        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT NASHVILLE          FILED
                       JANUARY SESSION, 2000         March 31, 2000

                                                   Cecil Crowson, Jr.
                                                  Appellate Court Clerk
STATE OF TENNESSEE,           )   M1998-00092-CCA-R3-CD
                              )
      Appellee,               )
                              )   DAVIDSON COUNTY
VS.                           )
                              )
MICHAEL A. DANIEL,            )   HON. FRANK G. CLEMENT,
                              )   JUDGE
      Appellant.              )
                              )   (Sentencing)




FOR THE APPELLANT:                     FOR THE APPELLEE:

DAV ID L. RA YBIN                      PAUL G. SUMMERS
SunTrust Center, Suite 2210            Attorney General and Reporter
424 Church Street
Nashville, TN 37219                    LUCIAN D. GEISE
                                       Assistant Attorney General
                                       425 Fifth Avenu e North
                                       Nashville, TN 37243

                                       VICTOR S. JOHNSON
                                       District Attorney General

                                       EDWARD S. RYAN
                                       Assistant District Attorney General
                                       Washington Square, Suite 500
                                       Nashville, TN 37201-1649


OPINION FILED ________________

SENTENCE MODIFIED

DAVID H. WELLES, JUDGE
                                 OPINION
       The Defendant appeals from the sentences imposed by the trial court. He

was convicted, upon his pleas of guilty, of three counts of vehicular homicide by

intoxication. The trial judge sentenced him to three concu rrent terms of twe lve

years in the Department of Correction. On appeal, the Defendant argues that the

trial court erred in its application of certain enhancem ent factors, and the refore

the sentence of twelve years for each conviction is excessive. We modify the

senten ces imp osed b y the trial cou rt.



       The Defe ndan t's con victions are the result o f the viole nt collision of two

vehicles which occurred on Donelson Pike in Nashville at approximately 1:25

a.m. on November 23, 1997. A pickup truck driven by the Defendant crossed the

center line of the ro adway into onco ming tra ffic and co llided hea d-on with a

Volkswagon Beetle in which three young men were traveling. Two of the young

men were pronounced dead at the scene of the acc ident. The third young man

died shortly thereafter at the hospital. A blood sample drawn from the Defendant

appro ximate ly one hour after the collision showed a blood alcohol content of .18

percen t.



       The Defendant pleaded guilty to three counts of vehicular homicide as the

proximate result of intox ication, ea ch offens e being a Class B felony. 1

Sentencing was left to the discretion of the trial judge. After conducting a

sentencing hearing, the judge sentenced the Defendant on each count to twelve

years in the Department of Correction to be served as a Range I offender, which

1
    See Tenn. Code Ann. § 39-13-213.

                                            -2-
is the maximum term authorized by law for each of for the Defendant's crimes.

The sentences were ordered served concurrently. It is from the sentences

imposed by the trial court that the Defendant appeals.



             When an accused challenges the length, range, or manner of service

of a senten ce, this Co urt has a duty to conduct a de novo review of the sentence

with a presumption that the determinations made by the trial court are co rrect.

Tenn. Code Ann. § 40-35-401(d). This presumption is “conditioned upon the

affirmative showing in the record that the trial court considered the sentencing

principles and all relevant facts and circumstanc es.” State v. Ashby, 823 S.W.2d

166, 169 (T enn. 1991 ).



      When conducting a de novo review of a sentence, this Court must

consider: (a) the e videnc e, if any, received at the trial and sentencing hearing; (b)

the presentence report; (c) the principles of sentencing and argum ents as to

sentencing alternatives; (d) the nature and characteristics of the criminal conduct

involved; (e) any statutory mitigating or enhancement factors; (f) any statement

made by the defendant regarding sentencing; and (g) the potential or lack of

potential for rehabilitation or treatm ent. State v. Thomas, 755 S.W.2d 838, 844

(Tenn . Crim. A pp. 198 8); Ten n. Cod e Ann. §§ 40-35-102, -103, -210.



      If our review reflects that the trial court followed the statutory sentencing

procedure, that the court imposed a lawful sentence after having given due

consideration and proper weight to the factors and principles set out under the

sentencing law, and that the trial court’s findings of fact are adequately supported

by the record, then we may not modify the sentence even if we would have

                                         -3-
preferred a different res ult. State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim.

App. 1991 ).



      At the sentencing hearing the State presented testimony and other

evidence concerning the deadly and tragic collision which occurred when the

Defe ndan t's vehicle crossed the center line and struck the victims' vehicle.

Testimony from members of the victims' families and letters submitted by other

mem bers of the victims' fam ilies were re ceived into evidence, demonstrating the

great personal loss suffered by the victims' families as a result of the Defe ndan t's

actions. All three victims had very promising future s. Two of them were law

students at Vand erbilt University. The trial judge noted that the Defendant had

caused the death of “three very bright shining stars.” From our review of the

record, this characterization appears to be entirely accurate.



      At the time of sente ncing the De fendant was thirty-nine yea rs old. H e is

a high school graduate who has also received extensive vocational training. The

presentence report reflects that the Defendant is married and has two children,

who, at the time of sentencing, were eight and eleven years old. At the time of

sentencing the De fenda nt had been emp loyed a t the N issan Motor Manufacturing

facility in Smyrna for over thirteen years. Prior to that he was employed at Allad in

Industries for seve n year s. His prior crimin al history co nsists of a conviction for

DUI in 1991.



      The Defe ndan t's supervisor at the Nissan Motor Manufacturing Company

testified that the Defendant was an excellent employee, who was dependable and

capable. Members of the Defendant's family testified in suppo rt of the De fendan t.

                                          -4-
He was described as a very caring and hard-working family member who was a

good provider for his family. These witnesses also testified concerning the

feelings of remorse and regret which the Defendant has for his crimes.



       The Defendant also presented testimony from Dr. William H. Ander son, a

licensed clinical psychologist. Dr. Anderson testified that he performs work as an

alcohol and dru g abus e coun selor. The De fendant was referred to Dr. Anderson

by his attorney shortly after the accident.          Dr. Anderson testified that the

Defendant was remorseful and suffered from depression concerning the deaths

of the victims. Dr. Anderson stated that he had pe rformed certain tests, had

evaluated the Defendant, and had diagnosed him as a probable alcoholic. He

said the Defendant was very receptive to his counseling and his treatment for the

disease of alcoholism.        He stated that the Defendant never missed an

appoin tment, that the Defendant had beco me in volved in Alcoholics Anonymous

and tha t the Defe ndant re maine d in a “reco very prog ram.”



       The Defendant testified at his sentencing hearing. He stated that on the

Saturday immediately preceding the accident he had worked his usual twelve-

hour shift at Nissan, as he had also done the preceding Friday. He had also

worked overtime on Wednesd ay and T hursda y of that we ek and was go ing to

school part-tim e at Na shville S tate T echn ical Inst itute du ring this period of time.

That Saturday morning, he had gotten u p at about 4:40 a.m. and rep orted to work

at 6:00 a.m . His shift that Saturday evening ended about 6:30 p.m. A group of

family members and friends were having a party that evening. After h e got off

from work he decided to attend the party, even though he was tired. He arrived

at the party a round 8 :30 p.m . He said that during the approximate four-hour

                                           -5-
period he was at the party, he consumed about five mixed daiquiri drin ks. He left

the party some time after m idnight an d started on the ap proxima te eighte en-m ile

drive back to his home. H e was abo ut five miles from his home when his truck

collided with the volkswagon. The Defendant expressed his remorse for his

crime s and desc ribed th e effec t the eve nts ha d on h is life. He said that he had

become convinced that he was an alcoholic and stated that he had not consumed

any alcohol since the night of the tragic accident which took the lives of the three

young men.



      For sentencing purposes, the Defendan t clearly meets the c riteria for a

Range I standard offender. As noted by the trial judge, the sentencing range

established by our leg islature for a Rang e I standa rd offend er convic ted of a

Class B felony is a minimum of eight years and a maximum of twelve years.

Tenn. Code Ann. § 40-3 5-112(a)(2). If there are no enhancement or mitigating

factors, the presumptive sentence is the minimum sentence in th e range . Id. §

40-35-210(c). If there are enhancement and mitigating factors, the sentencin g

court must start at the minimum sentence in the range, enhance the sentence

within the rang e as ap propriate for the statutory enhancement factors, and then

reduce the sentence within the range as appropriate for the statutory mitigating

factors. Id. § 40-35 -210(e). If there are enhancement factors but no mitigating

factors, then the court may set the sentence above the minimum but still within

the rang e. Id. § 40-35-21 0(d).



      In sentencing th e Defend ant to the ma ximum term of twelve years for each

offense, the trial judge found and applied three enhancement factors: (1) that the

Defendant has a previous history of criminal convictions or crimin al beh avior in

                                         -6-
addition to those nece ssary to establish the appropriate ran ge; (2) the offense

involved more than one victim; and (3) the Defendant had no hesitation about

committing a crime when th e risk to hu man life w as high. Id. § 40-35-11 4(1), (3),

(10).



        The Defenda nt's prior conviction for DUI supports application of the first

enhancement factor because it establishes the Defendant's history of one

previous criminal conviction. The Defendant concedes that the trial judge was

correct in a pplying this enhan ceme nt factor. See id. § 40-35-11 4(1).



        The Defendant argues that the trial judge erred in applying as an

enhancement factor that the offense involved more than one victim. Id. § 40-35-

114(3 ). He a rgues that this enhancement factor cannot apply because there is

a separate conviction for each of the victims of vehicular h omic ide. The State

concedes that the trial court erred by applying this enhancement factor. T his

Court has consistently held that this factor may not be applied to enhance a

sentence when a Defen dant is separately convicted of the offense committed

against each victim . State v. Lam bert, 741 S.W.2d 127, 134 (Tenn. Crim. App.

1987); State v. Williamson, 919 S.W.2d 69, 82 (Tenn. Crim. App. 19 95); State v.

Freeman, 943 S.W .2d 25, 31 (Tenn . Crim. A pp. 199 6). We must therefore

conclude, as the State conce des, th at the tria l judge erred in applyin g this

enhance ment factor.



        The Defe ndan t also argues that the trial judge erred by applying the

enhancement factor that the Defendant “had no hesitation in committing a crime




                                         -7-
when the risk to hum an life was high.” Tenn. Code Ann. § 40-35-114(10). The

trial judge e xplained his applica tion of this en hance ment fa ctor by statin g,

       Now the crime was the drinking and then driving and the reason you
       can't do that is that after you have been drinking, then you are no
       longer in the position of making an informed decision of should I
       drive. Then the crime, you can't say, well, I had been drinking too
       much and, th erefor e, I really d idn't know that I shouldn't have been
       driving; that doesn't work and that is an enhancement factor. So
       that, too, wo rks aga inst the de fendan t.


       It appe ars from the trial ju dge's comments that h e app lied this

enhancement factor to the Defendant's conviction for vehicular homicide based

upon the Defe ndant's a ctions of d riving while u nder the influence of an intoxic ant.

Our legislature has clea rly recogn ized that D UI is a ser ious offen se. It is one of

the few offenses, other than Class A felonies, which carries mandatory jail time.

See id. § 55-10-403. Furthermore, beginning in 1995, our legislature provided

that when a vehicular homicide occurs because of a driver's intoxication, the

offense is a Class B felony, punishab le by a sentenc e range of eigh t to twelve

years for a stand ard offen der. See id. §§ 39-13-213(b), 40-35-112(a)(2). For the

same offender, vehicular homicide which is not the result of intoxication is a

Class C felony, punishable by a range of three to six years. See id. §§ 39-13-

213(b), 40-35 -112(a)(3).



       Our legislature has also provided that statutory enhan cemen t factors may

be applied if ap propriate for the offen se, but enhancement factors may not be

applied if the factors are “themselves essential elements of the offense as

charged in the indictment.” Id. § 40-35-114. To the extent that the trial judge

enhanced the Defendant's sentence based upo n his co nduc t in driving while

under the influence of an intoxicant, we must conclude that the judge erred. The


                                          -8-
legislature cons idered driver in toxicatio n as a sente nce e nhan cer wh en it

increased the sentencing range for vehicular homicide by reason of intoxication

from a rang e of thre e to six ye ars to a range of from eight to twelve ye ars. W e

do not believe the legislature intended that the same conduct be cons idered to

again enhance a defendant's sentence within the range.



         Nevertheless, this Court has held that enhancement factor (10) may be

prope rly considered if the Defendant's crime created a high risk to the lives of

individu als other tha n the victim (s). See State v. Bingham, 910 S.W.2d 448, 452-

53 (Tenn. Crim. A pp. 199 5); State v. Lam bert, 741 S.W.2d 127, 134 (Tenn. Crim.

App. 1987). At the time the Defendant's vehicle collided with the victims' vehicle,

two friends of th e victims w ere travelin g in a sep arate veh icle in the lan e next to

the victims' Volkswagon. The driver of the other vehicle testified that he saw the

Defe ndan t's truck veer into the lane in which the Volkswagon was traveling. He

stated that it happened “all of a sudden” and that it startled him when he saw the

truck.    He said that he had to swerve and that he “saw the truck hit the

volkswa gon.” Based on our review, we conclude that the rec ord doe s supp ort a

finding that the D efendant created a high risk to th e lives o f the two individu als

traveling in this vehicle.



         In this case, if there were no enhancement factors applicable to the

Defendant's sente nces, our law would mandate a sentence of eight years for

each conviction.      The trial judge applied three enhancement factors and

sentenced the Defenda nt to the maxim um of twelve ye ars for each offense. W e

have conclud ed that the trial judge er red in his a pplication of one of th e three




                                           -9-
enhancement factors. We conclude that the judgm ent of the trial court should be

modified to reflect a sentence of ten years for each conviction.




                                      ______________________________
                                      DAVID H. WELLES, JUDGE



CONCUR:



________________________________
JERRY L. SMITH, JUDGE



________________________________
THOMAS T. WOODALL, JUDGE




                                      -10-
