             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                                                                     FILED
                              AT KNOXVILLE
                                                                    October 11, 1999

                            AUGUST 1999 SESSION                    Cecil Crowson, Jr.
                                                                  Appellate Court Clerk




STATE OF TENNESSEE,            )
                               )
             Appellee,         )    No. 03C01-9811-CR-00393
                               )
                               )    Roane County
v.                             )
                               )    Honorable E. Eugene Eblen, Judge
                               )
DANNY LYNN PORTER,             )    (Vehicular homicide due to recklessness and
                               )    reckless endangerment)
             Appellant.        )


For the Appellant:                  For the Appellee:

Walter B. Johnson                   Paul G. Summers
Assistant Public Defender           Attorney General of Tennessee
Post Office Box 334                        and
Kingston, TN 37748-0334             Elizabeth B. Marney
(AT TRIAL)                          Assistant Attorney General of Tennessee
                                    425 Fifth Avenue North
Joe Walker                          Nashville, TN 37243
Public Defender
     and                            J. Scott McCluen
Alfred Lee Hathcock, Jr.            District Attorney General
Assistant Public Defender                   and
Post Office Box 334                 Frank Harvey
Harriman, Tennessee 37748           Assistant District Attorney
(ON APPEAL)                         Post Office Box 703
                                    Kingston, TN 37763




OPINION FILED:____________________

AFFIRMED

Joseph M. Tipton
Judge
                                      OPINION



             The defendant, Danny Lynn Porter, pled guilty in the Roane County

Criminal Court to vehicular homicide due to recklessness, a Class C felony, and to

reckless endangerment, a Class E felony, with the sentences to be determined by the

trial court. The court sentenced him as a Range I, standard offender to concurrent

sentences of three years and one year respectively to be served in the Department of

Correction. In this appeal as of right, the defendant contends that he should not have

been sentenced to incarceration. We affirm the sentence imposed by the trial court.



             The juvenile court transferred the defendant, who was seventeen years

old at the time of the offense, to the Roane County Criminal Court to be tried as an

adult. At the transfer hearing, Trooper Carlton Haley testified that on September 8,

1996, he was dispatched to the scene of a single vehicle accident. He said that a

pickup truck had hit an embankment and overturned on its side, killing one occupant,

Aaron Johnston, and injuring three others. He said he found the defendant in a nearby

ditch, the defendant smelled of alcohol, and the defendant’s speech was slurred and

sometimes incoherent. He admitted that he could not tell if the odor of alcohol came

from the defendant’s breath or his body and that the slurred and incoherent speech

could have resulted from injuries sustained in the accident. He testified that the blood

alcohol content of the deceased victim was .19 percent.



             Christy Crowe testified that on September 8, 1996, the victim drove her,

the defendant, and another girl to Rockwood, Tennessee in his truck. She said the

defendant had a big bottle of whiskey with him, which he finished in the hour before

they left. She said that she took one drink of the whiskey but spat it out because she

did not like it. She said she did not know if anyone else drank from the bottle. She

stated that Mr. Johnston felt sick, but she did not know if he was drunk. She said Mr.



                                            2
Johnston said that he was able to drive, but the defendant had the keys. She said the

defendant drove while Mr. Johnston sat in the passenger’s seat, she rode between

them, and two others rode in the truck bed.



             The record reflects that the defendant had been adjudged delinquent on

three prior occasions: for underage consumption on May 7, 1996; for the unauthorized

use of a vehicle on May 7, 1996; and for theft of a vehicle on July 2, 1996. Julie Trent

testified that she was the defendant’s counselor and case manager at Mountain View

Youth Development Center. She said that the defendant had been in her unit for six

weeks and had received no negative disciplinary reports. She stated that his behavior

was exceptional and that he was pursuing his GED. She said that Dr. Pinella of

Cherokee Mental Health Systems evaluated the defendant and determined that the

defendant had an I.Q. of 82. She said Dr. Pinella recommended that the defendant

participate in a twelve-step substance abuse treatment program and receive individual

and group counseling to address the loss of his best friend and his feelings of guilt

arising from that death. On cross-examination, Ms. Trent testified that the defendant

had previously been placed in youth facilities on three occasions and that he was in the

community on a weekend pass from one of these facilities when the accident occurred.



             The presentence report reveals that the defendant dropped out of high

school after completing the tenth grade. He was employed at Miles Hardwood and

earned six dollars per hour. His employment history consists of two jobs in the fast food

industry and a job as a general laborer, none lasting longer than four months. The

report reveals that the defendant is unmarried and has a young daughter for whom he

owes child support in the amount of $183.75 per month. The defendant was arrested

for assault after his release on bond for the present offense. The report reveals that the

then nineteen-year-old defendant said he started drinking alcohol at age fifteen and that

he presently drank an occasional beer. He said he used cocaine for a brief period and



                                              3
used marijuana regularly between ages thirteen and eighteen. He stated that he last

used marijuana two months earlier. The report shows that the father of the deceased

victim opposed probation and requested that the defendant be incarcerated for the

maximum sentence.



              The defendant initially contends that our review of his sentence should be

de novo without a presumption of correctness because the trial court failed to make the

requisite factual findings. Appellate review of sentencing is de novo on the record with

a presumption that the trial court's determinations are correct. Tenn. Code Ann. § 40-

35-401(d). As the Sentencing Commission Comments to this section note, the burden

is now on the defendant to show that the sentence is improper. This means that if the

trial court followed the statutory sentencing procedure, made findings of fact that are

adequately supported in the record, and gave due consideration and proper weight to

the factors and principles that are relevant to sentencing under the 1989 Sentencing

Act, we may not disturb the sentence even if a different result were preferred. State v.

Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).



              However, “the presumption of correctness which accompanies the trial

court's action 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). In this respect, for the purpose of

meaningful appellate review,

              the trial court must place on the record its reasons for arriving
              at the final sentencing decision, identify the mitigating and
              enhancement factors found, state the specific facts supporting
              each enhancement factor found, and articulate how the
              mitigating and enhancement factors have been evaluated and
              balanced in determining the sentence. T.C.A. § 40-35-210(f)
              (1990).




                                             4
State v. Jones, 883 S.W.2d 597, 599 (Tenn. 1995). In the present case, the state did

not seek enhancement, and the defendant filed notice of two mitigating factors pursuant

to Tenn. Code Ann. § 40-35-113:

               (6) The defendant, because of youth . . ., lacked substantial
               judgment in committing the offense; [and]

               (11) The defendant, although guilty of the crime, committed the
               offense under such unusual circumstances that it is unlikely
               that a sustained intent to violate the law motivated the criminal
               conduct.

The trial court did not comment on the defendant’s mitigating factors but simply

imposed the minimum sentence on each count and made the following remark

regarding the manner of service:

               And from the totality of the situation, with the involvement of
               alcohol, and where he had been and where he was at that
               time, the Court feels that’s a sentence that needs to be served.

We believe that this brief comment fails to meet the requirements of Tenn. Code Ann.

§ 40-35-210(f), requiring us to review the sentence de novo without the presumption of

correctness.



               In conducting a de novo review, we must consider (1) the evidence, if any,

received at the trial and 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, (5) any mitigating or statutory enhancement

factors, (6) any statement that the defendant made on his own behalf and (7) the

potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103, -210;

see Ashby, 823 S.W.2d at 168; State v. Moss, 727 S.W.2d 229 (Tenn. 1986).



               The defendant challenges the manner of service of his sentences. As a

Range I, standard offender convicted of Class C and Class E felonies, the defendant

correctly asserts that he is presumed to be a favorable candidate for alternative

sentencing options. See Tenn. Code Ann. § 40-35-102(6). The presumption in favor of



                                              5
alternative sentencing may be rebutted if (1) “confinement is necessary to protect

society by restraining the defendant who has a long history of criminal conduct,” (2)

“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 (3) “measures less restrictive than confinement have

frequently or recently been applied unsuccessfully to the defendant.” Tenn. Code Ann.

§ 40-35-103(1)(A)-(C); see Ashby, 823 S.W.2d at 169. Furthermore, the defendant’s

potential for rehabilitation or lack thereof should be examined when determining

whether an alternative sentence is appropriate. Tenn. Code Ann. § 40-35-103(5).



              The defendant argues that his age at the time of the offense, the fact that

his juvenile record consists solely of nonviolent offenses, and his amenability to

rehabilitation as evidenced by his progress at Mountain View Youth Development

Center all indicate the appropriateness of an alternative sentence. We believe the fact

that the defendant was on a weekend pass from state custody at the time of the

accident and the defendant’s history of substance abuse reveal a reduced potential for

rehabilitation in the community. Ms. Crowe testified that she saw the defendant drink a

bottle of whiskey just before the accident. The defendant was seventeen years old and

on leave from state custody at the time. The defendant had been adjudged delinquent

for underage drinking just four months before the present offenses. The defendant

admitted that at age nineteen, he drank an occasional beer and that he used marijuana

regularly after the offenses. The defendant made these admissions after the juvenile

court transferred his case to the Roane County Criminal Court and he was released on

bond. Thus, the defendant’s substance abuse continued even after, and in spite of, his

reported good progress in the Mountain View Youth Development Center. The fact that

the defendant made such progress at Mountain View indicates his need for a structured

environment as is provided by the Department of Correction. We affirm the trial court’s

sentence of incarceration.



                                             6
             In consideration of the foregoing and the record as a whole, we affirm the

judgment of conviction.




                                               __________________________
                                               Joseph M. Tipton, Judge

CONCUR:

________________________
John Everett W illiams, Judge



________________________
Alan E. Glenn, Judge




                                           7
