         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                            Assigned on Briefs February 4, 2003

           STATE OF TENNESSEE v. VALERIE ARLENE BULLION

                  Direct Appeal from the Circuit Court for Marshall County
                              No. 15065    Charles Lee, Judge



                    No. M2002-02370-CCA-R3-CD - Filed August 27, 2003


The appellant, Valerie Arlene Bullion, pled guilty in the Marshall County Circuit Court to operating
a motor vehicle in violation of the Motor Vehicle Habitual Offenders Act, a Class E felony; driving
under the influence, tenth offense, a Class E felony; driving on a revoked license, fourth offense, a
Class A misdemeanor; and violation of the implied consent law. The trial court sentenced the
appellant to an effective sentence of eight years incarceration in the Tennessee Department of
Correction, suspended the appellant’s driver’s license for ten years, and imposed a three thousand
dollar ($3000) fine. On appeal, the appellant complains that the sentences imposed by the trial court
are excessive. Upon review of the record and the parties’ briefs, we affirm the judgments of the trial
court.

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

NORMA MCGEE OGLE , J., delivered the opinion of the court, in which DAVID H. WELLES and JERRY
L. SMITH, JJ., joined.

Gregory D. Smith, Clarksville, Tennessee, and Donna Hargrove, Shelbyville, Tennessee (on appeal);
A. Jackson Dearing, III, Shelbyville, Tennessee (at trial), for the appellant, Valerie Arlene Bullion.

Paul G. Summers, Attorney General and Reporter; David H. Findley, Assistant Attorney General;
W. Michael McCown, District Attorney General; and Weakley E. Barnard, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                             OPINION

                                      I. Factual Background

                 The appellant’s guilty pleas were based upon the following facts as recited by the
State at the guilty plea hearing. On May 3, 2002, a state trooper stopped the appellant’s vehicle after
observing the appellant driving in an erratic manner. As the trooper approached the vehicle, he
smelled the strong odor of alcohol. The trooper asked the appellant if she had been drinking and she
responded that she had consumed two beers. The appellant subsequently failed the field sobriety test
and refused to take the Breathalyzer test. When the trooper asked to see her driver’s license, the
appellant informed the officer that she did not have one. A record check revealed that the appellant
had prior convictions for driving under the influence and had previously been declared a Motor
Vehicle Habitual Offender. Based upon these facts, the appellant pled guilty to operating a motor
vehicle in violation of the Motor Vehicle Habitual Offenders Act; driving under the influence, tenth
offense; driving on a revoked license, fourth offense; and violating the implied consent law. The
trial court merged the conviction for driving on a revoked license into the conviction for violating
the Motor Vehicle Offenders Act.

               At the sentencing hearing, Judy Byrd, the probation officer who prepared the
appellant’s presentence report, testified that the appellant had an extensive criminal history,
including three prior felony convictions. Byrd further related that on at least two occasions, the
appellant committed new offenses while serving alternative sentences for previous crimes.

               The appellant acknowledged at sentencing that she had an extensive criminal history
and that the majority of these offenses involved alcohol. She testified that, in addition to alcohol,
she had “[b]een addicted to heroin, crack cocaine, and marijuana.” The appellant related that on
three occasions she had been admitted to Buffalo Valley, a drug and alcohol treatment center, but
had relapsed each time. In a plea to the trial court, the appellant stated,
               I am just wanting to say I know I broke the law. I am going to have
               to pay for what I have done. I am an alcoholic and a drug addict. I do
               believe I was born an alcoholic. If this was something I could control
               I would have quit doing it years ago.

                According to the presentence report, the forty-six-year-old appellant has twenty-seven
prior convictions, including nine prior convictions for driving under the influence, two prior
convictions for operating a vehicle in violation of the Motor Vehicle Habitual Offenders Act, one
prior conviction for being an accessory after the fact to criminally negligent homicide, two prior
convictions for driving on a revoked license, and four prior convictions for public intoxication. The
appellant dropped out of high school in the eleventh grade and did not obtain her G.E.D. In the
presentence report, the appellant reported that her mental health was poor, but that these problems
were related to her abuse of alcohol. The appellant reported that she began drinking in 1976 and
drank on a daily basis from August 2001 to October 2001. The appellant claimed in the presentence
report that “the only reason she is not using alcohol now is because she is incarcerated.”

               After considering the testimony at sentencing, the presentence report, and the
arguments of counsel, the trial court sentenced the appellant for violating the Motor Vehicle Habitual
Offenders Act to four years incarceration and suspended her driver’s license for ten years. For
driving under the influence, the trial court sentenced the appellant to four years incarceration and
imposed a three thousand dollar ($3000) fine. The trial court ordered the appellant to serve the four
year sentences consecutively, for an effective sentence of eight years incarceration. On appeal, the
appellant complains that the sentences imposed by the trial court are excessive.


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                                                 II. Analysis

                 When an appellant challenges the length, range, or manner of service of a sentence,
it is the duty of this court to conduct a de novo review with a presumption that the determinations
made by the trial court are correct. Tenn. Code Ann. § 40-35-401(d) (1997). However, this
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. Ashby,
823 S.W.2d 166, 169 (Tenn. 1991). If the record demonstrates that the trial court failed to consider
the sentencing principles and the relevant facts and circumstances, review of the sentence will be
purely de novo. Id.

                  In conducting our review, this court must consider (1) the evidence, if any, received
at trial and at the sentencing hearing; (2) the presentence report; (3) the principles of sentencing and
the arguments of counsel relative to the sentencing alternatives; (4) the nature and characteristics of
the offenses; (5) any mitigating or enhancement factors; (6) any statements made by the appellant
on his own behalf; and (7) the appellant’s potential for rehabilitation or treatment. Tenn. Code Ann.
§ 40-35-102 and -103 (1997), -210 (Supp. 2002); see also Ashby, 823 S.W.2d at 168. The burden
is on the appellant to show that the sentence is improper. Tenn. Code Ann. § 40-35-401, Sentencing
Commission Comments.

                  The appellant was sentenced as a Range II multiple offender, for which the applicable
range for Class E felonies is two to four years. Tenn. Code Ann. § 40-35-112(b)(5) (1997). The
presumptive sentence for a Class E felony is the minimum within the applicable range if there are
no enhancement or mitigating factors. Tenn. Code Ann. § 40-35-210(c). If the trial court finds that
such factors do exist, the court must start at the presumptive sentence, enhance the sentence within
the range as appropriate for the enhancement factors, and then reduce the sentence within the range
as appropriate for the mitigating factors. Tenn. Code Ann. § 40-35-210(e). There is no
mathematical formula for valuating factors to calculate the appropriate sentence. State v. Boggs, 932
S.W.2d 467, 475 (Tenn. Crim. App. 1996). “Rather, the weight to be afforded an existing factor is
left to the trial court’s discretion so long as the court complies with the purposes and principles of
the 1989 Sentencing Act and its findings are adequately supported by the record.” Id. at 475-76.

               In the instant case, the trial court found no applicable mitigating factors and applied
the following enhancement factors:1
               (1) the appellant has a previous history of criminal convictions in
               addition to those necessary to establish the appropriate range;




        1
            W e note that, beginning July 4, 2002, “the 2002 amendment [to Tennessee Code Annotated section 40-35-
114] added present [enhancement factor] (1) and redesignated former (1) through (22) as present (2) through (23),
respe ctively.” Tenn. Code Ann. § 40-35-114, Amendments (Supp. 2002). Ho wever, for the purposes of this opinion,
we will use the former designations applicable at the time of the appellant’s sentencing.

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                (8) the appellant has a previous history of unwillingness to comply
                with the conditions of a sentence involving release in the community;
                and
                (10) the appellant had no hesitation about committing a crime when
                the risk to human life was high.
Tenn. Code Ann. § 40-35-114 (1997). In addition to these factors, the trial court also applied
enhancement factor (11) to the appellant’s sentence for violating the Motor Vehicle Habitual
Offenders Act and enhancement factor (16) to her conviction for driving under the influence. Tenn.
Code Ann. § 40-35-114(11) and (16). The trial court sentenced the appellant to the maximum of
four years incarceration on these counts and determined that the appellant should serve the sentences
consecutively, for an effective sentence of eight years incarceration.

                On appeal, the appellant does not challenge the application of enhancement factors
(1) and (8) or the imposition of consecutive sentencing. Instead, the appellant asserts that the trial
court erred in failing to consider mitigating factor (13) and in applying enhancement factors (10),
(11), and (16). Because the trial court misapplied certain enhancement factors, our review of the
appellant’s sentence will be de novo with no presumption of correctness.

                The appellant contends that the trial court should have considered as a mitigating
factor that she “accepted responsibility for her actions.” Tenn. Code Ann. § 40-35-113(13). The
appellant argues that her “acknowledgment of guilt saved the State the expense of a trial on the
merits.” We note that a defendant’s guilty plea does not automatically entitle her to mitigation.
State v. William Rhea Jackson, No. M2002-02567-CCA-R3-CD, 2003 Tenn. Crim. App. LEXIS
330, at *10 (Nashville, Apr. 10, 2003). “The trial court is in a much better position than this Court
to determine whether, given all the circumstances, a decision to plead guilty instead of proceed to
trial should be considered mitigating.” State v. Jeffrey English, No. M1999-02495-CCA-R3-CD,
2000 Tenn. Crim. App. LEXIS 911, at *11 (Nashville, Nov. 22, 2000). Moreover, we cannot
conclude that the appellant accepted responsibility for her conduct. At sentencing, the appellant
acknowledged that she had broken the law and was “going to have to pay for what [she had] done.”
However, the appellant then blamed her conduct on alcohol and drugs, claiming, “If this was
something I could control I would have quit doing it years ago.” Accordingly, the trial court did not
err in refusing to apply mitigating factor (13).

                 Next, the appellant contends that the trial court erred in applying enhancement factors
(10) and (16), i.e., the appellant had no hesitation about committing a crime when the risk to human
life was high and the crime was committed under circumstances under which the potential for bodily
injury to a victim was great. Tenn. Code Ann. § 40-35-114(10) and (16). The appellant asserts that
“the ‘high risk’ enhancers apply where persons, other than the victim, are in the area and are subject
to injury.” According to the appellant, “[t]he undisputed evidence is that no person was identified
as being in harm’s way at the point that police stopped [the appellant] for erratic driving.”

                Enhancement factor (10) may be applied where the appellant creates a high risk to
the life of a person other than the named victim. State v. Bingham, 910 S.W.2d 448, 452 (Tenn.


                                                  -4-
Crim. App. 1995). However, proof must exist “that other persons or motorists were either in the
vicinity or placed at risk by [the appellant’s] conduct.” State v. Janice Carol Biskner, No. E2000-
01440-CCA-R3-CD, 2001 Tenn. Crim. App LEXIS 887, at **39-40 (Knoxville, Nov. 13, 2001).
Our review of the record fails to reveal any facts showing that other persons or motorists were at
risk.2 In the presentence report, the appellant submitted that after leaving her friend’s house, she
“was driving on Nashville Highway” and was stopped by a state trooper. The record does not reflect
that there was actual risk to human life, only the potential for harm had there been other vehicles on
the highway. Accordingly, the facts do not support the trial court’s application of enhancement
factor (10).

                The appellant also contends, and the State concedes, that the trial court erred in
applying enhancement factor (16) to enhance the appellant’s sentence for violating the Motor
Vehicle Habitual Offenders Act. We agree. Enhancement factor (16) specifically requires that the
potential for bodily injury be “to a victim” of the crime. Tenn. Code Ann. § 40-35-114(16); see also
State v. Charles Justin Osborne, No. 01C01-9806-CC-00248, 1999 Tenn. Crim. App. LEXIS 465,
at *8 (Nashville, May 12, 1999). Because there was no victim in the instant case, we conclude that
enhancement factor (16) does not apply.

                Finally, the appellant contends that the trial court erred in applying enhancement
factor (11) to enhance her sentence for driving under the influence. Enhancement factor (11)
provides that “[t]he felony resulted in death or bodily injury or involved the threat of death or bodily
injury to another person and the [appellant] has previously been convicted of a felony that resulted
in death or bodily injury.” Tenn. Code Ann. § 40-35-114(11). In applying this factor, the trial court
found that driving under the influence involved a threat of death or serious bodily injury and that the
appellant had previously been convicted of a felony that resulted in death. According to the
presentence report and the appellant’s own testimony, she was convicted in 1997 of being an
accessory after the fact to criminally negligent homicide, a felony that resulted in death. However,
the record does not reflect that the appellant’s instant conviction for driving under the influence
posed a threat of death or bodily injury to others. As previously noted, the State did not establish
that there were other motorists or persons on the highway that afternoon. Accordingly, the trial court
erroneously applied enhancement factor (11).

                Although we have determined that the trial court erroneously applied enhancement
factors (10), (11), and (16), this does not necessarily lead to a reduction in the appellant’s sentence.
State v. Winfield, 23 S.W.3d 279, 284 (Tenn. 2000). The appellant has an extensive criminal
history, consisting of numerous convictions for driving under the influence and other alcohol-related
offenses. Tenn. Code Ann. § 40-35-114(1). Moreover, the record reflects the appellant’s
unwillingness to comply with the conditions of sentences involving release in the community. Tenn.
Code Ann. § 40-35-114(8). As noted by our supreme court, “[s]ociety demands protection from


         2
             In its brief, the State asserts that the appellant had a passenger in her vehicle when she was stopped by the
state troop er. However, our review of the facts recited by the State at the guilty plea hearing and by the appellant in the
presentence report fails to reveal the presence of any such passenger.

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those who habitually drink and drive in complete disregard for the welfare of others and for the laws
of this state.” State v. Troutman, 979 S.W.2d 271, 272 (Tenn. 1998). Accordingly, the remaining
enhancement factors, (1) and (8), and the lack of mitigating factors, support the effective eight year
sentence imposed by the trial court.

                                          III. Conclusion

               For the foregoing reasons, we affirm the judgments of the trial court.




                                                       ___________________________________
                                                       NORMA McGEE OGLE, JUDGE




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