                                                                                        11/04/2019
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                           Assigned on Briefs July 16, 2019

         STATE OF TENNESSEE v. DAVID MITCHELL BENTLEY

                Appeal from the Criminal Court for Davidson County
                    No. 2017-A-504    Seth W. Norman, Judge
                     ___________________________________

                           No. M2018-01636-CCA-R3-CD
                       ___________________________________

The Appellant, David Mitchell Bentley, pled guilty in the Davidson County Criminal
Court to reckless aggravated assault, a Class D felony, and leaving the scene of an
accident resulting in injury, a Class A misdemeanor. After a sentencing hearing, the trial
court ordered that he serve consecutive sentences of three years and eleven months,
twenty-nine days, respectively, in confinement. On appeal, the Appellant contends that
we should remand this case to the trial court for a new sentencing hearing. In the
alternative, he contends that the trial court improperly enhanced his felony sentence and
failed to apply mitigating factors, that the trial court erred by ordering consecutive
sentencing, and that the trial court erred by ordering that he serve his sentences in
continuous confinement. Based upon the record and the parties’ briefs, we conclude that
a new sentencing hearing is necessary because the trial court failed to place any findings
on the record with regard to applicable enhancement factors, the order of consecutive
sentencing, and the denial of alternative sentencing. Accordingly, the judgment of the
trial court is reversed, and the case is remanded to the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Reversed,
                                 Case Remanded

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which THOMAS T.
WOODALL and ALAN E. GLENN, JJ., joined.

Emma Rae Tennent (on appeal) and Keeda Haynes (at trial), Nashville, Tennessee, for
the appellant, David Mitchell Bentley.

Herbert H. Slatery III, Attorney General and Reporter; Ruth Anne Thompson, Senior
Assistant Attorney General; Glenn R. Funk, District Attorney General; and Dan Hamm
and Rebecca Valiquette, Assistant District Attorneys General, for the appellee, State of
Tennessee.
                                        OPINION

                                 I. Factual Background

       In March 2017, the Davidson County Grand Jury indicted the Appellant for
tampering with evidence in count one, leaving the scene of an accident resulting in injury
in count two, failing to report an accident in count three, and driving on a revoked
license, second offense, in count four. On May 3, 2018, the Appellant pled guilty to an
amended charge of reckless aggravated assault in count one and leaving the scene of an
accident resulting in injury in count two, and the State dismissed the remaining counts.
At the plea hearing, the State gave the following factual account of the crimes:

              [T]he proof would show that in Count 1, we would amend
              that count to reckless aggravated assault. On his plea of
              guilty to that, the sentence would be -- there’d be a sentencing
              hearing, but the facts would be that: On or about the 17th day
              of October, 2016, the defendant did act in a way that would
              cause people at large, due to his driving, to be under fear of
              great bodily harm due to his reckless driving. On his plea of
              guilty to that charge, there would be a sentencing hearing at a
              later date.

                     On his plea of guilty to Count 2, the facts would show
              that: On or about the same day, the defendant did leave the
              scene of an accident, involving a motor vehicle accident,
              without giving aid or comfort or notifying the proper
              authority, violating the statute, leaving the scene of an
              accident. On his plea of guilty to that, there would be a
              request for a sentencing hearing at a later date.

       Before the Appellant’s sentencing hearing, the State filed a notice for enhanced
punishment based upon the Appellant’s having a prior conviction of driving under the
influence (DUI) and evading arrest and a motion for consecutive sentencing based upon
his being an offender whose criminal record was extensive. The State also filed a
statement of enhancement factors, arguing that the following factors applied to his felony
sentence: (1) “[t]he defendant has a previous history of . . . criminal behavior, in addition
to those necessary to establish the appropriate range”; (4) “[t]he victim of the offense was
particularly vulnerable because of age or physical or mental disability”; (6) “[t]he
personal injuries inflicted upon, or the amount of damage to property sustained by or
taken from, the victim was particularly great”; and (9) “[t]he defendant possessed or

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employed a firearm, explosive device or other deadly weapon during the commission of
the offense.” Tenn. Code Ann. § 40-35-114(1), (4), (6), (9).

        At the Appellant’s August 15, 2018 sentencing hearing, David Lloyd testified that
on October 17, 2016, he was walking home from a store when a vehicle being driven by
the Appellant hit him. The Appellant did not stop. Lloyd, who had poor vision prior to
the incident, was in intensive care at Vanderbilt Hospital for one month, spent an
additional two months in the hospital, and was left totally blind. He said that he used to
be able to work, even with his poor vision. After the incident, though, he could not find a
job, and his long-term memory was “obliterated.” He said he knew his way around his
house and could microwave food but could no longer cook, clean, or go to the store. He
stated that he received Social Security disability, that his parents and brother helped him
with his day-to-day living, and that he spent his days eating and listening to the
television. Lloyd requested that the trial court order consecutive sentencing and that the
Appellant spend a “significant” amount of time in prison to think about how he had
affected Lloyd’s life.

       The Appellant testified that he was forty-two years old, married, and had two
children who were twenty-one and fifteen years old. Prior to his incarceration in this
case, he had a job working in drywall construction and earned $560 to $600 per week. In
describing his hitting the victim, he stated, “They act like I ran someone over, but I, I
struck [Lloyd].” He explained that about 7:30 p.m. on October 17, 2016, he was driving
to pick up his son from soccer. His side mirror hit Lloyd. Lloyd was about sixty feet
from a crosswalk, it was dark outside, and the Appellant did not see Lloyd. The
Appellant said he heard “a thump” and looked in his rearview mirror but did not see
anything. He did not know he had hit a person until he watched the news later that night.

      The Appellant testified that he was not intoxicated when he hit Lloyd but
acknowledged having prior issues with drugs and alcohol. In 2005, the Appellant was
put on probation and received treatment. He said he successfully completed probation
and could work and pay restitution to Lloyd if placed on probation in this case. The
Appellant stated that he did not intentionally hit Lloyd and that “I’m sorry. I wish I could
change it, but I can’t. I’m sorry I altered your life.”

       On cross-examination, the Appellant testified that he did not call the police after
he learned he had hit Lloyd because he was driving without a license. He acknowledged
having prior convictions for driving on a suspended license. He said that he drank one
beer “occasionally” but was not intoxicated when he hit Lloyd. In 2005, the Appellant
received probation for driving under the influence and evading arrest. He acknowledged
that he fled from the police in that case because he was driving without a license. He also
acknowledged that his sentencing hearing in this case originally was scheduled for July
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25 and that he failed to appear. He said that he was jailed after not showing up for court
and that he had “no excuse” for failing to appear.

       The State introduced the Appellant’s presentence report into evidence. According
to the report, the Appellant was suspended from high school for fighting in the twelfth
grade and did not obtain a high school diploma or GED. In the report, the Appellant
described his mental and physical health as “fair” but did not report any mental or
physical health issues. The Appellant reported that he had a problem with alcohol in his
youth and that he received drug and alcohol treatment. At the time of the presentence
report, he consumed one or two twenty-four-ounce beers “on occasion.” The Appellant
also said in the report that he began using marijuana when he was sixteen years old and
cocaine when he was twenty-six years old but that he had not used either drug since
2012. The report showed that the Appellant worked as a subcontractor for his father for
twenty-four years and that he had numerous prior convictions including convictions of
DUI, fourth offense; evading arrest; possession of drug paraphernalia; casual exchange;
driving on a revoked license; resisting arrest; violating the implied consent law;
contributing to the delinquency of a minor; and driving while impaired.

      At the conclusion of the hearing, the trial court stated as follows:

             Well, the defendant is a Range 1 offender. That’s all there is
             to it. There are enhancement factors that do apply. It’s the
             judgment of the Court, he be sentenced to the workhouse for
             a period, in the Count 1, for 3 years as a Range 1 standard
             offender at 30 percent. And Count 2, he be sentenced for 11
             months and 29 days. Those sentences will run consecutive,
             one to the other, and they will be a sentence to serve.
             Judgment of the court.

                                       II. Analysis

       On appeal, the Appellant contends that we should reverse the judgment of the trial
court and remand the case for a new sentencing hearing. In the alternative, he contends
that we should conduct an independent review with no presumption of reasonableness
and conclude that the trial court imposed an excessive sentence and erred by denying his
request for alternative sentencing. The State contends that the trial court properly
sentenced the Appellant. We conclude that judgment of the trial court should be reversed
and the case remanded for a new sentencing hearing.

      This court reviews the length, range, and manner of service of a sentence imposed
by the trial court under an abuse of discretion standard with a presumption of
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reasonableness. State v. Bise, 380 S.W.3d 682, 708 (Tenn. 2012); see also State v.
Pollard, 432 S.W.3d 851, 859 (Tenn. 2013) (applying the standard to consecutive
sentencing); State v. Caudle, 388 S.W.3d 273, 278-79 (Tenn. 2012) (applying the
standard to alternative sentencing). In conducting its review, this court considers the
following factors: (1) the evidence, if any, received at the trial and the sentencing
hearing; (2) the presentence report; (3) the principles of sentencing and arguments as to
sentencing alternatives; (4) the nature and characteristics of the criminal conduct
involved; (5) evidence and information offered by the parties on enhancement and
mitigating factors; (6) any statistical information provided by the administrative office of
the courts as to sentencing practices for similar offenses in Tennessee; (7) any statement
by the Appellant in his own behalf; and (8) the potential for rehabilitation or treatment.
See Tenn. Code Ann. §§ 40-35-102, -103, -210; see also Bise, 380 S.W.3d at 697-98.
The burden is on the Appellant to demonstrate the impropriety of his sentence(s). See
Tenn. Code Ann. § 40-35-401, Sent’g Comm’n Cmts.

       A defendant is eligible for alternative sentencing if the sentence actually imposed
is ten years or less. See Tenn. Code Ann. § 40-35-303(a). The Appellant’s sentences
meet this requirement. Moreover, a defendant who is an especially mitigated or standard
offender convicted of a Class C, D, or E felony should be considered a favorable
candidate for alternative sentencing absent evidence to the contrary. See Tenn. Code
Ann. § 40-35-102(6). In the instant case, the Appellant is considered to be a favorable
candidate for alternative sentencing.

       The following sentencing considerations, set forth in Tennessee Code Annotated
section 40-35-103(1), may constitute “evidence to the contrary”:

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

                     (B) Confinement 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) Measures less restrictive than confinement have
              frequently or recently been applied unsuccessfully to the
              defendant.

State v. Zeolia, 928 S.W.2d 457, 461 (Tenn. Crim. App. 1996). Additionally, a court
should consider a defendant’s potential or lack of potential for rehabilitation when
                                           -5-
determining if an alternative sentence would be appropriate. See Tenn. Code Ann. § 40-
35-103(5). A defendant with a long history of criminal conduct and “evincing failure of
past efforts at rehabilitation” is presumed unsuitable for alternative sentencing. Tenn.
Code Ann. § 40-35-102(5).

       Here, the trial court found that enhancement factors were applicable but did not
specify which factors applied to the Appellant’s felony sentence. “When the court
imposes a sentence, it shall place on the record, either orally or in writing, what
enhancement or mitigating factors were considered, if any, as well as the reasons for the
sentence, in order to ensure fair and consistent sentencing.” Tenn. Code Ann. § 40-35-
210(e). Likewise, the trial court failed to make any findings with regard to its imposition
of consecutive sentencing pursuant to Tennessee Code Annotated section 40-35-115(b) or
its denial of alternative sentencing. “The record of the sentencing hearing is part of the
record of the case and shall include specific findings of fact upon which application of
the sentencing principles was based.” Tenn. Code Ann. § 40-35-209(c). Given the
complete lack of findings in this case, we conclude that a new sentencing hearing is in
order.

                                     III. Conclusion

        Based upon the record and the parties’ briefs, we remand the case to the trial court
for further proceedings consistent with this opinion.



                                                 _________________________________
                                                 NORMA MCGEE OGLE, JUDGE




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