                                                                                                            07/30/2020
            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                              AT JACKSON
                                 Assigned on Briefs April 8, 2020

                  STATE OF TENNESSEE v. MARY ANN SCATES

                   Appeal from the Circuit Court for Henderson County
                         No. 17-173-1 Roy B. Morgan, Jr., Judge
                        ___________________________________

                                No. W2019-01274-CCA-R3-CD
                            ___________________________________

A Henderson County Grand Jury indicted the Defendant-Appellant, Mary Ann Scates, with
alternating counts of driving under the influence and driving under the influence (second
offense) (counts 1 and 2); following another vehicle too closely and speeding (counts 3 and
4); reckless aggravated assault by use of an automobile as a deadly weapon causing Faith
Coleman, Cassandra Coleman, and Alexandria Springer to fear and suffer bodily injury
(counts 5, 6, and 7); and vehicular assault of Grace Coleman by reckless operation of an
automobile as a result of intoxication (count 8). See Tenn. Code Ann. §§ 55-10-401; 55-
8-124; 55-8-152; 39-13-102; 39-13-106. The Defendant entered an open guilty plea to the
offenses as charged, with the trial court to determine sentencing. After a hearing, the trial
court imposed a four-year consecutive term of imprisonment for the reckless aggravated
assault in count 5 and the vehicular assault by intoxication in count 8, for an effective
sentence of eight years’ confinement.1 The remaining counts were to be served
concurrently. The sole issue presented for our review is whether the trial court erred in
ordering consecutive sentencing. Following our review, we affirm the judgments of the
trial court.

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


        1
          In count 1, DUI, the judgment reflects a sentence of eleven months and twenty-nine days, and
merger into count 8. In count 2, DUI second offense, the judgment reflects an eleven-month, twenty-nine-
day sentence and merger into count 8. In count 3 and 4, following too closely and speeding, the judgment
reflects a 30-day sentence. In count 5, reckless aggravated assault, the judgment reflects a four-year
sentence to be served consecutively to count 8. In count 6, reckless aggravated assault, the judgment reflects
a four-year sentence to be served concurrently with all other counts. In count 7, reckless aggravated assault,
the judgment reflects a four-year sentence, the concurrent/consecutive boxes are blank, and the special
conditions box notes “see count 8.” In count 8, vehicular assault by intoxication, the judgment form reflects
a four-year sentence, a $600 fine, the concurrent/consecutive boxes are blank, and the special condition box
notes only, “To serve. Must attend DUI Safety School and MADD Victim Impact Panel within 90 days of
release. Driving privileges are revoked for 2 years. Special needs recommended for drug treatment.”
CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which ROBERT L.
HOLLOWAY, JR., and ROBERT H. MONTGOMERY, JR., JJ., joined.

Terry J. Leonard, Camden, Tennessee, for the Defendant-Appellant, Mary Ann Scates.

Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Senior Assistant
Attorney General; Jody Pickens, District Attorney General; and Christopher Post, Assistant
District Attorney General, for the Appellee, State of Tennessee.

                                         OPINION

        Between five and seven o’clock on the evening of March 28, 2017, Cassandra
Coleman was leaving an auto body shop driving her “special order” 2013 Chevy Malibu
with her two daughters, Grace and Faith, ages seven and eighteen, and a friend, Alexandria
Springer, as passengers. She recalled another car came from behind and struck her car,
causing it to run off the side of the road, roll through several mailboxes, and crash. An
officer responded to the scene shortly thereafter, determined that the Defendant was driving
the second car, and required her to perform several field sobriety tests, all of which the
Defendant failed. The Defendant was subsequently indicted for the above offenses, and
on December 21, 2017, she entered an open guilty plea to the same. The Defendant
stipulated that the State would have proven the elements of the offenses as charged. Prior
to accepting the Defendant’s guilty plea, the trial court conducted an extensive plea
colloquy and concluded that the Defendant’s guilty pleas were knowingly and voluntarily
entered. The Defendant was not immediately taken into custody and was permitted to
continue inpatient rehabilitation until her sentencing hearing.

       At the February 2, 2018 sentencing hearing, the State introduced the Defendant’s
presentence report without objection. The report showed that the Defendant had one prior
DUI conviction and four prior misdemeanor traffic offenses. Cassandra Coleman testified
that she was the owner of a 2013 Chevrolet Malibu, which she valued at $16,000. Coleman
confirmed that on March 28, 2017, a car struck her from behind, running her off the road
and causing her car to roll several times. She suffered a concussion as a result of the crash,
but she refused additional treatment at the hospital so that she could drive to Memphis,
where her seven-year-old daughter, Grace, was being treated for her injuries from the crash.
Grace suffered a broken arm, a broken jaw, a bruise on her lung, and was hospitalized for
four days. In the course of treatment, Coleman and her daughter made “five or six trips”
to LeBonheur Children’s Hospital in Memphis. The State entered photographs of the
accident into evidence, but those photographs were not part of the record on appeal.
Coleman’s adult daughter, Faith, testified that she was a front-seat passenger in the car at
the time of the accident, and she remembered the car flipping over several times. She
suffered a broken arm, a broken finger, and several bruises and scratches. Asked if there
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were other drivers in the area at the time of the crash, Faith said, “a guy that was driving
down the road actually helped my mom out” of the car.

       The State also admitted into evidence a certified copy of the Defendant’s prior DUI
conviction and the supporting warrant. The State noted that the warrant indicated, “the
police officers made contact with [the Defendant] that day [and] she was involved in a
wreck that day, as well, for her prior DUI.”2 Asked by the trial court whether there was
another wreck on a prior DUI, the State advised, “Your honor, I believe that was a one-
vehicle crash, but there was a – prior crash on the prior DUI.”

       Kristie Butler, the director of the Women of Hope rehabilitation center, testified that
the Defendant had voluntarily checked into a twelve-month, inpatient rehabilitation
program and had completed the first nine-month phase. During this time, the Defendant
was “trustworthy and reliable,” and had passed each random, monthly drug test given at
the center. When the Defendant was told that she would not receive any jail credit for her
time at Women of Hope, the Defendant voluntarily chose to stay and continue receiving
treatment rather than spend time with her family. Cindy Overton led a weekly Bible study
class at Women of Hope. She testified that the Defendant cried a lot in class and spoke
about wanting to change her life. She testified that she believed the Defendant was honest
and remorseful.

       In allocution, the Defendant apologized repeatedly to the victims of the car crash.
She said, “That’s not who I am. And I am very, very sorry for what happened. And I’m
very remorseful for what happened. You will never know how sorry I am. I have to live
with that for the rest of my life.” The Defendant also asked for forgiveness and explained
that she intended to make a difference by ensuring that “it” never happened again and by
helping others.

       As relevant to the issue raised in this appeal, the record shows that the State
previously filed a motion seeking consecutive sentencing based on the Defendant’s status
as “an offender whose record of criminal activity is extensive,” and as “a dangerous
offender whose behavior indicate[d] little or no regard for human life, and no hesitation
about committing a crime in which the risk to human life is high.” See Tenn. Code Ann.
§§ 40-35-115(b)(2), (4). Following the sentencing hearing, the State recommended that all
four Class D felony convictions be served consecutively. The State acknowledged the
Defendant had one prior DUI conviction; however, the State urged the trial court to also
rely on the instant four felony convictions in determining whether the Defendant had a
record of extensive criminal activity. As evidence of the Defendant’s status as a dangerous

          2
              Although the warrant was admitted as an exhibit to the hearing, it is not included in the record on
appeal.
                                                       -3-
offender, the State argued that there were other cars on the road during the instant offense
and that the Defendant could have injured several other people. The State also pointed out
that the Defendant’s prior DUI conviction involved a single car crash, which should have
been a “wake up call” and further illustrated the need to protect the public through
consecutive sentencing. In response, the Defendant acknowledged that her prior DUI and
the instant case were due to prescription medication rather than drug or alcohol abuse,
which she had “completely taken herself off[,]” for almost a year. Nevertheless, she
accepted full responsibility for her actions, sought treatment, was remorseful, and asked
for the mercy of the court.

        The trial court considered the evidence at the sentencing hearing, the presentence
report, the principles and guidelines of sentencing, and the arguments of counsel. In
support of consecutive sentencing, the trial court found that the circumstances of the crime
were aggravated, that extended confinement was required to protect society from the
Defendant, and that the aggregate length of the sentence was reasonably related to the
seriousness of the offenses. The trial court also noted that the Defendant was not a good
candidate for alternative sentencing. Final judgments were entered on February 7, 2018.
On June 19, 2019, the trial court issued an order granting delayed appeal, finding that the
Defendant was not informed of her right to appeal the trial court’s sentencing determination
and that trial counsel failed to obtain a written waiver of appeal. See Tenn. Code Ann.
§40-30-113. The Defendant then filed a timely notice of appeal on July 18, 2018. This
case is now properly before this court for review.

                                            ANALYSIS

       The Defendant challenges the trial court’s order of consecutive sentencing, and
argues that the trial court “failed to preserve or set forth with specificity the facts”
supporting its determination that the Defendant was a dangerous offender. In response, the
State contends that the trial court made the necessary findings to support the imposition of
consecutive sentences. We agree with the State.

        Where a defendant is convicted of one or more offenses, the trial court has discretion
to decide whether the sentences shall be served concurrently or consecutively. Tenn. Code
Ann. § 40-35-115(a). A trial court may order multiple offenses to be served consecutively
if it finds by a preponderance of the evidence that a defendant fits into one of seven
categories enumerated in Section 40-35-115(b) including, as relevant here, whether “[t]he
defendant is an offender whose record of criminal activity is extensive” or whether “[t]he
defendant is a dangerous offender whose behavior indicates 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)(2), (4). “Any one of these grounds is a sufficient basis
for the imposition of consecutive sentences.” State v. Pollard, 432 S.W.3d 851, 862 (Tenn.
                                            -4-
2013) (citing State v. Dickson, 413 S.W.3d 735, 748 (Tenn. 2013)). “So long as a trial
court properly articulates reasons for ordering consecutive sentences, thereby providing a
basis for meaningful appellate review, the sentences will be presumed reasonable and,
absent an abuse of discretion, upheld on appeal.” Id. (citing Tenn. R. Crim. P. 32); see
State v. Bise, 380 S.W.3d 682,705 (Tenn. 2012); State v. Caudle, 388 S.W.3d 273, 278-79
(Tenn. 2012). However, when imposing consecutive sentences pursuant to the dangerous
offender classification, the trial court must also conclude that the proof establishes that the
aggregate sentence is “reasonably related to the severity of the offenses” and “necessary in
order to protect the public from further criminal acts.” Id. (quoting State v. Wilkerson, 905
S.W.2d 933, 938 (Tenn. 1995)). This is because, unlike the other six subsections, the
dangerous offender classification is “the most subjective and hardest to apply.” State v.
Lane, 3 S.W.3d 456, 461 (Tenn. 1999). Finally, we continue to require the order of
consecutive sentencing to be “justly deserved in relation to the seriousness of the offense,”
and “no greater than that deserved for the offense committed.” Tenn. Code Ann. §§ 40-
35-102(1), -103(2); see State v. Imfeld, 70 S.W.3d 698, 708 (Tenn. 2002).

        In determining consecutive sentencing in this case, the trial court stated, in relevant
part, as follows:

             The State argues the Defendant is an offender whose record of
       criminal activity is extensive, under the Statute T.C.A. 40-35-115.

              The State is exactly right, been down that road and done that. I can
       consider the case that’s before me today. And when you look at four D
       felonies on this case alone and then your prior, this makes it an extensive
       record.

             You have admitted [] guilt in open court to four D felonies in this case
       and you’ve heard from some of the victims today. But I do find that that
       does meet the criteria under the statute as far as extensive, and it is proper
       consideration.

              The next one the State argues is a dangerous offender whose behavior
       indicates life - - little or no disregard for human life and no hesitation about
       committing the crime which risk to human life is high.

              As I look to that, I’ve got to go back in time. I’m not looking at [the
       Defendant] today, as I hope and pray is on good course. I’m looking at what
       has happened in the past and what happened at the time of the offenses as far
       as your conduct. We can only wonder about the future and the faith that we
       have that it will be good.
                                             -5-
               But I do find that that is appropriate, along with the following three
       factors: The circumstances of the offense are aggravated under the
       circumstances, which I’ve already alluded to; that confinement for an
       extended period of time is necessary to protect society from the Defendant’s
       unwillingness to lead a productive life and the Defendant’s resort to this
       activity and antisocial behavior; and the aggregate . . . length of the sentence
       must reasonably relate to the offense for which the Defendant now stands
       convicted.

               So, we do have a prior single car crash. We have the other factors
       I’ve alluded to.

             For those reasons stated, the Court makes the finding, that consecutive
       sentences can be considered.

        At the outset, the record reflects that the trial court engaged in an extensive and
comprehensive review of the facts and circumstances of this case. Upon our review, we
conclude that the trial court’s order of consecutive sentencing is supported by the record.
In regard to whether “[t]he defendant is an offender whose record of criminal activity is
extensive,” we acknowledge that the Defendant had a relatively minor criminal history
prior to this offense. However, the trial court found the Defendant’s prior DUI conviction
to be significant because it too involved prescription drug use which resulted in a single
car crash. In this context, we agree with the trial court and conclude that the Defendant’s
prior DUI, combined with the four Class D felony offenses of conviction of a similar
nature, satisfy the statutory criteria for consecutive sentencing. See e.g., State v. Nelson,
275 S.W.3d 851, 870 (Tenn. Crim. App. 2008) (citing State v. Adams, 973 S.W.2d 224,
231 (Tenn. Crim. App. 1997)) (noting that an extensive criminal history, standing alone, is
enough to justify the imposition of consecutive sentencing); State v. Brian Lee
Cable, E2005-00608-CCA-R3-CD, 2006 WL 1381484, at *8 (Tenn. Crim. App. May 19,
2006) (noting that current offenses may be used in determining criminal history for the
purposes of consecutive sentencing) (citing State v. Cummings, 868 S.W.2d 661, 663
(Tenn. Crim. App. 1992)).

       Additionally, in regard to the dangerous offender classification, we similarly
acknowledge that the trial court did not explicitly anchor its findings to whether the
aggregate sentence is “reasonably related to the severity of the offenses” and “necessary in
order to protect the public from further criminal acts.” Nevertheless, as in Wilkerson, the
Defendant does not mount a genuine challenge to the trial court’s determination that she
qualifies as a dangerous offender who demonstrated little or no regard for human life.
Instead, she challenges the adequacy of the trial court’s findings. When determining
                                            -6-
whether the dangerous offender classification applies to defendants convicted of vehicular
assault by intoxication and related offenses, this court has often looked to the circumstances
surrounding the defendant’s decision to drive intoxicated. See State v. William Jeffery
Sweet, No. E2008-00100-CCA-R3-CD, 2009 WL 2167785, at *23 (Tenn. Crim. App. July
21, 2009) (citing Wilkerson, 905 S.W.2d at 938; State v. Barbara Ann Bryant, No. W2004-
01245-CCA-R3-CD, 2005 WL 756252, *4 (Tenn. Crim. App. Oct. 3, 2005), perm. app.
denied (Tenn., Oct. 3, 2005) (dangerous offender provision applied to a defendant who
drove while intoxicated, immediately after being discouraged from driving by an
acquaintance, killing three people and severely injuring a fourth); State v. Danny Lee Ross,
No. 01C01-9410-PB-00365, 1995 WL 687694, *6 (Tenn. Crim. App., at Nashville, Nov.
21, 1995), perm. app. denied (Tenn. May 6, 1996) (dangerous offender provision applied
to a defendant, out on bond from a previous D.U.I. charge, who drank throughout the day,
left a bowling alley exclaiming “I’m loaded and I ain’t through yet,” and then sped through
a red light, causing a five-car accident that killed three victims)).

        In this case, the record shows the Defendant’s actions leading up to the accident
created a situation where the risk to human life was high. Based on her prior experience
with the same prescription drugs, a single-car crash, and subsequent DUI conviction, the
Defendant knew that driving under those conditions was dangerous to herself and every
other motorist she encountered. Yet, the Defendant chose to drive again in the same
condition. This time, the Defendant’s actions resulted in a two-car crash, with four victims
who sustained multiple injuries. The youngest victim, age seven, suffered a broken arm, a
broken jaw, a bruise on her lung, and was hospitalized for four days. See William Jeffery
Sweet, 2009 WL 2167785, at *25 (citing State v. Robinson, 146 S.W.3d 469, 524 (Tenn.
2004) and Imfeld, 70 S.W.3d at 709) (noting that extent of victims’ injuries is proper to
consider in determining whether consecutive sentencing is “reasonably related” to the
severity of the offense). The trial court noted the “aggravated” circumstances of the offense
and determined that the four-year term of imprisonment for a single count of reckless
aggravated assault should be served consecutively to the four-year term of imprisonment
for the vehicular assault by intoxication, for an effective eight-year term of imprisonment.
The trial court also noted, and we agree, that the aggregate eight-year sentence is
reasonably related to the severity of the offenses. The trial court acknowledged the
Defendant’s progress in seeking treatment and her demonstrated “good path.” However,
given the prior unsuccessful rehabilitative efforts and her “unwillingness to lead a
productive life,” the trial court further determined, and we agree, that an extended sentence
was necessary to protect the public from further criminal acts of the Defendant.
Accordingly, imposition of consecutive sentencing was proper, and the Defendant is not
entitled to relief.




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                                    CONCLUSION

        Based on the above authority, the judgments of the Henderson County Circuit Court
are affirmed.




                                            ____________________________________
                                            CAMILLE R. MCMULLEN, JUDGE




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