         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                             Assigned on Briefs April 22, 2008

                 STATE OF TENNESSEE v. JULIO VILLASANA

                    Appeal from the Criminal Court for Davidson County
                       No. 2006-D-3105    Mark J. Fishburn, Judge



                     No. M2007-01923-CCA-R3-CD - Filed June 10, 2008


The Defendant, Julio Villasana, pled guilty to one count of aggravated vehicular homicide, a Class
A felony, and to one count of leaving the scene of an accident involving death, a Class E felony. He
was sentenced as a Range I, standard offender to twenty-five years for the former and to two years
for the latter. The sentences were ordered to be served concurrently. On appeal, he argues that the
trial court erred by imposing the maximum sentence for the Class A felony. We affirm the sentences
ordered by the trial court.

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

DAVID H. WELLES, J., delivered the opinion of the court, in which JAMES CURWOOD WITT , JR., and
ROBERT W. WEDEMEYER , JJ., joined.

Emma Rae Tennent, Assistant Public Defender, Nashville, Tennessee, for the appellant, Julio
Villasana.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel West Harmon, Assistant Attorney
General; Victor S. Johnson, III, District Attorney General; and Kathy Morante, Assistant District
Attorney General, for the appellee, State of Tennessee.


                                            OPINION

                                         Factual Background
        At the Defendant’s guilty plea submission hearing, the State set out the factual background
for his offenses. On August 1, 2006, fifty-one-year-old Charlie Darrington (the victim) was riding
his motorcycle in Davidson County. The victim was driving southbound on Briley Parkway, near
Robertson Avenue, when the Defendant hit him head-on. The thirty-four-year-old Defendant was
driving a sport utility vehicle on the wrong side of the roadway—northbound in the southbound lanes
of Briley Parkway. The victim died from injuries sustained in the crash.
        After the wreck, the Defendant did not stop to help the victim; he fled from the scene on foot.
Witnesses at the scene gave police a description of the Defendant, and he was apprehended a short
time later and brought back to the crash site where the witnesses positively identified him as the
driver who killed the victim.

       Because the Defendant exhibited signs of intoxication, field sobriety tests were administered,
and the Defendant failed them. He then signed an implied consent form that was provided to him
in Spanish because his primary language is Spanish. By signing the form, he agreed to give a blood
sample, which revealed that his blood alcohol level was .23 percent.

       Additionally, for the purpose of establishing all the elements of aggravated vehicular
homicide,1 the State announced that the Defendant was previously convicted of driving under the
influence (DUI) approximately one year earlier (on July 7, 2005) in Kentucky.

       Following the State’s establishment of the foregoing factual background, the Defendant
agreed that those facts were “true and correct.”

       Subsequent to the guilty plea submission hearing, a sentencing hearing was held during
which the State introduced certified judgments establishing that the Defendant had also been
previously convicted of DUI on two other occasions: December 4, 1991; and October 12, 1996. His
criminal record also included prior convictions for fleeing from a probation officer and assault.

        Special Agent Craig Dickhaus of the United States Immigration and Customs Enforcement
Office testified that the Defendant had also been previously arrested and charged with DUI in Texas
on August 14, 1997; at the time of the instant offense, he was released on bail for the Texas DUI,
and it had not been adjudicated. Special Agent Dickhaus further stated that the Defendant had two
prior federal convictions for illegally entering the United States. Further, he had been officially
deported from the United States three times, and, on eleven other occasions, he agreed to voluntarily
return to Mexico rather than appear before an immigration judge. At the time of the sentencing
hearing, the Defendant was also being prosecuted by federal authorities for illegal reentry after
deportation.

       The victim’s wife, Susan Darrington, testified that she and the victim were married for
twenty-four years, and they had one daughter. The victim had been an executive at Gibson Guitar
Corporation and a musician. Mrs. Darrington read a prepared statement detailing the extensive,
negative effects her husband’s untimely death has had on her and her daughter’s life. She asked the


         1
           The offense of aggravated vehicular homicide, as relevant to the Defendant’s case, is defined by Tennessee
Code Annotated section 39-13-218(a)(3)(A). Under that section, a person commits the offense of aggravated vehicular
homicide if there was, “at the time of the [vehicular homicide], twenty-hundredths of one percent (.20%), or more, by
weight of alcohol in the defendant’s blood and the defendant has one (1) prior conviction for” driving under the
influence. See Tenn. Code Ann. § 39-13-218(a)(3)(A); see also Tenn. Code Ann. § 39-13-213(a)(2) (providing that one
definition of the offense of vehicular homicide is the reckless killing of another by the operation of an automobile as the
proximate result of the driver’s intoxication).

                                                           -2-
court to impose the maximum sentence possible because the Defendant made the choice to drive
intoxicated, and he “should have to face the consequences of that choice.”

        The Defendant testified that he “made a mistake [by] drinking a beer” before driving. He
said he was lost in Nashville and trying to enter Interstate 40 when he turned off of Charlotte Pike
and began traveling the wrong way down Briley Parkway. He apologized to Mrs. Darrington for the
“great pain” he has caused in her life. He said he would have never committed the offense “on
purpose because I am not a bad person, but I made the mistake to drink. I’m guilty.”

         On cross-examination, he denied laughing on the night of the offense when a witness asked
him why he was driving down the wrong side of the road. He also denied running from the scene,
despite the fact that he pled guilty to leaving the scene of an accident involving death. However, he
admitted that he had consumed “six to eight” beers that night. The Defendant also admitted that he
had three previous convictions for DUI and would have had a fourth if he had not been deported
rather than being prosecuted. Further, he agreed that he had illegally reentered this country “on at
least [fifteen] occasions.”

       After hearing the arguments of counsel, the trial court sentenced the Defendant as follows:

                In determining the appropriate sentence for these offenses, the court has
       considered the evidence presented at the sentencing hearing, the presentence report,
       the sentencing principles embodied in [Tennessee Code Annotated] 40-35-103, the
       arguments made as to the appropriate sentence that should be imposed since
       alternative sentencing is not permitted in the aggravated vehicular homicide, the
       nature and characteristics of the criminal conduct involved, the evidence and
       information offered on enhancement and mitigating factors, the statement made by
       the Defendant at the sentencing hearing and the Defendant’s potential for
       rehabilitation and treatment, as well as the general purposes contained in [Tennessee
       Code Annotated] 40-35-102. The court finds in both cases, counts one and three, that
       [the Defendant] is a range one offender, there being no prior felony convictions on
       his record. The court has also considered the enhancement factors of [Tennessee
       Code Annotated] 40-35-114. The court finds that number one applied, that the
       Defendant has a previous history of criminal convictions or criminal behavior in
       addition to those necessary to establish the appropriate range. I will agree that none
       of those are felonies, but notwithstanding that, [the Defendant] has a lengthy record,
       particularly as it relates to motor vehicle offenses involving the use of alcohol having
       been convicted in Kentucky on July 7, 2005, and in Texas on two occasions, April
       30, 1997 and December 4, 1991. The court finds that to weigh heavily in this
       particular case because the case that he’s before this court on today is a vehicular
       homicide. I want to make it clear for the record, two of those, I mean, one of those
       DUI’s, I cannot consider for enhancement purposes because it’s an element of the
       offense, and I’m not going to, but the reality of it is, he had two other ones in addition
       to that. The one, almost a year to the day, a year and three weeks prior, in Kentucky,


                                                  -3-
        prior to the incident that occurred here in Nashville on August 1st of 2006. The court
        considers that to be of great significance and places a great deal of weight on that.

        Further, the trial court found that, because a condition of his release in his prior federal cases
was that he live in Mexico, the Defendant had a previous history of unwillingness to comply with
conditions of a sentence involving release in the community. See Tenn. Code Ann. § 40-35-114(8).
The court specifically declined to apply as an enhancement factor that the Defendant had no
hesitation about committing a crime when the risk to human life was high, finding that it was
inherent in the offense of aggravated vehicular homicide. See Tenn. Code Ann. § 40-35-114(10).

        As for mitigating factors, the court found that the Defendant had a relatively positive work
history and that he showed “some remorse.” See Tenn. Code Ann. § 40-35-113(13). However, the
court also found that, by denying that he fled from the scene when the evidence clearly established
otherwise, the Defendant lacked candor before the court and was not a credible witness. Further, the
court considered a number of other factors, including his potential for rehabilitation, his character
and social history, family and community support, his history of compliance and non-compliance
with court-ordered programs, the financial support he provided to his family, and available
rehabilitative programs.


        Ultimately, the court found that the maximum sentence was necessary in the Defendant’s
case for the following, additional reasons:


        [Nothing] short of the maximum sentence [will] protect the citizens from [the
        Defendant’s] outright disregard and flagrant violations of the laws of the State of
        Tennessee. Though there’s certainly some merit and some good things under the law
        that [the Defendant] has demonstrated, they are significantly and greatly outweighed
        by his continual and habitual violations of the rules of the road because he
        continually drives. Even when he’s sober, he’s illegally driving and therefore I’m
        going to sentence [the Defendant] to 25 years as a range one offender. I find that’s
        necessary to avoid depreciating the seriousness of the offense, and it is serious not
        only because a person died as a result of it, [but also] because . . . of his lengthy
        violation of the driving laws of this State, particularly as they relate to the use of
        alcohol. I also find that it is necessary to protect society by restraining a defendant
        who has a long history of criminal conduct and an obvious propensity to continue in
        criminal activities. I also find that it’s necessary because less restrictive measures
        have been tried in the past, specifically the Kentucky DUI, when I think the only
        thing he received was a fine and short probationary period.

       Lastly, the court ordered that his two-year sentence for leaving the scene of an accident
involving death would be served concurrently.



                                                   -4-
                                             ANALYSIS
         On appeal, the Defendant argues that the trial court erred in imposing the maximum sentence
allowable by law. Specifically, the Defendant asserts that this Court should find that his sentence
is excessive because the trial court misapplied the enhancement factor regarding his prior criminal
activities, and because it did not lend applicable mitigating factors sufficient weight.

        Before a trial court imposes a sentence upon a convicted criminal defendant, it must consider
(a) the evidence adduced 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
characteristics of the criminal conduct involved; (e) evidence and information offered by the parties
on the enhancement and mitigating factors set forth in Tennessee Code Annotated sections
40-35-113 and 40-35-114; (f) any statistical information provided by the Administrative Office of
the Courts as to Tennessee sentencing practices for similar offenses; and (g) any statement the
defendant wishes to make in the defendant’s own behalf about sentencing. Tenn. Code Ann. §
40-35-210(b); see also State v. Imfeld, 70 S.W.3d 698, 704 (Tenn. 2002). To facilitate appellate
review, the trial court is required to place on the record its reasons for imposing the specific
sentence, including the identification of the mitigating and enhancement factors found, the specific
facts supporting each enhancement factor found, and the method by which the mitigating and
enhancement factors have been evaluated and balanced in determining the sentence. See State v.
Samuels, 44 S.W.3d 489, 492 (Tenn. 2001).

         Upon a challenge to the sentence imposed, 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. See
Tenn. Code Ann. § 40-35-401(d). However, this presumption “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 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 the presumption is applicable, and we may not modify the sentence even if we would have
preferred a different result. See State v. Fletcher, 805 S.W. 2d 785, 789 (Tenn. Crim. App. 1991).
We will uphold the sentence imposed by the trial court if (1) the sentence complies with the purposes
and principles of the 1989 Sentencing Act and (2) the trial court’s findings are adequately supported
by the record. See State v. Arnett, 49 S.W.3d 250, 257 (Tenn. 2001). The burden of showing that
a sentence is improper is upon the appealing party. See Tenn. Code Ann. § 40-35-401, Sentencing
Commission Comments; Arnett, 49 S.W.3d at 257.

        First we note that, based on our review of the record, we conclude that the trial court
followed the statutory sentencing procedures, imposed a lawful sentence, gave due consideration and
proper weight to the factors and principles set out under our sentencing law, and that its findings of
fact are adequately supported by the record. Accordingly, we will presume that the determinations
made by the trial court are correct. See Ashby, 823 S.W.2d at 169.



                                                 -5-
        The Defendant argues that the trial court misapplied Tennessee Code Annotated section 40-
35-114(1), which states: “The defendant has a previous history of criminal convictions or criminal
behavior, in addition to those necessary to establish the appropriate range.” The Defendant does not
dispute that he was previously convicted of all of the offenses enumerated at his sentencing hearing,
including the three previous DUI convictions. Rather, he asserts that because the State allegedly
failed to supply him with copies of the criminal convictions it intended to use for enhancement
purposes during discovery, the trial court should not have considered them in enhancing his sentence.
We are not persuaded by this argument. First, the record shows that the State made the Defendant’s
criminal record available to him during discovery. Second, the Defendant’s prior record is set forth
in the presentence report. Third, the Defendant testified at his sentencing hearing and admitted the
validity of the criminal history detailed in the presentence report.

        Similarly, we are not persuaded by the Defendant’s argument that the trial court erred by not
affording applicable mitigating factors enough weight. Initially, we note that the weight to be given
to enhancement and mitigating factors is left within the sound discretion of the trial court. See State
v. Terrell Antron Greer, No. W2007-01192-CCA-R3-CD, 2008 WL 886309, at *6–7 (Tenn. Crim.
App., Jackson, Apr. 2, 2008) (explaining that under Tennessee’s new sentencing laws, enacted in
response to Blakely v. Washington, 542 U.S. 296 (2004), statutory mitigation and enhancement
factors are advisory and not mandatory). Further, we conclude that because of the egregiously
reckless nature and seriousness of the Defendant’s crime, the trial court was justified in ruling that
applicable enhancement factors outweighed factors in mitigation. The trial court did not err by
imposing the maximum sentence in this case.

                                           Conclusion
       Based on the foregoing authorities and reasoning, we affirm the judgments of the trial court.



                                                       ______________________________
                                                       DAVID H. WELLES, JUDGE




                                                 -6-
