            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                             AT NASHVILLE             FILED
                         DECEMBER 1998 SESSION
                                                       January 26, 1999

                                                      Cecil W. Crowson
                                                     Appellate Court Clerk
STATE OF TENNESSEE,              )
                                 )    C.C.A. NO. 01C01-9711-CR-00519
            Appellee,            )
                                 )    PUTNAM COUNTY
VS.                              )
                                 )    HON. LEON BURNS, JR.,
LAWRENCE PAUL WEBB,              )    JUDGE
                                 )
            Appellant.           )    (Sentencing)



FOR THE APPELLANT:                    FOR THE APPELLEE:


EDWIN G. SADLER                       JOHN KNOX WALKUP
1 South Jefferson Ave.                Attorney General & Reporter
Cookeville, TN 38501
                                      TIMOTHY BEHAN
                                      Asst. Attorney General
                                      John Sevier Bldg.
                                      425 Fifth Ave., North
                                      Nashville, TN 37243-0493

                                      WILLIAM E. GIBSON
                                      District Attorney General

                                      LESLIE ANN SELLS
                                             -and-
                                      BEN FANN
                                      Asst. District Attorneys General
                                      145 South Jefferson Ave.
                                      Cookeville, TN 38501


OPINION FILED:____________________



AFFIRMED


JOHN H. PEAY,
Judge
                                      OPINION



              The defendant was charged by indictment with vehicular homicide by

intoxication and two counts of vehicular assault. Following a jury trial and sentencing

hearing, he was found guilty as charged and sentenced to an effective sentence of

eleven years incarceration. The defendant now challenges his sentence, arguing that the

trial court erred in failing to apply a mitigating factor, that his sentence was excessive, and

that the trial court erred in denying him alternative sentencing. Finding no merit to these

complaints, we affirm.



              On the evening of January 26, 1996, the defendant was drinking beer at a

local bar. At the end of the evening, he agreed to drive Lori Neal, a woman who worked

at the bar, and her boyfriend, Roger Warden, home. On the way home, before dropping

Neal and Warden off, the defendant’s car struck a car driven by Paul Allen. Neal was

killed in the wreck, and both Warden and Allen were severely injured. Warden lost nearly

half of one of his legs, ruptured his spleen, and sustained a broken pelvis, multiple leg

fractures, a torn liver, and a punctured lung. Allen broke his hip, several ribs, and his

pelvis and sustained severe nerve damage in one of his legs and a head injury. Allen

testified at trial that he constantly endures pain as a result of the wreck. Just prior to the

sentencing hearing, he committed suicide.



              The defendant, who was forty-one years old at the time of the sentencing

hearing, had a prior criminal record of two worthless check charges and one speeding

ticket. Military records confirm some disciplinary problems while serving in the Navy,

although he received an honorable discharge. The evidence also shows the defendant

has admitted to years of alcohol and drug abuse. The defendant did not accept



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responsibility at the sentencing hearing for his actions.



              In sentencing the defendant, the trial judge placed great emphasis on

enhancement factor T.C.A. § 40-35-114(1), finding that while the defendant had “no

significant criminal record,” he had a “significant admission of criminal behavior in

consumption of illegal drugs.” With regard to the vehicular assault counts, the trial judge

applied enhancement factor T.C.A. 40-35-114(6), that the personal injuries sustained by

the victims were particularly great. Although the trial judge found that no statutory

mitigation factors were applicable, he noted that the defendant had a good employment

record. The trial judge sentenced the defendant as a Range I standard offender to

eleven years incarceration on the vehicular homicide conviction and four years

incarceration on each of the vehicular assault convictions, all terms to be served

concurrently. This was a near-maximum sentence on the vehicular homicide conviction,

which has a sentencing range of eight to twelve years for a Range I standard offender,

T.C.A. §§ 39-13-213(b), 40-35-112(a)(2), and a maximum sentence for vehicular assault,

which has a sentencing range of two to four years for a Range I standard offender, T.C.A.

§§ 39-13-106(b), 40-35-112(a)(4).



              Citing State v. Jerrell C. Livingston, No. 01C01-9012-CR-00337, Davidson

County (Tenn. Crim. App. filed September 17, 1991, at Nashville), aff’d, 907 S.W.2d 392

(Tenn. 1995)(not addressing sentencing issues), and State v. Richard Roberts, No.

03C01-9208-CR-00270, Cumberland County (Tenn. Crim. App. filed May 26, 1993, at

Knoxville), the defendant first argues that the trial court erred in failing to consider his

“insignificant prior criminal record” as a mitigating factor under T.C.A. § 40-35-113(13).

“Although absence of a prior criminal record may be considered under the catch-all

provision of Tennessee Code Annotated section 40-35-113(13), this court is not required



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to consider this as a mitigating factor.” State v. Williams, 920 S.W.2d 247, 261 (Tenn.

Crim. App. 1995)(citations omitted); see State v. John D. Joslin, No. 03C01-9510-CR-

00299, Knox County (Tenn. Crim. App. filed September 22, 1997, at Knoxville)(“We

agree that the lack of a criminal history may be considered as a mitigating factor . . . .

Given the Defendant’s prior misdemeanor convictions, however, we do not find this

mitigating factor to be applicable in his case.”)(citations omitted). Moreover, in light of

the fact the trial judge properly applied and placed great emphasis on the enhancement

factor that the defendant has a “significant” history of criminal behavior, it would have

been inappropriate to also apply the defendant’s “insignificant prior criminal record” as

a mitigation factor. State v. Robert L. O’Neal, No. 01C01-9610-CC-00438, Marshall

County (Tenn. Crim. App. filed December 20, 1997, at Nashville). This issue is without

merit.



              Next, the defendant argues that “based upon the mitigating factors present

and the lack of enhancement factors, he was entitled to the presumptive minimum

sentence of 8 years” for his vehicular homicide conviction. The defendant does not

specify which “mitigating factors” he believes are present, so we assume he is referring

to the “insignificant prior criminal record” he argued was applicable in his first issue. As

we have determined, this mitigation factor is not applicable in this case. Moreover, the

trial court properly applied enhancement factor T.C.A. § 40-35-114(1), that the defendant

has a history of criminal behavior, and the court was within its discretion to give this

enhancement factor great weight. State v. Shelton, 854 S.W.2d 116, 123 (Tenn. Crim.

App. 1992)(stating that the weight to be given each factor is left to the trial court’s

discretion). An eleven year sentence for vehicular homicide was appropriate under the

circumstances of this case.




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             Finally, the defendant argues that “if this Court reduces the defendant’s

sentence to the presumptive minimum sentence of 8 years, the defendant would be

eligible for probation or split confinement pursuant to Tenn. Code Ann. § 40-35-307.”

Even assuming this was true, the defendant’s argument is moot because we affirm the

imposed sentence of eleven years on the vehicular homicide conviction. See T.C.A. §

40-35-303(a)(a defendant is eligible for probation only if his or her actual sentence is

eight years or less). The defendant’s sentences on his vehicular assault convictions are

also affirmed.



                                                _______________________________
                                                JOHN H. PEAY, Judge


CONCUR:



______________________________
JOSEPH M. TIPTON, Judge



______________________________
NORMA McGEE OGLE, Judge




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