. In the report, the defendant
stated that he began drinking alcohol when he was sixteen years old and that he began to have a
drinking problem when he was eighteen. He described his physical health as excellent, his mental
health as good, and denied using illegal drugs. The report shows that the defendant was convicted
of reckless driving in 1997.

        In sentencing the defendant, the trial court began by addressing the sentencing considerations
in T.C.A. § 40-35-103(1), stating that the defendant did not have a long history of criminal conduct
and that a period of confinement would not deter others in the community from these types of
actions. See T.C.A. § 40-35-103(1)(A), (B). However, the trial court determined that the
defendant’s prior criminal history was sufficient for enhancement purposes, applying enhancement
factor (2), that the defendant “has a previous history of criminal convictions or behavior in addition
to those necessary to establish the appropriate range.” See T.C.A. § 40-35-114(2). The trial court
mitigated the defendant’s sentence based upon his remorse. See T.C.A. § 40-35-113(13). The trial
court determined that the enhancement factor outweighed the mitigating factor and increased the
defendant’s sentence from the presumptive three years to five years. In deciding whether the
defendant should serve any portion of the sentence in confinement, the trial court noted that the
defendant had a good and supportive family. However, it also noted that he had had “several run-ins
with the law and with social problems that arise from drinking.” The trial court stated:

                       The most troublesome part of this hearing is the fact that you
               engaged in drinking after you did what you did. . . . Number one, it
               does affect you obviously. You’ve had family run-ins, . . . you’ve had
               social problems that has resulted from your engaging in the use of


                                                 -4-
               alcohol. . . . And second, you’ve had legal trouble, and you didn’t
               quit drinking. And that is the most troublesome thing . . . forgetting
               for a moment that we’ve had a great tragedy here. . . . I will never
               believe that that - that coming to Court is such a great event that it
               will make you quit drinking. I would, however, think that having a
               wreck and killing someone would, and it hasn’t. That, in my opinion,
               it dims your prospects for rehabilitation . . . . And I’m at a loss for
               resources on how I help you deal with that.
                       So, what I’m getting around to saying, is your request for
               judicial diversion in my opinion is inappropriate. . . . [The]
               seriousness of the offense cannot be the sole factor for this Court not
               granting you diversion. I agree. My sole factor is, I don’t see it
               helping you. . . . I see where times have arisen where you could have
               changed your conduct but chose not to.

The trial court then considered whether the defendant should receive some type of alternative
sentence. However, the trial court held that the defendant needed “to know that there are
consequences for certain actions” because there were “certain times in your life where you could
have corrected this yourself but didn’t.” The trial court ordered that the defendant serve one year of
the five-year sentence in jail, to run consecutively to the eleven-month, twenty-nine-day sentence for
DUI. It also determined that after completing the one-year sentence, the remainder of the five-year
sentence would be served as ten years on supervised probation. Finally, the trial court prohibited the
defendant from driving for ten years. The defendant raises several issues regarding his sentence.

        When a defendant appeals the manner of service of a sentence imposed by the trial court, this
court conducts a de novo review of the record with a presumption that the trial court’s
determinations are correct. T.C.A. § 40-35-401(d). However, the presumption of correctness 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). The burden is on the appealing party to show that the sentence is improper. T.C.A. §
40-35-401(d), Sentencing Commission Comments. This means that if the trial court followed the
statutory sentencing procedure, made findings of fact that are adequately supported in the record, and
gave due consideration and proper weight to the factors and principles that are relevant to sentencing
under the 1989 Sentencing Act, we may not disturb the sentence even if a different result were
preferred. State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).

        In conducting a de novo review, we must consider (1) the evidence, if any, received at the
trial and sentencing hearing, (2) the presentence report, (3) the principles of sentencing and
arguments as to sentencing alternatives, (4) the nature and characteristics of the criminal conduct,
(5) any mitigating or statutory enhancement factors, (6) any statement that the defendant made on
his own behalf, and (7) the potential for rehabilitation or treatment. T.C.A. §§ 40-35-102, -103,
-210; see Ashby, 823 S.W.2d at 168; State v. Moss, 727 S.W.2d 229, 236-37 (Tenn. 1986).



                                                 -5-
                                     I. JUDICIAL DIVERSION

         The defendant contends that the trial court erred by denying his request for judicial diversion.
He contends that the trial court ignored factors that it was required to consider, such as his
amenability to correction, the circumstances of the offense, his social history, and the deterrence
value of incarceration, and that the trial court did not adequately state the reasons for denying
diversion. He argues that he is entitled to diversion because he was truthful to the trial court, has a
young son, is employed, attends college, and has a good chance at rehabilitation. The state argues
that the trial court considered all of the required factors and that it properly denied judicial diversion.
We conclude that the trial court did not err by denying diversion.

        A defendant is eligible for judicial diversion when he or she is found guilty or pleads guilty
to a Class C, D, or E felony and has not previously been convicted of a felony or a Class A
misdemeanor. See T.C.A. § 40-35-313(a)(1)(B). Judicial diversion allows the trial court to defer
further proceedings without entering a judgment of guilt and to place the defendant on probation
under reasonable conditions. T.C.A. § 40-35-313(a)(1)(B). When the probationary period expires,
if the defendant has completed probation successfully, then the trial court will discharge the
defendant and dismiss the proceedings against him with no adjudication of guilt. See T.C.A. §
40-35-313(a)(2). The defendant may then apply to have all records of the proceedings expunged
from his official records. See T.C.A. § 40-35-313(b). A person granted judicial diversion is not
convicted of an offense because a judgment of guilt is never entered. See T.C.A. §
40-35-313(a)(1)(A).

         Judicial diversion is not a sentencing alternative for a defendant convicted of an offense.
See T.C.A. § 40-35-104(c). Therefore, there is no presumption that a defendant is a favorable
candidate for judicial diversion. See State v. Bingham, 910 S.W.2d 448, 456 (Tenn. Crim. App.
1995). When a defendant challenges the manner of serving a sentence, this court conducts a de novo
review of the record with a presumption that “the determinations made by the court from which the
appeal is taken are correct.” T.C.A. § 40-35-401(d). However, when the accused challenges the trial
court’s denial of a request for judicial diversion, a different standard of appellate review applies.
Because the decision to grant judicial diversion lies within the sound discretion of the trial court, this
court will not disturb that decision on appeal absent an abuse of discretion. State v. Electroplating,
Inc., 990 S.W.2d 211, 229 (Tenn. Crim. App. 1998); State v. Bonestel, 871 S.W.2d 163, 168 (Tenn.
Crim. App. 1993).

         In determining whether to grant judicial diversion, the trial court must consider (1) the
defendant’s amenability to correction; (2) the circumstances of the offense; (3) the defendant’s
criminal record; (4) the defendant’s social history; (5) the defendant’s physical and mental health;
(6) the deterrence value to the defendant and others; and (7) whether judicial diversion will serve the
ends of justice. Electroplating, 990 S.W.2d at 229; State v. Parker, 932 S.W.2d 945, 958 (Tenn.
Crim. App. 1996); Bonestel, 871 S.W.2d at 168. In addition, “the record must reflect that the court
has weighed all of the factors in reaching its determination.” Electroplating, 990 S.W.2d at 229. If
the trial court refused to grant judicial diversion, it should state in the record “the specific reasons


                                                   -6-
for its determinations.” Parker, 932 S.W.2d at 958-59. If the trial court “based its determination on
only some of the factors, it must explain why these factors outweigh the others.” Electroplating, 990
S.W.2d at 229.

        The record reflects that in denying the defendant’s request for judicial diversion, the trial
court considered the required factors. Although the trial court did not address the factors in
sequential order, over the course of explaining the defendant’s sentence, the trial court addressed all
of the factors. In support of diversion, the trial court noted that the defendant lacked a lengthy
criminal record, that he came from a good and supportive family, and that confinement would not
deter others from committing the crime. However, in support of denying diversion, the trial court
held that the defendant had had many family and social problems as a result of his drinking alcohol.
The trial court characterized the wreck as a “great tragedy,” indicating that it believed judicial
diversion would not serve the ends of justice and that the circumstances of the offense justified
denying diversion. Most telling, however, was the trial court’s determining that the defendant had
a low potential for rehabilitation and that the weight of that factor alone justified denying diversion.
The trial court repeatedly referred to the fact that the defendant continued to drink alcohol despite
years of family and social problems and despite causing the victim’s death. We agree with the trial
court’s reasoning and do not believe that it erred by denying the defendant’s request for judicial
diversion.

        We note that in the defendant’s brief, he states that in denying diversion, the trial court failed
to consider a Sentencing Memorandum that the defense filed as evidence. The memorandum
describes the defendant’s background and includes fifty-seven letters that friends and family wrote
on his behalf. According to the defendant, there “is no indication that the court had read the
submission, considered it in any way as to any factor, whether favorably or not.” However, our
review of the sentencing hearing transcript reveals that at the beginning of the sentencing hearing,
the defense asked the trial court if it had read the Sentencing Memorandum and letters. The trial
court stated, “I have cursorily, but . . . I want some time to go back through this.” After the parties’
closing arguments, the trial court stated that it wanted some time to consider the evidence because
“this is not something that I can just pluck out of the air because it is a -- it is a difficult matter.”
After a recess, the hearing resumed, and the trial court stated that it had reviewed the facts and
applied the facts to the law in reaching a determination as to the defendant’s sentence. Although the
trial court did not specifically refer to the memorandum and letters, we believe the record
demonstrates that the trial court considered all of the evidence in denying the defendant’s request
for judicial diversion.

                                      II. FULL PROBATION

         Next, the defendant contends that the trial court erred by denying his request for full
probation. He argues that although the trial court determined that confinement was necessary in
order to avoid depreciating the seriousness of the offense, the trial court stated no specific reasons
to justify that determination. He contends that the victim’s death alone cannot justify applying this
factor and that the factor was improperly applied because the facts of this case were not “especially


                                                   -7-
violent, horrifying, shocking, reprehensible, offensive, or otherwise of an excessive or exaggerated
degree.” State v. Travis, 622 S.W.2d 529, 534 (Tenn. 1981); State v. Hartley, 818 S.W.2d 370,
374-75 (Tenn. Crim. App. 1991). In addition, he contends that the trial court failed to consider
properly the factors set out in T.C.A. § 40-35-103, including his potential for rehabilitation, and that
the trial court arbitrarily ordered that he serve ten years of supervised probation. The state argues
that the trial court properly denied the defendant’s request for full probation. We agree with the
state.

         When determining if incarceration is appropriate, a trial court should consider whether (1)
confinement is needed to protect society by restraining a defendant who has a long history of
criminal conduct, (2) confinement is needed to avoid depreciating the seriousness of the offense or
confinement is particularly suited to provide an effective deterrence to people likely to commit
similar offenses, or (3) less restrictive measures than confinement have frequently or recently been
applied unsuccessfully to the defendant. Ashby, 823 S.W.2d at 169 (citing T.C.A. §
40-35-103(1)(A)-(C)). The trial court may also consider the mitigating and enhancing factors set
forth in T.C.A. §§ 40-35-113 and -114. T.C.A. § 40-35-210(b)(5); State v. Boston, 938 S.W.2d 435,
438 (Tenn. Crim. App. 1996). In addition, a trial court should consider a defendant’s potential or
lack of potential for rehabilitation when determining if an alternative sentence would be appropriate.
T.C.A. § 40-35-103(5); Boston, 938 S.W.2d at 438.

         As previously stated, when a defendant appeals the manner of service of a sentence imposed
by the trial court, this court conducts a de novo review of the record with a presumption that the trial
court’s determinations are correct. T.C.A. § 40-35-401(d). However, this presumption of
correctness is conditioned upon the affirmative showing that the trial court considered the relevant
facts, circumstances, and sentencing principles. Ashby, 823 S.W.2d at 169. A defendant seeking
full probation bears the burden on appeal of showing that the sentence imposed is improper and that
full probation will be in the best interest of the defendant and the public. State v. Baker, 966 S.W.2d
429, 434 (Tenn. Crim. App. 1997). 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, and the need for deterrence. State v. Boyd, 925 S.W.2d 237,
244 (Tenn. Crim. App. 1995).

         The defendant is correct in that the death of the victim alone is not sufficient justification for
denying probation. See State v. Butler, 880 S.W.2d 395, 400-01 (Tenn. Crim. App. 1994).
However, our review of the sentencing hearing transcript shows that the trial court considered many
other factors and determined that the facts and circumstances of the offense and the need to avoid
depreciating the seriousness of the offense warranted denying full probation. Regarding the factors
set out in T.C.A. § 40-35-103(1), the trial court stated that the defendant did not have a long history
of criminal convictions and that confinement would not deter others. See T.C.A. § 40-35-103(1)(A),
(B). The trial court did not address factor (C), that “measures less restrictive than confinement have
frequently or recently been applied unsuccessfully to the defendant.” See T.C.A § 40-35-103(C).
However, no evidence was presented to support this factor, and the trial court obviously did not
consider it as a basis for denying the defendant’s request for full probation.


                                                   -8-
        As to the defendant’s claim that the trial court “did not consider Mr. Stalcup’s potential for
rehabilitation or treatment as required by the statute,” we find no merit to this statement. As
described in the previous section, the trial court explained extensively why, despite Bob Overton’s
testimony to the contrary, it did not believe the defendant could overcome his alcohol addiction. The
trial court determined that the defendant had a low potential for rehabilitation because he continued
to drink despite his family and social problems and despite causing the victim’s death. We note that
the defendant had completed two alcohol treatment programs yet continued to drink. Given these
circumstances, we believe the trial court properly denied full probation based upon a need to avoid
depreciating the seriousness of the offense. We also conclude that even if the circumstances of the
offense had not justified denying full probation, some confinement for this offense is appropriate to
emphasize to this defendant the seriousness of his actions. See Butler, 880 S.W.2d at 401(holding
that the circumstances of the offense did not justify a sentence of full confinement but did warrant
some confinement to avoid depreciating the seriousness of the offense).

        Regarding the defendant’s claim that the trial court arbitrarily ordered that he serve ten years
on supervised probation, the trial court obviously believed that in light of the defendant’s repeated
alcohol abuse and low potential for rehabilitation, ten years of supervised probation, in which he will
be required to perform community service and undergo alcohol testing, is necessary in order to
ensure that he refrains from alcohol use. The evidence demonstrates that the trial court followed the
requirements of the law, exercised solid judgment in its determination, properly denied the
defendant’s request for full probation, and properly ordered that he serve the remainder of his five-
year sentence as ten years on supervised probation.

                   III. ENHANCEMENT AND MITIGATING FACTORS

       The defendant contends that his sentence is excessive because the trial court failed to weigh
the enhancement and mitigating factors properly. He also contends that the trial court’s applying
enhancement factor (2) is confusing in light of the fact that the trial court stated that the defendant
did not have a long history of criminal conduct. The state contends that the trial court properly
sentenced the defendant. We agree with the state.

        The range of punishment for a Range I defendant convicted of a Class C felony is three to
six years. T.C.A. § 40-35-112(a)(3). The sentence to be imposed for a Class C felony is
presumptively the minimum in the range unless there are enhancement factors present. T.C.A. §
40-35-210(c). Procedurally, the trial court is to increase the sentence within the range based upon
the existence of enhancement factors and, then, reduce the sentence as appropriate for any mitigating
factors. T.C.A. § 40-35-210(d), (e). The weight to be afforded an existing factor 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. T.C.A. § 40-35-210, Sentencing
Commission Comments; Moss, 727 S.W.2d at 237; see Ashby, 823 S.W.2d at 169.

         After finding that enhancement factor (2) and mitigating factor (13) applied in this case, the
trial court simply stated that the enhancement factor outweighed the mitigating factor and sentenced


                                                  -9-
the defendant to five years. As stated above, as long as the trial court followed the sentencing
purposes and principles, the weight to be afforded an existing factor is left to the trial court’s
discretion. We believe the evidence justifies the trial court’s assessment. Although the trial court
held that the defendant did not possess a long history of criminal conduct for purposes of denying
alternative sentencing under T.C.A. § 40-35-103, given that the defendant had a prior conviction for
misdemeanor reckless driving and admitted drinking while underage, the trial court’s application of
enhancement factor (2) to his sentence was proper. We conclude that the defendant’s sentence is not
excessive.

                             IV. CONSECUTIVE SENTENCING

         The defendant contends that the trial court erred by ordering consecutive sentencing pursuant
to the plea agreement. The state argues that consecutive sentencing was proper. After reviewing the
plea agreement and the guilty plea hearing transcript, we conclude that the defendant agreed to the
possibility that the trial court could order consecutive sentencing.

       The defendant’s written plea agreement states as follows:

               The State is free to make any recommendation as to the [reckless
               vehicular homicide] sentence in Count 2, except the State agrees that
               if the Court orders the sentence in Count 2 to be served in the
               [TDOC], denying alternative sentencing, that the sentence in Count
               2 be served concurrently with the sentence in Count 1.

               ....

               The defendant further agrees that if the Court places the defendant on
               probation or Community Corrections with no split confinement in the
               county jail, then the sentence on Count 2 shall be served
               consecutively to the DUI sentence; but that if split confinement on
               Count 2 is ordered in conjunction with alternative sentencing then the
               Court could either run that sentence and split confinement
               concurrently or consecutively with the sentence in Count 1. In any
               event, the defendant would not object that a consecutive sentence was
               not authorized by [T.C.A.] §40-35-115.

(Emphasis added). Furthermore, at the guilty plea hearing, the trial court stated as follows:

                       And it appears that if the Court denies alternative sentencing
               that there’s an agreement up front that any, any sentence served in the
               penitentiary would be, the eleven/twenty-nine (11/29) would run
               concurrent with that.



                                                -10-
                ....

                       The defendant further agrees that if the Court places the
               defendant on probation or corrections with no split confinement in the
               county jail that the sentence on Count Two will be served consecutive
               to the D.U.I. sentence.
                       But if split confinement of Count Two is ordered in
               conjunction with alternative sentencing, the Court would either run
               that sentence of split confinement concurrently or consecutively with
               the sentence in Count One.

                ....

                       So, we’re saying that alternative sentencing would, would
               possibly result in consecutive sentencing and the defendant would not
               object to that.

                       [Defense]: Well, if, if that’s what the Court imposed, it would
               result in consecutive sentencing, by agreement.

       This court has held that consecutive sentencing is subject to plea negotiations. See State v.
Benjamin Christopher Ashworth, No. 03C01-9902-CC-00065, Blount County, slip op. at 3-4 (Tenn.
Crim. App. Oct. 6, 1999); State v. Houston Grady Chapman, No. 01C01-9808-CC-00354, Maury
County (Tenn. Crim. App. Dec. 11, 1998) (order); Patrick Williams v. State, No.
01C01-9506-CR-00190, Davidson County, slip op. at 9-10 (Tenn. Crim. App. May 9, 1996). We
conclude that the trial court’s ability to order consecutive sentencing upon a sentence of split
confinement for the reckless vehicular homicide was a part of the defendant’s plea agreement. The
defendant cannot now complain about a sentence to which he had agreed as part of his plea bargain
agreement with the state.

                                   V. DRIVING PRIVILEGES

        Finally, the defendant contends that the trial court erred by prohibiting him from driving in
this state for ten years, the maximum allowed by the vehicular homicide statute. Although he
acknowledges that the trial court had the authority to prohibit him from driving, he contends that in
comparing this case with other vehicular homicide cases, the facts of this case do not warrant such
an extensive prohibition. The state does not address this issue. We agree that the ten-year
prohibition is excessive.

        The vehicular homicide statute requires the trial court to “prohibit a defendant convicted of
vehicular homicide from driving a vehicle in this state for a period of time not less than three (3)
years nor more than ten (10) years.” T.C.A. § 39-13-213(c). The standard of review for a trial
court’s prohibiting a defendant from driving pursuant to the statute has never been stated specifically.


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However, we note that T.C.A. § 55-10-403(a), the general DUI sentencing statute, also requires a
trial court to prohibit a DUI offender from driving in this state for a certain period of time and
indicates that it is one of the “penalties” for that offense. We conclude that a trial court’s prohibiting
a DUI defendant from driving is a punishment that is subject to de novo review with a presumption
of correctness. See T.C.A. § 40-35-401(d). See, e.g., State v. Stanley, 729 S.W.2d 686, 689 (Tenn.
Crim. App. 1987) (on petition to rehear) (holding that the issuance or non-issuance of a restricted
operator’s license under the DUI sentencing statute is a “sentencing issue” and, therefore, requires
this court to review the issue pursuant to T.C.A. § 40-35-401(d)). Moreover, given that the DUI
sentencing statute and the vehicular homicide statute both provide that a trial court “shall prohibit
a defendant . . . from driving a vehicle in this state” for a certain period of time, we hold that review
of a trial court’s prohibiting a defendant from driving for a vehicular homicide conviction also is a
sentencing issue that should be reviewed de novo with a presumption of correctness. In the present
case, the trial court did not specify its reasons for prohibiting the defendant from driving for ten
years, stating only that “his license will be revoked for a ten-year period, which is the maximum that
the law would allow the Court to revoke a license based on this particular offense.” Therefore, we
will review this issue de novo with no presumption of correctness.

        The defendant cites State v. Michael Eugene Knox, No. W2000-00362-CCA-R3-CD, Gibson
County (Tenn. Crim. App. Dec. 27, 2000), in support of his claim. In that case, the defendant lost
control of his car and crashed into an embankment, killing his passenger. After the wreck, the
defendant dragged the passenger’s body, which had been thrown over sixty feet from the car, back
to the car and claimed that the passenger had been driving. The defendant, who had been drinking
and smoking marijuana on the night of the wreck, later admitted that he had been the driver and pled
guilty to Class B felony vehicular homicide. The trial court sentenced him to eight years in
confinement but did not bar the defendant from driving. On appeal, the state asked this court to
prohibit the defendant from driving for five years. This court stated that given the circumstances of
the offense, a five-year prohibition was reasonable. Id., slip op. at 9.

        In State v. Bingham, 910 S.W.2d 448, (Tenn. Crim. App. 1995), the defendant, who was
under the legal drinking age, spent an evening drinking at a bar. While attempting to drive home,
she hit another car head-on, killing the other driver, and pled guilty to reckless vehicular homicide.
This court noted that the defendant was employed, had no criminal history, lived with her parents,
and had an excellent reputation in her community and prohibited her from driving for three years.
Id. at 452, 457.

        In State v. Robert Glen Grissom, III, No. 02-C-01-9204-CC-00076, Henderson County
(Tenn. Crim. App. Mar. 10, 1993), the defendant had a head-on collision in which the driver of the
other car was killed. The defendant, who admitted drinking five beers on the night of the wreck, was
convicted of reckless vehicular homicide and DUI. The trial court sentenced him to three years in
confinement but did not prohibit him from driving as required by the vehicular homicide statute.
In ordering that the defendant be prohibited from driving for five years, this court noted that the
defendant’s driving record showed that he had been charged with two earlier accidents, that he had
been convicted of speeding twice, and that he was speeding at the time of the wreck in question. Id.,


                                                  -12-
slip op. at 16. In State v. James C. Wolford, No. 03C01-9708-CR-00319, Hamilton County (Tenn.
Crim. App. Feb. 18, 1999), app. denied (Tenn. Sept. 20, 1999), the defendant pled guilty to vehicular
homicide by intoxication after striking a pedestrian and leaving the scene. The trial court sentenced
him to four years in confinement and prohibited him from driving for one year. Noting that the
vehicular homicide statute required at least a three-year prohibition, this court prohibited him from
driving for four years. Id., slip op. at 14.

         In this case, the defendant is young, has a young son, attends college, and is employed. The
letters submitted to the trial court indicate that he is loved and well-liked by his family and friends.
However, the defendant has made two unsuccessful attempts at rehabilitation and committed the
offenses in question only seven months after he last received treatment. Also, as the trial court
noted, he continued to drink alcohol after the wreck in question. We conclude that a five-year
driving prohibition is appropriate in this case.

        Based on the foregoing and the record as a whole, we affirm the length and manner of service
of the defendant’s sentence, but we modify his driving prohibition to five years.



                                                        ___________________________________
                                                        JOSEPH M. TIPTON, JUDGE




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