        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                       Assigned on Briefs September 22, 2010

           STATE OF TENNESSEE v. CLAUDE DAVID MERRITT

                  Appeal from the Circuit Court for Bedford County
                        No. 16813     Robert Crigler, Judge




               No. M2010-00181-CCA-R3-CD - Filed October 29, 2010


The Defendant, Claude David Merritt, entered an “open” guilty plea to one count of
aggravated vehicular homicide, a Class A felony. See Tenn. Code Ann. § 39-13-218(d). The
trial court sentenced him as a Range II, multiple offender to forty years in the Department
of Correction. In this appeal, the Defendant asserts that his sentence is excessive. After a
review of the record, we affirm the judgment of the trial court.

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

D AVID H. W ELLES, J., delivered the opinion of the Court, in which JERRY L. S MITH and
R OBERT W. W EDEMEYER, JJ., joined.

Gregory D. Smith, Clarksville, Tennessee, for the appellant, Claude David Merritt.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney
General; Charles Crawford, District Attorney General; and Michael D. Randles, Assistant
District Attorney, for the appellee, State of Tennessee.

                                        OPINION

                                   Factual Background
        On May 18, 2009, a Bedford County grand jury indicted the Defendant for one count
of aggravated vehicular homicide, two counts of reckless endangerment, and one count of
driving with a revoked license. On October 30, 2009, the Defendant entered an “open” guilty
plea to the aggravated vehicular homicide charge, in exchange for the dismissal of the three
other counts of the indictment. During the plea acceptance hearing, the State summarized
the facts underlying the aggravated vehicular homicide charge as follows:
      The factual basis for this case, the events, most of the events occurred
on October 17, 2008.

        On that date[,] a vehicle driven by Mr. James Hill and occupied by
Susan Martin and Ms. Martin’s elderly mother Mildred [Misch] was
southbound on Highway 231 North . . . when a vehicle that was headed
northbound on 231 turned in their path. It caused a massive collision. The
vehicle driven by Mr. Hill, there was absolutely no way he could avoid the
collision.

      It caused pretty significant injuries to Mr. Hill and Ms. Martin. They
were knocked unconscious.

       Mr. Hill’s recollection is the next thing he remembers is he is laying on
the ground outside of his vehicle being tended to by emergency personnel.

       Ms. Martin doesn’t remember hardly much else after that.

      Ms. Misch was unconscious at the scene and had to be LifeFlighted to
Vanderbilt Hospital. She had significant life threatening injuries to her.

      The vehicle that caused the accident was a mini van driven by the
[D]efendant. He had turned in front of the path of the Hill vehicle. He, too,
was examined at the scene and was taken to the hospital just to be checked out.

        The officer at the scene noticed that the [D]efendant smelled of alcohol;
appeared to be under the influence. In the hospital[,] he admitted to
consuming multiple beers before getting behind the wheel and he did consent
to a blood alcohol test being done on him.

       ....

       [T]he blood sample was sent to the TBI crime lab. It was determined
the [D]efendant had a blood alcohol level of .11. There was [a] toxicology
report done. He [had] Diazepam and metabolized Diazepam in his system. He
had a mixture of alcohol and Diazepam in his system.

      Again[,] Mr. Hill and Ms. Martin had injuries. They were treated at the
Bedford County or the Heritage Medical Center and released.



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              Ms. Misch . . . stayed at Vanderbilt in their Level 1 trauma center,
       which is equivalent to an intensive care unit[,] from October 17th until
       October 28th. [She] spent 11 days in intensive care. She never regained
       consciousness during that period of time. She had significant injuries to
       her—she had a subarachnoid hemorrhage and subdural hemorrhage to her
       head. She had a right rib fracture, a right femur fracture, which is the big bone
       in your leg[,] a left tibia fracture and right hand fifth digit fracture. Her spine
       was negative for fracture.

             As a result of the injuries to her head and brain[,] she developed
       encephalopathy . . . essentially an injury to her brain.

              After spending 11 days in intensive care she was then sent to the Select
       Specialty Hospital in Nashville and was treated there. She was on a ventilator
       for a period of time. She was then weaned off of the ventilator. However[,]
       she was on a feeding tube during her period of time there. She never
       recovered from her injuries. She stayed at the Select Specialty Hospital in
       Nashville from October 28, 2008[,] until January 5, 2009. At that point she
       was transferred back home, which is Michigan, and spent the remainder of her
       days at a facility known as Brook Haven, which is essentially a nursing home.
       She was at Brook Haven Nursing [Home] from January 5th, 2009[,] until
       March 3rd, 2009[,] when she passed away.

              ....

               [Her doctors at Brook Haven and Select Specialty Hospital] both say
       that all of the conditions which she suffered from after the accident were the
       direct result of the accident and[,] most notably[,] the doctor who treated her
       in Michigan for the last two months of her life would say her death was
       completely attributable to the injuries she received on October 17, 2008[,] as
       a result of the collision caused by the [D]efendant while intoxicated.

             Additionally[,] at the time of the commission of the offense[,] the
       [D]efendant [had] at least [three prior] DUI convictions[.]


       On December 21, 2009, the trial court held the Defendant’s sentencing hearing. The
only evidence presented was the presentence report and a probation revocation warrant that
the State introduced to show the Defendant was on probation at the time of the instant
offense. The presentence report reflected that the Defendant was sixty-six years old at the

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time of the hearing. The report also contained a statement that the Defendant provided to the
probation officer who prepared the presentence report. In his statement, the Defendant
claimed that, on the night of the accident, he was driving to the hospital to obtain treatment
for an existing medical condition, and that the last thing he remembered was waiting to cross
the southbound lane.

       The presentence report detailed the Defendant’s lengthy criminal record, which
spanned over forty years and included convictions for aggravated assault, armed robbery,
grand larceny, theft, and felony escape. The report also reflected that the Defendant had four
prior driving under the influence (DUI) convictions, three convictions for driving with a
revoked license, three assault convictions, three public intoxication convictions, and two
convictions for possession of anhydrous ammonia. The report also stated that the Defendant
had “a history of probation/parole revocations and escape from custody.”

        According to the report, the Defendant described that he was in “fair” mental and
physical health. He also reported that he suffered from depression, anxiety, an “infectious
blood serum disease, chronic obstructive pulmonary disease (COPD)[,] and cirrhosis of the
liver.” However, he stated that he was not taking any medications for his various ailments.
The Defendant also said that he “was certified as disabled in 2001.” The Defendant admitted
to consuming two to three forty-ounce cans of beer per day, but denied any drug use. The
presentence report concluded that the Defendant was in the “high risk/need range,” and that
his alcohol abuse, “procriminal attitude, and antisocial patterns” needed to be addressed
while he was incarcerated.

       The State argued that the Defendant’s sentence should be enhanced because he had
a previous history of criminal violations, the offense involved more than one victim, the
victim was particularly vulnerable because of her age, great injury was inflicted on the
victim, the Defendant had previously failed to comply with sentencing conditions involving
release into the community, he had no hesitation about committing a crime when the risk to
human life was high, and the Defendant committed this offense while on probation. The
Defendant argued that because the two counts of reckless endangerment—which referred to
victims Mr. Hill and Ms. Martin—had been dismissed, then the trial court should not
consider that the offense for which was being sentenced involved more than one victim. The
Defendant also contended that the fact that the victim’s injuries were great was already taken
into account by the aggravated vehicular homicide statute and that the trial court should not
enhance the Defendant’s sentence using that factor. The Defendant did not contend that any
mitigating factors applied, but argued that the trial court should take into consideration the
Defendant’s age, health problems, and the fact that some of his most serious felony
convictions were decades old.



                                             -4-
      After hearing the evidence presented, the trial court determined that the Defendant
was a Range II, multiple offender based on the Defendant’s prior aggravated assault and
armed robbery convictions, and sentenced him to forty years of incarceration. He now
appeals.

                                           Analysis
       The Defendant contends that the forty-year sentence imposed by the trial court was
“excessive given the facts and circumstances of this case.” He does not argue that any of the
enhancement factors were applied incorrectly. He only contends that, because he was sixty-
six years old at the time of sentencing, his sentence should be lowered to twenty-five years
so that he has “an incentive to work to clean up his life,” in keeping with the goal of
rehabilitation.

       On appeal, the party challenging the sentence imposed by the trial court has the burden
of establishing that the sentence is erroneous. See Tenn. Code Ann. § 40-35-401, Sentencing
Comm’n Comments; see also State v. Arnett, 49 S.W.3d 250, 257 (Tenn. 2001). When a
defendant challenges the length, range, or manner of service of a sentence, it is the duty of
this Court to conduct a de novo review on the record with a presumption that the
determinations made by the court from which the appeal is taken are correct. 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. Pettus, 986 S.W.2d 540, 543-44 (Tenn. 1999); see also
State v. Carter, 254 S.W.3d 335, 344-45 (Tenn. 2008). If our review reflects that the trial
court failed to consider the sentencing principles and all relevant facts and circumstances,
then review of the challenged sentence is purely de novo without the presumption of
correctness. State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991); see also Carter, 254 S.W.3d
at 344-45.

       In conducting a de novo review of a sentence, this Court 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 Carter, 254 S.W.3d at 343; State v.
Imfeld, 70 S.W.3d 698, 704 (Tenn. 2002).




                                              -5-
       The Defendant pleaded guilty to aggravated vehicular homicide, which is a Class A
felony. See Tenn. Code Ann. § 39-13-218(d). As a Range II, multiple offender the
Defendant’s sentencing range was twenty-five to forty years. See Tenn. Code Ann. §
40-35-112(b)(1). The trial court imposed an enhanced sentence of forty years.

        The Defendant’s conduct occurred subsequent to the enactment of the 2005
amendments to the Sentencing Act, which became effective June 7, 2005. The amended
statute no longer imposes a presumptive sentence. Carter, 254 S.W.3d at 343. As further
explained by our supreme court in Carter,

       the trial court is free to select any sentence within the applicable range so long
       as the length of the sentence is “consistent with the purposes and principles of
       [the Sentencing Act].” [Tenn. Code Ann.] § 40-35-210(d). Those purposes
       and principles include “the imposition of a sentence justly deserved in relation
       to the seriousness of the offense,” [Tenn. Code Ann.] § 40-35-102(1), a
       punishment sufficient “to prevent crime and promote respect for the law,”
       [Tenn. Code Ann.] § 40-35-102(3), and consideration of a defendant’s
       “potential or lack of potential for . . . rehabilitation,” [Tenn. Code Ann.] §
       40-35-103(5).

Id. (footnote omitted).




       The 2005 Amendment to the Sentencing Act deleted appellate review of the weighing
of the enhancement and mitigating factors, as it rendered these factors merely advisory, as
opposed to binding, upon the trial court’s sentencing decision. Id. Under current sentencing
law, the trial court is nonetheless required to “consider” an advisory sentencing guideline that
is relevant to the sentencing determination, including the application of enhancing and
mitigating factors. Id. at 344. The trial court’s weighing of various mitigating and enhancing
factors is now left to the trial court’s sound discretion. Id. Thus, the 2005 revision to
Tennessee Code Annotated section 40-35-210 increases the amount of discretion a trial court
exercises when imposing a sentencing term. Id. at 344.

      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 id. at 343; State v. Samuels, 44 S.W.3d 489, 492
(Tenn. 2001). If our review reflects that the trial court applied inappropriate mitigating

                                              -6-
and/or enhancement factors or otherwise failed to follow the Sentencing Act, the
presumption of correctness fails and our review is de novo. Carter, 254 S.W.3d at 345.

        In setting the Defendant’s sentence at forty years, the trial court applied the following
enhancement factors: (1) The Defendant had a previous history of criminal convictions or
criminal behavior, in addition to those necessary to establish the appropriate range; (3) The
offense involved more than one victim; (4) A victim of the offense was particularly
vulnerable because of age or physical or mental disability; (8) The Defendant, before trial or
sentencing, failed to comply with the conditions of a sentence involving release into the
community; (10) The Defendant had no hesitation about committing a crime when the risk
to human life was high; and (13) At the time the felony was committed, the Defendant was
released on probation. See Tenn. Code Ann. § 40-35-114(1), (3), (4), (8), (10), & (13). The
trial court appears to have given great weight to enhancement factor (1), commenting that
it alone was sufficient to support the imposition of a forty-year sentence.

        Even though the Defendant did not raise this issue in his brief, we note that the trial
court incorrectly applied enhancement factor (3) to this offense, aggravated vehicular
homicide. The trial court erroneously stated that, because the reckless endangerment charges
referring to victims Mr. Hill and Ms. Martin were dismissed, it could consider them victims
of this offense. Our supreme court has held that when there is a specific named victim of an
offense, it is inappropriate to consider that there were multiple victims and apply
enhancement factor (3). See State v. Imfeld, 70 S.W.3d 698, 705-06 (Tenn. 2002) (“In short,
there cannot be multiple victims for any one offense of aggravated assault committed against
a specific, named victim.”). In the instant case, although Mr. Hill and Ms. Martin were also
in the vehicle at the time of the crash, it is not appropriate to apply enhancement factor (3)
because Ms. Misch was the only named victim of the aggravated vehicular homicide charge.

       However, the trial court correctly applied the other five enhancement factors. In
addition to the felonies used to establish the Defendant’s range, the Defendant had a lengthy
criminal history including grand larceny, felony theft, felony escape, four prior DUI
convictions, three convictions for driving with a revoked license, three assault convictions,
three public intoxication convictions, and two convictions for possession of anhydrous
ammonia. The trial court also noted that at the time of the instant offense, the Defendant was
on probation.1 Ms. Misch, who was eighty-four years old at the time of the crash, had


        1
          On July 18, 2007, the Defendant received a sentence of eleven months and twenty-nine days for
the offenses of DUI and driving with a revoked license. On July 16, 2008, a probation revocation warrant
was issued, alleging that the Defendant failed to pay mandatory fines and court costs and that he failed to
attend and complete his DUI classes. The Defendant was not served with the probation revocation warrant,
                                                                                            (continued...)

                                                   -7-
utilized a wheelchair and lived in a nursing home before the accident. The trial court
properly considered that she was particularly vulnerable because of her age or physical
disability. Furthermore, the trial court found that the Defendant had no hesitation about
committing a crime when the risk to human life was high, noting that Mr. Hill and Ms.
Martin were also in the vehicle at the time of the collision. Finally, the trial court properly
noted that the Defendant had been released on parole or probation numerous times over his
forty-plus years of criminal activity, and that his criminal record revealed that his probation
or parole had been revoked on four different occasions.

       Although the trial court did incorrectly apply enhancement factor (3), the record
supports the trial court’s finding of the remaining five enhancement factors, which are
sufficient to justify the enhancement of the Defendant’s sentence.

                                        Conclusion
       Based on the foregoing authorities and reasoning, we conclude that the forty-year
sentence imposed by the trial court was not excessive. The judgment of the Bedford County
Circuit Court is affirmed.




                                                            _________________________________
                                                            DAVID H. WELLES, JUDGE




        1
          (...continued)
however, until after the instant offense occurred. Our courts have held that the expiration of a term of
probation is tolled by the filing of a probation revocation warrant and that “the probationary term remains
in effect until the trial court rules on the violation warrant.” State v. Anthony, 109 S.W.3d 377, 382 (Tenn.
Crim. App. 2001); see also Alder v. State, 108 S.W.3d 263, 267 (Tenn. Crim. App. 2002) (“[I]f a probation
revocation warrant is issued within the term of probation, it tolls the limitation of time in which the court may
act to revoke probation.”).

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