          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT NASHVILLE             FILED
                           SEPTEMBE R SESSION, 1998      December 8, 1998

                                                        Cecil W. Crowson
                                                       Appellate Court Clerk
STATE OF TENNESSEE,                 )    C.C.A. NO. 01C01-9710-CR-00454
                                    )
            Appellee,               )
                                    )    SUMNER COUNTY
V.                                  )
                                    )
                                    )    HON. JANE WHEATCRAFT, JUDGE
MICHAEL T. KEEN,                    )
                                    )
            Appe llant.             )    (VEHICULAR HOMICIDE)



FOR THE APPELLANT:                       FOR THE APPELLEE:

DAVID A. DOYLE                      JOHN KNOX WALKUP
District Public Defender                Attorney General & Reporter
18th Judicial District
117 East Main Street                     CLINT ON J. M ORG AN
Gallatin, TN 37066                       Assistant Attorney General
                                         2nd Floor, Cordell Hull Building
                                         425 Fifth Avenue North
                                         Nashville, TN 37243

                                         LAWRENCE RAY WHITLEY
                                         District Attorney General

                                         SALLIE WADE BROWN
                                         Assistant District Attorney General
                                         18th Judicial District
                                         113 West Main Street
                                         Gallatin, TN 37066




OPINION FILED ________________________

AFFIRMED

THOMAS T. WOODALL, JUDGE
                                    OPINION
       Michael T. Keen, the Defendant, appeals as of right following his sentencing

hearing in the Sum ner Co unty Criminal Court. Defendant was indicted for vehicular

homicide and D UI, seco nd offen se. In an agreement with the State, Defendant pled

guilty to vehicula r homic ide, a Class B felony, and agreed to an eight (8) year

sentence, with the trial court to determine the manner of service of the sente nce.

Following his sentencing hearing, the trial court orde red Defen dant to serve eight (8)

years in the Tennessee Department of Correction. In his appeal, Defendant argues

that the trial court erred in refusing to grant an alterna tive sentence. We affirm the

judgm ent of the tria l court.



       When an accused challenges the length, range or the ma nner of s ervice of a

sentence, this court has a duty to conduct a de novo review of the sentence with a

presumption that the determinations made by the trial court are correct. Tenn. Code

Ann. § 40-35 -401( d). Th is presumption is “conditioned upon the affirmative showing

in the record that the trial court considered the sentencing principles and all relevant

facts and circum stances.” State v. Ashby, 823 S.W .2d 166 , 169 (T enn. 19 91).



       In conducting a de novo review of a sentence, this co urt must con sider: (a) the

evidence, if any, received at the trial and the sentencing hearing; (b) the presentence

report; (c) the principles of sentencing and arguments as to sentencing alternatives;

(d) the nature and chara cteristics of the criminal co nduct involved; (e) an y statutory

mitigating or enhancement factors; (f) any statement that the defen dant m ade o n his

own behalf; an d (g) the p otential or lac k of poten tial for rehab ilitation or treatm ent.




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Tenn. Code An n. §§ 40 -35-102 , -103, an d -210; see State v. S mith, 735 S.W .2d

859, 863 (T enn. Crim. A pp. 1987).



       If our rev iew refle cts that the trial court followed the statutory sentencing

procedure, imposed a lawful sentence after having given due consideration and

proper weight to the factors and principles set out under the sentencing law, and

made findings of fact adequately supported by the record, then we may no t modify

the senten ce even if we wou ld have p referred a different res ult. State v. Fletcher,

805 S.W .2d 785, 789 (Tenn. Crim . App. 1991 ).



       Defendant was convicted of a Class B felony, thus he is not presumed to be

a favorable candidate for alternative sentencing options. Tenn. Code Ann. § 40-35-

102(6); State v. Smith, 891 S .W .2d 92 2, 929 (Ten n. Crim . App. 1 994). N or is

Defendant eligible for pa rticipatio n in a co mm unity co rrection s prog ram d ue to h is

conviction for vehicula r homic ide. Ten n. Cod e Ann. § 40-36-1 06(a)(2) . However,

as a defendant sentenced to eight (8) years or less, he was statutorily eligible for

probation. Tenn. Co de Ann . § 40-35 -303. W hile the trial co urt was re quired to

consider the Defendant as a candidate for probation, the Defendant bore the burden

of establishing both his suitab ility and th at an a lternativ e to inc arcera tion wo uld

“subserve the ends of justice a nd the best intere st of both the public and the

defend ant.” State v. Dykes, 803 S.W.2d 250, 259 (Tenn. Crim. App. 1990) (citations

omitted). The trial court found that Defe ndant fa iled to carry th at burde n. See State

v. Boston, 938 S.W .2d 435 , 438 (T enn. C rim. App . 1996).



       When imposing a sentence of total confinement, our Criminal Sentencing

Reform Act ma ndates the trial cour t to base its decision on the considerations set

                                            -3-
forth in Tennessee Code Annotated section 40-35-103. These considerations which

militate against alternative sentencing include: the need to protect society by

restraining a defendant having a long history of criminal conduct; whether

confinement is partic ularly ap propr iate to e ffectively deter o thers lik ely to com mit a

similar offense; the need to avoid depreciating the seriousness of the offense; and

the need to order confinement in cases in which less restrictive measures have often

or recently been unsuccessfully applied to the defendant. Tenn. Code Ann. § 40-35-

103(1).



       In determining whether to grant probation , the judge must consider the nature

and circumstances of the offense, the defendant’s criminal record, his background

and social history, his present condition, including his physical and mental condition,

the deterrent effect on other criminal activity, and the like lihood that pro bation is in

the best in terests of both the pu blic and the defend ant. Stiller v. State, 516 S.W.2d

617, 620 (Ten n. 1974). The b urden is on the defendant to show that the sentence

he received is improp er and th at he is en titled to probatio n. Ashby, 823 S.W.2d at

169.



       The record before us justifies the sentence imposed by the trial court. At the

sentencing hearing, the victim’s mother testified that three (3) to four (4) weeks prior

to the night the victim was killed, the Defendant was driving the victim and the

victim’s brothe r aroun d until the early morn ing hours wh ile all three (3) were drinking.

She advised the Defendant that she was going to press charges, but Defendant

apolog ized and promis ed to ne ver do it aga in.




                                             -4-
      The presentence report reflects that the Defendant told the police he was

driving his girlfriend, s tepbroth er and s tepsister around while he was drinking.

Defendant admitted that “drinking and driving was something that I was accustomed

to doing” due to his drinking problem. At the time of the accident he was driving

approxima tely sixty-five (65) miles per hour when he saw that he was going to run

into a tree and tried to cut his vehicle to the le ft. The Defendant’s stepsister was

killed due to the accident. Defendant testified that the victim’s moth er corr ectly

described that one (1 ) month prior to the vic tim’s dea th, the De fendant had her

children o ut drinking and driving until 3:30 a .m.



      The presen tence re port and the prob ation office r who tes tified at the

sentencing hearing both indicated that Defendant was employed at the time of the

sentencing hearin g and had b egun going to AA mee tings a nd Pa thfinders, a

drug/alcohol rehabilitation facility. Defendant was desc ribed b y a sup ervisor at his

place of emp loymen t as “an ac ceptab le emp loyee.” Defendant’s sponsor at AA

described Defendant as “involved” in the program for ten (10) weeks prior to the

sentencing hearing, but no t “actively.” During Defen dant’s testimon y, he admitted

that he missed a full month of AA meetings from A pril 8, 19 97 un til May 6, 1997, and

also m issed the meetin gs from May 22 , 1997 thr ough J une 12 , 1997.



      Prior to this offense, Defendant had twice been arrested for DUI. He was first

arrested for DUI on September 1, 1995, and was convicted of DUI on October 16,

1995. Defendant was sentenced to eleven (11) months, twenty -nine (2 9) day s, all

suspended except for forty-eight (48) hours. The second arrest for DUI occurred on

June 10, 1996, while Defendant was on probation from his first DUI conviction, and

resulted in a conviction for reckless driving on August 19, 1996. The reckless driving

                                           -5-
conviction concluded with a sentence of six (6) months, with all except forty-eight

(48) hours suspended. During his testimony, Defendant conceded that he never

sought help for his drinking problem following either of these convictions, and that

he continued to drink and d rive. Th is offense of vehicular homicide was committed

on November 8, 1996, only three (3) months after Defendant’s last conviction. A

violation of probation wa s pending in G eneral Sessions Court at the time of the

senten cing hea ring.



      Other proof at the sentencing hearing included testimony that Defendant was

in a bowling alley on July 4, 1997, just prior to the sente ncing hearin g for his

vehicu lar homic ide conv iction.   W hile at the b owling alle y, Defen dant tried to

persuade a waitress to serve alcoholic beverages to his girlfriend, who was not of

age to legally consume alcoholic beverages.



      With two (2) prior DUI arrests in the two (2) years preceding this offense, the

need to protect society by restraining this Defendant with a history of criminal

conduct is obvious. By his own admission, Defendant has continued to drink and

drive following his previous convictions. As the trial court noted, drinking and driving

is a serio us pro blem in our society a nd con fineme nt is particula rly approp riate to

effective ly deter the Defendant.    Defendant did not seek any help for his alcohol

problem until as late as February 1997, and between the time of February until the

time of the sentencing hearing he had only attended AA a total of twenty-three (23)

times. The trial court found that Defendant should have attended as many as 143

times since this acciden t occurred. As d escribed by a probation officer of the court,

this Defendant has twice before been placed on probation. With a hearing for

Defe ndan t’s violation of probation imminent at the time of his sentencing, the need

                                           -6-
to order confinement when less restrictive measures have often and recently been

unsu cces sfully applied was also justified by the record. Defendant bore the burden

of establish ing his su itability for probation and that an alternative to incarceration

would subserve the ends of justice and the best interest of both the public and the

defend ant.   Based upon his continuing criminal conduct, his failure to seek

continuing assistance with his alcohol addiction, and the fact that probation has been

implemented on two (2 ) prior occa sions in th e past two (2) years without success,

the De fendan t has failed to mee t his burde n. This iss ue is witho ut merit.



      We affirm the ju dgme nt of the trial co urt.



                                  ____________________________________
                                  THOMAS T. W OODALL, Judge



CONCUR:



___________________________________
GARY R. WA DE, Presiding Judge


___________________________________
JAMES CURW OOD W ITT, JR., Judge




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