         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                                 September 25, 2001 Session

                  STATE OF TENNESSEE v. JARED M. BARNES

                        Appeal from the Circuit Court for Sevier County
                            No. 7974     Richard R. Vance, Judge



                                 No. E2001-00325-CCA-R3-CD
                                      December 10, 2001

The defendant, Jared M. Barnes, was convicted upon his guilty plea for vehicular homicide by
recklessness, a Class C felony. The trial court sentenced him as a Range I, standard offender to five
years, with ten months, day for day, to be served in the county jail and the remainder of the sentence
to be served on probation. In addition, the trial court suspended the defendant’s driving privileges
for five years and ordered that he complete five hundred hours of community service. The defendant
appeals his sentence, contending that the trial court erred in denying him judicial diversion or full
probation. We affirm the trial court’s denial of judicial diversion and full probation, but hold that
the order that the defendant serve his ten-month incarceration day for day does not preclude use of
applicable conduct credits.

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

JOSEPH M. TIPTON, J., delivered the opinion of the court, in which JOE G. RILEY and ALAN E.
GLENN, JJ., joined.

James H. Ripley, Sevierville, Tennessee, for the appellant, Jared M. Barnes.

Paul G. Summers, Attorney General & Reporter; Elizabeth B. Marney, 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

        The defendant pled guilty pursuant to a plea bargain by which the sentence was to be five
years, with confinement of no more than a year, the exact amount, if any, to be set by the trial court.
At the defendant’s guilty plea hearing, the state presented the following factual account of the crime:
On August 20, 1999, the defendant and three passengers were traveling in Sevier County, when they
were involved in a one-car accident. One of the defendant’s passengers, Sammy Garner, was killed.
The Tennessee Highway Patrol determined that the defendant had been driving, and the defendant
admitted to officers that he had been drinking. A blood test revealed that the defendant’s blood
alcohol content was .10%. The defendant’s blood also tested positive for Diazepam, a generic name
for Valium.

       The defendant was indicted for vehicular homicide by intoxication, a Class B felony. See
Tenn. Code Ann. § 39-13-213(a)(2), (b). He pled guilty to vehicular homicide by recklessness, a
Class C felony. See Tenn. Code Ann. § 39-13-213(a)(1), (b). As part of the plea agreement, the
defendant was to receive a five-year sentence, with maximum incarceration not to exceed one year.

        At the sentencing hearing, the then twenty-two-year-old defendant testified that he was a high
school graduate and lived with his parents. He said that he did maintenance for his parents’ business,
Christmas Place, in Pigeon Forge. He said that he took medications for attention deficit disorder
(ADD) and depression. He said that on the night of the accident, he attended a party at a friend’s
house. He said that he and three friends left the party and went to Patriot Park to meet people. He
said that he was driving, the victim was in the front passenger seat, and his two other passengers
were in the back seat. He said that after they met people at Patriot Park, they headed back to the
party. He said that he was leading people to the party and that he was constantly looking in his
rearview mirror to make sure that the car behind him did not get lost.

        The defendant testified that he was driving on a narrow, curvy road that did not have street
lights. He said that there was no guardrail or shoulder on the road. He said that he and the victim
were trying to find a music compact disc (CD) to play and that the victim dropped one of the CDs.
He said that as he bent down to pick up the CD, the car’s right front tire left the pavement and that
before he could pull the car back onto the road, it rolled down an embankment. He said that the first
thing he did was make sure that everyone was alright. He said that he did not hear anything from
the victim and that he saw that the victim was not breathing. He said that he gave the victim
cardiopulmonary resuscitation (CPR) and that he had the victim’s blood all over his shirt. He said
that everyone but the victim walked away from the accident.

        The defendant testified that he took Valium the night of the accident and that he was “legally
drunk” at the time of the wreck. He said that everyone in the car had been drinking “tremendously”
and that he took responsibility for the accident “one hundred percent.” He said that he wanted to talk
to kids in the community about his mistake. He said that the victim was his best friend and that he
wished he could switch places with the victim. He said that he will never drink and drive again.

        On cross-examination, the defendant acknowledged that he started drinking and taking drugs
when he was nineteen. He said that he has smoked marijuana a couple of times but that at the time
of the sentencing hearing, he had not smoked marijuana for two years. He said that before the
accident, he would occasionally drink with friends and get drunk. He said that on the night of the
accident, he drank about six beers. He said that the night of the accident was the first time that he
had taken Valium. He said that since the accident, he rarely drank alcohol and that he has had only
“a sip or two.” He said that after the wreck, an officer told him that it was a freak accident. He said
that the officer also gave him field sobriety tests and that he passed them. He said that he has visited
the victim’s grave six times.


                                                  -2-
        The defendant’s mother, Karen Barnes, testified as follows: She had a close relationship with
the defendant. The defendant was a difficult child to raise, and a doctor diagnosed him with ADD
when the defendant was fourteen years old. Because the defendant was having a difficult time in
school, she sent him to a special school in Utah, where he could get help and earn his diploma. The
defendant probably tried alcohol and drugs after he graduated from high school. The defendant was
very sorry for what happened, and he told her that he wished he had gotten killed instead of the
victim. After the accident, the defendant did not leave the house for a couple of months, and he
would not talk on the telephone. He was working at Christmas Place and was a very hard worker.
The defendant had a soft heart and liked to talk to people. The principal of a local middle school was
receptive to the defendant’s working in the school system, and Ms. Barnes thought that the defendant
could benefit the community by sharing his experience with kids. On cross-examination, Ms.
Barnes acknowledged that her son had two or three speeding tickets.

        Toby Barnes, the defendant’s father, testified as follows: After the defendant graduated from
high school, the defendant worked for a family friend in China and Japan. When the defendant
returned from Japan, he began working at Christmas Place. Before the accident, the defendant’s life
consisted of working and socializing with friends. The defendant also got some speeding tickets.
Since the accident, the defendant had matured and become a diligent worker. He had also begun
attending church. The defendant showed remorse and felt responsible for the victim’s death. Mr.
Barnes was committed to helping his son and would provide transportation so that the defendant
could do community service work.

       Betty Ogle, a friend of the Barnes family, testified as follows: She had known the defendant
about sixteen years. The defendant had been loving, kind, and gentle, and he had been doing
volunteer work at the Church of God Home for Children. She said that when her husband died in
1994, the defendant visited and comforted her. She said that the defendant and society would best
be served by allowing him to perform community service work.

         Steve Madison, a Barnes family friend, testified as follows: He was best friends with Toby
Barnes, and Mr. Madison’s son and the defendant were friends. The defendant had always been “a
little rough around the edges,” but the defendant had a big heart. Since the accident, the defendant
had changed and had learned not to drink and drive. The defendant had lived with the accident
everyday and had made some positive changes to his environment. Sending the defendant to jail
would harden the defendant’s heart, and society would be better off by allowing him to contribute
to the community.

        Nancy White, the victim’s mother, testified as follows: Ms. White and the victim’s father
were divorced. Although the victim lived with his father, he spent weekends, holidays, and summers
with Ms. White. The victim was happy and loving, and when he died, a part of her died with him.
Ms. White and the victim loved to go fishing. However, Ms. White had not picked up a fishing pole
since the victim’s death. After the victim’s death, Ms. White tried to commit suicide, and she had
been depressed and cried all of the time. The victim’s death caused Ms. White to hate the holidays,



                                                 -3-
and it tore her family apart. She agreed with the state’s recommendation that the defendant should
serve one year in jail.

        The victim’s father, Jerry Garner, testified as follows: The victim had lived with Mr. Garner
since the victim was six years old. Mr. Garner had a good relationship with the victim, and the
victim helped him with his business. Mr. Garner was married when the victim was killed, but the
victim’s death turned his life upside down and broke up his marriage. Mr. Garner will never be the
same, and he was on medication for depression. He did not want the defendant’s conviction to be
expunged from the defendant’s record.

        According to the presentence report, between November 1995 and February 1997, the
defendant received four misdemeanor convictions for speeding. In the report, the defendant stated
that he was driving fifteen to twenty miles per hour at the time of the accident in question. The
presentence report also provides that “the defendant appears to be a medium risk candidate for
probation.”

       At the sentencing hearing, the state argued that, as part of his five-year sentence, the
defendant should spend one year, day for day, in jail; that he should have to perform five hundred
hours of community service; and that his driver’s license should be revoked for five years. The
defense argued that the defendant should receive judicial diversion and that his driver’s license
should be revoked for only three years.

        The trial court sentenced the defendant to five years with ten months to be served in jail, day
for day, and the balance to be served on probation. The trial court also ordered that the defendant
perform five hundred hours of community service and revoked his driving privileges for five years.
In deciding against judicial diversion and full probation, the trial court stated:

                         Ladies and gentlemen, the Court has been considering the
               sentencing issues in #7974, State vs. Jared M. Barnes. This case is a
               tragedy; it’s a tragedy for everyone concerned. It’s a great tragedy for
               the young man, Sammy Garner. It’s a great tragedy for his family.
               It’s a tragedy for this defendant Jared Barnes who caused the death of
               his friend. It’s a tragedy for his family and it’s a tragedy for the
               community, the loss of a promising young man who was well liked.
               As pointed out in the testimony of everyone, it changed lives.

                       Sentencing in a criminal case is a matter of law. And the
               sentence to be applied has to be carried out adhering to the principles
               and statutes which govern sentences. Nothing the Court can do can
               bring back a loved one. Nothing the Court can do can undo the crime
               committed by this defendant.

               ....


                                                 -4-
        In reaching the sentencing decision the Court has considered
the facts and circumstances of the case, not only as presented in the
stipulated facts supporting the plea but also as set forth in this hearing
today. The Court’s considered the Pre-Sentence Investigation, the
testimony of the defendant, the testimony of the victim’s family, the
testimony of several witnesses, considered his criminal record and all
the circumstances in the case.

        The sentencing law focuses primarily upon the defendant, the
circumstances of his crime, the particular facts and factors that affect
him primarily. The law does recognize the impact of a crime upon
the family of the victim. It isn’t a balance between the life and merits
of the defendant and the victim but it’s a matter of law.

....

       I will point out that certain enhancing factors would have
applied; that is, his previous history of criminal behavior, the use of
alcohol and drugs in this event since the offense pled to did not have
alcohol and drugs as an element of the offense.

       In mitigation the defendant has shown remorse. The
defendant has shown that he suffered from Attention Deficit disability
as a child but the proof further shows that he’s performing and
functioning very well in society now.

....

        Having agreed to the sentence of five years the Court must
then consider by law various elements of that sentence. First of all is
alternative sentencing. That has already been applied by the parties
agreeing to a split confinement with a maximum of one year in jail.

         The Court must next consider how that five year sentence
should be served, that portion that the parties have agreed would be
not more than one year. That issue is probation, whether or not he
should be placed on straight probation or be ordered to serve a portion
or all of that agreed sentence.

         In looking at probation the Court must consider the nature and
circumstances of the offense, this defendant. In this particular case
probation would not be appropriate. This was a very serious offense.
It took the life of the victim. That’s inherent in the offense itself. But


                                   -5-
to avoid depreciating the seriousness of that offense the Court feels
that probation, straight probation would not be appropriate in this
case.

        The Court further considers in denying probation his previous
history of criminal conduct. As shown in this hearing he had four
previous convictions for misdemeanors, speeding, which normally in
and of itself do not seem like serious offenses but they’re violations
of the law. The standards of society that’s a crime. And he had four
of those.

         The proof further showed by his own admission that he had
illegally used marijuana on at least two previous occasions. The
illegal use of marijuana is a Class A Misdemeanor. It’s a crime to use
marijuana.

        In considering the facts and circumstances of this offense the
Court also is aware by the proof that there were two other passengers
in the vehicle. Fortunately they were not hurt. There were two others
who ran the risk of serious bodily injury or death by reason of this
defendant’s conduct.

        It was finally argued in a different approach normally
deterrence is a factor to be applied for imposing penalty and there are
certain requirements of the law in order to support a finding of
deterrence. In this case the defense argued deterrence by virtue of this
defendant’s voluntarily speaking out to school groups and others
about what had happened in this case, the effect it had on him, the life
of his friend as a deterrence to others. The State has argued that it
would be of little deterrence for someone who has committed a crime
that resulted in a death to not be punished.

        The Court finds that in this case straight probation is not
appropriate for the reasons I’ve given. The Court finds that based
upon what he has done, in addition to his remorse, in addition to all
the other facts and circumstances, he’s already begun by talking to
students, by sharing with them this tragedy and that’s worth some
credit.

      The Court is going to order that this defendant serve ten
months in the Sevier County Jail day per day.




                                  -6-
                        The next issue the Court must consider is the application for
                judicial deferral. Consideration of this looks at many of the same
                factors as would be looked at on the issue of probation. . . .

                        Again, he had four previous convictions for Misdemeanors.
                That doesn’t disqualify him. He did have a history of illegal use of
                drugs. That doesn’t disqualify him under the statute. But those
                previous criminal offenses coupled with the seriousness of the offense
                and to avoid depreciating the seriousness of this offense, leaves the
                Court to conclude that judicial deferral would not be appropriate in
                this case. So the conviction would stand.

                ....

                        The Court will further order as a condition of probation that
                he perform one hundred hours of public service per year of this
                sentence; one hundred hours to be completed in each year for a total
                of five hundred hours. How that public service will be performed
                will be done through the supervision of the Probation Department.
                It is suggested and proposed that he would do that by way of
                educational presentations to youth and that is desirable. The Court
                would ask that the Probation Office [emphasize] that as a part of his
                public service.

                        The Court believes that in doing that he will serve himself, he
                will serve the community. It may provide a deterrence as suggested
                but the fact that he will have served substantial time in jail and he
                may share that experience with his youthful audience will provide an
                even stronger deterrence. The Court feels that’s necessary in this
                case.

                            I. DENIAL OF JUDICIAL DIVERSION

        The defendant contends that the trial court erred when it refused to grant his request for
judicial diversion. He contends that when ruling on the judicial diversion issue, the trial court
ignored factors that it was required to consider such as (1) the defendant’s amenability to correction;
(2) certain circumstances of the offense, including the physical characteristics of the road and the fact
that the defendant was not speeding at the time of the offense; (3) the defendant’s social history; (4)
the defendant’s mental health; and (5) serving the ends of justice. Furthermore, the defendant argues
that because the state did not offer proof of a need for deterrence that would satisfy State v. Hooper,
29 S.W.3d 1 (Tenn. 2000), the trial court could not consider deterrence as a ground for denying
judicial diversion. The state argues that the trial court considered all of the required factors and that



                                                  -7-
it properly denied judicial diversion. We conclude that the trial court did not err in denying
diversion.

       First, we question whether the defendant’s plea agreement allowed for judicial diversion.
The plea agreement called for the defendant to plead guilty and accept a five-year sentence, with the
remaining consideration of the manner of serving the sentence being decided by the trial court.
Under judicial diversion, the trial court defers further proceedings without entering a judgment of
conviction, the ultimate goal of the defendant being a dismissal of the charges. See Tenn. Code Ann.
§ 40-35-313(a). The imposition of a sentence necessarily entails the entry of a judgment of
conviction. Thus, agreeing to a sentence would foreclose the option of judicial diversion. In any
event, because the state and the trial court considered diversion, we will review the trial court’s
decision.

        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 Tenn. Code Ann. § 40-35-313(a)(1)(B). As previously noted, 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. Tenn. Code Ann. § 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 § 40-35-313(a)(2). The defendant may then apply to have all records of
the proceedings expunged from his official records. See § 40-35-313(b). A person granted judicial
diversion is not convicted of an offense because a judgment of guilt is never entered. See § 40-35-
313(a)(1)(A).

         Judicial diversion is not a sentencing alternative for a defendant convicted of an offense. See
Tenn. Code Ann. § 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.” Tenn. Code Ann. § 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


                                                   -8-
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
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. The trial court concluded that the circumstances of the offense and the defendant’s
criminal history were factors that weighed against granting his request for judicial diversion. As for
the defendant’s contention that the trial court could not consider deterrence as a factor, we note that
the trial court found that the circumstances of the offense and the defendant’s criminal history alone
outweighed all of the other factors. Even if we assume that the trial court improperly considered the
deterrence factor, such error would not have changed the trial court’s result in this case. Therefore,
in light of the record before us, we do not believe that the trial court erred in denying the defendant’s
request for judicial diversion.

                              II. DENIAL OF FULL PROBATION

         Next, the defendant contends that the trial court erred in denying him full probation because
the trial court considered inappropriate factors and failed to follow the Criminal Sentencing Reform
Act of 1989. The defendant contends that the mere fact that a death resulted from the offense is not
sufficient to overcome the presumption afforded him by Tenn. Code Ann. § 40-35-102(6) as a Range
I, Class C felon that he is a candidate for a sentence alternative to confinement so as to justify
denying him probation. In addition, he argues that the trial court improperly concluded that his
marijuana use and four speeding tickets created a criminal history sufficient to deny full probation.
Furthermore, he argues that because the trial court applied inappropriate factors, the trial court’s
ruling is not entitled to a presumption of correctness. The state argues that the trial court properly
sentenced the defendant. We agree with the state.

        As previously stated, appellate review of the manner in which a sentence is to be served is
de novo on the record with a presumption that the trial court's determinations are correct. Tenn.
Code Ann. § 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. State v. Ashby, 823 S .W.2d 166, 169 (Tenn. 1991). 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). In conducting a de novo review, we must consider (1) the evidence, if any,
received at the trial and sentencing hearings, (2) the presentence report, (3) the principles of


                                                  -9-
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 need and potential for rehabilitation or treatment.
Tenn. Code Ann. §§ 40-35-102, -103 and -210; Ashby, 823 S.W.2d at 169.

        A Range I, standard offender, who has been convicted of a Class C, D, or E felony, is
presumed to be a favorable candidate for a sentence other than confinement if there is no evidence
to the contrary. See Tenn. Code Ann. § 40-35-102(5)-(6). However, confinement is appropriate
when it is necessary to avoid depreciating the seriousness of the offense. See Tenn. Code Ann. §
40-35-103(1)(B). The “fact that the death of another results from the defendant’s conduct does not,
alone, make the offense sufficiently violent to justify a denial of probation nor can it be viewed as
sufficient evidence to overcome § 40-35-102(6).” State v. Butler, 880 S.W.2d 395, 400-01 (Tenn.
Crim. App. 1994).

         We conclude that the trial court’s findings as to the probation are entitled to a presumption
of correctness because the record reflects that in denying probation, the trial court considered the
relevant facts, circumstances, and sentencing principles in this case. Although the defendant is
correct in that death of the victim alone is not sufficient justification for denying probation, the
sentencing hearing transcript shows that the trial court considered many factors and determined that
the facts and circumstances of the offense, the defendant's criminal history, and the need to avoid
depreciating the seriousness of the offense warranted denying full probation. The evidence
demonstrates that the trial court followed the requirements of the law and exercised solid judgment
in its determination that the defendant should serve ten months of his sentence in confinement.

        As for the defendant’s contention that the trial court improperly considered his speeding
tickets and prior marijuana use in denying full probation, we disagree. Moreover, we believe that
the facts and circumstances of this case warrant denying full probation. The defendant admitted to
driving a car while legally drunk and causing the victim’s death. As pointed out by the trial court,
the defendant put the lives of his two other passengers in jeopardy. Therefore, we hold that the
defendant failed to show that the trial court’s sentence of ten-months incarceration was improper.

         We must note, though, that the trial court ordered the defendant to serve his ten-month
confinement “day for day.” A defendant sentenced to the county jail for less than one year is entitled
to earn good conduct credits. See Tenn. Code Ann. § 41-2-111(b). This court has held that a trial
court cannot deny a defendant this statutory right. See State v. James Kevin Underwood, E2000-09-
1945-CCA-R3-CD, Washington County, slip op. at 5-6 (Tenn. Crim. App. Aug. 2, 2001) (holding
that defendant sentenced to six months in jail, day for day, is entitled to earn good conduct credits);
State v. Frank R. Clark, No. M2000-00862-CCA-R3-CD, Warren County, slip op. at 4 (Tenn. Crim.
App. July 25, 2001), app. filed (Tenn. Sept. 13, 2001) (ordering driving under the influence sentence
to be served in confinement at 100% cannot preclude applicable conduct credits). Therefore, the
defendant’s sentence of ten months confinement “day for day” does not operate to preclude
applicable conduct credits.



                                                 -10-
        In consideration of the foregoing and the record as a whole, we affirm the trial court’s denial
of judicial diversion and full probation.


                                                        ___________________________________
                                                        JOSEPH M. TIPTON, JUDGE




                                                 -11-
