         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                              Assigned on Briefs July 11, 2000

                 STATE OF TENNESSEE v. DWANNA L. MASON

                Direct Appeal from the Criminal Court for Davidson County
                       No. 99-T-396    Frank G. Clement, Jr., Judge



                    No. M1999-02535-CCA-R3-CD Filed November 3, 2000


The defendant pled guilty in Davidson County Criminal Court to vehicular homicide by reckless
conduct, a Class C felony, and four lesser charges against her were dismissed. Her guilty plea was
submitted without any agreement of the parties as to length or manner of service of sentence. After
a sentencing hearing at which the defendant testified, the trial court sentenced her to five years and
six months in continuous confinement. The defendant appeals as of right this sentence. We
conclude that the imposition of a sentence of five years and six months was appropriate. We affirm
the sentence as to length but modify it to show a period of confinement equal to time already served
with the remaining time to be served on probation.

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

ALAN E. GLENN, J., delivered the opinion of the court, in which DAVID H. WELLES, J., and CORNEL IA
A. CLARK, SP .J., joined.

Jeffrey A. DeVasher, Assistant Public Defender (on appeal) and Hollis I. Moore, Jr., Assistant Public
Defender (at trial) for the appellant, Dwanna L. Mason

Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General;
Victor S. Johnson, III, District Attorney General; and James Sledge, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                             OPINION

        The defendant, Dwanna L. Mason, was charged in a five-count indictment for vehicular
homicide, reckless homicide, leaving the scene of a fatal accident without giving information,
driving without a license, and driving without a license in her immediate possession. The defendant
pled guilty in Davidson County Criminal Court to vehicular homicide by reckless conduct, a Class
C felony, and the remaining charges were dismissed. The defendant’s plea was a blind plea in that
the parties reached no agreement as to the length or manner of service of the sentence to be imposed.
A sentencing hearing was held on October 18, 1999, and the trial court imposed a sentence of five
years and six months as a Range I, standard offender with all time to be served in continuous
confinement.1

       In this appeal as of right, the defendant challenges both the length and manner of service of
her sentence. After a review of the record, we conclude that the evidence supports the imposition
of a sentence of five years and six months, but we modify the sentence to reflect one of split-
confinement.

                                                       FACTS

         The record showed that on the afternoon of April 4, 1999, the defendant took her mother’s
car without permission and drove onto Ellington Parkway in Nashville. Crystal Boleyjack, the
defendant’s best friend, was riding in the car with the defendant. The two were apparently going to
visit friends and pick up the defendant’s sister from Maplewood High School. Ms. Boleyjack
testified that they were anxious to return the car to the defendant’s house before the defendant’s
mother returned. Ms. Boleyjack further testified that the defendant was driving at speeds of ninety-
five to one hundred miles per hour. She testified that the defendant regularly drove at high speeds
and that she, on this specific occasion, asked the defendant to slow down.

        Although there is some controversy as to whose arm hit the gear shift mechanism, apparently
both the defendant and Ms. Boleyjack reached to turn up the volume on a CD player, and one of
them accidently jarred the gear shift mechanism, causing the car to shift into neutral. The defendant
then lost control of the car and struck the victim’s van, which was traveling at normal speed ahead
of the defendant, causing the van to rotate and flip. The victim’s body was ejected from the window
of the van, and the victim was crushed as the van rolled over. The victim, David Anderson, was
dead at the scene.

      The defendant’s car came to rest against a chain-link fence at the bottom of an embankment.
Ms. Boleyjack testified as to what followed:

                   I was getting out of the car and I kept telling her - - at first, I kept
                   telling her, “Come on. Come on. Get out [of] the car,” and she was
                   saying that she had to get the key. And it was making a funny noise
                   and I was telling her to hurry up and get out of the car, I thought it
                   was going to blow up, I didn’t know. And when we got up the hill,
                   I started crying and I said to her, “He’s dead.” And I guess she was
                   just - - she was scared. We were both scared and she said, “So?
                   Come on. I wrecked my mom’s car. I wrecked my mom’s car.”




       1
           The defendant has been in co ntinuous confinement since her arrest on the date of the offense, April 8, 1999.

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         The defendant and Ms. Boleyjack started walking until they were able to get a ride back to
the defendant’s mother’s house where they both changed clothes and Ms. Boleyjack made phone
calls to get someone to come and pick her up. In the meantime, police had traced the owner of the
car to the defendant’s mother. Officer Mark Wells of the Metropolitan Nashville Police Department,
testified at the sentencing hearing that he was dispatched to the residence of the owner or driver of
the hit and run vehicle. When he arrived, the defendant and Ms. Boleyjack were “just standing
around like they were waiting for something.” The defendant told Officer Wells that she had let
somebody in the house to use the phone, and that he must have taken the car. The defendant was
not able to explain why the keys to the car were in the house. Officer Wells described the
defendant’s demeanor as indifferent, not upset except about the fact that her mother was going to be
mad.

        The defendant agreed to return to the scene of the accident with Officer Wells in order that
she might assist Sergeant Hagar, who was involved in the on-the-scene investigation. The defendant
repeated essentially the same story to Sergeant Hagar, this time naming the person who had used the
telephone at her home as “Anthony.” The defendant remained at the scene a short while longer until
she was asked to go to the traffic office on Harding Place and give a formal statement. This
statement directly contradicted the defendant’s earlier statements. She now admitted to being the
driver but claimed that her passenger, Ms. Boleyjack, had knocked the car into neutral, causing the
accident.

       The defendant testified in her own behalf at the sentencing hearing. She stated that she was
speeding because she had heard that some individual at school was going to “gang” her sister. The
defendant claimed that it was the same female she had herself just recently fought with. Ms.
Boleyjack knew nothing of the need to rescue the defendant’s sister.

                                              ANALYSIS

                                       I. Standard of Review

        The defendant’s first issue involves the actual sentence she received for vehicular homicide,
a Class C felony when no intoxication is involved. The sentence range for a Class C felony for a
Range I, standard offender is three to six years. The defendant argues that her sentence of five years
and six months is excessive.

         When a defendant complains of her sentence, we must conduct a de novo review 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). 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). In the event the record fails
to demonstrate the appropriate consideration by the trial court, appellate review of the sentence is
purely de novo. See id. In conducting our de novo review, this court looks a second time, after the
trial court, at the evidence received at trial and the sentencing hearing if there is any; the presentence


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report; the principles of sentencing and arguments as to sentencing alternatives; the nature and
characteristics of the criminal conduct involved; any statutory mitigating or enhancement factors;
any statement made by the defendant on his or her own behalf; and the potential for rehabilitation
or treatment. See Tenn. Code Ann. §§ 40-35-102, -103, -210. The burden of showing that the
sentence is improper is on the appealing party. See id. § 40-35-401(d) Sentencing Commission
Cmts.

        The Sentencing Reform Act of 1989 further provides that “[w]henever the court imposes a
sentence, it shall place on the record either orally or in writing, what enhancement or mitigating
factors it found, if any, as well as findings of fact as required by § 40-35-209.” Tenn. Code Ann. §
40-35-210(f). Such findings by the trial court must be recorded to allow for adequate review on
appeal. See State v. Alexander, 957 S.W.2d 1, 5 (Tenn. Crim. App. 1997).

        In this case, the trial court apparently found one enhancement and one mitigating factor , but
the court failed to specifically enumerate the statutory mitigating and enhancement factors it found
applicable. Furthermore, the record does not contain an affirmative showing that the trial court
considered the sentencing principles and all relevant facts and circumstances and made sufficient
findings in determining the defendant’s sentence, particularly as related to alternative sentencing.
Therefore, we review the sentencing determinations made by the trial court without any presumption
of correctness.

                                        II. Sentence Length

        At the conclusion of the sentencing hearing, the trial court must first determine the
appropriate range for the sentence. The trial court must also determine whether there is a
presumptive sentence. Where there are both enhancement and mitigating factors, the trial court
must “start at the minimum sentence in the range, 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). The enhancement factors that the
court may consider, if they are not essential elements of the offense as charged in the indictment, are
set out in Tennessee Code Annotated Section 40-35-114. These factors are the exclusive ones that
may be considered in setting the length of a sentence within a given range. See State v. Dykes, 803
S.W.2d 250, 258 (Tenn. Crim. App.), perm. app. denied (Tenn. 1990).

         In this case, the defendant was sentenced as a Range I, standard offender for a Class C felony.
The range for her sentence is three to six years. In imposing a sentence of five years and six months,
the trial court stated the following:

               Considering the Defendant’s record of unlawful activity, her theft
               charges, her dishonest statements, her leaving the scene of the
               accident and then, trying to lie her way out of the responsibility and
               all of the other factors, but also considering her youth, I believe that
               a sentence less than the maximum is required, primarily because of


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               her youth, but I believe that it should be a substantial sentence. And,
               therefore, I’ll be imposing a sentence of five and a half years with the
               correctional authorities and they will determine if and when she’s
               eligible for consideration for release and parole. And for that reason,
               the sentence will be five and a half years.

        The trial court identified only one appropriate enhancement factor as set forth in Tennessee
Code Annotated Section 40-35-114: “(1) The defendant has a previous history of criminal
convictions or criminal behavior in addition to those necessary to establish the appropriate range.”
The defendant has a history of criminal behavior, including the regular use of marijuana since
approximately age seventeen. The presentence report reflected that the defendant, as a juvenile, had
been charged with unruly behavior for fighting in July of 1998; theft and criminal impersonation in
1998 based on a shoplifting episode at Proffitt’s Department Store; running away from home in
September of 1998; and shoplifting at Proffitt’s, again giving a false name to authorities. Her record
of juvenile charges included only one disposition, and that was for the unruly behavior charge on
July 13, 1998 where she was “referred to services.” The other listed charges are of unknown
disposition. The defendant does not contest this record or the application of enhancement factor (1).
We conclude that enhancement factor (1) was properly applied to this defendant.

        Although the trial court did not address enhancement factor (10), we conclude that it is
appropriately applied in this case. That enhancement factor is the following: “The defendant had no
hesitation about committing a crime when the risk to human life was high[.]” Tenn. Code Ann. § 40-
35-114(10).

         This court has previously determined the applicability of factor (10) in cases of vehicular
homicide. This enhancement factor should not be applied if the only risk to life was that of the
victim. See State v. Norris, 874 S.W.2d 590, 601 (Tenn. Crim. App. 1993). However, when the
lives of other people are at risk because of the offense committed by the accused, this factor is
applicable. See State v. Dockery, 917 S.W.2d 258, 263 (Tenn. Crim. App. 1995) (applying this
factor in a DUI case where there was a passenger in the accused’s vehicle). This enhancement factor
has been applied in a vehicular homicide case where the defendant had a passenger in his vehicle
until the vehicle struck another vehicle. See State v. Shane Wendall Yankee, No. 03C01-9507-CC-
00200, 1996 WL 438792, at *5 (Tenn. Crim. App. Aug. 6, 1996 at Knoxville), perm. app. denied
(Tenn. Feb. 3, 1997). This court found that “[t]he life of the passenger was at risk due to the manner
in which the accused drove his motor vehicle.” Id. Here, the defendant drove at speeds in excess
of ninety-five miles per hour on a major thoroughfare with a passenger riding in the front seat. We
conclude that enhancement factor (10) is appropriately applied to the defendant.

        The defendant also contends that the trial court should have given more weight to mitigating
factor (6), apparently the only one considered by the trial court. That factor is: “The defendant,
because of youth or old age, lacked substantial judgment in committing the offense.” Tenn. Code
Ann. § 40-35-113(6). The defendant argues that the trial court failed to properly weigh the fact that
she was eighteen when the offense was committed; that she was in special education programs in


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high school; that her father was incarcerated; that she had been under psychiatric care for a period
of two years; and that she was racing to save her younger sister from being assaulted at school. The
defendant relies on State v. Carlos D. Haywood, No. 02C01-9707-CR-00289, 1998 WL 855436, at
*14 (Tenn. Crim. App. Dec. 11, 1998 at Jackson). In Haywood, a panel of this court found that the
defendant’s age—fifteen at the time of the offense—contributed to a lack of judgment in the context
of the abuse and neglect he suffered during his childhood, including being beaten and burned by his
mother so that he would be quiet; his visual handicap, which led to failure in school; his lack of adult
supervision because his grandmother, in whose custody he was placed, was also caring for her
terminally ill husband. On these facts, mitigating factor (6) should have been given considerable
weight.

       The record in this case shows that the defendant’s mother sought help for her daughter’s
unruly behavior to no avail. The defendant willfully took her mother’s car, apparently on more than
one occasion, and drove at excessive speeds. The defendant, although she apparently has the ability
to complete her GED, at the time of the sentencing hearing had made no effort to participate in this
program. The defendant’s claim of racing to save her sister is simply not credible. The facts of this
case do not support reliance on Haywood. Mitigating factor (6), although technically applicable, is
appropriately afforded little weight.

      We conclude that a sentence of five years and six months is proper and is appropriate
punishment given the seriousness of the offense.

                                         II. Continuous Confinement

       The defendant contends that the trial court should have placed her on probation following
a period of confinement.

         The Sentencing Act of 1989 creates a presumption that certain offenders are favorable
candidates for alternative sentencing in the absence of evidence to the contrary. See Tenn. Code
Ann. § 40-35-102(5)-(6). In State v. Bingham, 910 S.W.2d 448, 455 (Tenn. Crim. App.), perm.
app. denied (Tenn. 1995), this court clarified that the law in Tennessee is that “[w]here a defendant
is entitled to the statutory presumption of alternative sentencing, the State has the burden of
overcoming the presumption with evidence to the contrary.” The defendant here, although the trial
court failed to so find, is entitled to the presumption that she is a favorable candidate for alternative
sentencing. 2 The burden, therefore, was on the State to come forward with evidence to rebut this
statutory presumption. Evidence sufficient to rebut the presumption is set out in Tennessee Code
Annotated Section 40-35-103. That section states the following considerations:

                  (1) Sentences involving confinement should be based on the
                  following considerations:


         2
          The defendant was convicted of a Class C felony, and she does not fall within the parameters of subdivision
(5),which describes the cumulative characteristics of felons afforded first priority regarding sentences of incarceration.

                                                           -6-
                           (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[.]

        Consideration (A) is not applicable here because this defendant does not possess a “long
history of criminal conduct.” As to factor (B), the trial court did address the serious circumstances
of the offense, including the tragic loss of a productive individual. The State did not present any
evidence concerning the need for deterrence. This court has previously found that in cases of
vehicular homicide, probation may not be denied based solely on the fact that a death was involved
and that a general need for deterrence was present.3 See Bingham, 910 S.W.2d at 454-55. As to
factor (C), there is no evidence that meets this consideration.

        The sentencing considerations mandated by the legislature go beyond those included in the
above three factors. A trial court should also consider the potential, or lack of potential, of the
defendant for rehabilitation. It is well-established that lack of truthfulness is probative of a
defendant’s prospects for rehabilitation. See United States v. Grayson, 438 U.S. 41, 50-52, 98 S. Ct.
2610, 2616, 57 L. Ed. 2d 582 (1978); State v. Shane Wendall Yankee, No. 03C01-9507-CC-00200,
1996 WL 438792, at *5 (Tenn. Crim. App. Aug. 6, 1996 at Knoxville), perm. app. denied (Tenn.
Feb. 3, 1997).

        In this case, the defendant lied to police officers on two occasions before coming forward
with a version of events closer to the truth. The defendant also pressed Ms. Boleyjack to lie. The
fact that the defendant told her best friend nothing about the need to rescue her sister makes that
story incredible. The defendant has a history of giving false information to authorities. In addition
to this lack of candor, the defendant shows an amazing lack of remorse or ability to take
responsibility. According to the presentence report, the officer who interviewed the defendant found
her to be distracted and unconcerned, stating the following:

                  During the interview at CCA subject displayed little interest in the
                  questions and information provided by this officer. She consistently


        3
          Our supreme court has recently clarified the law concerning the trial court’s determination that a need for
deterrence exists and that “incarceration appropriately addresses that need.” State v. Daryl Hooper, No. M1997-00031-
SC-R11-CD, slip op. at 9 (Tenn. Sept. 21, 2000). In this case, the need for deterrence was not addressed.

                                                        -7-
               gazed out the window in the door of the office where [the] interview
               was conducted, interacting, jestering [sic] and laughing with other
               inmates passing by in the outside hallway. Also when asked if she
               went by any other name[,] subject stated “No.” However, when this
               officer asked about the name Latoya Henderson subject responded
               “Oh, you mean when I was a juvenile.”

        The defendant, although admittedly “scared,” simply walked away from an accident she
caused where the victim lay dead on the road. According to evidence, her concern was primarily for
her own welfare, fearing her mother’s wrath. The defendant had the presence of mind to concoct
a story about “Anthony’s” taking the car; to change her clothes after the accident to avoid
identification; and to wait with Ms. Boleyjack for a ride, possibly planning to get in the car herself
and escape questioning.

        We agree with the trial court that this defendant’s lack of maturity indicates that she does not
possess the attributes necessary to rehabilitate herself. Evidence in the record supports this
conclusion. We note specifically this defendant’s lack of truthfulness, callousness, and inability to
appreciate the seriousness of her offense or to take full responsibility. Therefore, we conclude that
the evidence supports some period of incarceration, but, as a presumptive candidate for alternative
sentencing and a young first-time felony offender, split-confinement is the appropriate sentence.

                                          CONCLUSION

        The defendant’s sentence is affirmed as to length but modified as to manner of service. The
case is remanded to the trial court for entry of an order sentencing the defendant to a period of
incarceration equal to the time she has served with the remainder of her sentence to be served on
probation, with appropriate conditions to be established by the trial court.




                                                        ___________________________________
                                                        ALAN E. GLENN, JUDGE




                                                  -8-
