             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                              AT NASHVILLE
                                   Assigned on Briefs March 11, 2003

                    STATE OF TENNESSEE v. JOHNNIE C. WEEMS

                    Direct Appeal from the Circuit Court for Robertson County
                             No. 01-0202    Michael R. Jones, Judge



                        No. M2002-01857-CCA-R3-CD - Filed March 27, 2003


The defendant, Johnnie C. Weems, pled nolo contendere to three separate counts of Class C felony
vehicular homicide, was sentenced as a Range I standard offender to five years on each count to run
concurrently, and was denied alternative sentencing. On appeal, he contends the sentences are
excessive and the trial court erred in denying alternative sentencing. We affirm the judgments of
the trial court.

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

JOE G. RILEY, J., delivered the opinion of the court, in which GARY R. WADE, P.J., and ALAN E.
GLENN, J., joined.

Roger Eric Nell, District Public Defender, for the appellant, Johnnie C. Weems.

Paul G. Summers, Attorney General and Reporter; Brent C. Cherry, Assistant Attorney General; John
Wesley Carney, Jr., District Attorney General; and B. Dent Morriss, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                                      OPINION

        The defendant was indicted on alternative counts of vehicular homicide as the proximate
result of conduct creating a substantial risk of death and vehicular homicide by intoxication after an
automobile accident on June 25, 1999, in which three passengers in the defendant’s vehicle were
killed. See Tenn. Code Ann. § 39-13-213(a)(1), (2). The defendant subsequently entered a plea of
nolo contendere to three counts of vehicular homicide as the proximate result of conduct creating
a substantial risk of death.1 Id. § 39-13-213(a)(1). After conducting a sentencing hearing, the trial



         1
           Although neither the presentence report nor the testimony at the sentencing hearing reveals the extent to which
the defendant had consumed alcohol, one of the defendant’s mo tions in the technical record indicates that the TBI
laboratory report reflected a .14% blood alcohol content. W e plac e no reliance upon this reading as it appears from the
technical reco rd that the sample may have been destro yed prior to any charges against the d efendant.
court sentenced the defendant to concurrent sentences of five years on each count and denied
alternative sentencing. This appeal ensued.

        A transcript of the nolo contendere proceeding is not included in the record. Ordinarily, this
results in a waiver of all sentencing issues. See State v. Keen, 996 S.W.2d 842, 844 (Tenn. Crim.
App. 1999). However, stipulated facts were set forth in the written plea and were made a part of the
record. We believe the record is sufficient to allow for adequate appellate review.

                                                 BACKGROUND

        On June 25, 1999, the defendant and four of his friends “spent the evening together, partying,
and visiting other friends and places in Nashville and Clarksville, Tennessee.” Although neither the
defendant nor the other surviving passenger has any recollection of the accident, the evidence
indicated that the defendant was the driver of the vehicle. The vehicle passed a semi-trailer truck
on I-24. The truck driver was exceeding the speed limit and stated the defendant’s vehicle “passed
him as if he were standing still.” The indictment alleges the defendant was driving approximately
100 miles per hour. The defendant’s vehicle then proceeded off the road where it struck three
separate trees. As a result of the violent impacts, three of the passengers were killed. One of these
victims was “cut in half, apparently by the seatbelt.”

        The presentence report indicates that the twenty-two-year-old defendant has a tenth grade
education and sporadic work history. He had two prior DUI convictions and was on probation for
one of those convictions at the time of this accident. He also had a history of cocaine use, including
the use of cocaine two months prior to the sentencing hearing.

        The trial court applied enhancement factor (1), the defendant has a previous history of
criminal convictions or criminal behavior in addition to those necessary to establish the appropriate
range. See Tenn. Code Ann. § 40-35-114(1) (1997).2 Although the defendant contends the trial
court applied enhancement factors (8), the defendant has a previous history of unwillingness to
comply with conditions of a sentence involving release in the community, and (13), this felony was
committed while the defendant was on probation from a prior felony, see id. § 40-35-114(8), (13),
we conclude otherwise. After the trial court mentioned their possible application, it then stated: “I
could say that 8 and 13 enhancement factors apply, but I believe I’m applying Subsection 1, which
is basically the same thing.”3 The trial court also applied mitigating factor 13, any other factor
consistent with the purposes of this chapter, because of the defendant’s unfortunate childhood. See
id. § 40-35-113(13).



         2
             The Code was amended in 2002, and the factors were renumbered. Our references are to the 1997 version of
the Code.
         3
           Factor (8) is not applicable because commission of the present offenses while on probation is not a “previous
history of unwillingness.” See State v. Hayes, 899 S.W .2d 175, 186 (Tenn. Crim. App. 1995). Factor (13) is also
inapp licable since the defendant was on misdemeanor, not felony, probation when the present offenses were committed.
See State v. Sims, 909 S.W .2d 46, 50 (T enn. Crim. App. 1995).

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                                    STANDARD OF REVIEW

       A defendant who challenges his or her sentence has the burden of proving the sentence
imposed by the trial court is improper. Tenn. Code Ann. § 40-35-401, Sentencing Commission
Comments; State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). It is this court’s duty to conduct a
de novo review of the record with a presumption the trial court’s determinations are correct when
a defendant appeals the length, range, or manner of service of his or her sentence. Tenn. Code Ann.
§ 40-35-401(d). 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. Pettus, 986 S.W.2d 540, 543-44 (Tenn. 1999).

        An especially mitigated or standard offender convicted of a Class C, D, or E felony is
presumed to be a favorable candidate for alternative sentencing in the absence of evidence to the
contrary. Tenn. Code Ann. § 40-35-102(6). However, this presumption is not available to a
defendant who commits the most severe offenses, has a criminal history showing clear disregard for
the laws and morals of society, and has failed past efforts at rehabilitation. Id. § 40-35-102(5); State
v. Fields, 40 S.W.3d 435, 440 (Tenn. 2001). The court should also examine the defendant’s
potential for rehabilitation or lack thereof when considering whether alternative sentencing is
appropriate. Tenn. Code Ann. § 40-35-103(5). Sentencing issues must be decided in light of the
unique facts and circumstances of each case. See State v. Taylor, 744 S.W.2d 919, 922 (Tenn. Crim.
App. 1987).

       Under the 1989 Sentencing Act, sentences which involve confinement are to be based on the
following considerations contained in Tennessee Code Annotated section 40-35-103(1):

        (A) [c]onfinement is necessary to protect society by restraining a defendant who has
        a long history of criminal conduct;

        (B) [c]onfinement is necessary to avoid depreciating the seriousness of the offense
        or confinement is particularly suited to provide an effective deterrence to others
        likely to commit similar offenses; or

        (C) [m]easures less restrictive than confinement have frequently or recently been
        applied unsuccessfully to the defendant.

State v. Grigsby, 957 S.W.2d 541, 545 (Tenn. Crim. App. 1997); State v. Millsaps, 920 S.W.2d 267,
270 (Tenn. Crim. App. 1995).

                                   LENGTH OF SENTENCES

       The defendant first contends the trial court erred by finding his DUI conviction on January
31, 2002, which was after the present crime but before sentencing, constituted a previous conviction
within the meaning of enhancement factor (1). See Tenn. Code Ann. § 40-35-114(1). He
acknowledges there are numerous cases in which this court has held that previous convictions under
enhancement factor (1) include convictions which were obtained after the crime in question but prior

                                                  -3-
to sentencing. See, e.g., State v. William E. Gothard III, No. 03C01-9707-CR-00290, 1999 Tenn.
Crim. App. LEXIS 609, at *15 (Tenn. Crim. App. June 22, 1999, at Knoxville), perm. to app. denied
(Tenn. 1999); State v. John Allen Chapman, No. 01C01-9604-CC-00137, 1997 Tenn. Crim. App.
LEXIS 950, at **66-67 (Tenn. Crim. App. Sept. 30, 1997, at Nashville), perm. to app. denied (Tenn.
1998). We decline the defendant’s invitation to reject and overrule our prior holdings. In addition
to the questioned DUI conviction, the defendant also had another DUI conviction and admitted to
the use of cocaine. Even though the defendant was not convicted of a cocaine offense, this court can
still consider this as prior criminal conduct under enhancement factor (1). See State v. Carico, 968
S.W.2d 280, 287-88 (Tenn. 1998). The trial court properly applied enhancement factor (1).

        We further note that although the trial court did not apply enhancement factor (10), the
defendant had no hesitation about committing the crime when the risk to human life was high, it
could have. See Tenn. Code Ann. § 40-35-114(10). This factor may be applied where those who
are not named victims of a crime are at risk. See State v. Imfeld, 70 S.W.3d 698, 707 (Tenn. 2002).
One of the defendant’s passengers was not a named victim and survived the accident.

        The range of punishment for a standard offender for Class C felony vehicular homicide is
from three to six years. See Tenn. Code Ann. § 40-35-112(a)(3). Enhancement factor (1) is entitled
to great weight. The trial court did not err in imposing sentences of five years for each conviction.

                                ALTERNATIVE SENTENCING

        In denying alternative sentencing, the trial court found that the defendant had a long history
of criminal conduct. See Tenn. Code Ann. § 40-35-103(1)(A). It also noted the seriousness of these
offenses, which involved the loss of life to three people. See id. § 40-35-103(1)(B). It further noted
that the defendant had previously engaged in similar criminal behavior as evidenced by his prior
DUI conviction. See State v. Hooper, 29 S.W.3d 1, 12 (Tenn. 2000) (holding court may examine
whether the defendant has previously engaged in criminal conduct of the same type as the offense
in question in determining whether incarceration is necessary for specific deterrence of the
individual defendant). Further, the trial court noted that less restrictive measures had proven
ineffective to deter the defendant’s criminal acts. See Tenn. Code Ann. § 40-35-103(1)(C). Finally,
the court concluded that the defendant had not exhibited positive potential for rehabilitation. See
id. § 40-35-103(5). All of these factors were properly considered by the trial court. The trial court
did not err in denying alternative sentencing.

                                          CONCLUSION

       Based upon our review of the record, we affirm the judgments of the trial court.




                                                       JOE G. RILEY, JUDGE



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